- Abstract
The world’s refugee crisis is not only a mere reality in Syria but the whole of the globe. The efforts of nations to effectively solve the crises seem to be failing due to existing flaws not only in the Public International Law but also the Customary International Law and the impetus given to state laws over international law even in humanitarian emergencies. The existing policies have failed the world at large. India’s contribution remains a vital point to preserve the humanitarian order. The de-facto policies adopted by the nation are based on a non-existing national forum that needs immediate attention.
Keywords: UDHR, Refugee Convention and Protocol, UNHCR, OHCHR, refugees, displacement, rights, obligations, article, clause.
- INTRODUCTION
The present world continues to experience some of the worst humanitarian crises of all time. From human rights violations to large-scale conflicts and post-war conflict regions, people across the globe continue to face immense hardships and mental oppression.
The principal issue currently affecting 70.8 million people [1]across the globe comes out to be the displacement of people- external and internal. In a world where a person gets displaced every two seconds, the resettlement and reintegration of these refugees is nothing less than a herculean task for governments and organizations worldwide.
The focus of the entire community as of now should be on effective tackling of the crisis not just in the Middle-East but also in Sub-Saharan Africa and more recently the South-East Asian crises in Myanmar.
India somewhere or the other seems to lag behind in this progression race.
- Objectives
- To critically examine the existing international framework for refugee protection
- To distinguish successfully between refugee and internally-displaced persons (IDPs)
- To identify India’s international obligations and liabilities for the protection of refugees
- Research Methodology
The researcher has pursued the ‘Doctrinal research methodology’ and the sources are secondary data.
- Basis of Legal Principles
The Universal Declaration of Human Rights (UDHR), signed in 1948 and ratified by over 150 nations continues to be the ‘mother-document’ to provide the basis for the providence of universal freedom and its protection. Though the UDHR is not a treaty per se, it is the most universally accepted document which explicitly seeks to provide and maintain “fundamental freedoms” to all people around the globe.
The word “refugee” as defined by the Refugee Convention of 1951 and its Protocol of 1967enlists as any person who-
(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization; Decisions of non-eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfill the conditions of paragraph 2 of this section;
(2) As a result of events occurring before 1 January 1951 and owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
This definition, according to many seems incomplete. The reason being the non-inclusion of people who have had to leave their homes owing to conflict, or any other reason, but have remained within the territorial boundaries of their state i.e. Internally-displaced persons (IDPs).
The most comprehensive legal document which has been made for refugee protection is the Refugee Convention of 1951 and its Protocol of 1967. Signed on 14th December 1950, the convention has been the principal and perhaps the only followed document on the issue.
- International Obligations
The focus of nations right now is on immediate help to these refugees. The most prominent regions where refugees are coming from are:
- Syria
- Afghanistan
- South-Sudan
These refugees remain in the hands of regional protection mechanisms that are directly under the control of the State governments. The UNHCR- the United Nations High Commission for Refugees and the OHCHR- Office of the High Commissioner for Human Rights have worked continuously for resettlement efforts whether in the Middle-East or South-East Asia, effectively mobilizing local NGOs and international organizations to provide transitional support for these people.
The UDHR acts as the basis of all other documents which have come up for refugee protection. The author has tried to elucidate how such articles are actively being flouted by States all around the globe, whether actively or under the façade of territorial integrity and security of the citizens.
- Article 3[2]of the UDHR states,
Everyone has the right to life, liberty, and security of person.
However, these migrants and asylum seekers face the threat to life and health not only by the harsh conditions they try to escape but also by the non-availability of essentials during this regional or territorial transition.
The problem is not just existing within the territories of states they are escaping or the governmental persecution they fear, but also by the “host-nations”, they are escaping to.
The most common examples are the Syrian refugees escaping to the neighbour Turkey which currently is the nation with the maximum refugees.
- Article 5of the UDHR states,
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
The very influx of these refugees has led to tensions in various States, whether it is Mexican refugees whom the United States of America has termed “illegal-immigrants” and on whom there have been acts of brutal suppression of the people of Yemen fleeing to neighbour states.
The recent reports by the UNHCR have suggested that Article 5 has been blatantly violated not only by signatories of the UDHR but also by the ratified nations.
- Also important is Article 9 which states,
No one shall be subjected to arbitrary arrest, detention, or exile.
These provisions become extremely significant to protect the right to life of these migrants. It can be very well and aptly said that the exploitation of Article 9 means a determined violation of Articles 3, 5, and perhaps the whole declaration in totality.
- But the most explicit right in the whole of the UDHR that offers immunity to such internationally displaced persons is Article 14 which states,
1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
2) 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.
Although the aforementioned article has very precisely stated that all people are entitled to asylum, the non-binding nature of the document as well as the second clause has resulted in non-compliance with the article which has led to very active and publicized actions against the people seeking refuge.
Hence, the need for an actively involving document with emphasis on only the problems faced by refugees was answered in 1951 with the signing of the Convention on the Rights of Refugees which was again amended in 1967 to include the revised Protocol which recognized the people after the given definitions above as refugees if they were in the fear of persecution by the State or escaping hostile conditions.
- Convention and Protocol Relating to the Status of Refugees
The 1951 Refugee Convention is the key document that forms the basis of work of the UNHCR and has been ratified by 146 nations across the world till now. It not only defines the term refugee but also underlines the legal obligations of the states to protect them.
