Emdadul Haque
[Is a Faculty Member at the Department of Law and Justice, Southeast University, Dhaka, Bangladesh]
Amid scores of shortcomings the South Asian region has been generous to host a large number of refugees for decades and accommodating them despite the absence of a related legal framework.
The region is rapidly growing as a “refugee melting pot” with insufficient international attention. All the original member States of the South Asian Association for Regional Cooperation (SAARC) (except the newly joined Afghanistan) did not ratify the UN Convention Relation to the Status of Refugees, 1951 (Refugee Convention) and it’s Protocol of 1967.
The problems of refugees in Europe, America, Australia and Asia particularly in South Asia are not alike. The lack of national laws and regional instruments on refugees and Internally Displaced Persons (IDP) has grossly accentuated this crisis which not only harms the rights of refugees and asylum seekers, but also affects the social and political stability of host countries by undermining the rule of law, human rights, and democracy.
These countries are being assisted by the United Nations High Commissioner for Refugees (UNHCR) which includes ensure protection of asylum seekers and refugees and promotion of international refugee law standards vise vie promotional activities for adoption of national legal framework in line with international standards. However, the reluctance of respective governments in ratifying the Refugee Convention or adopting national legal framework and complexities of refugee issues with regional dimensions, there is a need to look into the prospect of a regional approach to address forced migration and refugee protection issues in South Asia region.
There are almost 43 million refuges all over the world and out of which 80 percent is based in developing countries. Although South Asia contains around 23 percent of the world's population, it currently hosts nearly 10 percent of the world's refugee population.
The Refugee Convention is the commanding instrument to govern international protection of refugees worldwide. This Euro-centric document promulgated soon after the World War II to cope with the influx of refugees in Europe have many limitations in the present context, though the Protocol of 1967 had been adopted to overcome such inadequacy.
However, experts in the region find four major dilemmas in the Refugee Convention with regard to definition of a refugee, material assistance, shared-responsibilities, and unraveling consensus in observing standards of international law.
The Refugee Convention has been the point of fierce contention for the developed and developing nations. The developed countries are tendering for a rights-based approach while developing countries on the other hand have been voicing their equitable approach. That’s why some prominent scholars feel that before acceding to the Refugee Convention or the Protocol of 1967, South Asian States should go ahead for adoption of a rights-based national legal framework to deal with asylum and refugee issues. At the same time, some scholars recommend that the states of the region should ratify the Refugee Convention and its Protocol without further delay.
However, as compared to many developed countries of the world who have adopted very strict entry procedures, States under SAARC have adopted rather soft policies on entry and stay of asylum seekers and refugees, e.g., Bangladesh, India, Nepal and Pakistan. The States have also given shelter and other humanitarian relief to different groups fleeing persecution- who are victims of forced migration, including victims of natural disaster or people fleeing generalized violence, abuse of human rights by State and non-State actors, communal and ethnic strife and the victims of man-made ecological disasters. However, in some cases, there are reported incidences of refoulement- pushing back to the territory where lives of individual were at risks.
Since States in the regions, are apparently look upon cross-border migrations (including forced migration) as bilateral issues within the framework of national security, thus, time and again, the significance of international protection of a refugee is ignored. There is nothing in this regard within the framework of the SAARC Charter.
In the absence of laws concerning general treatment and protection of asylum seekers and refugees, the response to refugee influxes remains provisional or on ad hoc basis. The refugees here have no legal protection against summary expulsions as they are treated as illegal immigrants and not as refugees fleeing persecution. As a result, UNHCR has also not been able to ensure effective and meaningful protection to most refugees in the region. Even international humanitarian agencies are often not allowed to assist refugees in real crisis in most of these countries. This was evident once again in the treatment of “Rohingya boat people” in Bangladesh this time (June 2012). In case of India, it does not allow UNHCR staff to enter and work in the North East territory.
Many of these problems can be avoided both through the enactment of legal norms on entry procedure status and on the creation of rights for asylum seekers and refugees. There is an absence of an inter-governmental mechanism at the regional level for protecting the returnees in their home countries.
Thus absence of a legal framework results in arbitrary, provisional and discretionary decision making which undermines fair refugee protection as per international norms. The asylum seekers and refugees can end up being treated like any other foreigner.
Therefore, a legal structure is necessary to effectively deal with a complicated refugee problem. In the absence of a legal framework, respective activities of the governments vary from case to case and are determined by political considerations and bilateral negotiations. These do not provide predictable and durable solutions.
However, given the reluctances of Sates in adopting national laws to deal with asylum seekers and refugees, a regional framework needs to be considered.
Like African and American States, SAARC countries should initiate a regional framework for refugee protection paving the way for appropriate platform on the issue of refugee crisis demonstrating their commitment for a new comprehensive plan of action to this end as every nation in the South Asia has produced as well as received refugees.
This will contribute to establish transparency, fairness and a humane treatment of refugees, as a matter of fact, through these laws the states of South Asia will give a formal expression to existing practices and responses to the refugees.
Hopefully, that will inspire to adopt national legal framework in the same line. Having a national law would not only ensure the protection of refugees and uphold obligations enjoined by the constitutions of most of the countries it will also enable the States to discharge their international treaty obligations. Ultimately both the States and the asylum seekers will derive benefits from such laws. Adoption of a harmonized national law on refugees by all the countries of the region would be a first step towards seeking a regional solution to this problem.
It will also facilitate to establish human rights communities and other institutions of civil society- a basis to campaign against any violations of refugee rights.
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