Human Rights advocacy
Do the refugees have any remedy under our laws?
Shafiqur Rahman Khan
INTERNATIONAL human rights law, as mentioned in the Preamble to the UDHR, aims to ensure the equality of all people that should live with all dignity and worth inherent in all human beings without any discrimination whatsoever. The primary subjects of international law being the States, they carry the responsibility to ensure that all persons within their sovereign territory and under their jurisdiction do fully enjoy the rights guaranteed under international law and which the respective State has undertaken to respect, protect and fulfil. With regard to the obligation to protect, the State, in addition to putting in place appropriate policies and legislative measures, is specifically obligated to ensure that every person in its territory enjoys the right to an effective remedy when his or her rights have been violated. This writing sought to look into how or whether this right to an effective remedy is realised by refugees both in domestic law and in international law generally.
The right to an effective remedy in international law
The meaning of the right to an effective remedy as interpreted by various international and regional bodies, namely: the HRC, the CESCR, the European Court of Human Rights and the African Commission on Human and Peoples' Rights. Going by the way these bodies have interpreted this right, one can deduce that the right to an effective remedy implies one; procedural remedies or the means by which a victim of a human rights violation may obtain substantive redress and these should be competent, independent and impartial tribunals, not necessarily judicial which abide by the procedural guarantees as set out under human rights law. Such institutions for obtaining remedies should be both available and accessible. Secondly, it implies that the remedy obtained by the victim should sufficiently redress the violation that has occurred and as such the nature of the remedy may take various forms ranging from reparation, compensation, investigations and prosecution of individual offenders to amending offending laws. The actual realisation of the right, moreover, occurs when the particular remedy is enforced.
The right to an effective remedy under refugee law
A refugee, fleeing persecution from his or her country as defined under international law, or civil war or armed conflict, as recognised under the African refugee protection regime, becomes “an object of international concern under refugee law, where the circumstances are such that he or she has lost or been deprived of protection under law in his or her country of origin, and is in need of another source of protection”. Owing to the principle of State sovereignty, it does not automatically follow that a refugee will obtain protection of another State. In fact international law generally does not explicitly recognise the right to obtain asylum, but it recognises the principle of non-refoulement, which shall be expounded upon shortly. There is thus a gap from when a refugee flees his or her country to when he or she is formally accepted or granted asylum in another State. In order to fill in this gap, the international community created the Office of the United Nations High Commissioner for Refugees (UNHCR) with a specific mandate to “provide international protection to refugees and to seek permanent solutions to the problem of refugees by assisting, primarily, Governments to facilitate the voluntary repatriation of refugees, or their assimilation in new national communities”.
Nevertheless, the CSR (Convention Relating to the Status of Refugees) does provide for the rights of refugees in the asylum country, among which is free access to courts. However, it goes no further than this, leaving the details into the hands of each individual and sovereign State.
The refugee and the right to an effective remedy in practice: Bangladesh situation
Following the persecution generated by the Myanmar military authority, hundreds and thousands of Rohingya refugees took refuge in Bangladesh since 19901-92. About 258,000 Rohingyas were registered by the Government of Bangladesh and still thousands of them are arriving.
The right to an effective remedy, generally speaking, is well catered for under the Constitution and laws of Bangladesh (Article 31, 32& 35 of Bangladesh Constitution). Going by the constitutional provisions, any person, refugees included, wishing to vindicate their rights has access to competent, independent and impartial institutions that will hear his or her case and where, a violation is established, then provide an appropriate remedy. Thus far, the Government of Bangladesh is very much in compliance with its obligation to ensure the right to an effective remedy to all persons within in its territory and under its jurisdiction, without discrimination, as provided under international human rights law.
When it comes to the practical implementation of these human rights and constitutional guarantees, then the right appears to be rather illusory particularly for refugees in settlements. The law provides for their free access to courts, but at the same time it greatly restricts their movement. This is worsened by the practice and other factors, as seen above, which in effect negates refugees' access to courts and any other institutions which would vindicate their rights. Moreover, these institutions do not go 'knocking at peoples' doors' looking for violations; it is the people who have to go to them.
It is therefore humbly submitted that while the right of refugees to an effective remedy is adequately provided for under both international law and in domestic law (that is, in Bangladesh), it is not that easily realised by a refugee, especially the kind of refugee that we have looked at. While international law and its protection or monitoring mechanisms aim to ensure that this right is available to all, they can only, in most cases, go as far as making declarations that a State has violated its obligations and that it should provide a remedy. The plight of a refugee would therefore be better redressed in a domestic setting, if the system is in fact functioning as envisaged under international human rights law, but even where it is not, the practice in international law is that the ultimate solution and enforcement of any right will depend on the good faith of the State in carrying out its human rights obligations.
Broadening the concept of refugee protection
Moreover, the States do avoid the responsibility of ensuring that refugees are accorded an effective remedy by their State of origin or nationality by neglecting to make such a provision under refugee law instruments. Taking this approach would better ensure that refugees do obtain an effective remedy for the violations they may have suffered that occasioned their flight. What then would be the effective remedy in such instances with regard to the remedies proffered under human rights law? There are a few suggestions that could be considered:
a) Compensation or Restitution: under the Principles Concerning Treatment of Refugees, it is provided that a refugee “shall have the right to receive compensation from the State or country which he left or to which he was unable to return”. This compensation would in fact seek to redress all the losses and violations an individual may have suffered.
b) Truth and Reconciliation: one of the ways of redressing gross human rights violations is through truth and reconciliation commissions. However, this approach taken on its own could leave many victims without full remedies and perpetrators without complete sanction, which might defeat the purpose of justice.
c) Accountability/Prosecution: as we saw earlier, human rights bodies emphasise the importance of investigating and prosecuting human rights violators as one of the effective remedies. Systematic creators of refugee problems should be made responsible to the international community by establishing proper forum.
There are other remedies provided under the Basic Principles, which include satisfaction, guarantees of non-repetition, rehabilitation and which could also be accorded to refugees. The basic proposition here is that the international community should adopt a two-pronged approach to the refugee problem: one which seeks to provide an alternative and temporary solution, and the other which aims at providing redress or remedies for human rights violations suffered by the refugees.
To wrap up, States should take their international obligations seriously instead of saying one thing on paper and doing the other in practice. Bangladesh has been hosting refugees for a long time but it is not a State party to the UN Convention Relating to the Status of Refugees 1951 or it's Protocol. No domestic legal framework is available to deal with the issues of asylum and refugees. It is against this backdrop, Bangladesh should take necessary steps for accession to the UN Convention. This could perhaps help remove that feeling of 'nothingness' that a refugee experiences and restore his or her dignity and worth as a human being, which is one of the objectives and principles of human rights law.
Shafiqur Rahman Khan is Assistant Professor and Chairman, Department of Law, BGC Trust University, Chittagong, Bangladesh.