DR. Nafees Ahmad, Assistant Professor, South Asian University-New Delhi
Human beings have migrated since the earliest societies. The first migrants were tribal people in search of food, water and resources. They were not yet refugees or asylum seekers; they were mere gatherers or hunters who began exploring new lands to settle. The land, provided for much of their basic needs and soon, “territory became associated with property1.” Conflicts emerged in order to gain or protect one’s territory, just like governments were created to organize and defend this very territory. In those early years, governments instituted laws and policies for security reasons in order to guard their natural resources. Not much has changed since then. The migration regulations that exist today were also introduced to enforce security throughout countries, as well as to fight terrorism or illegal traffic of people, drugs or weapons. The first refugees abandoned their homes due to religious persecution or conflicts that emerged in their societies. But the highest number of refugees ever recorded, was produced during and after the two world wars. This led to the necessity of creating a structure that could help these people. In the 1950s, the United Nations High Commissioner for Refugees (UNHCR) was created, replacing the previous refugee agencies that existed under the League of Nations. Its mandate was to provide refugees with international protection, as well as to seek “permanent solutions for the problem of refugees by assisting governments and private organizations to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities2.”
Human mobility, movement and migration are embedded in the human nature since pre-socio-political crystallizations but that has become most conspicuous, covetous and cataclysmic in the twenty first century necessitated by the ever-growing paradigmatic shift in its dialectics, dimensions and delineations in terms of understanding, interpretation and resolutions. Deviant to the causes whatsoever of displacement the biggest pain in one’s life is to have been displaced from his or her country of origin in a manner that is fallible, fallacious and fatal? To uproot anybody from his land of habitual residence amounts to deny and deprive him from his or her right to usual live, right to historical culture, right to immemorial neighbourhood, right to perennial socialization, right to classic climate, right to geo-political predilections, right to be consulted in economic modules, right to participate in community development, right to good governance, right to rule of law, right to socio-economic development and right to leave and return. These are not merely rights but go beyond the rubrics of rights as inalienable entitlements, basic bonds, natural claims, fundamental freedoms and rudimental human rights.
Points to remember
STATE OF REFUGEES IN INDIA
In this conspectus, the latest exodus of refugees from Pakistan in India owning to well-founded perennial persecution only on the ground of religion is a testimony to the fact that refugee flight in South Asia is not sporadic but spreading its tentacles to every religion as persecution in South Asia is pre-dominantly on the ground of religion that requires permanent palliation backed by South Asian political priorities. In South Asia, India at present is home to more than 3 Lacs refugees of whom over 1 Lac are Tibetans, 68000 are Sri Lankan living in camps and 30,000 Sri Lankans are living outside the camps whereas remaining, 9000 Afghans, 6000 Myanmarese and 1000 other nationalities who constitute a refugee population assisted by UNHCR. At present, there are 5,000 asylum seekers with UNHCR who are mainly from Myanmar. On the other hand, Pakistani refugees and asylum seekers do not seek any humanitarian assistance from UNHCR as the fate and status of refugees from Pakistan is decided and determined by the Government of India under an unwritten rule and understanding deviant to International Refugee Law, International Rule of Law and National and International Human Rights Jurisprudence.
REFUGEE LAW AND POLICY
Although, the refugee problem is grave in South Asia but no formal structure to deal with the issue in this region has been developed and emplaced by any of the national jurisdiction. The region continues to be an area of major refugee flows and, against a backdrop of burgeoning socio-economic and ethno-political chasm. On 28 July 1951, when the Convention was originally and initially adopted, it was to deal with the aftermath of World War II in Europe even as the Cold War set in. The inspiration and moral conviction for the Convention was the strong global commitment to ensuring that the displacement and trauma caused by the persecution and destruction of the war years would not be repeated in future. However, during the decades that followed, it globalized, and the 1967 Protocol expanded the scope of the Convention and removed the geo-political limitation as the problem of displacement spread around the world. In these origins lies the Convention’s audacious and avowed humanitarian character, which ensures that its fundamental concepts remain intrinsically sound and extrinsically viable. Having witnessed the most horrendous and heart-wrenching refugee migrations from each side of the borders in South Asia in the wake of the partition of India in 1947 and emergence of Bangladesh in 1971 South Asian nations did not prefer to have national refugee law in place. However, it is immensely unfortunate that no South Asian Nation is a party to the 1951 UN Convention Relating to the Status of Refugees with its Additional Protocol of 1967 despite the fact India, Pakistan and Bangladesh have been on the Executive Committee of the UNHCR for the last more than two decades.
