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Introduction
It has yet to be sufficiently
appreciated that a regional instrument can reconstitute the international
refugee regime in a fundamental way through redefining the relative obligations
of different regions of the world to the global refugee problem. In Part
II of this paper I argue that from an inter-regional perspective the regional
approach is, in the post Cold War era, an exclusionary device which is
advocated, inter alia, to help reduce the burden of the global refugee
problem on the affluent regions of the world. The principal idea is to
stop extra-regional flows of refugees so that the poor regions alone are
compelled to carry the burden of refugees. It is based on a set of erroneous
assumptions: that the causes of refugee flows lie within the region, that
each region is equally equipped in material terms to deal with the problem,
that physical proximity should be the fundamental test in defining the
obligations of States towards refugees, that cultural similarities necessarily
facilitate regional solutions, that refugee flows threaten the stability
of the region, and that mobility across regions threatens the identities
of peoples in other regions.
A regional approach should be endorsed only as an integral element of an
international approach based on solidarity as opposed to segregation and
exclusion. I recommend in this context a strategy of constructive linkage
which calls for greater burden sharing by the more affluent regions of
the world as a pre-condition for negotiating a regional regime. It
is inter alia based on the understanding that the causes of global refugee
flows often lie outside the region as also the idea that it is the obligations
of all peoples and States, in particular rich States, to bear the burden
of the global refugee problem.
In Part III of the paper I examine the regional approach from an intra-regional
perspective and contend that a regional declaration or convention in South
Asia must follow and build on individual legislations in the countries
of the region which need urgent enactment. I also suggest an agenda of
research in the context of creating conditions that will facilitate the
adoption of a regional declaration or convention. Apart from identifying
some issues which call for investigation, I suggest that the politics of
the region is undertheorized with few texts exploring alternative visions
of its future. The literature is dominated by the language of political
realism which cannot come to terms with the humanitarian dimension of problems.
It needs to be displaced by an approach which even as it respects the concerns
of States carves out space for humane solutions. Part IV briefly states
the conclusions of the paper.
II The Inter-regional
Perspective
From an inter-regional perspective,
a regional approach to the refugee problem in South Asia calls for a brief
review of recent developments in Europe and North America. These developments
are enlisted to sustain the thesis that the espousal of a regional approach
in the poor world is currently part of a strategy of containment which
seeks to shift the burden of caring for refugees to the poor world.
Europe and North America:
The Emergence of de facto Regional Regimes
An important element of
the strategy of containment is the linguistic ploy of not terming the emerging
regimes in Europe and North America as regional responses to the global
refugee problem. Instead, it is customary to begin any discussion of regional
conventions with a reference to the OAU Convention governing the specific
aspects of refugee problems in Africa, 1969 (hereafter the OAU Convention)
and to recommend it as the basis for elaborating a regime for other poor
regions. Two points need to be made here. First, it is forgotten that the
1951 Convention itself began life essentially as a regional instrument.
Its geographical and chronological limitations were only removed, under
the pressure of Cold War politics, in 1967 by the Protocol Relating to
the Status of Refugees. Second, that in the period after the Cold War the
original regional character of the instrument is being restored. A series
of restrictive legal and administrative measures have been taken by States
in Europe and North America to ensure that they do not have to offer
protection to refugees from other regions.1 Furthermore, where mass
influx within the region is concerned, as in the case of refugees from
former Yugoslavia, the 1951 Convention has been sought to be replaced by
a temporary protection regime.
The move towards establishing a non-entrée regime began in the early
eighties when an overwhelming majority of asylum seekers were of non-European
origin.2 It also, significantly, ‘led to renewed interest in the 1980s
in .... “regional solutions” which might result in diminishing the numbers
of extra-regional arrival’.3 The non-entrée regime has been put
in place by a series of measures. Some of these may be touched upon.
First, there are the restrictive visa policies and carrier sanctions; the
latter making airline carriers liable to fines for carrying passengers
without proper papers.4 Second, “international zones” have been demarcated
in airports where physical presence does not amount to legal presence and
from where summary and arbitrary removal is permissible.5 Third,
safety zones have been created inside countries - as in Northern Iraq and
former Yugoslavia - to stop asylum seekers moving out and seeking refuge.
As it turned out, these safe zones were the most unsafe you could imagine.6
Fourth, the principle of non-refoulement has been given an extremely narrow
interpretation. For example, in Sale v. Haitian Centers Council [113 S.Ct
2549 (1993)] the US Supreme Court decided that the act of interdicting
Haitian refugees on the High Seas and returning them
to their country of origin irrespective of the claims to having a well
founded fear of persecution was not violative of Article 33 of the 1951
Convention. This decision met with near universal disapproval
and has been described by the High Commissioner for Refugees as ‘a setback
to modern international refugee law’. Fifth, most countries in Europe,
and the US since April 1, 1997, are implementing the “safe third country”
concept whereby an asylum seeker is denied access to a comprehensive asylum
determination procedure because they could apparently have sought protection
in countries they passed through to reach their ultimate destination.
