De Jure and De Facto Status of Refugees

INTRODUCTION

The refugee is not a creation of the modern world. Historically, migrations have been forced by various reasons both natural and man-made. With Clearer demarcation of borders and nation states the question of nationality has become more important than it used to be, necessitating a proper refugee law regime. Responding to a history of religious and political persecutions, a comprehensive refugee regime finally emerged under the League of Nations after World War I. This regime underwent dramatic change during World War II to create a permanent framework to cope with the refugee problem through the United Nations High Commissioner for refugees and the UN convention Relating to the Status of Refugees. The cold war had a significant influence on the Refugee regime in place, but in the post cold war era, the refugee regime has struggled to keep pace with the changing demographics of refugee movement. The refugee issues of today include internally displaced persons, mass migrations like the world has never seen before, clearly defined economies that find it difficult to absorb a mass influx of refugees, issues of race and culture have also contributed to the overall problem.

The refugee regime that is clearly defined is a culmination of cold war era influence where persecution was largely of political nature and the migration that was sought to be protected was of small numbers of refugees moving from Communist territories into the West. Now there is a radical shift in the nature of refugee movement; the refugee movements of today are a product of ethnic, racial or communal conflicts and war and the quantum of refugees is significantly higher than was it was. Most members of the international community have under the guise of internal security, closed their doors to refugees, an action which goes against the very spirit of international cooperation and the protection of human rights the world over. In the light of this background, this project seeks to examine the questions of who can be accorded the status of a refugee, what are the rights of such a person, and the relevance of the law in today’s situations.

WHO IS A REFUGEE?

A refugee can be defined in three ways- legally (as stipulated in national or international law), politically (as interpreted to meet political exigencies) and sociologically (as a reflecting and empirical reality). A definition that is accepted by many countries defines a refugee as ‘a person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership in 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.’ [1] The notion of refugee being largely a question of international implication, nation states have found it hard like they often do to accept a single universal definition. This becomes significant since determining who is or is not a refugee will largely determine the rights of such a person. This particular definition of who is or is not a refugee was arrived at after World War II and in the beginning of the cold war era and as such is considered to be a restrictive definition. This definition is non-inclusive to a large extent. Although persons whose flight is internal within a nation-state, members of ethnic groups returned to a “mother country” after decades of separation, persons uprooted by famine and flood rather than by political fiat all know the condition of displacement too, they are not included in the United Nations’ general definition. The encyclopaedia of social sciences defines a refugee as ‘an involuntary migrant, a victim of politics, war or national catastrophe.’ [2] This definition although much simpler and generic, is a more inclusive definition catering to real needs.

From a rights perspective, the debate over definitions does not constitute the heart of the refugee matter. The crux of the problem lies rather in the complex relationship between the status of refugee and the status of immigrant. The important aspect is the transitional nature of refugee movement, especially where they have to seek refuge for many years. Will refugees be offered the opportunity to achieve the more concrete status of immigrants, and after that, the ultimate status of citizen? How long do refugees reside in separate camps with minimal conditions? It would depend largely on the duration of the conflict or threat which they had to flee in their motherland. Sometimes, such a threat can last for generations. If that is the case, how are refugees, destined to settle permanently in the country which grants them temporary asylum, to find a solid niche in the social structure of that country? When can the translation from refugee status to that of an immigrant be considered to have occurred? These are questions of significance, especially in countries where refugees are made to live in separate camps. Some countries do not allow refugees to participate in the local economy, but there is no such restriction on immigrants. ‘With the economic migrant, he takes his place in the domestic labour force, hoping for parity with other foreigners in the quest for employment. There is, then, a continuing and involved relationship between the status of refugee and that of immigrant.’ [3] Thus the treatment that an individual gets in the host country also depends on whether the person is treated as a refugee or an immigrant.

