29
understood by the Commission as a means to ensure the most basic human rights, such as the rights to
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life, liberty, and personal integrity.
131.
The specific terms of instruments on the protection of refugees are supplemented and, in
certain respects, broadened by international human rights law. Thus, in the inter-American framework, the
American Convention has served to strengthen the protection offered by international refugee law. As the
IACHR has held, “Pursuant to this network of protections, States are obliged to refrain from taking
measures contrary to the principle of asylum, such as returning or expelling asylum seekers or refugees
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contrary to international human rights, humanitarian and refugee law.”
3.
General considerations on the right to seek and be granted asylum, the principle of
non-return, the right to a fair trial, and the right to judicial protection
132.
In cases concerning the determination of refugee status and the expulsion or deportation
of a refugee or someone seeking the recognition of refugee status, the analysis of compliance of the
state's obligations under the American Convention entails a combined assessment of the rights
recognized by articles 8, 22(7), 22(8), and 25 of that instrument. In circumstances such as in the instant
case, these three articles of the American Convention are interrelated from two perspectives.
133.
On one hand, as is explained in the section on fair trial guarantees in the area of
immigration, according to the consistent case-law of the organs of the inter-American system, fair trial
guarantees are not limited to judicial remedies, but apply to all procedural instances, including
immigration proceedings, which can end in the expulsion or deportation of a person, as well as
proceedings for the determination of refugee status and any proceeding that might culminate with an
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individual's expulsion or deportation. From this perspective, the object and purpose of the protections
recognized in articles 22(7) and 22(8) of the American Convention, introduce certain specific aspects in
satisfying the right to fair trial guarantees in the framework of proceedings to do with the scope of these
provisions.
134.
On the other hand, it is up to states to make determinations regarding the rights
recognized in articles 22(7) and 22(8) of the American Convention through the procedures and authorities
established internally for those ends. And In that sense, these provisions include not only substantive, but
also procedural, obligations, in order to ensure the effectiveness of such procedures and authorities in
satisfying the ultimate purpose of these provisions; that is, the protection of these individuals from
dangers to their life, integrity, or liberty in other countries. Consequently, determinations on asylum claims
and on the admissibility of grounds for invoking the principle of non-return must meet the applicable basic
guarantees contained in article 8 of the Convention in the below-described terms.
135.
Indeed, based on these interconnections, following, the Commission summarizes the
specific due process standards for upholding the right to seek and be granted asylum, as well as the principle
of non-return.
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IACHR, Report on the Situation of Human Rights of Asylum Seekers within the Canadian Refugee Determination
System. OEA/Ser.L/V/II.106. Doc. 40. Rev. 1. February 28, 2000. par. 32.
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IACHR, Report on the Situation of Human Rights of Asylum Seekers within the Canadian Refugee Determination
System. OEA/Ser.L/V/II.106. Doc. 40. Rev. 1. February 28, 2000. par. 26. See generally, UN General Assembly Resolution 52/103,
12 December 1997, "Office of the UN High Commissioner for Refugees," para. 5.
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Further to what is mentioned above in the sphere of the inter-American system, the African Commission on Human
and People's Rights has also consistently held that fair trial guarantees must be applied in the framework of proceedings on
expulsion of immigrants and refugees. For more information see, inter alia, African Commission on Human and Peoples' Rights:
Communication 313/05 – Kenneth Good v. Republic of Botswana, 47th ordinary session, 12-26 May 2010, paras. 160-180; and
Communications 27/89, 46/91, 49/91, 99/93 - Organisation Mondiale Contre La Torture and Association Internationale des juristes
Democrates, Commission Internationale des Juristes (C.I.J), Union Interafricaine des Droits de l'Homme v. Rwanda, 20th ordinary
session, October 1996, p. 4.