Therefore, in our world of civilized and sovereign states, a refugee is defined in international law as a person who:
Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of particular social group(s) or political opinion is outside the country of his nationality and is unable to or owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence ….is unable or unwilling to return to it3.
With the help of the above concept, it is aptly submitted that the “refugee” is an international term defined in the Statute of the Office of the United Nations High Commissioner for Refugees as any person who is outside the country of his/her nationality or, if he/she has no nationality, the country of his/her former habitual residence, because he/she or had well-founded fear of persecution by reason of his/her race, religion, nationality or political opinion and is unable or, because of such fear, is unwilling to avail himself/herself of the protection of the government of the country of his/her nationality or if he has no nationality, to return to the country of his/her former habitual residence. Moreover, the Universal Declaration of Human Rights4(UDHR) proclaims that:
- Article 13 (2): “Everyone has the right to leave any country, including his own, and to return to his country”.
- Article 14 (1) “Everyone has the right to seek and enjoy in other countries asylum from persecution.”
This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. Thus, it is axiomatic from the mandate of the UDHR that the freedom of movement to every individual is an indispensable right. In Khudiram Chakma5Case, it has been observed by the Supreme Court of India that protection under Article 21 of the Constitution of India is also available to the aliens and non-citizens as well. Despite abundant national refugee jurisprudence, there is no effort to have national refugee legislation on the part of the government as opposed to a South Asian Declaration or Convention. Firstly, they argue, a premature attempt at a regional solution could mean the “scuttling of national legislation as the process of negotiation will raise politically sensitive issues which may be used by ruling elites to turn the ordinary citizen hostile to even a national regime for refugees6.” Secondly, a non-binding regional instrument may have little impact but may provide enough justification of thwarting any national legislation. Thirdly, the scope of a regional instrument will be confined to general issues affecting the region while a national legislation can go into much more detail and therefore be more comprehensive. Fourthly, any attempt at arriving at a regional agreement is likely to result in a minimalist regime that would amount to be as no law at all.
The forced displacement of persons within and/or across national borders has been one of the most tragic and persistent issues of the twentieth century and it is likely to remain with us well into the twenty-first century. The refugee phenomenon concerns that of flight across borders. While it is often associated and shares many characteristics with flight within nations, which gives rise to the phenomenon of internally displaced persons (IDPs), it is, unlike the latter, the object of a relatively well established, if in some respects fragmented, flaunted and flabbergasted international regime. While the international regime of IDPs is still in gestation, albeit a rapidly developing one, that of refugees started soon after the First World War within the context of the League of Nations. However, IDPs have no place in a regional instrument for obvious reason sand issues surrounding them but IDPs can be effectively addressed in national legislation. The “passage of national legislations would allow states in the region to identify and debate their individual concerns, both at the level of security and resources, and thereby bring to the fore the divergent perceptions to the refugee problem. They would also accumulate critical experience in their implementation7.” However, the Government of India has been dealing with the problem on ad hoc basis with no lego-institutional clarity, conviction and context. There are different policy priorities and institutional imperatives for different refugees from different countries in India sans municipal non-discrimination jurisprudence and international convention law as enunciated in Articles 3 and 33 of the 1951 UN Refugee Convention where under principles of Non-Refoulement engrafted to decimate forced-deportation that has attained the status of jus cogens of International Human Rights Law. Refugees from Pakistan are extended every kind of help and support including government education, governmental medical care, employment in the informal sector even Government of India has made an important change in rules in July, 2012 whereby these Refugee from Pakistan can now seek long-term visas which ensures their employment in the formal sector as well, Tibetans are treated at par citizens of India with all types of facilities, Tamil refugees enjoy political clout in the corridors power at the state and central governmental levels with which safety and security of the Tamil refugees are ensured at higher plane whereas refugees from Bangladesh and Burma get a discriminatory treatment only on the ground of religion that too at the institutional level fully backed by the government of India.