FUNDAMENTAL REFUGEE RIGHTS:

Once a person has been designated as a refugee, such a person is entitled by law and by practice some basic rights. The right of asylum is one such right. Article 14(1) of the universal declaration of human rights gives the right to individuals to approach a state authority to seek asylum from persecution. [4] The American convention of human rights (pact of San Jose) 1969 has similar wording. [5] But this again is conditional on a state’s willingness to accept a person as a refugee. Going by definition, a refugee here is someone who is escaping persecution. Thus a country admitting a refugee and granting asylum is in essence conceding that there was persecution in the home country. This again causes diplomatic friction between the home and host countries in many cases. Questions of ethics and morality set apart, nations primarily have a responsibility to their people, and sometimes it becomes unwise for states to antagonise other states, making it more difficult for someone seeking refuge to actually get it.

The right of non-refoulment is another very important refugee right. This right is embodied in the United Nations refugee convention vide article 33 [6] which deals with refugees unlawfully in the country of refuge. There are many instances in which refugees escape from the country of persecution into another country illegally. This provision protects such persons from being forcefully sent back to a country where there are reasonable chances of being persecuted. This principle is generally considered as binding on all states whether they are contracting parties or not. [7] When nations ignore this provision it results in someone’s life being deliberately endangered. The importance of this principle has been highlighted by the number of international provisions recognising it. Article 3 of the convention against torture provides that “no one including those convicted of crimes should be sent back to a country where they would be at a risk of torture.” The principle of non-refoulment is also one of the three ‘cornerstone issues of Amnesty international’s International campaign for refugees’ human rights. Some of the other provisions recognising the principle are:

Article 3 of the United Nations declaration on Territorial asylum [8]

Article 8 of the United Nations declaration on the protection of all persons from enforced disappearance [9]

Principle no. 5 of the United Nations principles on the effective prevention and investigation of extra-legal, arbitrary and summary executions. [10]

When can non-refoulment be denied?

The right is not absolute. States have the right to deny non-refoulment “if there are reasonable grounds for regarding the asylum seeker as a danger to the security of the host country or if the asylum seeker has been convicted of a particularly serious crime and constitutes a danger to the host country.” [11] Another instance where non-refoulment can be excluded is where due to the sheer magnitude of refugee movement, a state is in apprehension of a security threat.

DENIAL OF RIGHTS TO REFUGEES

In spite of there being various international treaties and conventions being in place for the protection of refugees, there are many exceptions and exclusions. Moreover, the ground realities can have serious aberrations from the position on paper. The bane of treaty or convention law is the lack of a proper enforcement mechanism, and the echoes of it are felt in the treatment of refugees across the world. Nations are often unwilling to accept refugees or to continue to accept people in their territories as refugees needing protection. At a basic level, the grounds for refusal to grant or to continue to treat persons as refugees can be categorised broadly.

Political: States sometimes refuse to accept individuals or groups of people as refugees and deny entry to such persons, for the acknowledgement of refugee status would have many external implications. For one, the host country would indirectly be conceding that the group faced persecution in the country of origin. Especially among Border States, where one country is indulging in human rights violations and denying basic rights to some groups on the basis of race, colour, religion or political affiliation among other causes, there will be a tendency of the oppressed population facing persecution to try and cross an international border hoping for better treatment there. But if the neighbouring country accepts these groups or individuals into its territory, it can create a diplomatic tussle between the countries. This situation is especially fragile when the oppressive neighbour is economically or militarily more powerful than the neighbour, leading to intimidation. Nations have a primary mandate towards their people and their foreign policy might not include acknowledging refugees fleeing from such countries. This might be ethically and morally incorrect, especially where refusal of refugee status to an individual could also lead to death but ultimately a government is answerable to its people and not to the world at large. The asylum given to Tibetan refugees and the presence of the Dalai Lama has been a constant source of embitterment in India-China relations. Israel has conflicts with many of its neighbours, whom it accuses of harbouring terrorists under the guise of refugees.

