Seventy Years Of Negligence Towards Refugee Laws
Author: LawSphereX
Category: International Law
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SEVENTY YEARS OF NEGLIGENCE TOWARDS REFUGEE
LAWS
Sharon Itagi, School of Law, Christ (Deemed to be University), Pune - Lavasa Campus
ABSTRACT
Refugees have increased by more than 50% in the last few decades. There are di erent types of people in distress which includes, asylum seekers, refugees, internally displaced persons and people waiting in the camps at the borders of a country undergoing horrendous treatment and living in unimaginable conditions. The present paper aims to bring out the necessity to revisit the refugee laws and make it the law that leans towards the welfare of refugees other than to comply with the interests of a political statement. Keywords: Refugee, international convention, Status, UNHCR, Human Rights, Asylum seekers, refoulement.
Introduction There are about 24 million asylum seekers worldwide, a figure that has grown over time concerningly high after the start of world wars. Two-thirds of these asylum seekers are from Somalia, Afghanistan, and Syria, three nations well-known for experiencing widespread civil unrest and unhousing millions of nationals. Generalized violence is a term that has been coined to the status of the refugees.
More concerningly, receiving states frequently deny these asylum seekers their status as refugees on the grounds that they do not meet the requirements of the Convention relating to the status of refugees but given its antiquated definition of a refugee, which was developed in the context of the Second World War and Cold War, the Convention is ill-prepared to deal with the kinds of refugee crises that arise today in the twenty first century, as will be illustrated throughout this paper. The adoption of the United Nations High Commissioner for Refugees in the year 1951 right after the fresh rounds of the world war was to administer the scattered nationals of multiple countries who feared to return back to their home country either in the fear of persecution or being tortured for their race, color, religion or ethnic beliefs.
The vulnerable people seeking asylums in countries can be a straining task by itself the definition must match with the people seeking help and for the countries to provide them the status of the refugees that complies with the rules of the 1951 convention and their own public policies after the national political allegiance to the country of the refugees. Research objective This research paper's primary goal is to outline the legal protections and legal options that refugees in India and other nations have. It covers a wide range of topics regarding refugees, beginning with their historical background and present circumstances. The primary agency that offers refugees safety abroad and other forms of assistance is the United Nations High Commissioner for Refugees (UNHCR).
(7) The Protection of Human Rights Act, 1993 established the National Human Rights Commission (NHRC) in India, an organization tasked with safeguarding refugees and advancing human rights. The report also includes information on refugee-related laws and conventions. Numerous nations, like Australia, Brazil, China, and others, consistently offer support and legal aid to a large number of refugees. India has a large refugee population, yet it does not have any laws specifically protecting their rights as India is not signatory to any international conventions that mainly relate with refugees. Why India did not have its roots Settled in on the 1951 Refugee Convention is a mystery that is discussed
further in the paper. The UN is also concerned about the global refugee crisis. The paper more importantly aims to provide a clear and traditional aspect on the refugee crisis and history around the world in the last seventy years. Research methodology In order to find the below information, a number of research methods were employed. The doctrinal method of research was applied along with traditional methodology of research which includes materials from research scholars too. Information related to conventions and other materials related to UNHCR and 1961 protocol, UDHR and other international conventions are referred to. Books on Human Rights, refugees, web articles, research papers were positively referred to and cited below. The analysis of rights of refugees in India is brought from the statutes, case laws, books, articles, journals, webpages.
Meaning and history of refugee in an International sense with reference to crisis The status and definition of a refugee in the convention states “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion”. The need for expanding the horizon of the definition of “refugees” arose in the past decades while determining a new set of people who have been forced to go through third world countries to the host country due to extreme conditions being challenged upon them. Most of the host countries deny status as per the convention that was set almost 70 years ago.
Hence, the decision to expand the definition of refugee to include international outflows of asylum seekers and at the same time doubts arise on the aspect of the boundaries of state sovereignty, which were frequently used as a justification for opposing the expansion of rights of the refugees in par with the Universal Declaration of Human Rights and the growing recognition of human rights, which state that everyone is entitled to rights regardless of where they are from, the expansion of refugee protection aligned with the increasing credibility of human rights, since the fundamental goal of international refugee legislation is to protect those in need who do not have a secure place to live.
