M. Peter Jeyaprakash
[former Voluntary Repatriation Specialist UNHCR, Chennai. At present he is working as Individual Contractor for UNHCR, Chennai]
Refugees in India are a victim of a stalemate between the Government of India and the international community for a long time. It is imperative that we recognize the immensity of the situation, decipher the inhibitions, examine internal inconsistencies in the present context, and find new grounds for policy design in the humanitarian field.
The Present Refugee Situation
“There are new trends in forced displacement which are challenging for us all. The 1951 Convention responded to displacement due to persecution and war... These several trends are reinforcing and exacerbating each other, accelerating instability and displacement. While we have no plans to amend the 1951 Convention, we do need to discuss how we deal with the human rights impacts of these new forms of forced displacement. I hope that the 60th anniversary of the 1951 Convention next year will enable us to be the catalyst of such a debate”.
UN High Commissioner for Refugees António Guterres - European Parliament, 28 April 2010
The High Commissioner, while acknowledging that there are new trends in forced displacement very clearly states that there are no plans to amend the 1951 Convention. He stressed that “we do need to discuss how we deal with the human rights impacts of these new forms of forced displacement”. Though this is a double bind situation for India, it is essential that countries of asylum like India form organized responses to refugee situations in view of ‘new trends in forced displacement’ without any coercion from outside.
We must note here that responses to refugee situations have changed in many countries with a record of restrictive measures towards refugees. In view such developments we cannot carry on with the status quo on Model National Law of Refugees. Recently, countries have started to speak in favour of refugees. The Archbishop of Canterbury during the CARA lecture (May 2010) on the topic “Enriching the Arguments: the Refugee Contribution to British Life”, argued in favour of regarding strangers as a gift rather than as a threat. Concurrently the High Commissioner in his recent address to the European Parliament spoke about the “resilience and resurgence of conflicts”. These two indications require that India take a fresh look at its policies towards refugees.
Refugees are not a Liability
The Refugee Council of Australia, in a report on the Economic, Civic and Social Contributions of Refugees and Humanitarian Entrants (February 2010), states that “Refugees make substantial contributions to their new country...... Refugees are often entrepreneurial as they face the need to set up and establish themselves in a new environment. One illustration of this was evident in the 2000 Business Review Weekly’s annual “Rich 200” list which showed that five of Australia’s eight billionaires were people whose families had originally come to the country as refugees” .
The report also cites that positive impact of refugees has been felt in the regional and rural areas of Australia which experience large scale “departures” in population and with it lose of skills, and business closures. Successful regional and rural refugee resettlement programmes helped to stimulate the economy through refugee labour. The report states that studies have failed to find a link between immigration and unemployment among the existing population (Productivity Commission 2006). This demonstrates that the world is gradually beginning to view a refugee as an asset than liability.
The State and the Humanitarian Blind Spot
There is something in the daily grind of the government machinery that is inhibiting the evolution of these experiences into an organized response. It is not the fear of the stranger but the fear of intrusion of the “outsider” (in this case the UNHCR). India has been under the grip of this fear since the days of the Bangladeshi crisis of 1971 which was evident in its reply to UN Secretary-General’s Aide Memoire (2nd August 1971) refuting reports that it was obstructing the return of refugees.
That was way back in 1971. Consider the recent foreign policy engagements by India. It has gradually disengaged from the large southern groups and become part of new groups like the G4, G15, G20 and G33. Besides these new developments India has allowed six international bilateral donors to assist NGOs directly. In all these foreign policy engagements India has upheld its national interest and had diametrically opposed positions to the agreements without fear of international interference in its internal matters. Being a member of the EXCOM of UNHCR since 1995, signing the 1951 Refugee Convention cannot be beyond the strengths with which India engaged with the rest of the above.
