Refugee rights can be litigated in local, national, sub-regional, regional and international courts. Each has their own admissibility requirements, benefits and disadvantages, all of which could affect the outcome. It is important to determine, early on:
- What instruments has country X signed and ratified? Do they have reservations to parts of these treaties?
- Which forums exist that could accept the complaint (the Refugee Convention, despite nascent interest, has no complaints mechanism for hearing cases)?
- What are their specific admissibility requirements? This is composed of several elements:
- Admissibility Rationae Materiae: The alleged violation must relate to a right protected by that instrument. If this link is not sufficiently demonstrated claims may be dismissed as ‘insufficiently substantiated’ or ‘manifestly ill-founded.’
- Admissibility Rationae Loci: The alleged violation must have occurred on the territory or under the control of the country where the suit is being brought.
- Admissibility Rationae Temporis: The alleged violation must have taken place since the country adopted the treaty (signed and ratified).
- Admissibility Rationae Personae: The person(s) or organisation(s) bringing a case must be citizens of the accused state.
The “Admissibility Rationae Personae” requirement (above) relates to ‘locus standi’ – who can bring a claim or be the named defendant (i.e. individual litigants, organisations, the state or state departments). This consideration also applies to amicus curiae (interested party briefs) if these are allowed. There may also be time limits on admissibility. Cases may not be admitted beyond a certain period after the allegedly unlawful act took place.
What might exempt a claim from the body’s jurisdiction?
- Duplication of Procedures: Pay attention from the start to whether courts or commissions admit cases that have already been heard, or are being heard, before other international courts. When joining instruments that admit cases heard or underway elsewhere, many countries make a declaration stating that they do not recognise claims submitted simultaneously elsewhere.
- Issue Preclusion: Claims on issues previously dismissed by the supervisory body may be dismissed as ‘abusive’ complaints.
- What is the body’s track record on upholding refugee or migrant rights? Which is the most empathetic or impartial body?
- Whether decisions are binding and whether states comply with them?
- What opportunities are there to appeal?
- What is the most preferable outcome for the organisation and the refugees involved (e.g. generous reparations, a policy change, etc.)?
- Whether urgent ‘interim measures’ are required to stop irreparable harm, and which body can enforce these (e.g. injunction, restraining order, etc.)?
- If urgent interim measures are not sought, most regional or international courts will require you to exhaust all available domestic remedies first:
- Work out how you can do this most efficiently, keeping in mind your end result. Which national bodies will issue decisions the fastest?
- It may also be that domestic judicial remedies are ineffectual or take an unduly amount of time, providing grounds for exemption from the requirement to exhaust domestic remedies.
Consider where the court is located. Refugees may need to travel long distances to hearings, and may feel isolated from the process if the court is distant. Some courts may be able to host video connections in hearings, others may not. Travel and its associated costs may be steep, however many people find it important to ‘have their day in court,’ to feel justice is carried out.
Keeping a document on file that summarizes the above characteristics in relation to available fora is advised to easily reference and expedite the selection of the most appropriate and effective forum when cases arise. Attached is a template to assist in understanding available fora.
- Material for Download
- Template for Mapping Fora