The concept has grave consequences for the asylum seeker as
has led to chain deportations, often back to the country from which the
refugee fled. In an unfortunate decision the German Federal Constitutional
Court in May 1996 upheld the German safe third country law legitimizing
its practice in other countries as well. A recent report of the United
States Committee for Refugees (USCR) however recommends that “the use of
national safe third country national laws and practices should be discontinued
imme diately”.7
Sixth, still on the same theme, mention may be made of attempts to harmonize
internal procedures in Europe which have led to the adoption of two conventions
known as the Dublin and Schengen Conventions which have recently entered
into force. The USCR has recommended the scrapping of these conventions
as well in so far as the criteria used for determining claims of asylum
seekers is concerned. It recommends that “the country where the asylum
seeker first chooses to seek asylum, rather than the country of first arrival,
should normally assume responsibility for adjudicating the asylum claim”.8
Seventh, asylum seekers have been held in offshore camps which have been
effectively declared rights free zones. For example, when the US started
holding Haitian and Cuban refugees at Guantanamo Bay, a territory leased
out from Cuba, a U.S. Court of Appeals ruled in Cuban
American Bar Association (CABA) v. Christopher [43 F.3d 1412 (11th Cir.1995)]
that refugees in “safe haven” camps outside the US did not have Constitutional
rights of due process or equal protection, and were not protected
against forced return. This is, according to Bill Frelick of the United
States Committee on Refugees (USCR), “an open invitation for abusive and
arbitrary conduct”.9 Eighth, where an asylum seeker manages to cross these
hurdles a very restrictive interpretation is given to the definition of
“refugee” contained in the 1951 Convention. For example, asylum seekers
fleeing former Yugoslavia, most of whom met the 1951 Convention definition,
have been denied refugee status. Some countries (Canada, for example) have
also invoked the internal flight alternative (IFA) test to deny refugee
status.10 Together, these interpretations and measures manifest a language
of rejection which threatens the very institution of asylum.
For refugees within the region a temporary protection regime has been established
which has replaced the 1951 Convention. While it can be
argued that protection was always conceived as temporary, vide Article
I(C) of the 1951 Convention which contains the cessation clause, international
refugee law was in practice firmly wedded to an exile bias. As Goodwin-Gill
has noted, the Convention “was drafted at a time when voluntary repatriation
was effectively obsolete. There was no talk then of temporary protection,
temporary refuge, dealing with causes, promoting the condition for safe
return, or preventing the necessity for flight”.11 The concept of temporary
protection was introduced in the context of refugees fleeing conflict in
the former Yugoslavia. Four points may be noted here. First, the concept
coexists with the construction of the non-entrée regime which makes
access to the industrialized world difficult. Second, as already
mentioned, even those refugees who fall squarely within the definition
of the 1951 Convention are only receiving temporary protection.12 Third,
the rights of individual given temporary refuge are considerably circumscribed
under the temporary protection regime. Fourth, the concept of voluntary
repatriation has been replaced with that of safe return. It can tolerate
a degree of coercion to promote the return of refugees to the country of
origin. In sum, the de facto regional regime which has emerged in Europe
has replaced the 1951 Convention where intra-regional flows are concerned
and contained its impact in the instance of extra-regional flows.
Africa: Anti-colonial
Struggles and the OAU Convention
Any attempt at framing a
regional convention in the Third World has for its ready reference the
OAU Convention. While there is little doubt that it is an exemplary text
in many ways it is often forgotten that it was arrived at in the context
of anti-colonial struggles in Africa:
Reflecting the historical experience of Africa, much as the 1951
convention did for Europe, this formulation came into existence largely
as an expression of political solidarity on behalf of the ongoing
struggles against white rule in southern Africa, as well as retrospectively
in Algeria, which drove large number of persons to seek refuge in other
countries.13
The political context is of critical relevance in appreciating the absence
of regional conventions in the other regions, as also in appreciating the
core features of the OAU Convention.14 For example, the definition of “refugee”
clearly bore the imprint of the anti-colonial political context. As Cimade
et al put it: Soon after obtaining
their independence, most African countries had to face the problem of refugees,
most of whom came from countries which were not as yet independent. The
new States assembled in a Pan-African organization and reached an agreement
which enlarged the definition of a refugee .... In accepting this definition,
the countries which signed the agreement do not seem
to have looked beyond the struggle they were waging against colonialism.15 Likewise, the solution of voluntary
repatriation was also arrived at in an anti-colonial context. Refuge was
given, to quote Goodwin-Gill, “in anticipation of repatriation on
independence, with appropriate, international assistance in rehabilitation
being given to those returning”.16 For instance, the General Assembly of
the United Nations (UNGA) requested the High Commissioner in 1974 “to take
appropriate measures in agreement with the Governments concerned, to facilitate
the voluntary repatriation of refugees from territories emerging from colonial
rule and, in co-ordination with other competent bodies of the United Nations,
their rehabilitation in their countries of origin”.17 It is true that since
the Convention came into force in 1974, African member States have reaffirmed
its usefulness in dealing with post-colonial refugee flows. But in the
post-colonial context a firm link has been established in practice between
the obligations undertaken under the Convention and the principle of international
burden sharing. The lack of the Western world’s commitment to burden sharing
is the principal reason why African States no longer display
the same kind of solidarity with refugees as they did in the past.18 It
may be recalled in this context that the OAU Convention was arrived at
a time when refugees were welcome even in the industrialized world as they
possessed ideological and geopolitical value. In other words, the only
extant regional convention was adopted in circumstances radically different
from those which currently prevail. This is a crucial difference where
the current recommendation of a regional solution is concerned. The lesson
is that a regional instrument is equitable only if it
is an element in the construction of a progressive and humane global regime
which rejects the language of segregation and exclusion.
