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Kathmandu Thursday December 27, 2001 Paush 12, 2058.
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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.
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