The article is authored by Himadri Badoni and Sparsh Goel both are 1st Year Law Student at Dr. B.R. Ambedkar National Law University
With the recent observation of the World Refugees Day, one might wonder who are the refugees and the displaced people, and why are they displaced?
The problem of the displaced people, including the internally displaced and the refugees, seems to have become an endemic. This week itself saw 1,00,000 people being forced to flee or leave their homes in Kayah State of Myanmar. This is just one instance in the plethora of disheartening forced migrations. These people are not only deprived of basic human rights on basis of religion, race or nationality but also run the risk of succumbing. The International Law uses previously drafted convention for an entirely different purpose; thus, it lacks adequate coverage and enforceability. In the modern day, it doesn’t hold as is evident from countries disapproving the Convention and even pulling back their support.Inimically on the Indian side, there is an absolute absence of any legislation whatsoever on refugees. Such an absence, perspicuously leaves this matter to the whims of the politically motivated to misuse this plight into gaining political advantage with haste. Finally, it is only the oppressed that have already been expelled from their homes. Wandering on the streets looking for food to survive, searching for their dignity that has been snatched for no mistake of theirs as they await death, being left defenseless by their own ‘leaders.’
The Issue Addressed:
Home, the warmth of this one syllable word is self-explanatory, synonymous to safety and the feeling of oneness, gives us all a sense of belonging. But we, the entitled, have had the luxury to experience having a home, we have not been suppressed, threatened or kicked out of our homes due to our race, religion, nationality. We talk today about those who had to leave their homes due to fear of persecution or danger of physical harm, commonly called the refugees or internally displaced persons.
As we continue to view the world through our rose-colored glasses, the wall of social inequalities stands tall dividing ‘humans’ into ‘the privileged’ and, ‘the hapless.’ While the privileged have had various instances to complain about, the hapless have been silently suffering as their plight remains unaddressed. despite the former being aware of the difficulties faced by the latter. The displaced persons, comprising the refugees and the internally displaced have been craving hands of empathy on their shoulders, let alone imagining help through the enforcement of codified laws.
Around 1,00,000 people have been internally displaced in the Kayah State of Myanmar, owing to recent violence which included “indiscriminate attack by the security forces” against the innocent civilians. This figure is not surprising, given the military coup in the country. However, the fact that the civilians have been forced to hide in forests without food, medicine and water which will put them at the risk of mass deaths due to starvation and contracting diseases, is still heartbreaking.
This worrisome state is not just of one country. Thousands have been displaced in northern Mozambique owing to the ongoing conflict, the deteriorating gang violence in Haiti’s capital Port-au-Prince has led more than 5,000 people to flee, and the deadliest attack in the history of Burkina Faso’s village of Solhan has left 138 innocent people dead.
People who are forced to flee, especially during armed conflicts, are generally exposed to increased vulnerability in several areas. Displaced persons suffer from significantly higher death rates than the general population. Their lives are also put in peril as they have higher chances of getting physically attacked, kidnapped and being deprived of proper food, shelter and health care.
More than 80% of the world’s refugees and almost all of the world’s internally displaced persons have been living in low and middle-income countries having weak healthcare systems. Needless to say, the ongoing pandemic and the lockdowns have added to the difficulties faced by them.
The future of most refugee children is dimmed due to the lack of quality education, as apart from the legal issues, the language barriers act as big hurdles in their way. Their lost childhood also has a significant impact on their mental health and are more prone to experiencing severe disorders like PTSD.
The aforementioned challenges that come in way of the innocent, in their hustle for basic human rights, form just the tip of the iceberg. The constant fear of sexual assault, forced labour, getting separated from their families and facing isolation in the host community, to name a few are unimaginable and a matter of serious concern for the ‘country leaders’ who have turned a deaf ear to the cries of hope.
International law, first acknowledged the problem of refugees after the Second World War, and drafted the Convention on Refugees 1951.This Convention was a bare bill of rights, that conferred basic human rights to the refugees, detailed their duties in the country of residence and elucidated required procedure. However, it was geographically limited to the affected states, thus the UNHCR (United Nations High Commission for Refugees) drafted the 1967 Protocol Relating to the Status of Refugees to amend and delimit this Convention, generalizing it to include all refugees.
Some rights and duties the convention of 1951 vocalizes:
Article 2- imposes duty on refugee to conform to laws of the country of residency
Article 12- requires personal status be accorded by law of country of residence
Article 17- dictates the right to engage in wage earning employment
Article 27- duty bounds the country of residency to issue identity pass to the refugee
Article 34- requires the country of residency to facilitate naturalization
Article 34 finds special significance as the “refugee” status sheds away on acquisition of citizenship, moreover integrating the erstwhile refugees into the economy is an enormous step to normalization.
Additionally, the refugees are entitled to right against non-refoulement, i.e. not to be sent back to the State where they are likely to be exploited and persecuted. Every state is universally bound to guarantee this right, as it forms part of jus cogens.
This however, is not the single piece of legislation that protects and safeguards rights of refugees, but is the one regarded as more inclusive and encompassing than other legislations.
The 1948 Universal Declaration of Human Rights affirms: “All human beings are born free and equal in dignity and rights.” Thus, it unequivocally implies that refugees are not to be considered beneath the naturalized residents of a country, which is a common practice among nations.
