Human Rights Analysis
Nurturing hope and lending a hand to the refugees
Dr. Naim Ahmed
International refugee law mainly comprises international instruments that define basic standards for the treatment of refugees which was developed to protect human beings in situations of persecution and in armed conflicts.
The 1951 Convention Relating to the Status of Refugees is the most important document of refugee law. It contains a general definition of the term refugee. The principle of non-refoulement is recognised, which means that no person may be returned to a territory where he may be exposed to persecution. The Convention also sets the minimum standard of treatment of refugees and provides guidelines to determine their juridical status and welfare. It contains provisions regarding the issues of identity and travel documents, naturalisation and other administrative matters. The Convention requires States to co-operate with UNHCR in the exercise of its functions and to facilitate the task of supervising the application of the Convention.
Presently, 146 countries are party to the Convention and/or Protocol. There are some other international instruments. Such as the Convention Relating to the Status of Stateless Persons (1954), the Convention on the Reduction of Statelessness (1961), the Fourth Geneva Convention Relating to the Protection of Civilian Persons in Time of War (1949) and the United Nations Declaration on Territorial Asylum (196).
The status and role of international refugee law
International instruments such as the 1951 Convention is binding upon the signatory States. Declarations or resolutions such as the Cartagena Declaration express international consensus and are not legally binding. Furthermore, it is the inherent nature of international law that there is no international police force to enforce it.
To be a member of the international community, every state needs to establish a relationship with others. An inevitable result is that States do abide by certain rules, norms and practices. Even when they are not party to the Convention, they follow some internationally accepted and recognised standards which is often termed as the customary international law.
Some countries of the world now define the term 'refugee' in the same way it is defined in the Convention, although they are not parties to the Convention. Many State parties to the Convention use an even broader definition of refugees when they deal with practical problems.
Bangladesh, for example, is at present offering shelter to around 21 thousand refugees from Myanmar. They are not being pushed back and the principle of non-refoulement is honoured even though Bangladesh is not a party to the Convention. Similarly, during 1971, millions of Bangladeshi refugees crossed the border into India. They were offered assistance, provided with shelter and were treated as refugees although India is not a party to the Convention. When confronting practical situations, the standards of international refugee law are applied by all States. This demonstrates the force and success in international refugee law.
The 'General Human Rights Standards' set by the international human rights instruments are important
*To define issues and notions not covered by the Refugee law
*To understand notions covered but not explicitly defined by refugee law
*To activate implementation machineries which are not available under refugee law
*In situations where the Refugee Convention is not applicable.
Who gets the legal protection?
Each year, a huge number of people leave their homes and cross borders for various reasons. Some of them are migrants - some are asylum seekers and refugees.
Migrants move from one country to another out of their free will. They are not persecuted in their own country. They do not loose the protection of the state of origin. Asylum seekers and Refugees do not leave the country of origin out of their free will. They loose protection of law in their own countries. Thus economic migrants are not Refugees. They are not entitled to the same treatment to which refugees are entitled.
The Universal Declaration of Human Rights states in Article 14 “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” Granting of asylum is an act of State sovereignty and cannot give rise to legal objections by another State. Granting of asylum is considered a peaceful and humanitarian act under the international refugee law.
The cornerstone of international protection is that an asylum seeker shall not be rejected at the frontier. He/she shall not be forcibly returned to his/her country. Not to be forcibly returned, non-refoulment, is a basic human right.
When people flee their own country and seek sanctuary in a second state, they apply for 'asylum' - or the right to be recognized as bona fide refugees and the legal protection and material assistance that status implies.
A person is treated as an asylum seeker when his application for refugee status is under consideration. In many cases, persons are treated as asylum seekers who have not yet submitted their application. When all criterion of the definition of refugees under international law are fulfilled, he/she will be recognized as a refugee.
A refugee is a person who has no home and who is being persecuted in some manner. A legal definition however must be more precise. Under the Convention Relating to the Status of Refugees, 1951, a person claiming refugee status must have: well founded fear of being persecuted, for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
A person is not a refugee who has committed a crime against peace, a war crime, or a crime against humanity; a serious, common law crime prior to admission to the country of asylum; or an act contrary to the purpose and principles of the United Nations.
The word 'persecution' is understood in the context of international human rights law. Thus for example, violation of right to life, liberty and security of person, freedom from torture, or cruel, inhuman or degrading treatment or punishment, freedom from slavery or servitude, recognition as a person before the law, freedom of thought, conscience or religion, freedom from arbitrary arrest and detention, freedom from arbitrary interference in privacy, home and family.
Stateless persons and IDPs
Apart from the refugees, there is a significant number of people in the world who are 'stateless'. The standard Pakistanis, known as the Beharies, are generally regarded as stateless persons.