Change of circumstances: Sometimes there are fundamental changes in the country which remove the basis of any fear of persecution. [12] A vindictive dictatorship can be replaced by a democracy, or a change of regime might result in the granting of an amnesty to refugees in other countries. For example, following the overthrow of President Masie Ngnuema in Equatorial Guinea in 1979, the new government enacted a general amnesty for all who had fled abroad for political reasons during the previous eleven years. When this happens the need for refugee status is terminated and host countries can be relieved of the burdens that refugees impose on them. The 1951 convention acknowledges that importance should be given to compelling reasons arising out of a previous persecution. [13] The UNHCR statute refers to ‘grounds other than those of personal convenience’ as justifying a refusal to have recourse to the protection of the country of origin, but without limiting their availability. [14] The continuing nature of the injuries suffered by persecuted peoples or individual can be a reason for the exception to be applied.

Undeserving cases: Refuge can be denied to those who have committed serious crimes or acts contrary to the purposes and principles of the United Nations. Those against whom there are serious reasons for considering that they have committed crimes against peace [15] , war crimes [16] , and crimes against humanity [17] , as defined in relevant international instruments. The crimes listed above are political crimes. Refuge is also not given to those accused of serious non-political crimes. The IRO constitution and the statute refer to extradition crimes. The convention relating to status of refugees uses the phrase ‘serious non-political crime’ as the basis from exclusion of the benefits of refugee status. This gives the potential state of refuge discretion in determining whether the criminal character of the applicant outweighs his or her character as a refugee, constituting a threat to its internal order. This leaves the option open for refoulment too.

The principal interests of the United Nations are the maintenance of international peace and security, respect for the equal rights and self-determination of peoples, international co-operation in economic, social, cultural, and humanitarian matters, and the promotion of human rights for all without distinction. [18] When individuals act contrary to the stated purposes and principles of the United Nations, they may be denied the right to asylum or non-refoulment.

OTHER IMPORTANT REFUGEE RIGHTS:

The right to freedom of internal movement is an important right for the dignified living of refugees, but it is something that host countries are often unwilling to give. In many international situations, refugees live in fenced camps or in territories earmarked as refugee settlements. Many of the UN refugee camps at international borders in Africa are literally like prisons, where the term depends on the duration of conflicts or the inclination of authorities to continue the status-quo. Since 1991, the government of the U.S.A has almost continuously maintained tent cities holding thousands of men, women and children, in fenced compounds in the US naval base at Guantanamo Bay, Cuba and the former Panama canal zone. The UNRWA [19] provides facilities in 59 recognized refugee camps in Jordan, Lebanon, Syria, the West Bank and the Gaza Strip for Palestinian refugees. Generations of refugees end up living in refugee camps in a country, without having ever seen the country or interacting with its society. Once recognised, refugees in industrialised states rarely face restrictions on their freedom of movement. This however, is not always the case in developing countries, which typically host significantly larger refugee populations. State parties to the 1951 convention are obliged to not unduly restrict the movement of refugees in their territory. [20] The freedom of movement is granted in article 26 of the convention.

The right to employment is an important socio-economic right of refugees. Refugees can be seen as a ready source of cheap labour, but protection of the national labour markets has always been a priority for governments. Article 17 of the convention also grants the right of employment to refugees. [21] Different nations based on the strengths of their economies and the status of development, have different real practices of granting such rights to refugees. This problem, like that of restricted freedom of movement, is also limited to those situations where there is a mass influx of refugees. We can see that in many instances the law relating to refugee protection is far from the realities of the world. Many nations hosting refugees are in such an economic condition as to be unable to provide much in the way of refugee rights, and the developed world is largely unconcerned with mass influx of refugees. Whatever the legalities, states are faced with a de facto policy choice: unless they are prepared to allow asylum-seekers literally to starve, their subsistence needs must either be met through employment earnings or through public assistance. The latter increases state expenditures, the former increases job competition for nationals. It must also be kept in mind that nations restrict the rights of refugees more out of necessity than any callousness or lack of concern.

Almost all refugees require public assistance at some point. Given the obstacles that refugees face in finding work many remain dependant on social assistance for some time. Refugees in industrialised states generally receive ‘national’ treatment in regard to social assistance. In the less developed world however it is more difficult to provide much assistance due to the absence of social security schemes and weaker economies. If refugees are unable to secure, or are prohibited from seeking employment in order to sustain themselves, the convention foresees the possibility that their basic needs be met trough public assistance. [22] Chapter IV of the convention deals with various socio-economic rights of refugees and corresponding duties of host states. Once again, it reflects the deficiencies of the convention in recognising ground realities, as many developing and under-developed countries cannot afford the rights envisaged in the convention to their own nationals, who will always remain a priority over a refugee.