Other points of protective law for refugees include Convention against torture, Convention on child rights, Convention on elimination of all forms of racial discrimination and many more.
The other ‘categorization’ relates to IDPs or Internally Displaced Persons. These are persons who were forced to leave behind their place of residence and now seek shelter, they differ from refugees as they do not cross international boundaries and thus are termed ‘internally displaced,’ being still inside the same nation. Paradoxically, they are forced to approach the same authorities for redressal and care, who mostly likely put them in that state. These groups are habitually used as pawns by governments to further their pernicious political agendas thereafter.
The International law in Guiding Principles on Internal Displacement lays down that IDPs are to be treated at par with other residents of that nation, thus shouldn’t be discriminated against, in addition to being facilitated by the State to normalize their lives. Further, it makes the State duty bound to ensure basic rights to food, water, shelter, dignity and safety, among other rights.
The problem with the Convention of 1951, lies with its origin as it was written after WW2 with a different legislative intent, which does not hold today. Today, the Convention is abused by miscreants to commercialize immigration of illegal and false refugees. As a consequence, most countries have withdrawn their support and even oppose it. Thus, even the bare protection this Convention previously offered is now made redundant and the refugees left again defenseless.
The ‘Indian’ Angle:
One of the largest democracies of the world, India is home to 2,10,201 refugees and asylum seekers. These displaced persons from the South Asian subcontinent and beyond, are under the protection of the government which is supported by the United Nations High Commissioner for Refugees (UNHCR) for taking care of the refugees from Myanmar, Somalia and Afghanistan. The minimum assurance of protection is overshadowed by the fact that India lacks a suitable domestic legislation or a substantive policy to deal with the issues of the refugees and the displaced. Moreover, since India is neither a signatory to the UN Refugee Convention of 1951 nor its Protocol of 1967 regarding the Status of Refugees, the refugees and asylum seekers are termed as ‘illegal immigrants’ according to the Foreigners Act, 1946. This Act simply defines a ‘foreigner’ as “a person who is not a citizen of India,” hence ignoring the fundamental difference between a ‘refugee’ and an ‘illegal immigrant.” In the absence of substantive legal provisions, the ambiguous Indian refugee policy is guided by the make-do provisions which are often a result of the political bias of the policymakers.
The aforementioned legal flaw is the reason behind the fact that the decision of the government to deport the Rohingyas in 2019 was violative of the International Law and past legal precedents in the country. The UN’s concern and the legal hustle to thwart the forceful deportation of the Rohingya’s failed when the Apex Court rejected the petition of the victim and upheld his status as an ‘illegal immigrant’ on October 4, 2018. It is ironic to note that the Apex Court, in 2017 had asked the government to strike a balance between the national security interests and human rights. Following its trend, Indian government in the affidavits submitted by it to the Supreme Court has made the excuse of not being a signatory to the international Conventions, its key argument in evading the principle of non-refoulment. Such a stand of the government further highlights its ignorance of basic human rights.
It is to be noted that even though India is not a party to the 1951 Convention, it is still a party to other Conventions such as the ICCPR and the CAT that put the country under an obligation to respect general human rights.
Article 3 (1) of the United Nations Declaration on territorial asylum adopted unanimously by the General assembly in 1967 states that: “No person referred to in Article 1, paragraph 1, shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution.” The customary norm is based on opinion juris, the State’s sense of legal obligation with respect to the adherence to the rule. Thus, irrespective of whether India has signed the 1951 Convention, it is bound to abide by the rule.
Not just the international obligation, the present government needs to look back in the past and learn from the precedents set by the Indian courts. In the case of National Human Rights Commission v. State of Arunachal Pradesh & Anr. & in State of Arunachal Pradesh v. Khudiram Chakma, the Apex Court had observed the principle of non-refoulment and held that India is bound by certain international and municipal laws to not deport the helpless refugees.
The tussle between the positive precedents and the haphazard government policy has been grinding the vulnerable displaced persons and refugees who have managed to stay in the country for the time being. The same is evident from the fact that these persecuted individuals are sidelined when it comes to the ambitious vaccination drive and providing proper health care to the people.
India, the country that has been preaching the principle of ‘Vasudhaiva Kutumbakam’ by calling the whole world ‘one family,’ has ironically been leading the list of nations which have turned their back against the distressed ‘displaced persons.’ As a result, the past few years have set historic records with respect to human rights violation. In the ugly race under the banner of protecting national sovereignty, the world leaders have care more about their political interests leaving the unfortunate to die, and, ‘no legal recognition,’ has only increased their long list of difficulties.
Mankind is known for evolving and becoming better. However, the current scenario poses a completely different picture, the one of devolution of human rights. The situation is alarming and calls for urgent action. It is time for us to put aside our personal interests and put humanity above everything else. It is time for the policymakers to remedy the legal flaws and ensure proper enforcement of the legislations. For it is the collective effort of all the nations together that can save mankind from getting doomed.
The path towards a better future is not an easy one, yet, the firm belief of creating a safe place for every individual, and the steps taken together will drive away the clouds of agony, bringing back the brighter days of hope.