REFUGEE ISSUES IN SOUTH ASIA
There are many issues in South Asian region with ethno-political and geo-strategic dimensions hovering and haranguing all attempts of the non-state actors in cajoling a viable permanent solution of the problem and some of them may be enumerated below:
- Whereas the perception that the 1951Convention is a Cold War era instrument, tilted in favour of ‘political refugees’ and therefore inappropriate for the South Asian situation where the mass exodus of refugees is caused mainly by generalized conflict
- Whereas, the complexity and size of population movements in South Asia defy ad hoc responses. There is sufficient commonality of problems, policies and practice among the South Asian states to develop a South Asian Approach.
- Whereas a South Asian approach would allow addressing its specific concerns on refugee issues, help improve cooperation and solidarity among countries, improve prospects for solution and help define a clear and useful role for UNHCR.
- Whereas South Asia is a multi-cultural society but highly religion-oriented that is why religion has become all-pervasive in determining the refugee status of the refugees, national treatment and protection to refugees.
- Whereas refugee problem should not be addressed as an issue of illegal immigrants and demographic aggression. It is a political persecution, denial, and deprivation of national protection to the refugees by their country of origin.
- Whereas the concept of international protection of refugees and an examination of the various international attempts since 1921 to meet the problem of the forced movements of people due to persecution or armed conflict must also be made.
- Whereas the basics of international refugee law, including the gaps in this body of law will in turn lead to a comparative study of the refugee definitions as a basis for the determination of refugee status (RSD), the issue of the safe third country and the problem of responsibility for determining an asylum claim, and other contentious issues relating to RSD must attended on priority basis in any regional and international understanding.
- Whereas the international legal framework for refugees and issues incidental thereto or connected therewith and its evolution and work of the Office of the United Nations High Commissioner for Refugees; refugee protection and human rights; asylum; doctrine of non-Refoulement enunciated in Article 33 under the 1951 Convention relating to the Status of Refugees and under general human rights law; temporary or time-limited protection and “subsidiary protection”; refugee detention and freedom of movement; refugee protection in armed conflict and complex emergencies; security of refugee camps and settlements; the protection of refugee women and the problem of sexual violence against refugees; the protection of refugee children; the developing law of internally displaced persons; the solutions to the refugee problem; the challenge of voluntary repatriation; and the future of international protection must find an institutional regional solution in South Asia.
- Whereas present refugee regime should not concentrate on the laws of one country in particular; rather the approach must be regional (SAARCian) and multinational in order to identify, arrive and provide the commonalities and conflicts within the world system so as to attain thorough understanding of the Convention relating to the Status of Refugees (1951), as well as the principal regional conventions for a better South Asian measure that may include the basic U.N. criteria for the attainment, denial, and withdrawal of refugee status, the development of the non-refoulement principle, and the standard of treatment of refugees.
The evolutionary pace of 1951 UN Convention, role of Europeans with regard to1951 UN Convention, Asian and South Asian Worlds Approaches to the present refugee regime, appropriateness of the 1951 refugee regime in the SAARC context, regionalization of the 1951 UN Convention, SAARC response to existing international refugee regime in addressing the refugee issues in South Asian region, refugees’ testing the boundaries of the Westphalia order, Child Refugees & Children of Refugees, concerns & responses of refugees, future of refugees (Cessation Clause), evolving South Asian definition of refugee, pathology of international refugee law and progressive development and codification of IRL under the SAARC are most important and critical issues in the contemporary refugee regime and the same must be deliberated, delineated and discussed in a regional desideratum that is attended by internal and external expertise on the subject. In essence, this approach explores how attempts to distinguish between forced and voluntary migration have shaped international norms, standards and institutions, as well as state-level practices and localized strategies and tactics in occidental and oriental jurisdictions.
