Application of refugee rights regime

By Gopal Krishna Siwakoti

Rationale: South Asia is gradually evolving as a refugee melting pot where protection of refugees is one of the major contentious issues. None of the states in the region are the party to the global refugee rights regime and unfortunately not a single state among SAARC has enacted national refugee law. South Asian practices towards refugees and asylum seekers of various types have, on the whole, been generous and accommodating despite the absence of a legal framework dealing with refugees. Nevertheless its absence results in arbitrary, ad hoc and discretionary decision-making which undermines fair and unilateral refugee protection. A legal structure is necessary to effectively deal with a complicated refugee problem. Refugees, asylum seekers and illegal migrants are no longer hidden from the public eye tucked away inside refugee camps.

The international community is continuing to mount pressure on the South
Asian states to enact new laws or amend their existing laws to fulfil their obligations under the UN Conventions. The adoption of national laws for refugees will not only help establish transparency, fairness and a humane treatment of refugees, as a matter of fact, through these laws the states of South Asia will give a formal expression to existing practices and responses to the refugees. Having a national law would not only ensure the protection of refugees and uphold obligations enjoined by the Constitutions of most of the countries it will also enable the states to discharge their international treaty obligations. Ultimately, both the states and the asylum seekers will derive benefits from such laws. It is highly recommended that the states should ratify the 1951 UN Convention on the Status of Refugees and its 1967 Protocol.

Applicability of the convention: Undoubtedly, the global refugee regime is under serious threat. The United Nations Convention on the Status of Refugees 1951 is the commanding instrument to govern refugee situation worldwide. There is a lack of an enforcement mechanism for refugee rights to be a serious shortcoming of the convention. The lack of any meaningful international observation of the procedural dimensions of refugee protection has resulted in a wide range of protection practice and interpretations of the convention definition.

There exists potential for abuse of the exemption from the norm of non-return under Article 33(2) for refugees deemed dangerous, and the practice of some states to regard Article 33 as pertinent only to refugees physically present in the territory of the contracting state. The literal interpretation of Article 33 as prohibiting only the return of refugees to persecution, rather than as also proscribing proactive policies designed by states to prevent refugees from even reaching their territories, is inconsistent with the basic protection goals of refugee law.

An important factor precipitating criticism of the convention, according to
"Refugee Rights : Report on a Comparative Survey" compiled by James C Hathaway and John A Dent-1995, is the changing nature of the refugee phenomenon since the enactment of the convention in 1951. For example, the European refugees for whom the convention was drafted were considered to be primarily in need of legal protection, rather than material assistance. The convention’s focus on individual rights does not translate easily into the actual protection of large numbers of refugees, whose basic needs include food, shelter, clean water, sanitation, group rights, and protection from cruel, inhuman, and degrading treatment.

Assumptions built into the convention rights regime about the prosperity of countries of asylum, and the kinds of rights typically enjoyed within them, are therefore no longer valid. The convention rights regime as a whole is too expensive for a poor country with employment rights and welfare rights singled out as the most costly. The difficulty of a less developed state providing for the economic needs of a large refugee population when the needs of its own citizens are not met. Other convention rights argued to be in conflict with the interests of poor states that are host to large numbers of refugees include property rights and the right to freedom of movement. Property rights may also bring refugees into conflict with local populations anxious to access scarce resources, such as land. It has not been unusual for countries of asylum to respond to these security concerns by confining refugees in camps.

Future of refugee rights regime: The thriving of international human rights law since the drafting of the Refugee Convention, so that two overlapping yet distinct rights regimes now coexist, raises important questions concerning the relation between refugee rights and human rights, and the future role of a refugee-specific rights regime. A reasonable point of departure in the examination of the relation between international human rights and refugee rights, according to the "Refugee Rights: Report on a Comparative Survey", is a review of the purpose and historical context of the 1951 Refugee Convention. Prior to the development of international human rights law in the post-World War II period, traditional international law was exclusively a "law of nation" rather than a "law of people." The alien herself, in most cases, had no individual rights that were enforceable against the host state. The position of the refugee was thus particularly precarious as, lacking a state of nationality to champion her case, she was utterly without protection. Due to their inability to obtain protection from their country of origin and their consequent involuntary separation from that state, refugees were identified as individuals in need of special protection. It is a well-tested fact that in addressing the dilemma of the refugee through the establishment of a particularised rights regime, the approach embodied in the Convention relating to the Status of Refugees can legitimately be considered progressive in international law. Over the next twenty-five years, pending the entry into force of binding human rights covenants, the guarantees of the Refugee Convention were among the very few international norms upon which refugees could depend.