The Principle of Burden
Sharing and Regionalism
If the intent of advocating
a regional solution is that of burden shifting then it violates the principle
of solidarity and burden sharing. In the Asian context attention may be
drawn to the adoption of an addendum to the 1966 Bangkok principles by
the Asian-African Legal Consultative Committee (AALCC) in 1987
calling for greater international burden- sharing. It expresses the
belief of countries of the Asian and African regions
that the principle of burden sharing should be given a global and not a
regional interpretation.19 The additional principles adopted are: I. The refugee phenomenon
continues to be a matter of global concern and needs the support of the
international community as a whole for its solution and as such the principle
of burden sharing should be viewed in this context.
II. The principle of international
solidarity and burden sharing needs to be applied progressively to facilitate
the process of durable solutions for refugees whether within or outside
a particular region, keeping in perspective that durable solutions in certain
situations may need to be found by allowing access to refugees in countries
outside the region due to political, social and economic considerations.
III. The principle of international
solidarity and burden sharing should be seen as applying to all aspects
of the refugee situation, including the development and strengthening of
the standards of treatment of refugees, support to States in
protecting and assisting refugees, the provision of durable solution and
the support of international bodies with responsibilities for the protection
and assistance of refugees.
IV. International solidarity
and cooperation in burden sharing should be manifested whenever necessary,
through effective concrete measures in support of States requiring
assistance, whether through financial or material aid or through resettlement
opportunities. It is true that a balanced approach
may be called for in terms of burden sharing but it is not certainly one,
to cite Goodwin-Gill once again, “which inequitably raises the interests
of one country (or group of countries) over another.
Refugee problems are, by definition, international problems,
and their resolution is the responsibility of the community of nations.
South East Asia showed how vast numbers could be moved successfully to
new locations beyond the region”.20
Accession to 1951 Convention
and the Non-entrée Regime: Need for Constructive Linkage
It is often asked as to
why no State in the South Asian region is a party to the 1951 Convention
or the 1967 Protocol. There are several reasons which are cited: the Eurocentric
character of the 1951 Convention, the historical peculiarity of the region,
the lack of control over borders, the ethnic ties which exist across borders,
and the lack of sufficient resources. What I want to suggest is that while
some of these concerns are met by the 1951 Convention, the more significant
reason why States should refuse to accede to it is the fact that the Convention
is being dismantled by the very States which framed the convention. It
is my submission that any talk of accession should also be linked to the
withdrawal of measures that constitute the non-entrée and
temporary protection regimes. That is to say, the countries of the region
should collectively argue that they would consider acceding to the Convention
only if the Western world was willing to withdraw those measures which
violate the principle of burden sharing and instead practice burden shifting.
One has to be careful here not to be taken in by new formulations which
would have the Western world give resources in exchange for the poor world
offering asylum.21 This commodification of refugees must be rejected out
of hand.
III The Intra-regional
Perspective
In this part of the paper
I argue that attempts at arriving at a regional declaration or a convention
must be preceded by the enactment of national legislation and stress the
need to pursue a research agenda which will facilitate and build
on these legislations to shape a common approach for the region. Indeed,
it is my understanding that a premature attempt to arrive at
a regional solution may even prevent the passage of national legislations.
The Outlook of Political
Realism
My approach, to begin with,
takes cognizance of those features of the prevailing political environment
of the region which are highlighted by, among others, the adherents of
political realism. They make the following points. First, the general environment
of suspicion and distrust which vitiates inter-State relations in the region
is not conducive in the immediate future to a common approach to the refugee
problem. Second, there is the historical experience that “some of the spill-overs
of internal conflicts and turmoil have not only vitiated bilateral relations
but even threatened regional security and peace, as was
evident during 1971 between India and Pakistan and also between India and
Sri Lanka during the eighties”.22 Third, in the post Cold war era issues
“emerging from spill-over of internal conflicts ... will demand greater
attention” necessitating careful consideration of the issues involved in
arriving at a common approach.23 Fourth, the bilateral mode
of resolving contentious issues has been for long the dominant mode
of dispute resolution and it is unlikely that the ruling elites in the
region will break from this tradition with reference to the refugee problem.24
Fifth, the power asymmetry, geographical proximity, and the divergence
in the nation and State-building processes which characterize States in
the region reduce the possibilities of arriving at a common approach.25
Sixth, there is the inability of States in the region to patrol its porous
borders.26 Coupled with the fact that cultural ties connect peoples across
borders facilitating the movements of migrants and refugees the lack of
control over borders has become a key obstacle to its adoption.27 Seventh,
the countries of the region are differently positioned in terms of receiving
refugees from within the region. For example, the island status of Sri
Lanka has excluded it from being a host to asylum seekers.
Likewise, Bhutan’s relatively remote location has meant few refugees.28
While Pakistan and Bangladesh have received refugees except the Biharis
stranded in Bangladesh, they are from outside the South Asian region Myanmar
and Afghanistan as it is presently constructed.29 India “is the only
country that is either contiguous to, or has a large coastal line with,
all the other six States, while none of them have any common borders with
each other”.30
Together, these features are said to occlude a regional solution to the
refugee problem. The shared vocabulary of realism between the ruling elites
ensures that even where such an approach is mooted, it is rejected the
next instance. For example, it is felt by some commentators that there
are issues which could possibly be dealt with within a multilateral framework:
An emerging issue that may
have the potential of being dealt in a multilateral framework could be
the question of refugees and illegal immigrants. There is the question
of Bhutanese refugees in Nepal, where some Nepalis are asking for India’s
involvement in finding a solution since the refugees had gone to Nepal
via India and, as such, India becomes the country of first asylum. Similarly,
illegal immigrants from Bangladesh are coming not only into India but also
Nepal and even Pakistan (Bihari Muslims) 31. But even as this possibility
is stated they are compelled to add: but then, Bangladesh
neither accepts that its people are emigrating for economic and other reasons
to its South Asian neighbors, nor will it agree to deal with the question
in a multilateral framework. India would not also like to get involved
in the refugee dispute between Bhutan and Nepal where, whatever stance
it adopts, short of accepting and absorbing all the Bhutanese refugees
itself, it is bound to displeasure either or both of its small neighbors.32 Each State is concerned that
the one which first abandons the principle of power politics
will have to pay heavy costs.
