Moving towards a normative refugee regime

Photo: AFP

THE United Nations today commemorates 61 years of refugee protection in the world. The 1951 Convention on the Status of Refugees was adopted to protect the refugees displaced as a result of the Second World War. The temporal and geographical limitation of the 1951 convention was removed with the adoption of the 1967 Protocol which brought the refugees originating in any part of the world under the protection net of the international refugee regime.

Refugee protection in South Asia has posed an unprecedented challenge to international law in general and the international refugee law in particular as South Asia has become a flash point of human displacement owing to reasons beyond the mandate of UNHCR. Since 1947, more than 30-40 million people have crossed the borders of South Asian states in search of refuge and almost every country has produced and/or received refugees. In a conference deliberating on refugee protection in South Asia, Tapan Kumar, Secretary General of The South Asian Forum for Human Rights opined: "When you have no law, everything becomes arbitrary." Precisely this has been the overall situation in all the South Asian countries which have been criticised vehemently for inadequacy of law on one of the greatest problems facing the world.

The 1951 Convention and the 1967 Protocol relating to the Status of Refugees provide a basic framework of refugee protection in the world. They provide rights for asylum seekers and a set of obligations for member states to follow. Its wide acceptability has transformed its position from just being a convention to be treated as 'Bill of rights for refugees' and sometimes even adorned with the status of 'Magna Carta' for refugees. Despite its wide acceptability, none of the South Asian countries except Afghanistan are party to the existing regime. It is amazing to note that a region which holds one fifth of the world population does not have any binding standards and norms for refugee determination and protection.

South Asian countries have been critical about the fact that existing refugee regime is Eurocentric and designed as a cold war instrument, which makes it unsuitable for the region. The socio-economic situation of the countries further discourages them from ratifying the instruments and becoming bound to follow the international standards. This, however, should not become a reason for not following the best international practices on refugee protection and taking a cold approach towards the human rights of the refugees with 'non-refoulement' (a binding principle of refugee law that prohibits states irrespective of being a party to the 1951 convention from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened) being recognised as a principle of international customary law. Refugee issues in the region are considered as an interstate policy and are usually governed by the bilateral relations between the countries. Instead of considering refugee issues from a human rights perspective, such issues are regarded as a matter of national security. The countries follow an ad-hoc arrangement in granting protection to the asylum seekers, which is influenced more by the bilateral relationship governing the states and less by humanitarian considerations.

In recent years there has been rise in regional consciousness with regard to refugee protection, in form of consultations and negotiations. Many non-governmental organisations have been trying to promote cooperation among the states in the region for promulgating national legislations on refugees. Such initiatives advocated that South Asia should develop its own regional instrument. States in different parts of the world have evolved policies for granting asylum and refugee status, which are wider than the five grounds of fear of persecution (race, religion, nationality, membership in a particular social group and political opinion) enumerated in the 1951 refugee convention (for example gender based prosecution, people fleeing from armed conflict etc) taking cue from regional instruments like OAU convention in Africa and Cartagena Declaration in Latin America. South Asian countries have taken initiatives at the regional level in form of Colombo Consultation (1995), New Delhi Consultation (1996) and Dhaka Consultation (1997) where the countries have agreed on a model law requiring South Asian states to draft domestic legislation in accordance with the model law. However, nothing concrete is being heard of or has been achieved owing to political reasons and animosity between the states.

In this backdrop, it is suggested that South Asian countries should address the regional refugee problem with humanitarian concern rather than treating it as a security threat. The countries can take action along the suggested lines, which have been almost agreed by the scholars working on refugee protection in South Asia. They are (i) acceding to international refugee instruments, (ii) developing a regional instrument for South Asia and/or (iii) framing national legislation.

South Asian countries should formulate a legal mechanism in form of convention/treaty at the regional level to provide a durable solution to the refugee problem in South Asia. Emphasis should be given on ensuring peace and stability in the region by the Saarc countries for avoiding the growing number of the refugees in the region. Further constructive cooperation between the member states in form of bilateral and multilateral relationships can help to ease the refugee problem in South Asia and at the same time provide a platform for burden sharing.
The writer is an LL.M graduate from South Asian University, New Delhi.
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