Refugee Protection in South Asia.

AuthorNair, Ravi

Historically South Asia has witnessed substantial intra-regional movement and dislocation of regional groups fleeing ethnic or religious persecution and political instability. India's multiethnic, multilingual and relatively stable society has often made it an attractive destination for these groups. This phenomenon continues today. Tamil refugees from Sri Lanka, Jumma peoples from Bangladesh and Chin and other tribal refugees from Burma, Afghanistan, Iran and even Sudan today comprise the bulk of India's refugee population.

The Indian government has been inconsistent in dealing with refugees, changing its official policy on the number and origin of refugees to be allowed. Despite the fact that India has a large refugee population, international scrutiny is seldom given to the conditions in which these refugees live. Often, these conditions are extremely harsh, falling short of international standards and forcing refugee communities to struggle to fill even their most basic human needs.

The Indian government compounds the problem by failing to provide access to local and international non-governmental organizations (NGOs) that wish to address refugee needs. The United Nations High Commissioner for Refugees (UNHCR) has been particularly disappointing in this regard, tending to underinterpret its mandate for refugee protection in South Asia.

Little if any information is available to the international community or to the Indian people about the plight of these refugees once they reach India. This article will describe the condition of South Asian refugees in India and draw the Indian government's attention to the need for legislation to protect refugees and asylum seekers. Moreover, this article will examine the role of international organizations such as the UNHCR and domestic NGOs such as the South Asia Human Rights Documentation Centre (SAHRDC) in New Delhi.

Who is a Refugee?

According to UNHCR mandate and the 1951 Convention Relating to the Status of Refugees, the term refugee applies to those people who: (a) have fled their countries because of a well-founded fear of persecution for reasons of their race, religion, nationality, political opinion or membership in a particular social group; and (b) cannot or do not want to return due to fear. The 1967 Protocol to the Convention altered this definition only insofar as it removed the time limit of the former, which only covered refugees who had been displaced as a result of events occurring before 1951.

Applicable Laws

The refugee problem was acknowledged as having international dimensions and requiring global cooperation from 1921 to 1922 in the aftermath of the First World War, the breakup of the Austro-Hungarian empire and the Russian revolution. However, real movement to protect refugees began only with the 1948 Universal Declaration of Human Rights, which proclaimed basic rights for all human beings irrespective of their nationality or citizenship. This declaration was an important first step for refugees, who are particularly vulnerable in foreign countries. It is therefore incumbent upon the international community to protect their rights both in countries of origin and asylum.

A myriad of specialized and regional human rights instruments have sprung from the foundation of the International Bill of Human Rights. The inalienable rights enshrined in the covenants such as Article 6 of the International Covenant on Civil and Political Rights (ICCPR), are also applicable to the refugees. India has undertaken an obligation by ratifying the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights to accord treatment to all non-citizens that is equal to that of its citizens. India is presently a member of the Executive Committee of the UNHCR, which entails the responsibility to abide by international standards on the treatment of refugees.

The most important refugee law, the 1951 Convention relating to the Status of Refugees, known simply as the Refugee Convention, codified a very precise definition of "refugee."(2) According to Article 1, a refugee is someone who, "owing to a wellfounded 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 [sic] nationality."(3) More contemporary instruments have advanced beyond this limited and legalistic definition by acknowledging civil disturbances and human rights abuses as valid claims for refugee status. The Refugee Convention is a part of international customary law and it should be the moral responsibility of any member state of the United Nations to respect the Refugee Convention.

None of the South Asian countries are party to the 1951 Convention, which has been ratified by 134 nations. This may reflect the unwillingness of South Asian governments to submit to international scrutiny Though India is not a party to the Refugee Convention, the general principle of non-refoulement prohibits forced repatriation and has risen to the level of customary law, such that it binds even non-signatories. The principle of nonrefoulement was applied where there was fear of torture or violation of the refugees right to life.(4)

India lacks a cohesive national policy for handling refugee inflows. Since the entry and regulation of aliens falls under the Union List, the Central Government is empowered to deal with refugee regulation.(5) Traditionally, the Union Cabinet has made reactive decisions with each particular influx of refugees, often taking action only when the particular refugee influx went beyond the control of the Border Security Force, and the matter became political. The lack of a national Indian policy limits the ability of the state governments and Border Security Force to deal with refugees instantly. This results in mass rejections at the frontier while policy directions are awaited, or non-recognition of refugees sneaking into Indian territory. Under the constitution of India, state governments are not empowered to deal with refugees without the express concurrence of the central government. A national policy with clear guidelines coupled with the empowerment of state governments to handle local cises would allow India to more effectively nanamge its refugee problems.

India's Refugee Policy

Before India became independent in 1947, the Indian courts under British rule administered English common law. They accepted the basic principles governing the relationship between international law and municipal law. Under the English common law doctrine, international laws in general were not accepted as part of municipal law. If, however, there was no conflict between these rules and the rules of municipal law, international law was accepted in municipal law without incorporation. Indeed, the doctrine of common law is specific about certain international treaties affecting private rights of individuals. To implement such treaties, the doctrine requires modification of statutory law and the adoption of the enabling legislation in the form of an Act of Parliament.

These English common law principles are still applicable to India even after its independence, by virtue of Article 372 of its constitution, which says that "all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority."(6)

Confirming the common law principle relating to the specific incorporation of certain treaties, Article 253 provides that "Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body." This article implies that whenever there is a need to incorporate international obligations undertaken at the international level or under international instruments into municipal law, the Parliament is empowered to do so.

Against this backdrop, when one examines the binding force of international refugee law on India and its relations with Indian municipal law, one can conclude that, as long as international refugee law is not in conflict with municipal Indian legislation or policies on the protection of refugees, international refugee law is a part of municipal law.

The juridical basis of the international obligations to protect refugees, namely, non-refoulement, including non-rejection at the frontier, non-return, non-expulsion or non-extradition and the minimum standard of treatment, are traced in international conventions and customary law. The only treaty regime having universal effect pertaining to refugees is the 1951 Refugee Convention and its 1967 Protocol on the Status of Refugees, which is the magna carta of refugee law. Since India has not yet ratified or acceded to this regime, its legal obligation to protect refugees is traced mainly in customary international law. An examination of this aspect raises the basic question of the relation of international law with Indian municipal law.

The constitution of India contains a few provisions on the status of international law in India. Article 51 (c) says that "the State [India] shall endeavor to foster respect for international law and treaty obligations in the dealings of organized peoples with one another." Although ambiguous, this provision differentiates between international law and treaty obligations. It is, however, interpreted and understood that "international law" represents international customary law and "treaty obligations" represent international conventional law.(7) Otherwise the article is lucid and directs India to foster respect for its...

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