Displacing the Language
of Realism
The language of political
realism, it hardly needs to be added, is not peculiar to South Asia. For
example, the international refugee regime has from the very beginning been
hostage to foreign policy interests; it was an integral part of Cold War
politics. The vocabulary of political realism has been internalized by
the ruling elites in the diverse regions of the world, even corroding long
held traditions of solidarity and internationalism. This framework is entirely
unsuited to the resolution of humanitarian issues but is unlikely to be
displaced by a new paradigm which does not take cognizance of certain objective
realities or the history of mutual suspicions and acrimony between States
in the region engendered by the realist vision.33 To put it differently,
the language of realism cannot be displaced if it is opposed with the language
of utopian idealism. To illustrate the point, Meghna Guha Thakurtha writes
that States in the region should “recognise that with globalization of
the labour market, State boundaries should no longer provide a barrier
for a person’s search for employment”.34 While open borders is an ideal
worth pursuing it is not a realizable goal in the near future. Its espousal
at present will only strengthen those political forces which oppose international
relations based on morality and solidarity.
On the other hand, unless the language of realism is displaced there is
little hope for establishing a refugee regime in the region based on the
spirit of solidarity and internationalism. I would like to advance in this
context the concept of relative autonomy where humanitarian issues are
concerned. That is to say, the displacement of the language of realism
does not mean that the special existential, ideological, and security
concerns of individual States of the region are not to be taken into account.
It merely implies that these concerns are to be given weight within a framework
which recognises the distinctive essence of humanitarian problems. It,
among other things, calls for eschewing an omnibus language of national
security to address humanitarian issues.35
The possibility of a critique of the particular features identified by
political realists eventually rests on the understanding that the regional
identity is ‘socially constructed’.36 It is an ‘imagined community’ in
which some features are stressed over others in order to either promote
visions of conflict or that of solidarity. The forging of a regional identity
devoid of suspicion and mistrust thus calls for a redefinition of the different
‘national’ perceptions of the region in a spirit of internationalism. In
this regard, the language of morality needs to be injected into the discourse
of regional politics.
In addition, it calls for dialogue and co-operation between left and
democratic forces, in particular working class organizations, in the region.
These forces alone can replace the language of power politics with the
language of morality and solidarity. It needs to be remembered that a vast
majority of those who are forcibly displaced, or who are marginalized after
displacement, come from the poorest sections of society. These people are
displaced by modes of thinking which “place the State above the people,
the security of the nation State above people’s security, the removal of
real or imaginary threats to the State more important than persisting threats
to the people and their survival”.37 Therefore, these forms of thinking
are unlikely to engender a humane discourse which expresses empathy with
the pain of the victims. Indeed, the very issues which a regional approach
requires to address (the protection of minority rights, economic migrants,
etc.) are those which are used by ruling elites to either come to power
or sustain their regimes.
Root Causes of Refugee
Flows
The left and democratic
forces also need to come together to struggle against the policies
of neo-colonialism whose burden is being largely borne by the poor in the
region. There is growing evidence of the critical link between neo-colonialist
policies and what are termed “ethnic” conflicts. Recent years have seen
the breakout of genocidal violence in former Yugoslavia and
Rwanda. Research has revealed that these “ethnic” conflicts were sparked
in an economic environment shaped by structural adjustment policies recommended
by international financial institutions.38 Thus, there is a clear external
or international dimension to the root causes of refugee flows which needs
to be addressed. The opposition to such policies should be an integral
part of the democratic struggle of peoples to displace the language of
political realism.39 In this process the solidarity of the working peoples
has to play a key role.40 To put it differently, the opposition
to neo-colonial forces is the focus around which the left and democratic
forces in the region must lay the foundations of a new humanitarian order.41
At the domestic level, attention needs to be paid to the general
promotion of democratic norms and human rights, in particular the defence
of minority rights. As Kamal Hossain has noted, involuntary movements in
the region can be:
broadly ascribed to human
rights violations, resulting from the existence of elite-dominated political
systems and a pervasive climate of religious and ethnic intolerance, reinforced
by high levels of poverty, landlessness and unemployment. Sadly these conditions
seem likely to persist. A 1997 report on human development in South Asia,
for example, States that the area is emerging as the poorest, the most
illiterate, the most malnourished and the least gender-sensitive region
in the world.42
In these contexts States parties to human rights conventions must be called
upon to facilitate their implementation through incorporating them in domestic
laws. For example, while India has ratified both the 1966 civil and political
rights and the social and cultural rights covenants it has not passed legislation
incorporating them into domestic legislation. While the courts in the country
have invoked their spirit from time to time it would greatly facilitate
matters to have appropriate legislations implementing them. The establishment
of national human rights commissions is also an important step in the promotion
of human rights, particularly that of vulnerable groups like refugees.