It would appear that the participants at the drafting conference did not
intend the convention to be limited to situation specific rights required by the precarious nature of refugee hood, on the assumption that all other rights would be protected by general human rights law. Otherwise, the Refugee Convention would not address subjects already recognised as legitimate aspects of general human rights protection, such as rights to employment, social assistance, education, and freedom of movement. Yet neither did its drafters intend the convention to be an exhaustive elaboration of refugee rights independent of general human rights law, as they surely would have included such critical human rights as the right to life, liberty, and security.

Given the enigmatic relationship between the 1951 Refugee Convention and contemporary human rights law, what should be done to clarify and to consolidate the rights to which refugees are entitled? In appraising the utility of a refugee-specific rights regime in an era of widely applicable international human rights, one might consider three factors: first, whether the existence of a refugee-specific system enhances the enforceability of generally guaranteed rights; second, whether the refugee rights regime breaks new substantive ground as compared with general human rights law, resulting in a more comprehensive enumeration of rights; and third, whether the refugee-specific regime aids in the clarification or reinforcement of generally accepted rights so as more effectively to coincide with the real needs of refugees.

Conclusion: Indeed, the conclusion seems inescapable that reform of the refugee rights regime must occur within the context of a more general reassessment of strategy for international refugee protection. A catalogue of human rights framed to facilitate the permanent re-establishment of European refugees within other Western societies cannot be expected to respond adequately to contemporary realities. The time is right to define clearly the place of refugee law within the range of international responses to contemporary forms of human rights abuse in a way that is both principled and politically sustainable. The human rights guarantees afford refugees, therefore, ought not to exist in the abstract, but should rather support and sustain a more functional and enduring system than that codified by the current Refugee Convention.

Psychological boost

By Purushottam Kattel

They are the people who hold the chair. In their daily wake of life they shout about the welfare of mentally retarded and physically vulnerable people only because they are associated with the organisation which looks after the mentally retarded children or any other organisation working over vulnerable people of society.

The vulnerable people are psychologically more fragile than the common (normal) ones. Little do they want from the so-called physically sound persons. Are the normal clans fulfilling the actual requirements of those vulnerable people? Of course not, if analysed minutely.

Here is my real experience. From the surface level, the chairpersons are very smart. They really take care of the mentally retarded people. They seek to provide the children optimum entertainment. Every time you can feel their tenderness and generosity towards them. They frequently ask them about their lunch or dinner or anything related to their appetite.

You are most welcome in doing that. But words do the trick. Whether it is vocabulary shortage on their part or they intentionally utter I don’t know, but I know at least that their speeches pinch the Para-Olympics Champions.

Para-Olympics and Special-Olympics is the picnic or precisely recreation of the physically and psychologically weak people. Its main target is to supply a morale-boost power in the participants who are haunted by frequent errors of our social complacency. That is why, almost all the countries in the 21st Century follow the norms of International Par-Olympic Committee and International Special Olympic Committee.

Human mistakes can be forgiven but the representatives of the school should at least not repeat the errors. "Hey dumb (lato) (actually he was not dumb), they will give you handful of money if you win," said a teacher to a mentally retarded participant in recently concluded Special Olympics held at the National Police Training Centre. But the irony is that there was no cash prize in the programme plus if I am not wrong, the term ‘lato’ has a derogatory connotation.

Musical chair was another event, which hurt me when I saw the event in course of my reporting at Panauti. One lame girl insisted in front of her teacher that she would participate in the musical chair competition, although she was almost unable to compete due to her damaged leg. One smart teacher came to her and consoled in this manner: "Not this time dear, next time you will participate".... "All right dear, If you insist I will let you participate but that might cost your other leg." The same man told me that those sort of events give the vulnerable children the feeling that they are competent to accept any challenge posted by the normal world. If he would delve his words deeper, it would be clear to him that the meaning of his saying was just contradictory to what he intended. In this respect, the related body should go for special training for Special-Olympic, otherwise the carnival will prove a mess rather than being a psychological energizer.

Today’s debate on local governance

By Prem Raj Goutam

Emergency has been declared in the country and the government has mobilised the Royal Nepal Army. As a result, the six year long spell of violence by the Maoists is now entering a fading phase. Under constitutional provisions, fundamental rights and the freedom of expression have been suspended and the right of the people to move to the courts has been suspended as well. The immediate effect of this measure is that people across the country have experienced a refreshing relief.

