Blog post by Psymhe Wadud, a lecturer in Law at the Bangladesh University of Professionals (BUP). She specialises in international and comparative law.
Voluntary repatriation forms part of the ‘holy trinity’ of refugee solutions (with resettlement and legal integration as the other two hypostases). However, if repatriation is understood to the exclusion of ‘voluntary’ and only in its literal sense (return to patria or homeland), then South Asian countries would basically seem to be Unitarians. The practice of States over the years in this region shows that repatriation (albeit in the non-legal, literal sense of the term) is seen as the only solution for refugees as opposed to one among three.
Refugees who flee from their respective countries of origin are temporarily sheltered by States in South Asia. This transient generosity may be primarily interpreted as the States’ compliance with the binding customary obligation of non-refoulement. However, in the absence of obligations owed particularly to refugees due to the States’ historical reticence towards signing the 1951 Refugee Convention, the identity of refugees as individuals with special needs, gets diluted. Upon arrival, the refugees get treated as mere individuals from foreign countries while their status as refugees finds itself in oblivion. Ethnic or religious identity of refugees at times helps them get sympathy from the host country, however, within a short span of time, the States hastily start contemplating ways of returning the individuals to the countries from which they came.
The thin veneer of the scheme of return designed by States in this region at face value looks human rightist, facilitating return of individuals to own countries – in sync with obligations that the States have as parties to the major human rights instruments. However, a closer look into the scheme makes it clear that the return that the States facilitate for the refugees, is commensurate to neither return to own country under human rights discourse nor voluntary repatriation as a durable solution under the refugee law narrative.
In pursuit of lenses to look into the curious scheme of return as such, this piece first endeavors to touch the point of divergence between a libertarian human rightist ‘return to own country’ and a refugee law durable solution of ‘voluntary repatriation’ and then goes on to contextualize three refugee crises from within the region, keeping that divergence in the background. The fact that the States in this region are not subscribers to the international refugee protection scheme technically helps the States further their statist discretion in terms of making repatriation decisions as opposed to that of the refugees at stake.
Libertarian right to return to own country vs durable solution of voluntary repatriation
The refugee law narrative of voluntary repatriation is derivative from the 1951 Refugee Convention. Alongside that, a number of United Nations General Assembly resolutions and Executive Committee Conclusions lay the bases for voluntary repatriation under refugee law. The right to return to own country, on the other hand, finds its origin in human rights instruments, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of all Forms of Racial Discrimination. The two streams (namely, refugee law and human rights law) share a good deal of similarities inasmuch as they consequentially imply similar things (return to own country). Yet interestingly, a closer analysis reveals some inherent intricate differences.
Jurisprudentially, in the right to return to own country, ‘the scope of ‘own country’ is broader than that of ‘country of nationality,’ and the right remains unaffected even in the absence, denial or stripping of nationality in an individual’s own country. Only a few exceptional circumstances may permit derogation – one such grounds may be ‘officially proclaimed public emergency threatening the life of the nation.’ The permissible limitations of the right (like those of any other human rights) imply that it is collective security as opposed to the returnee’s safety against which the right is to be weighed. In other words, the permissible limitations are the embodiment of public good, and not of the aspiring returnee’s individual interests. Situations persisting in own country rendering it unsafe for an individual aspiring returnee do not limit the right. If one’s subjective choice of exercising the right to return derives from free will and voluntariness, the objective situation bearing on the individual’s safety does not limit the right or allow derogation.
However, bringing the paradigmatic obligation of States of non-refoulement in the present context may at face value seem to be adding a new dimension to the discussion. The obligation of non-refoulement protects an individual from return to a State where there are substantial grounds for believing that he/she would be subjected to torture upon return. A harmonious interpretation of right to return and non-refoulement therefore naturally entails assessment of objective circumstances persisting in returnee’s own country and having bearing on his/her safety. However, it is the element of force or compulsion inherent in the notion of refoulement that necessitates such objective assessment. The obligation is on the States not to return individuals to risks of torture and there is nothing to bar an individual from choosing to waive protection from torture. Torturous circumstances persisting in a returnee’s own country cannot play a role in cases of his/her voluntary renunciation of protection from torture. Within the wider spectrum of libertarian theories of human rights, voluntary exercise of the right to return as well as right against torture (by waiving or renouncing the right not to be tortured), is protected and cannot be interfered with.
The genus of the human right to return to own country is liberty of movement and at the heart of liberty, lies the concept of autonomy and voluntariness. Under the predominantly individualistic libertarian human rights narrative therefore, the test is the individual’s subjective voluntary choice, not requiring an objective basis to render the return safe.