For example, the Supreme Court of India was able to intervene and protect
the rights of Chakma refugees in the case of National Human Rights Commission
(NHRC) v. State of Arunachal Pradesh (AIR 1996 SC 1234) because the NHRC
took the matter before it. The Supreme Court held that “the State is bound
to protect the life and liberty of every human-being, be he a citizen or
otherwise.”
Need for National Legislations
The general defense of human
rights must be coupled with a campaign for national legislations on refugees.
The stress on national legislations, as opposed to a regional declaration
or convention, is placed on several grounds. First, a premature attempt
to arrive at a regional solution could mean the scuttling of national legislations
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 refugees. It is worth recalling here that the 1969
OAU Convention was arrived at in the context of anti-colonial struggles
which united the States and peoples of the region. Second, the regional
solution may assume the form of a non-binding declaration with little actual
impact on the behaviour of States. On the other hand, its presence may
be said to exclude the need for national legislations. Third, the scope
of a regional declaration or convention will be confined to refugees from
the region whereas national legislations can be more comprehensive in their
coverage. Fourth, national legislations could address the problem of internally
displaced persons (IDPs) which is entirely ruled out, and appropriately
so, in the regional context. This point is of significance when it is remembered
that no State in the region is a party to the 1951 Convention. Fifth, in
view of the nature of inter-States relations in the region any attempt
to arrive at a regional instrument will converge on a minimalist regime.
Sixth, any regional instrument will eventually have to be implemented at
the national level. It is felt that the absence of experience in this regard
could be an handicap at arriving at a sensible regime. It is my belief
that the passage of national legislations will allow the 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 implementation. It is at this point that a
fruitful dialogue for a regional solution could be initiated with greater
confidence among the participants.
Clarifying Concepts
The drafting of national
legislations, and later a regional instrument, calls for considerable research
into diverse aspects of the problem of forced displacement. It must, to
begin with, clarify fundamental terms like refugees, IDPs,
economic migrants, illegal migrants, Stateless refugees, persons in refugee
like situations, etc. In my view the collapse of these distinct categories
into one another has confounded matters. For example, confusing refugees
with economic migrants has meant that there is little sympathy for the
cause of refugees in the poverty ridden countries of South Asia. Likewise,
confusing refugees with IDPs is to arouse the legitimate hostility of governments
as the problem of IDPs, vide the fundamental principles of sovereignty
and non-intervention, squarely falls within the national jurisdiction of
States. This matter is of much importance at a time when the line between
IDPs and refugees is increasingly sought to be blurred at the international
level.
The national legislations will have to adopt a definition of “refugee”
keeping in view the peculiarities of the region and the nature of refugee
flows. In other words, neither the 1951 Convention nor the OAU Convention
definition of a refugee needs to be blindly adopted or rejected without
a careful study of the needs of the region. This is where research into
the hitherto experience of the countries of the region in handling refugee
flows is called for, in particular in identifying the weaknesses in the
extant systems in providing assistance and protection to refugees.
Determination of Status
Any regime for the protection
of refugees requires that adequate procedures for the
determination of status and the protection of refugees be provided for.
This calls for the setting up of appropriate national bodies, including
a provision for an appellate authority. In this respect attention will
need to be given to a range of issues including the structure of the national
bodies, training of officials, the provision of legal aid, interpretation
facilities, etc. In this context, the experience of countries in other
regions will need to be examined.
Rights and Duties of
Asylum Seekers and Refugees
It is often the complaint
of States in the region that the rights regime embodied in the 1951 Convention
is unsuited to the condition in the poor world as they do not have the
resources to fulfil their obligations. In this respect there is a need
for research to determine the minimal core of assistance and
the bundle of rights to be applicable in situations of mass influx. A good
starting point could be the UNHCR Executive Committee Conclusion No.22
on Protection of Asylum Seekers in Situations of Large-scale Influx which
was adopted in 1981. However, it is also important to review (if
only to reject them) the temporary protection regime(s) established in
Europe in terms of the rights which have been granted to those given protection.
The conditions under which
the detention of an asylum seeker or a refugee is permitted would need
to be clarified. In this context several questions need to be addressed.
For example, what are the restrictions which can be placed on the movements
of asylum seekers and refugees? Is confining refugees to camps amount to
a policy of detention? What are the grounds which can be invoked
for the detention of refugees?
There is also the need to consider in some detail the financial
arrangements for looking after the refugees both at the national and regional
levels. At the regional level the question is whether the expenses incurred
in looking after refugees should be borne by individual States or the region
as a whole through a fund set up for the purpose. At the national level
the question is whether the expenditure is to be borne by the union or
the State governments.
Lastly, there is a need to spell out the duties which refugees owe to the
host country in the background of the principle of non-intervention into
the internal and external affairs of States.43
The Problem of Repatriation:
The Need for Case Studies
The solution of voluntary
repatriation is today widely referred to as the ideal or preferred solution
to the global refugee problem. Yet this solution is the least researched.44
In this context, what is called for is a study of the peculiar factors
which inhibit or promote repatriation in the region. Detailed case
studies of the repatriation of particular groups of refugees could offer
rich insights into the problem. For example, take the case of the repatriation
of Rohingya Muslim refugees from Bangladesh. It has raised a good deal
of controversy. On the one hand, there are allegations of coerced repatriation,45
and on the other, of vested interests which want to retain them as refugees.46
Likewise, in the case of repatriation of Sri Lankan Tamil refugees from
India there have been allegations of coerced repatriation even when the
UNHCR has certified that the repatriations have been by and large voluntary.47
What explains these different conclusions? Can clear legal guidelines be
drafted to ensure that involuntary repatriation is not practiced?