Notwithstanding these well-meaning objectives, the error was in broadening the Convention's purview without taking into account the kinds of crises that would inevitably emerge in light of the diverse socio-political environments of different areas.
The main question that the paper will further proceed to examine is with the aspect of fundamental and universal rights of the refugees for basic amenities such as freedom to live with dignity and the right against torture and persecution. The international conventions that were involved in the molding of the refugee laws and the enforcement of the guidelines in the party state are questioned in line with the country’s socio,economic and political alliance to the war stricken country. With the years, the plight of these people has only worsened. There were 40 million people who were either refugees or asylum seekers who needed international protection. As of now, there are more than 110 millions of people who need protection.
The drastic growth in the rate of the number of the refugees are in fact directly proportional to the governments overthrown and political disturbances in the country. Where more than 50% of the population of these people were from Afghanistan, Somalia and Syria in the last decades of the 19th century, now the countries are Afghanistan, Somalia and Ukraine. After the recent invasion of Russia, Ukraine from the year 2022 has added millions of refugees who were forced to flee out of their home country. The failure of the international convention to adhere to the evolving time of the world politics Even though it made perfect sense in the European context of the 1950s, the emphasis on persecution based on the five Convention grounds was and is insufficient to address the geopolitical circumstances of other regions and the current refugee crisis, given the evolving nature of conflicts.
When it came to handling the refugee problems brought on by World War II and the Cold War in Europe, this kind of emphasis originally worked well. For instance,
because the Convention was intended to cover anyone escaping the Soviet Union because of political persecution, Czech refugees who escaped Soviet suppression of the nationalist uprising in 196831 were granted refugee protection. But in other areas, battles that resulted in refugee outflows were different from those of World War II or the Cold War since the state was not suppressing citizens due to their innate beliefs or traits.31 Rather, they were running from being caught in the crossfire of conflicts between rival groups. Certain states in Africa, including the Democratic Republic of the Congo and Zimbabwe experienced horrible transitions of fleeing the country.
In addition, there was a sharp increase in military conflicts, from which large numbers of people escaped for their lives. Examples include those who were uprooted from their homes by the Afghan Civil War in 1989, those who fled the Cambodia-Vietnam War as refugees, and Liberians who sought safety in other countries as a result of the civil unrest in their own country in 1990. These folks were just trying to escape war and bloodshed, they were not being targeted for any of the reasons specified in the Convention. They were refused refugee status because they did not fit the definition of refugees under the Convention.
Other instances of people who fled armed conflict but were refused asylum because they did not meet the Convention's definition of refugees include thousands of people who fled to the US and Canada from Guatemala, El Salvador, and Nicaragua, Tamils from Sri Lanka, Palestinians, Christians, and other groups from Lebanon, and Kurds who fled to Europe from eastern Turkey. Refugees and India India presently homes a huge population of refugees. In recent times, India is a home to all the people displaced from Sri Lankan Tamils, Chins of Myanmar, Chakmas from Bangladesh and Afghans, Pakistanis and Burmese too. 1 Even when India was never a party or signatory to either the 1951 United Nations Refugee convention or the 1967 Protocol to that Convention.
India has regardless been a graceful host 2 to all the people seeking refuge in the country and India has successfully become a new home to all those displaced families, living equally amongst everyone. India’s most influential prime minister Jawahar Nehru was adamant on following and adhering to the international applications of refugee laws but avoided to enter into legal obligations at the same time due to the issues with non-refoulement3 laws that are stated as an object of compliance of the signing countries to the convention. He did not want to risk the country in any possible way that would be a threat to the national security of the country in the coming years. And as a matter of fact, the gracious host sent thousands of refugees from Burma back to their state in the name of “National Security” in the late 1990s. Most of them were forced out of their last safe zone.