The South Asian perspective should address the role of human rights within the pre-flight and post-flight cycles of the refugee experience. In addition, the political, social, and economic context of prevention, protection, and solution strategies must also be explored. A basic review of jurisprudence within international, regional, and national courts will provide an understanding of how refugee law should be interpreted and implemented that might also analyze the drawbacks and benefits of alternative forms of protection, e.g. temporary protection and safe haven. Trends vis-a-vis the expansion of the refugee definition will be assessed by studying regional approaches to mass flight, gender persecution, the rise of Non-State actors, and “development/environmental or climate refugees” within Africa, Latin America, Europe, Asia and South Asia. Progressive issues such as internally displaced persons, restitution rights, and sanctuary for refugees will also be addressed and presented in any future regional refugee order.
Therefore, the ratification of international refugee covenants and instruments with all incidental and vicarious refugee protection pacts may have become more incumbent now than ever before for all South Asian Nations. Although, developing, emplacing and institutionalizing the national refugee protection architecture must address the regional and local needs, aspirations and understandings and this can no more be underestimated under International Human Rights Law where under even an individual is now regarded as a subject of international law and national boundaries are crumbling down and human rights prevail over sovereignty concerns. In India and elsewhere, asylum-seekers from Bangladesh and Myanmar have become something of a campaign issue in the name of internal security concerns at the hustings with governments and opposition parties vying with each other to appear toughest on the “bogus” asylum-seekers “flooding” into India while forgetting the fact they politicking human sufferings and pain of marmoreal magnitude is immoral, insensitive and invidious.
Asylum-seekers make a perfect target for people wanting to invoke the age-old prejudice against minorities. Lawmakers should thus take the lead in promoting respect, co-existence and tolerance for refugees and in encouraging local populations to see refugees not only as people needing and deserving international protection, but also as persons with a real and enduring contribution to make to the betterment and diversification of their communities. Parliamentarians have a major role to play in ensuring that national debates take proper account of this important reality and of the many positive experiences countries have enjoyed in welcoming and integrating refugees into their societies. The South Asian countries have yet to de-link refugee issues from their national security concerns and do not share the broad worldview of perceiving them as humanitarian and human rights concerns. In this context, it is most unlikely that a regional instrument, either in the form of a declaration or a convention, is likely to emerge. Even if it does, in the absence of national regimes such an instrument is likely to be constrained by a number of factors and the rights of refugees are likely to be compromised. This leaves us with the option of national refugee legislation. Nevertheless, it should also be rummaged de nova to have South Asian Convention on Rights of Refugees and Internally Displaced Persons for stability, prosperity and peace in the region.
- Daniel Warner, “Migration and Refugees: a challenge for the 21st century”, in Jean-Yves Carlier, Dirk Vanheule, Europe and Refugees: a challenge?,Kluwer Law International, The Hague, 1997, p. 58. [↩]
- Chapter 1, par.1 of the Statute of the Office of the United Nations High Commissioner for Refugees [↩]
- Article 1, 1951 Convention Relating to the Status of Refugees [↩]
- Adopted by the U.N. General Assembly on December 10, 1948 [↩]
- National human rights commission Vs. State of Arunachal Pradesh & Another, Date of judgment: 09/01/1996 [↩]
- B S ChimniThe Law and Politics of Regional Solution of the Refugee Problem: The Case of South Asia, RCSS Policy Studies 4, Regional Centre for Strategic Studies, Colombo, 1998, p12 [↩]
- Ibid [↩]