Is there a need to distinguish between spontaneous and voluntary
repatriations in the region? What should be the role of governmental and
non-governmental agencies where refugees return spontaneously
to the country of origin? These questions call for a considered response.
The Problem of Stateless
Persons
An important question which
needs to be addressed concerns the problem of repatriation
in relation to Stateless persons in the region. There are, as we know,
three large groups of Stateless persons in the region: the Bihari Muslims
in Bangladesh, Bhutanese Nepalese refugees from Bhutan, and the Rohingya
Muslims of Burma. Their fate has not received the attention it deserves.
The traumatic experience of these groups needs to be recorded, and solutions
found to their problem. In this context, the accession to the 1954 and
1961 conventions on Statelessness need to be explored.
Mechanisms to Implement
the Regional Instrument
An important aspect of arriving
at a regional regime is to debate the need for a body to oversee the implementation
of the agreement. In case there is a need for such a body its objectives,
institutional structure, financial implications would need
to be considered. In this respect there is a need to look, for example,
at the experience of the OAU Bureau for Refugees.48 Likewise, a review
of the manner in which the European Union countries have coordinated
their policies on refugee and allied issues will need to be examined.
Role of the UNHCR
What role should the UNHCR
be assigned in the national or regional scheme of things? What has been
the hitherto experience of States in the region with the Office of the
High Commissioner? Are the States comfortable with the ongoing transformation
of the institution from a refugee to a humanitarian organization? Should
the organization be assigned a role in status determination? Will the UNHCR
be given access to all refugee groups? Will States accept international
assistance channelized through the UNHCR?
IV Summation
I have argued in this paper
that it is crucial to examine the meaning and implications of a regional
approach from an inter-regional standpoint in order to ensure that it does
not impose inequitable burdens on some regions of the world. In this context
I recommend the strategy of constructive linkage which requires the countries
of South Asia to call upon Western States to withdraw the worst features
of the non-entrée regime-constituting a de facto regional regime
- as a pre-condition for arriving at a regional regime. This
strategy should also be extended to the question of acceding to the 1951
Convention.
In so far as the intra-regional
perspective is concerned an appropriate approach is one which is sensitive
to the history, geography and politics of the region but which does not
reinforce the climate of distrust and suspicion which
presently characterises it. In this regard there is a need to displace
the language of political realism which dominates all political discourse.
At the academic level, this calls for theorizing with alternative frameworks
and vocabularies which show greater sensitivity to the humanitarian
dimension of problems. The central idea should be to insist on the relative
autonomy of the humanitarian from other dimensions of a problem. At the
societal level, it calls for the alignment of the left and democratic forces
to embed participatory democracy within States, and struggle against international
policies which create the environment in which violent conflicts play themselves
out. This understanding finds support in the fact that the OAU Convention,
the only existing regional convention, was arrived at amidst, and was deeply
marked by, anti-colonial struggles against imperialism. That is to say,
the alternative discourse has to be, in a bid to unite the peoples and
States of the region, embedded in anti-imperialist concerns and struggles.
Meanwhile, what is urgently required is the passage of national legislations
in the countries of the region. It is my understanding that a premature
attempt to arrive at a regional declaration or convention may inter alia
lead to the adoption of a non-binding instrument with a minimalist content
which does not offer effective protection to refugees. At the same time,
the absence of a regional instrument is no excuse for the passage of domestic
laws which guarantee assistance and protection to refugees. In the context
of both national and regional instruments there is a need for collaborative
work by concerned academics and activists of the region.
(An earlier version of
this paper was presented at the “Conference of Scholars & other Professionals
Working on Refugees and Displaced Persons in South Asia”
organized by the RCSS in Rajendrapur, Dhaka, Bangladesh, during February
9-11, 1998.)
Endnotes
1Together these measures
constitute what Hathaway has called the non-entrée (no entry) regime.
See, James C. Hathaway, “The Emerging Politics of Non-entrée”,
in Refugees No. 91, 1992, pp 40-41.
2In August 1984 the High
Commissioner for Refugees noted that many developed States had adopted
“a clearly perceptible policy of discouraging the arrival of further asylum-seekers”.
Refugees: Dynamics of Displacement (A Report for the Independent Commission
on International Humanitarian Issues, Zed Books, London, 1986)
p.39.
3Gilbert Jaeger, “Irregular
Movements: The Concept and Possible Solutions” in David Martin
ed., The New Asylum Seekers, op cit, pp. 23-48, at p.37.
4Cruz, A., Shifting Responsibility:
Carriers’ Liability in the Member States of the European Union and North
America (Trentham Books, Staffordshire, 1995).
5 See generally, Guy Goodwin-Gill,
The Refugee in International Law (Clarendon Press, Oxford, 1996) second
edition, pp. 145-147.
6See B.S.Chimni, “The Incarceration
of Victims: Deconstructing Safety Zones” in N. Al-Nauimi and R. Meese eds.,
International Legal Issues Arising under the United Nations Decade of International
Law (Kluwer Law International, The Netherlands, 1995) pp. 823-854.
7U.S. Committee for Refugees,
At Fortress Europe’s Moat: The “Safe Third Country” Concept (Washington
D.C., July 1997) p. 32.
8Ibid.
9Bill Frelick, “Safe Haven:
Safe Haven for Whom?”, The World Refugee Survey, 1995 (United States Committee
for Refugees, Washington D.C.).
10Goodwin-Gill, op. cit.,
pp. 74-75.