STATUS OF REFUGEES IN INDIA:

According to the World Refugee Survey 2007, India is host to around 435,900 refugees. Yet India does not have a statutory definition of ‘refugee’. Neither is India a party to the 1951 convention or the 1967 protocol. “The Indian legal framework provides incomplete and skewed protection to refugees inasmuch as there is no clearly defined category of refugee as a sub-classification of the general category of foreigners.”-Rajeev Dhavan, eminent legal expert. [23] Even though India is a member of the UN High Commissioner for Refugees (UNHCR) executive committee, it does not officially recognise the work on the UN body in its territory. [24]

In the absence of a clear-cut guideline, the legal status of refugees is governed by the 1946 Foreigners Act, which defines a foreigner broadly as “a person who is not a citizen of India”. The act gives the state broad powers to deport foreigners. In the absence of a legal process, India’s treatment of asylum seekers has always been a political decision, a direct result of the country’s relations with the refugee’s country of origin. There are main refugee groups in India are:

Tibetan refugees: The Tibetan refugees, of whom the Dalai Lama is a highly recognised figure, are relatively well off in comparison to other refugee groups. They are spread out in settlements in different parts of the country. Their legal position is still unclear, but they have access to education and other state facilities.

Sri Lankan Tamils: The conflict in Sri Lanka between ethnic Lankans and Tamils has driven many Tamils back to India, mostly into Tamil Nadu. The Sri Lankan Tamil cause has its sympathisers in India and their treatment is relatively better off with the state government taking an active role.

Bangladesh war refugees, most of whom have returned to Bangladesh

Chakma refugees in Arunachal Pradesh, from the Chittagong Hill Tracts of Bangladesh. The Chakma refugees were given land in border areas and have settled there with great difficulty. The issue of granting citizenship rights to these refugees still hangs in the balance owing to constant opposition from the state government and the powerful AAPSU [25] . [26]

The NHRC had previously set up an expert group to advice on refugee law and policy and has been recommending the adoption of national legislation. There were at least two versions of a draft model law on refugees before the government began deliberating the matter. Both the model laws have suggested a two-tier system for administering refugees, Commissioners of Refugees and a Refugee Committee as an appellate authority. They also include the principle of “non-refoulement”. But there are still some concerns. There are concerns that the refugee law could bind the executive from taking action against any “undesired” visitors. If a person is denied the status of a refugee, such a person may approach a court, and in India, it could take years for the court to come to a conclusion on the person’s status. There are also apprehensions in the external affairs ministry that a law would tie down the government in its response to all asylum-seekers, irrespective of overarching national interests.

CONCLUSIONS

The refugee situation has evolved since the cold war era but the law has failed to catch up with the situation. The international community’s responses to the refugee situations of today are largely inadequate with nations eager to close their borders to refugees, and many refugees flee persecution only to end up in detention centres in host countries. New bodies set up to tackle the refugee situation like the UNHCR [27] have already lost their credibility in the midst of allegations of bias and anti-Semitism. On the other hand, some refugee crises like the Palestinian one show no signs of getting resolved any time soon. Thus these refugees end up in the same refugee camps for generations.

International refugee law is founded not on pure principles of humanitarianism or advancement of human rights but on compromises designed to reconcile sovereign prerogative of states to control immigration with the reality of forced migrations of people at risk. The saving grace of the whole refugee mechanism is that some countries, out of ties historical or ethnic or communal, have accepted certain refugee groups into their countries willingly and such refugees are given at least basic necessities and security. There is an urgent need for a new refugee regime, one that makes it difficult for states to absolutely close their borders to desperate men or to take them in only to keep them in detention centres. The international community has to wake up to the facts that are dominant in the world, and act in a focused way to tackle the situation arising in various parts of the world. Aid agencies can only do so much without the backing of stong, binding international law.