The spirit of the whole document exists perhaps in Article 33 that is Prohibition of Expulsion or Return (Refoulement)which states that
- No Contracting State shall expel or return (“refoul”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
- The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
The focus here is on the term refoulement which means- the forced expulsion of a refugee from the country he/she has taken refuge in. In a more lucid way to explain, if a refugee from Syria has taken refuge in Greece, he/she cannot be compelled by the government to move outside the ‘safe’ territories of the State. Hence, no refugee shall be returned from the borders of the host country.
The host country here means the country of refuge for a temporary time or the country where the refugee has started living permanently until he/she becomes a citizen of that country by a legal framework which will then become his nationality and not remain the host country anymore.
However again, Clause 2 of Article 33 gives the reasons by which a ‘refugee’ can be refouled. However, these reasons were supposed to be exceptions and not to be used as freely as they are being now.
This is because the primary focus of any State, is to provide safe havens to these suffering people and not ‘reject’ them by giving unproved reasons. And that is exactly where this Convention seems to fail. This is because countries that are not signatories to this convention will have no legal obligation to accept these refugees.
Even the countries which are parties to the convention or the protocol of 1967 or both are not legally bound to follow them as there is absolutely no enforcement mechanism.
For example; Countries like India, Pakistan, Myanmar, Iraq are some of the regions with extremely high densities of refuge-seekers and yet they are not parties to this treaty.
Now the question arises, a country like Pakistan which has hosted 1.1 million refugees from Afghanistan, why is it necessary to sign the convention if it is already taking in refugees?
Or why India, which has the largest number of unregistered refugees in the world must sign the convention if it is already doing or has down the necessary?
The answer to these questions is simple, although these nations have done the needful in the past, the non-signing of this convention means that they fall under no legal obligation to do it again in the future.
And moral and ethical obligations have in no way helped the Middle-East in the past. So, if the same were to happen in South-east Asia, the second and the third most populous South-eastern nations would be the cause of a major humanitarian crisis.
- India’s Refugee Policy
- India is not a party to the 1951 Refugee Convention or its 1967 Protocol and does not have a national refugee protection framework. However, it continues to grant asylum to a large number of refugees from neighbour States and respects UNHCR’s mandate for other nationals, mainly from Afghanistan and Myanmar. [3]
- While the Government of India deals differently with various refugee groups, in general it respects the principle of for holders of UNHCR documentation. For some time now, India’s concerns about security have had a more restrictive impact on asylum space in the country.
- Mixed migration flows have further complicated the identification and protection of refugees and UNHCR has significantly modified and increased its registration activities to cope with this and provide the necessary support to the Government.
- In the absence of a national legal and administrative framework, UNHCR, based in New Delhi, conducts refugee status determination (RSD) for asylum-seekers from non-neighbour countries and Myanmar. UNHCR also has a presence in Chennai, Tamil Nadu in the south to support the voluntary repatriation of Sri Lankan refugees.
- Although India has a large population of stateless people, no accurate estimates of the number are available, UNHCR is working to identify and map stateless groups.
- India’s Constitutional Provisions
India’s constitution is one of the most powerful and influential constitutions of the world, not only in terms of the power distribution but also the liberties granted to people and their protection mechanisms.
However, nowhere does it mention the rights and liberties to be granted to refugees. India also doesn’t have any protocol or any national refugee protection or development framework.
The providence of Right to Life under Article 21 hence applies only to the Indian nationals. However, if we look from the prerogative of International Humanitarian Law, the concept of protection of these refugees under Customary International Law is wholly under the discretion of the government of the State.
Since the National law supersedes the International Public Law in all its domains and forms, the principle of nonrefoulement is again up to the government of the country to follow or not to follow.
Yet again the point of contention arises out to be based on the maxim lex specialis derogat legi generali which translates to the law concerning the specific subject matter.
The author raises the following questions;
- Although national law supersedes international law, shouldn’t the refugee crises be considered an exception as a matter of urgent humanitarian help?
- Is India’s position on the refugee policy jeopardizing the effective and collective world response to tackle this humanitarian crisis?
- Have these decisions by the Indian government in any way tarnished the historical and cultural significance of inclusivity that India has always offered?
- Is India’s position on this issue a blatant disregard of the UDHR which India has not only signed but also played an important role in its drafting?
- Conclusion
Although the decisions of India are its own, in no way can it be said that choices like these are not affecting the world’s refugee demographics. Not only is there an active influx of refugees from around the world to states like Pakistan and India, but also an active outreach to the general public due to the large swathes of the population.
The recent steps like the controversial CAA-NRC bills passed by the Indian legislature have not only created havoc within the country but also a furore in the global media.
The totality of the success or the failure of this global initiative to solve this herculean humanitarian crisis around the globe will definitely depend on India too.
India’s recent stances on the Rohingya refugees are not particularly enchanting or appreciative. India very blatantly disregarded the international moral obligation if not legal, to protect the people seeking shelter from the fear of persecution of the Myanmar Government and actively refouled the refugees back to Myanmar or Bangladesh.
What remains to be seen is how long does this policy of India extends for India’s aspirations to have an active say in the United Nations Human Rights Council seem to be dependent upon it.
[1]United Nations High Commission for Refugees(UNHCR), India 31 May 2019 https://www.unhcr.org/figures-at-a-glance.html
[2]Universal Declaration of Human Rights (UDHR),10 December 1948[2], https://www.un.org/en/universal-declaration-human-rights/.
[3]GA_2011, United Nations High Commission for Refugees Global Appeal 2011 Updated, Indiahttps://www.unhcr.org/4cd96e919.pdf