11Guy Goodwin-Gill, “Editorial”,
International Journal of Refugee Law, vol.7, no.1, p.8.
12U. David, “Refugees from
Bosnia and Herzegovina: Are they Genuine?”, Suffolk International
Law Review, vol.18 (1995) pp. 53-131.
13Aristide R. Zolderg et.
al., Escape From Violence (Oxford University Press, New York, 1989) p.
29.
14The Cartagena Declaration,
1984 despite having exercised some influence is not a
binding instrument.
15Cimade, Inodep, Mink,
Africa’s Refugee Crisis: What’s To Be Done (Zed Books Ltd., London, 1986)
p. 80.
16Goodwin-Gill, op cit,
p. 182.
17UNGA res.3271 (XXIX),
10 Dec.1974. As the recent State of the World’s Refugees: A Humanitarian
Agenda puts it: “When refugees did go back to their homes in large numbers,
as they did in the case of countries such as Algeria, Angola, Mozambique
and Zimbabwe, it was generally in the context of successful anti-colonial
struggles ...”. (Centre for Documentation and Research, UNHCR, Oxford University
Press, Oxford, 1997) p. 164.
18As Bill Frelick says,
“Africa, which for decades stood as a shining example
of solidarity and hospitality; retreated from fundamental principles. On
both sides of the continent, the spirit of generosity withered .... Like
it or not, U.S. actions set a standard. If the United States treats refugees
and asylum seekers without regard to fundamental refugee
principles, rest assured that other countries will cite that as justification
for their own misbehavior”. Bill Frelick, “The Year in Review”, The World
Refugee Survey, 1997, pp.14-19 at p.14.
19The Report of the Asian-African
Legal Consultative Committee (AALCC) on the adoption of the addendum at
the outset affirms the principle of burden sharing: In
the light of the exchange of views and the material placed before the Committee
.... the conclusion could be drawn that the principle of international
solidarity in dealing with the refugee situations and the concept
of burden sharing in that context appear by now to be firmly established
in the practice of States. See, Collection of International
Instruments and other Legal Texts Concerning Refugees and Displaced Persons
vol. II (UNHCR, Geneva, 1995) pp.63-64.
20Guy Goodwin-Gill, “International
Law and Solutions to the Refugee Problem”, in H.Adelman and
C.M.Lanphier eds., Refuge or Asylum: A Choice for Canada (York Lanes Press,
Toronto, Canada) pp.27-43 at p.37. In the apt words of Atle Grahl-Madsen,
“the principle of non-refoulement is part of a sacred trust, but the principle
does not stand alone; it is indeed closely connected with the principle
of burden sharing”. Atle Grahl-Madsen, “Refuge in Canada: The Legal Background”,
in H.Adelman and C.M.Lanphier eds., Refuge or Asylum: A Choice for Canada
(York Lanes Press, Toronto, 1991) pp.1-12 at p.8. See also Goodwin-Gill,
op cit, p. 201.
21James Hathaway, “Reconceiving
Refugee Law as Human Rights Protection”, Journal of Refugee Studies
vol.4, no.3 (1991) pp. 113-131.
22S.D.Muni, “Coping with
the Contentious Issues in South Asia”, in L.L.Mehrotra, H.S.Chopra and
G.W.Kueck eds., SAARC 2000 And Beyond (Omega Scientific Publishers,
New Delhi, 1995) pp.78-97 at p.80. From the perspective of India, Kapur
writes that “though all the difficulties that India is faced with internally
cannot be attributed solely to the instability of her immediate environment
(some of them are also due to internal issues), it can
hardly be denied that the destabilization of Assam is partially due
to influx of refugees into the area from Bangladesh, that the growing difficulties
in Tamil Nadu are connected with the ethnic turmoil in Sri Lanka, that
the Punjab and Kashmir imbroglios are linked to neighbouring Pakistan,
and that the instability of the whole of the northeastern tribal belt has
some connection with the continuously unstable situation that has afflicted
Myanmar since independence.” Harish Kapur, India’s Foreign Policy 1947-92
(Sage, New Delhi, 1994) p. 91. On this subject, see also, Shelton U. Kodikara
ed., South Asian Strategic Issues (Sage, New Delhi, 1990).
23Muni divides the contentious
issues in the region into five categories: colonial legacies, political
and ideological issues, issues of strategic conflict and military
balance, the spillover of internal conflicts and turmoil in a given country
on its neighbours, and issues arising out of resource and developmental
conflicts. S.D. Muni, op.cit. pp.79-81.
24 Kapur lists the advantages
of the bilateral approach for India: it can take into account the unique
features of each relationship; can avoid the internationalization of contentious
issues in South Asia; and avoid a situation where all other
countries unite against her. Kapur, op cit, pp. 101-103. “The past experience
of those contentious issues that have been resolved suggest
that the dominant mode of resolving contentious issues has been bilateral.”
Muni, op cit, p. 86.
25Muni, op cit, p. 83.
26Myron Weiner, “Rejected
Peoples and Unwanted Migrants in South Asia”, Economic and Political Weekly,
vol. xxviii, no.34, August 21, 1993, pp. 1737-1746.
27“.... the issue of cross-national
ethnic and religious minorities poses enormous difficulty for
States within the region. For example, no South Asian country is able to
defend its claim of domestic jurisdiction while dealing with the struggles
of ethnic and religious minorities. Even when each South Asian country
is most reluctant to interfere in the domestic affairs of another country,
and entertains its claim of domestic jurisdiction, contemporary events
have repeatedly proved that ethnic minority explosions
not only strain bilateral and multilateral relations but sometimes even
create inter-State crises.” Partha S. Ghosh, Cooperation and
Conflict in South Asia (Manohar, New Delhi, 1995) Reprint of 1989
edition.