This surely forces any rational being to think over if it is high time to be a signatory to the convention. Afterall, regardless of pure intentions towards the state, the decision for not signing the treaty was before seventy years when India itself was a 1 Refugee Crisis and the Universal Human Rights Instruments: An Overview of Fifty Years Developments, 41
JILI (1999) 201
2 Tapan K Bose, Protection of Refugees in South Asia: The Need for a Legal Framework (2000)
3 Non-refoulement is a fundamental principle of international law that forbids a country receiving asylum seekers from returning them to a country in which they would be in probable danger of persecution based on "race, religion, nationality, membership of a particular social group or political opinion.
newly formed state. Now, India has all the power in the world and stands equal to developed nations. While India doesn’t have a particular layout of rules regarding refugees and people in vulnerable need to find a new home. Some of the Indian laws that are applicable to the parties are given below: ● Citizenship Act, 1955 ● Extradition Act, 1962 ● Foreigners Act, 1946 ● Illegal Migrant (Determination by Tribunals) Act, 1983 ● India Penal Code Act, 1860 ● Passport (Entry into India) Act, 1920 ● Passport Act, 1967 ● Protection of Human Rights Act, 1993 ● Registration of Foreigners Act, 1939 The Indian judiciary has always been a constant support in the matter concerning the living status of the refugees from different parts of the world who come to India with the hope of settling and making India their new home.
Changing times has been a valid reason to think over multiple aspects at the same time be it in culture, tradition, mindset gap of the generations mostly in traditional curated countries like India. Now could be the time when countries adopt and implement the laws that protect and benefit humanity and refugees themselves. International organizations relating to the refugees States must present comprehensive alternatives to the refugees based on their stories. The international authorities must comply with both the factors of the refugee conventions as well as on humanitarian grounds. States shall promote local settlements, third country resettlement, locomotion and basic facilities such as food, water, clothing as part of active humanity. The
Convention Relating to the Status of Refugees or the 1951 Refugee Convention or the Geneva Convention of 28 July 1951 is a United Nations multilateral treaty that defines who a refugee is and sets out the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum. The Treaty on political asylum and refuge is a multi-party treaty regarding political asylum and refugee law. It was signed in Montevideo on 4 August 1939 and entered into force on 29 December 1954, it basically is a treaty built upon the Treaty on International Criminal law. The 1984 Cartagena Declaration on Refugees highlights the key aspect of the central American crisis to carry out the 1951 and 1967 protocol, mainly concentrating on the refugee status in the American land.
The purpose of the 1954 Convention is to guarantee a minimal, fundamental set of human rights to stateless individuals. According to the international laws, a person is considered stateless if they are "not recognised as a national by any state under the operation of its law. " Statelessness is intended to be prevented and gradually decreased under the 1961 Convention. It creates a global structure to guarantee each person's right to nationality which is one of the fundamental rights that has to be granted and accessed freely without struggle to every person in the world. States must include protections in their nationality laws to stop people from becoming stateless both at birth and later in life.
The status and protection of the refugees in line with the mental suffering of the people caused a stir in the recent implementation of the Universal Declaration of Human Rights established in the year 1949. The “host” states fail to uphold and defend the fundamental human rights of foreign nationals who enter or stay in their territory, whether official or unofficial, including migrants, refugees, asylum seekers and stateless persons. Amnesty International4 has pushed for a greater use of international human rights bodies and processes in the quest for better protection of the rights of refugees and asylum seekers as well as practical remedies to abuses of such rights.
Human rights in the ambit of refugees has always been a huge issue from the past few decades as the conditions that the refugees survive on for the initial period before resettlement or for some unfortunate families that give up on their lives in camps and refugee relief centers due to harsh conditions. In the recent events in light of the conflict between Palestine and Israel, the refugee camp of palestinian nationals was bombed through an airstrike on Gaza Strip's largest 4 Amnesty International is a global movement, a non-profit organization that is a multinational structure that strives for equality and protection of all kinds of people. It is mainly an advocate for international implication of Human Rights.
refugee camp that killed and injured multiple dozens5. The incidence without second thoughts refer to vast number of violations and a major aspect of war crime which could result in huge damage to the recognition and application of the country in the eyes of international organizations but the only and major problem with the consequential threat are that since there is not profound binding authority to regulate or order the country to their mistake, it is wrongfully undermined. The International Court of Justice and the International Criminal Court even if they are the highest international organizations, their judgements cannot be or are not enforced by many countries.