Incidental Statements and Perceived Threats on the 1951 Convention and Model Law
India is said to perceive six threats from the Convention. It should be noted that these threats were not outlined by the Government of India but expressed by various officials during various seminars and conferences on refugees. However, India would do well to sign the convention and make it non-Eurocentric and give way to Rights regime as it is the right regime: there is no means to circumvent that and negative reports should not be a deterrence towards this end.
UNHCR cannot intrude into matters that do not concern refugees as the convention is about the protection and safety of refugees and not about national security interests. And finally, a safety record of giving assistance to refugees cannot “guarantee a legal framework that would ensure that refugees and asylum seekers’ rights and duties are based on legal and humanitarian considerations” .These reasons formed the façade for India to keep out the ‘North’.
Perdre le Nord
Since the colonial times the south Asian countries have been vary of infringement on their sovereignty by the ‘northern countries’. Owing to this divide numerous South Asian countries have neither signed the 1951 Convention nor adopted any regional or national standard legal humanitarian approach to the evolving refugee situations. The recent attempt to bring the Refugees and Asylum Seekers (Protection) Bill before the Cabinet this March was also marked by skepticism .
The north-south divide is a reductive coupling and is fraught with hierarchical and ethnocentric connotations. It is a herd behavior which has blinded us from executing our responsibilities towards those who sought asylum from us. As Amartya Sen observes,
“There is something deeply debilitating about denying choice when choice exists, for it is an abdication of responsibility to consider and assess how one should think and what one should identify with. It is a way of falling prey to unreasoned shifts in alleged self-knowledge based on a false belief that one’s identity is to be discovered and accepted rather than examined and scrutinized” (Sen, 1999).
Therefore, we have to recognize that the choice exists, examine and scrutinize India’s stand on refugees and act upon it constructively.
Progress towards a Comprehensive Model Law
Plenty of arguments for adhering to the 1951 Convention and for the formulation and implementation of Model refugee Law exist and will continue to crowd our mind in the future. However, there is a studied silence on the part of the Government. This is not strange. Government has this kind of approach towards people displaced due to (besides forced displacement) development activities, environment degradation, real estate rural sweeps, communal atrocities, shifting borders of West Bengal, and many other resilient and resurgent conflicts. That is a huge case load and the present Model Law of Refugees is sketchy and lacking in detail on some of the provisions already outlined to engage with them.
Some of the missing features for serious consideration are non-discrimination, refugee seamen, movable and immovable property, artistic rights and industrial property, right to association, access to courts, transfer of assets, specimen travel document . The fact that these are lacking in the proposed Model Law brings to light the dichotomy suffered by the Government between love for humanity and hatred of human beings as noted by Ranabir Samaddar –
“We have here the classic problem of Dostoevsky; we love humanity, but we hate human beings. The system that builds up on convention, protocol, office, role of special rapporteur, budget, grants, relief-rehabilitation-resettlement allocation, inspection, determination and repatriation, is one of love for humanity and often of hatred of human beings” (Samaddar, 2001).
Therefore, let us prove that our system which is strengthened by tradition, culture, freedom and diversity can decimate the myths of implausibility of engaging constructively with the refugees on the Indian shores. Refugees are special and through them we have greater lessons to learn. The resilience and resurgence of human spirit is greater than the resilience and resurgence of conflicts. Ceteris paribus, we only need to be ready with the professional means to be of assistance towards that end.
1 Literature review - Economic, Civic and Social contributions of Refugees Humanitarian Entrants by Refugee Council of Australia, February 2010.
2 The statement within quotes made by Montserrat Feixas Vihe, Chief of Mission, UNHCR, India – www.alertnet.org/db/an_art/55867/2010/02/25-172443-1.htm.
4 Convention relating to the status of refugees, 1951.
Chimni, B. S. (2007). International Refugee Law, A Reader. New Delhi: Sage Publications.
Samaddar, R. (2001). Power, Fear, Ethics. Refugee Watch .
Sen, A. (1999). Reason Before Identity. Oxford University Press.
Zutshi, R. T. (Ed.). Refugees and the Law. New Delhi: Human Rights Law Network.