28Lok Raj Baral, “Bhutanese
Refugees in Nepal: Insecurity for Whom?”, in L.R.Baral and S.D.Muni eds.,
Refugees and Regional Security in South Asia (Konark, New Delhi, 1996)
pp. 152-177 at p.153.
29L.R.Baral and S.D.Muni,
“Introduction”, in ibid, p. 7.
30Kapur, op cit, p.89.
31Baral and Muni, op cit,
p.91.
32Ibid.
33The “Gujral doctrine”
was a move away from the more regressive dimensions of this vision. See
for details, Bhabani Sengupta, “India in the Twenty-first Century”, International
Affairs (Royal Institute of International Affairs, London) vol. 73,
no. 2, pp. 308-9.
34Meghna Guhathakurta, “Rivers
and Refugees”, in South Asia: Vision and Perspective (South Asian Regional
Dialogue, Lahore, 1994) pp.517-533 at p.531. She further notes that “according
to international law the right to earn one’s livelihood is a fundamental
human right”. Ibid.
35For a critique of the
policies of the Western world in this regard see B.S. Chimni, “Solutions
to the Global Refugee Problem and the Language of Security: A Disturbing
Trend”, in Anthony Anghie and Garry Sturgess eds., Visions of the Twenty
First Century: Essays in Honour of Judge Christopher Weeramantry (Kluwer
Law International, Dordrecht) forthcoming.
36Andrew Hurrell, “Regionalism
in Theoretical Perspective”, in L. Fawcett and A. Hurrell eds., Regionalism
in World Politics (Oxford University Press, New York, 1995) pp.37-74 at
p.39.
37Rajni Kothari, “Masses,
Classes and the State”, in Ponna Wignaraja ed., New Social Movements in
the South: Empowering the People (Vistaar Publications, New Delhi, 1993)
pp.59-75 at p. 74.
38Michelle Chossudovsky,
“Economic Reforms and Social Unrest in Developing Countries”,
Economic and Political Weekly July 19-25, 1997, pp.1786-1788; James Petras
and Steve Vieux, “Bosnia and the Revival of US Hegemony”, New Left Review
No.218, July-August 1996, pp. 9-12; Anne Orford, “Locating the International”
Harvard International Law Journal vol.38, No.2 (1997). These writings underline
the need for avoiding simplistic labels like “ethnic conflicts” to
describe strife in the region. For example, Baral and Muni write: “If we
look at the factors generating refugees in South Asia in a
comparative context, we find that ... the explosion of
internal ethnic and secessionist wars, where massive military operations
are involved affecting ordinary people (emergence of Bangladesh, struggle
for a separate Tamil Eelam in Sri Lanka, and Soviet Military
intervention in Afghanistan), create mass exodus of refugees in the
shortest span of time”. Baral and Muni, op cit, p. 23.
39Usually any discussion
of the causes of refugee flows in the region has excluded the discussion
of external or international causes of refugee flows. See Baral and Muni,
ibid, p. 9. They simply do not take cognizance of the neo-colonial phenomenon,
particularly in the era of globalization.
40 James Petras and Chronis
Polychroniou, “Critical Reflections on Globalization”, Economic and Political
Weekly September 6, 1997, pp.2249-2252 at p. 2252.
41For example, the trade
unions of the SAARC region have come together and opposed the imposition
of the “social clause” in the World Trade Organization (WTO).
See Campaign Dossier: Draft South Asian Labour Rights Charter and UN Labour
Rights Convention, Kathmandu, May 20-23, 1996.
42Kamal Hossain, “Refugees
and human rights: A South Asian perspective”, The State of the World’s
Refugee, op.cit., p.78.
43For example, “no South
Asian country must allow its territory to be used against the internal
and external interests of another”. Bhabani Sen Gupta, “Conflict Resolution
in South Asia”, in South Asia: Vision and Perspective (South Asian Regional
Dialogue, Lahore, 1994) pp.267- 306 at p.301.
44John Rogge, “Repatriation
of Refugees” in T.Allen and H.Morsink eds., When Refugees Go Home: African
Experiences (URISD, 1994); and J.Bascom, “The Dynamics of Refugee Repatriation:
The Case of Eritreans in Eastern Sudan”, in W.T.S.Gould and A.M.Findlay
eds., Population Migration and the Changing World Order (John
Wiley and Sons, New York, 1994).
45The World Refugee Survey
op.cit., p.126.
46To quote one observer:
“.... parties with vested interest have emerged who want to keep the Rohingya
issue alive. They are the NGOs who are receiving liberal doses of aid in
the form of humanitarian relief; the profiteers who are benefitting
from selling the relief (There were even reports of racketeers bent on
illegal trafficking of women from these camps) and parties like Jamaat-e-Islami
and the Freedom party who are keen to back a movement for a Muslim Rohingya
State from the soil of Bangladesh”. Guhathakurta, op. cit,
p.527.
47 B.S.Chimni, “The Legal
Condition of Refugees in India”, The Journal of Refugee Studies vol.7,
No.4 (1994) pp.378-401 at pp. 386-87.
48 See J.Oloka-Onyango,
“The Place and Role of the OAU Bureau for Refugees in the African Refugee
Crisis”, International Journal of Refugee Law, vol.6 (1994)
pp. 34-52.
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