Voluntary repatriation as the most preferred and durable solution for particularly refugees, on the other hand, begs a bipartite approach: like well-founded fear of persecution, subjective voluntariness needs to have an objective basis entailing safety in return for the refugee. A mere subjective ‘voluntary’ has the potential of enabling return to go to an extent where the return can have adverse consequences. A subjective ‘voluntary’ reciprocates to the subjective fear only, and therefore, it cannot lead to a durable solution for the refugees so as to mark the diminishing effects of both subjective and objective elements of the fear of persecution. Therefore, subjective willingness requires verification even though it primarily negatives subjective fear. Enabling the refugees to judge the condition in the countries of origin through visits is seen particularly useful in this regard. The fact that the UNHCR Executive Committee emphasizes the arrangements necessary to establish voluntariness in return, further substantiates the point that despite continuing instability in the country of origin, facilitation or promotion of repatriation is not envisaged by refugee law.
Objectively assessed situations vis-à-vis rights of the individuals in own country, does not theoretically impact the human right of an individual to return. However, for voluntary repatriation as a durable solution to take place, the situation in the country of origin vis-à-vis the rights of the refugees, needs to be objectively assessed. Repatriation oblivious to the political and legal underpinnings of the crisis and unmindful of the needs and rights of the refugees (for instance, citizenship, and other civil and political rights) can imply anything but a durable solution.
Three major refugee crises of South Asia: Contextualizing repatriation
In Bangladesh during 1992, in order to make the Rohingya refugees comply with ‘decisions of repatriation,’ women were subjected to rape and torture. Methods of coercion also included withholding of health services, reduction in basic necessities, ‘forced relocation within refugee camps to poorer housing, beatings, and, most commonly, threats of and actual jail sentences.’ The objectives underlying the acts of abuse exacted by camp officials in Bangladesh were to intimidate ‘the refugees who refused to return to the risk of persecution’ in Myanmar and to torture them into compliance. Even though the Rohingya refugees were initially received with sympathy on account of their religious identity similar to the majority of Bangladesh, they were only perceived as a temporary crisis and down the line, they were forcefully repatriated to Myanmar amid continued coercion.
Almost by the same token, in 1992, in order to get the Tamil refugees from Sri Lanka repatriated, India pressurized the refugees into signing consent forms to make the repatriation look consensual on paper. Although the armed conflict between state-led Sri Lankan army and the rebel group, Liberation Tigers of Tamil Eelam (LTTE) was nowhere near to getting assuaged, Tamil refugees, who were insufficiently aware to make informed decisions, were repatriated, despite the persistence of security risks, to Northern Sri Lanka.
Facilitation of the so-called ‘voluntary’ repatriation of the Chakma refugees to Bangladesh from India in 1997 happened in a slightly different way. With threats of eviction and human rights abuse, including withholding of medical assistance, an environment was created that rendered protection for the Chakma refugees untenable in India. Thus, the refugees were indirectly persuaded to choose to return to Bangladesh. The entire repatriation process was facilitated keeping aside the political demands of the refugees which, among others, initiated and exacerbated the crisis. The repatriation efforts were made by both the respective countries despite the objective evidence of violence in the hills in Bangladesh against the indigenous people, including the Chakmas.
In the context of all three of these refugee crises, the respective Governments publicized the subjective choice of the refugees to return and disregarded the objective situations persisting in the destinations. The States attempted to show that the refugees in question in fact subjectively chose or consented to exercise the right to return to their own countries.
Had the subjective choice been voluntarily made, the returns could have been implied as human rightist. However, subjective choices were engineered by States through abuse and maltreatment in all three cases, in effect making the choices of return non-voluntary and coerced. Normatively, the acts of return failed the test of human rights. The fact that the subjective choices were coerced and the objective situations were undermined, imply that the returns were not tantamount to voluntary repatriation either.
The argument that States which mostly implement temporary protection schemes, take resort to forced repatriation, befits the South Asian countries. With functioning laws in place, the scope of substituting the discretion of the refugees (with regard to return) with that of the States could be quite limited. However, in absence of a binding refugee protection scheme, almost invariably, the discretion of the States gets prevalence over that of the refugees. Since repatriation serves the interest of sovereign prerogatives, repatriation in South Asia rarely finishes the cycle of refugeehood, rather merely marks the beginning of an entirely new cycle of displacement.
 Katy Long, The Point of No Return: Refugees, Rights, and Repatriation (OUP 2013) 8.
 Guy S Goodwin-Gill, The Refugee in International Law (OUP 1998) 275.
 Ibid 272.
 James Hathaway, The Rights of Refugees under International Law (CUP 2005) 454.
 Refugees International, ‘Lack of Protection Plagues Burma’s Rohingya Refugees in Bangladesh’ (30 May 2003).
 Hathaway (n 4).
 Hathaway (n 4) 317.
 BS Chimni, International Academy of Comparative Law National Report for India (1994) 27.
 Joan Fitzpatrick, ‘Temporary Protection of Refugees: Elements of Formalized Regime’ (2000) 94 American Journal of International Law 291.
 BS Chimni, ‘Improving the Human Condition of Refugees in Asia: the Way Forward’ in VS Mani (ed), Oxford Handbook of International Humanitarian Law in South Asia (OUP 2007) 150.
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