Internally displaced persons (IDPs) are caught in situations similar to refugees, but who have stayed in their own countries rather than cross an international frontier into a neighbouring state. Because they, in effect, 'fall between the cracks' of current humanitarian law and assistance, a widespread debate has been underway on how best to help all IDPs and who should be responsible for their well-being.
Practical protection under international refugee laws
In normal circumstances, it is the State's responsibility to protect its citizens. In the case of a refugee, this bond is broken. A refugee is an alien within the community in which he seeks refuge. To solve this problem, attempts have been made by the international community by adopting various legal instruments.
Protecting individual refugees
The High Commissioner is entrusted under the Statute of UNHCR (1950) with the task of ensuring that individual refugees are treated in accordance with certain minimum standards.
In the Convention, Article 35 confers upon the High Commissioner the duty of supervising the application of the provisions of the Convention. These tests include: (i) Seeking to prevent 'refoulement'; (ii) assisting in the processing of asylum applications and (ii) providing legal aid.
In many countries, for example, UNHCR co-operate with the national authorities in procedures that concern the determination of refugee status. In order to comply with the international standards, the State has to ensure many things. Do the refuges have access to a determination procedure? Is the interview conducted by a qualified official? Is there access to civil, political and economic rights? Are there restrictions on freedom of movements? The refugees are benefited when these established standards are followed.
Promoting arrangements for the physical safety of refugees
In some cases, physical protection of the refugees becomes a very important issue when they are already in the host country or outside their country of origin. This may include:
Distress at sea such as Indo-Chinese boat people or the Cuban refugees who were attacked by pirates and are in the midst of natural dangers, military or armed attacks on refugee camps and settlements, forced recruitment, etc.
Promoting and assisting voluntary repatriation
Voluntary repatriation is the most desirable solution. This include -
*Repatriation of individual refugees.
*Large-scale voluntary repatriation. The role of UNHCR is vital and in the recent years, it has taken the following steps to facilitate such repatriation
*Establishing a dialogue between the main parties to the problem
*Providing the refugees with full information
*Ensuring that the return is voluntary
*Making arrangements to monitor the movements
*Facilitating the return
*Monitoring the situation after the return has taken place
*Assisting towards re-integration.
Helping refugees to re-settle in a third country
Sometimes voluntary repatriation or settlement in the host country is not possible. In such cases, resettlement in a third country may offer an alternative durable solution. In includes -
*Resettlement linked to legal or physical protection. When a refugee is under threat by the authorities of his home country, a secure place and repaid transport may mean the difference between life and death.
*Resettlement as a form of humanitarian protection. This applies to women at risk, victims of torture, physically or mentally disabled persons, medical cases requiring special treatment etc.
*Reunion of families. This is basic human rights that support resettlement in a third country.
*Sharing the burden of the problem demonstrating international solidarity. Many of the countries of asylum are in the developing world. The presence of large number of refugees strains their limited resources. Resettlement in a third country thus helps tremendously.
Implementation of international refugee law standards in Bangladesh
Bangladesh is not yet a party to the Convention of 1951. It is difficult to focus on a single reason - probably there is a combination of arguments for non-accession.
Real and imaginary reasons for non-accession
There is a perception that the Convention is a European invention. It deals with political refugees and do not address many other situations. Some countries argue that problems relating to refugees can be better dealt with through bilateral means. In some cases, there is an apprehension of undue intervention by UN agencies. South Asian countries often argue that even states who have signed the Convention ignore it when it suits their interests. There is even a fear that accession may put strain on limited resources of the country. Some countries are alarmed that economic migrants will abuse the system and accession will not materially improve the protection already offered.
In favour of accession
Even without signing the Convention, States are obliged by the rules of customary international law. In fact, accession demonstrates a country's commitment to treating refugees in accordance with internationally recognised legal and humanitarian standards and enhances acceptability in the family of Nations. It also helps to avoid friction between States over refugee questions. Thus it relieves pressure exerted by powerful States. Accession to the Convention generally ensures better protection for the refugees. They get protection of international standards. Accession allows a set of national laws to be developed. The process becomes disciplined, informed and proficient. Even without the Convention, resources are routinely expended. Bangladesh could not violate the principle of non-refoulement when the refugees from Myanmar arrived. Accession to the Convention does not necessarily result in an increase of the number of refugees.
The best protection for the refugees is our care and sympathy for fellow human beings. International media coverage is often vital to protect a group of refugees since it triggers public opinion that compels their governments to act. In a Global Village, we are all neighbours and must act when a neighbour is in problem.
More and more, it is becoming difficult for States to forget refugees and to ignore them. As individuals, wherever we are and in whatever capacity we can, we should contribute in the process of making it even more difficult for them.
(This is an abridged version of a paper presented at a seminar organised by the Rainbow Film Society and UNHCR in Dhaka on 20 June 2006).
The write is an Advocate of the Supreme Court of Bangladesh.