By Charlotte-Anne Malischewski
Today marks World Refugee Day. The number of refugees worldwide is at an 18-year high and the UN high commissioner for refugees Antonio Guterres told reporters that, around the world, a person is forced to flee every 4.1 seconds.
While much of the world’s attention is placed on the crisis in Syria and countries which continue to produce huge numbers of refugees such as Pakistan and Afghanistan, there is much to be concerned about when it comes to the plight of refugees in South Asia.
No country in the region is party to the United Nations Convention Relating to the Status of Refugees, 1951 or to the Protocol Relating to the Status of Refugees, 1967.
In India, the central argument against ratifying the 1951 Convention is that it is too much a representation of European ways of addressing European problems to be effectively implemented in India. Presently, India is not bound by the provisions of these key tools of international refugee law. That said, article 51 (c) of the Indian Constitution provides that India “shall endeavour to foster respect for international law and treaty obligations in the dealings of organized peoples with one another”. So, the principles of refugee law are often adopted in India, but the state is not bound by them in the way that a signatory country would be.
To make matters more ambiguous, India has no domestic refugee policy. Because there is no legal framework for asylum, the UNHCR conducts refugee status determination for asylum-seekers from non-neighbouring countries and Myanmar.
In an address in honour of World Refugee Day, Dr. Shashi Tharoor (former Minister of State for External Affairs and now a Member of Parliament who spend much of his career working for the UNHCR) said:
“It troubles me that a country with our proud traditions and our noble practices remains neither legally committed nor obliged to do anything for refugees, even if we behave humanely in practice. I think it is high time the Government reviewed its long-standing reluctance to sign up legally to what it is already doing morally. The Convention and the Protocol involve no obligations that we have not undertaken voluntarily.”
To say that the convention is in keeping with existing Indian intentions towards refugees, to draw parallel’s with India’s ancient historical of acceptance of migrants, or even to demonstrate that the current situation is inconsistent with constitutional principle is useful in trying to convince the powers that be to sign the convention, but to say that India is already doing morally what it would be required to do legally if it signed the convention is somewhat misleading. It masks the fact that India is not only resisting signing the 1951 convention, it is resisting implementing an effective legal system of refugee protection – period.
It’s been a year since the government committed to new long term visa that all refugees are suppose to be able to apply for, but those on the ground are not seeing the benefits of these new visas. An article in The Hindu today tells the story of refugees from Myanmar still waiting to hear from the Foreigner Regional Registration Office about these long-term visas. In it, a UNHCR official is quoted as saying:
“The Government of India has committed to allow all UNHCR-registered refugees in India to apply for long-term visas, which will also allow them to work in the formal sector and enrol in any academic institution. The process is slow and it is not clear how long it will take for all refugees registered with UNHCR to obtain them. So far, according to our information, refugees from Myanmar and some Somali refugees have obtained them. Refugees from other nationalities have also applied but have not received them yet.”
If India is to live up to the “heritage of diversity” Dr. Shashi Tharoor celebrates, it has a long way to go. Signing the 1951 refugee convention will likely not be enough, because as a product of post-War Europe it is ill-suited for the South Asian context, but it could be a start. A regional mechanisms is another option. A mixture of the two might be ideal. Ultimatley, though – while the means are many, the need is clear.
India needs to to implement a legal framework for refugee protection that is in keeping with international legal norms and responsive to South Asia realities and then, it needs ensure that these laws become practice.
As an advocate of the Supreme Court of Hinda and human rights activist, Rajeev Dhavan, said five years ago on this day:
“India needs to review its ambivalent refugee law policy, evolve a regional approach and enact rules or legislation to protect persecuted refugees. This is one step towards supporting a humanitarian law for those who need it. As a refugee-prone area, South Asia requires India to take the lead to devise a regional policy consistent with the region’s needs and the capacity to absorb refugees under conditions of global equity.”
For those forced to flee and now stuck in a legal lacuna, India’s history of hospitality is meaningless. They need legislated rights protection mechanisms and active efforts to ensure social, political, and economic inclusion in the present.