Setting an example will be the United States of America who has failed to comply with the regulation and when questioned by the international courts, simply failed to adhere to the regulations and guidelines established by them. Countries that are in some way due to some reason be territorial, political or most importantly economical capabilities are termed as powerful states. Although the conventions have provided guidelines and given regulations, there are multiple important countries that are not signatory to it, and many who haven’t ratified the convention or implemented the recommendations in their domestic laws.
Another feather, United Nations Conference of Plenipotentiaries6 The Status of Refugees and Stateless Persons convened under General Assembly resolution 429 (V) of 14 December 1950 is an addition that was established to comply mainly with the Universal Declaration of Human Rights and to subside the United Nations 1951 refugee convention. The concerned parties to this convention must affirm the principle that human beings shall enjoy fundamental rights and freedoms without discrimination and to provide them with absolute freedom to exercise their rights against zero discrimination especially in the host states. Refugee laws, Humanitarian laws an intersection Human rights law and refugee law almost all the time since the beginning of world war and internal disputes in history have coexisted and intersect in a number of multiple fields.
Although they are two separate areas of law, international humanitarian law and human rights law also intersect since one deals with a person's protection from abusive power that violates a right of another and the other with the behavior of parties involved in an armed conflict that is to reciprocate duty towards affected parties. Humanitarian law and human rights law support one another when it comes to the protection of individuals under the authority of the conflicting party. Humanitarian law addresses wars, whereas refugee law addresses those who must escape 5 Israeli Strikes on Gaza Refugee Camp, Could Amount to War Crimes, Says UN, NDTV Report on 02/11/2023.
6 person and especially a diplomatic agent invested with full power to transact business
the wars because of hostilities and the suffering. This is why they complement each other so well. When it comes to the interaction between refugee law and human rights law, both of them outline the principle of non-refoulement, which forbids coercive return. Generally speaking, all of the laws complement one another rather than operating alone. The subject of law itself is very dynamic in nature. Additionally, concepts of law are adopted from all over the world, the best example for that is the Constitution of India. Conclusion The finding of the analysis conducted in this research paper proves that the conventions that support the refugee laws are indeed in need of change and reformation. Common ground between the United Nations High Commissioner for Refugees and government agencies will lead to significant advancements in the field of refugee law.
India, on one hand must undoubtedly enact legislation pertaining to refugees as, for a variety of reasons, there may be many more problems in the years to come in the ever conflicting era. . the country could use domestic law to guarantee that every refugee receives the bare minimum of protection with complete access to freedom and fundamental rights of any human beings. Without it, refugee rights are only advantages granted by the administrative authorities rather than rights in the true sense. It is possible to provide refugees a suitable place to live and work. To enhance their living conditions, civil society organizations must cooperate with the government and the United Nations High Commissioner for Refugees.
Through the multiple supporting conventions and instances that have taken place since the second world war and the cold war, the times have changed, the definition of a refugee has certainly changed. The meaning of refugees in the 1951 convention is vague in the year of 2023. It fails to protect the refugees that we see today in the world which was its main objective. Further recommendations In the light of this paper, the 1951 Refugee Convention should be reviewed and updated to meet modern requirements. Terms that refer to events dating back to before 1951 must be removed or corrected as we are nowhere close to 1951 anymore and the treaty should be amended to include all kinds of substitutes for persecution not just as per the definition of refugee in the
1951 convention. Furthermore, issues concerning non-refoulement must be revisited, even if
the people seeking refuge in the host country are deemed to be a threat to the national security
or a reason for internal disturbance there can be alternatives where the people could be put under constant supervision or be free in a restricted environment. Such kinds of alternate methods must be considered before sending the people back to their country of origin forcefully where there is a high chance of them being tortured and persecuted.
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