The support from all walks of life for the emergency measures demonstrates the intensity of the desire of people at large to live in peace and harmony. The united voice of all political parties supporting the declaration of emergency also indicates the maturity of the political parties in the face of national issues. The press and media have equally demonstrated their accountability by restraining themselves and placing issues in their right perspectives.

Amidst this new mood in the country, several streams of debate on the issues of emergency are in the offing. I have picked up some of them to build my argument for the relevance and need of a viable and genuine local government system during and after the emergency.

As said at the out set, the general citizenry across the country is feeling assured and activities have started to pick up again. Small businesses and trading in the bazaars and small town in the districts are slowly picking up. The farmers are now fully engaged in harvesting their crop and their worries regarding the price of paddy are coming to the surface. Schools and educational establishments are busy conducting exams and tests before they close for the long winter vacation. The people are participating and observing, though with caution, traditional and family festivals and religious ceremonies with no threat from the Maoists. In the road side tea shops in the villages and at news stands in the small towns and bazaars, or at local joints where youths gather for gossip, brief references to events are made in a subdued way.

Selected professionals, political workers and intellectuals, while welcoming the refreshing respite from the emergency, have initiated the debate with the question whether the emergency was necessary at all. Their argument is that the Local Administration Act provides the administration adequate authority and instrument to which could be as effective as the emergency measures. This debate has brought out a subtle distinction in the methods and measures being undertaken by the military and police authorities during the emergency and the measures and methods available under the Local Administration Act. Given the complex and invasive nature of infiltration by the Maoists in a large part of the country, especially in the remote, rural areas of the mountains and hills, the application of the Local Administration Act may have its own limitation.

Other steam of the debate is with regard to the time and duration of the emergency. Under the constitution, the emergency can last at most for three months unless it is approved by a two thirds majority of the House of Representatives. Extension of the emergency can also only be made by a two thirds majority of the House of Representatives. But in no case can it last for more than one year. The concern over the duration of the emergency demonstrates the apprehension of the people lest the emergency be used by the government as a pretext to usurp power driving the country into the fold of authoritarian rule. The other apprehension of the political forces of the country is that by lengthening the duration of the emergency, the government may (mis)use this period for its own political advantage. The intense desire of all political parties converges on one point, the emergency should not last for more than the time required for the purpose for which it was initially promulgated. This debate restricts not only the time limit of the emergency but also its scope. The scope of emergency action must be limited to the purpose for which it was initiated.

Other stream of debate is directed at the deteriorating economic condition of the country. Trade and industry, which are affected by events within the country are also highly affected by the international events triggered by the September 11 attacks in the USA. The tourism and export sector is in distress. Agriculture is also show signs of decline though not wholly because of the prevailing events, but rather due to the weather. Industrialists have welcome the improved condition of peace and security in the country but are also worried by the wariness of investors and tourists coming to Nepal. Government spending has changes its priority. The emergency operation demands greater resources for arms and equipment. There is apprehension that the socio-economic development of the country will face a resource crunch because of the priority change.

Debate on another front reflects a psyche of resignation and surrender. In this debate the emergency is viewed as the best opportunity to solve social and economic problems prevalent in Nepalese society. It is a very natural phenomenon that when the civil mechanism of administration in democratic governance fails to deliver the goods and services and when the aspirations and expectations of society are openly violated by leaders under democratic institutions, the people switch over their hopes to surrogate rule. There is a general feeling in Nepalese society that strong government is anathema to a democratic system. It is assumed that democratic institutions being very open and having the involvement of diverse forces in the decision making process, cannot make quick and efficient decisions and consequently, lawlessness becomes the norm in democracy. In that situation a strong administration, which is symbolised by army rule, is allowed to take control of the situation for quick, efficient and effective delivery. The miracle of emergency is very alluring. Efficient, quick and smooth delivery of goods and services and security for the people are some of the most striking features of emergency administration. The people worn out and tired by violence do not hesitate to exchange their freedom and fundamental rights for the temporary respite offered by the state of emergency without realizing that stupid use of this measure may ultimately lead society into the ‘viscous circle of violence’.

Under this psyche the debate suggests that during this period, the government should undertake activities including the social and economic transformation of society. Can the period of emergency be used to bring about a miracle of transformation in Nepalese society such as could not take place during all the governments of the past 12 years, no matter of what hue they were. They failed to bring desired changes in the lives of the marginalised people in Nepalese society.

(To be concluded)