This paper is an attempt to throw light on the loopholes that were left unplugged by framers of the 1951 Convention on the Status of Refugees (1951 Convention) and which are now being exploited by member states. Although states open their doors for victims of torture, persecution and public disorder, the 1951 Convention has failed to deliver owing to the failure of states to perform their duties. With continuing human rights abuse, political considerations dictate how states assist refugees. Further, imposition of duties on developing and poor states has resulted in asylum seekers getting inferior or illusory protection.
Article 33 of the UN Convention of Refugees: Non-Refoulement
The principle of non-refoulement forms one of the central tenets of refugee law. The import of this principle is that states are under an obligation not to expel or return a person who is likely to face persecution in his country of origin. Non-signatory states are also considered bound by this principle, as the same has become a customary norm. 1 This principle is imperative in regard to refugees and in the present state of international law it should be acknowledged and observed as a rule of jus cogens 2.
One of the most common examples of application of this principle by a non-signatory state is that of India. India had given refuge to several refugees from Sri Lanka during the LTTE occupation in North Sri Lanka and Jaffna Peninsula. It opened its doors for Afghan refugees who came through the Pakistan border. In fact, the UNHCR recognized these communities as refugees only on the consent of the Government of India.3 However, in 1992 India tried to encourage voluntary repatriation of the Jumma refugees by making living conditions in camps located in Tripura untenable. The same was done as a move to improve relations with Bangladesh 4 and was in contravention with the principle of non-refoulement.
Thus, while on one hand, the principle of non-refoulement has acquired the status of customary international law (and therefore binding on states irrespective of whether they have ratified the 1951 Convention), in countries like India, which follows the dualistic theory, such treaties or conventions would require to be incorporated by an act of parliamenting for it to be binding. Even though the rights of the refugees have been protected by the Supreme Court under provisions of the Constitution, a number of examples suggest that India has not adhered to this principle 5.
Exceptions to non-refoulement
Article 33(2) provides for an exception to principle of non-refoulement. However, it has been interpreted in an extremely wide manner by states, resulting in its indirect contravention. Even though attempts have been made to narrow down the ambit of aspects like “national security”6 , states find ways to avoid international obligations. The test to determine a “national security threat” i.e. whether the refugee in question would be a threat to the national security. As compared to the public order exception, it requires only “reasonable grounds” as opposed to a final judgment of conviction, and imposes only a one-step test but as the convention does not identify the types of acts that could trigger the national security exception states have the freedom of interpreting it in the broadest possible manner.
The Harsh Realities of a Refugee Camp
It would be wrong to base an evaluation of the framework for refugee law thoroughly on refoulement and the duty of states to provide protection to refugees. While we debate on how states abstain from performing their duties, we forget the fact that even states abiding by the principle of non-refoulement, generally abstain from providing a decent life to those who are aliens to their land.
There is little evidence to trace back the history of refugee camps. 7 Their history dates back to as early as 1865. Official records in the League of Nations began emerging as late as 1935. UNRRA was replaced by the IRO (international refugees organization) which was later replaced by the United Nations High Commissioner for refugees. With time the number of refugees has increased, and the problem that emerges is how to provide the ever increasing numbers with essential services. Even though the principle of non-refoulement has emerged, states parties to the convention of 1951 do not always consider themselves obligated to provide for the essential services required by someone taking refuge. The numbers signify the same.
The first major crisis that needs mention at this point of time is the acute displacement crisis of Iraq. Even after the US intervention in Iraq got over there still exist over 500,000 of whom live as squatters in slum areas with no assistance or legal right to the properties they occupy. Most refugees cannot work legally, making it increasingly difficult for them to pay rent and afford school fees for their children. Consequently, some are forced to return to an insecure and unstable Iraq and often find themselves displaced within the country 8. In Jordan most refugees and asylum-seekers live in urban areas in poverty, unable to gain access to livelihoods 9.
Dadaab is perhaps another glaring example of the failure to provide development funding in protracted refugee situations. Dadaab, which is the world’s largest refugee camp, houses majorly Somali refugees. The camp capacity was 90, 000 and had exceeded its limit 3 years ago as per the UN Refugee Agency. More than $12m of donor funding had been committed for the extension of the Dadaab camps, to provide space for 80,000 refugees and relieve overcrowding in the complex. At present close to 5000 refugees arrive each month in Dadaab, and with time the Dadaab refugee camp could perhaps signify the greatest Somali refugee crisis 10. The condition of refugee camps and refugees in particular in these refugee camps has no one to blame. Countries like Kenya and Jordan are under developed countries, which are trying to resolve their own internal issues. Moreover these states have been incapable to provide for a bare minimum to their own citizens, and expecting them to serve to the needs of refugees is too big a demand. The legal framework tends to lose effectiveness because of such factors.
Solving the Refugee Crisis by Integration, Repatriation & Resettlement
The conditions which a refugee faces throughout his life in camps, might just be improved by three internationally accepted methods-integration, repatriation & resettlement. The idea of integration finds its way through Article 34 of the 1951 Convention, which considers it to be the duty of the host state to allow naturalization of refugees. For integration to take place refugees are allowed to permanently settle down in the host state and find a solution to their plight. It is a socio-cultural process and allows refugees to resettle in a different society without losing their identity. The host state provides for a wide range of rights and entitlements which are also provided to its citizens. The rights provided may be in the form of the right to free movement, the right to public relief, the right to acquisition and disposition of property etc.
Integration comes up as an important solution for refugee protection, as unlike other aliens, they do not have a country to go back. As most of the refugees lack financial aids and networks to locate their families. Therefore, integration allows refugees to arrange for financial assistance so that they can reunite with their families 11. In Gambia, the refugees who live a life in the community have found community life far better as compared to camp life since it provides them with privacy and allows them to plan a future for themselves 12.The benefits arising out of integration are a lot, however states through their policies restrict refugee movement in their territory itself, thereby not allowing them to interact with the community that makes up that state. Very recently, the same was observed in Thailand where Burmese refugees were not allowed to move out of refugee camps. The Thai consider the Burmese refugees as aliens, and provide for refugee camps in isolated mountain locations, inaccessible by road. Refugees can only work legally in Thailand if they remain silent about their refugee claims and present themselves as migrant workers. They are forced to bribe police officers who threaten them of deportation to Burma 13. States also oppose refugee integration on the basis of a number of contributory factors. Refugee camps have experienced direct attacks and militarization has sometimes become acute. Petty and organized crime has indeed flourished in some refugee hosting areas. These real and perceived security threats can cause resentment and clashes between locals and refugees, diminishing chances for successful local integration 14.
Security of its own citizens and its sovereignty, often results in a hostile attitude of states towards refugees. This is considered to be the first and foremost obstruction in the path of integration. The excessive usage of natural resources and an increase in competition for land and jobs 15 has also resulted in states opposing integration. It is for this reason repatriation is preferred. Often the condition of camps also results in a failure of integration. As stated earlier, Iraqi refugee camps and the camps in Dadaab show as to development funds are not used for improving the condition of camps. Further, the voluntary repatriation of Jumma Buddhists because of the untenable living conditions of the refugee camps in Tripura (India), is another example.
United Nations General Assembly Resolution 428(V) of 14 December 1950, which created the UNHCR statute, requires states to assist in promoting voluntary repatriation. The concept of repatriation comes from the UDHR itself which provides in Article 13 (2) the right of a citizen to return his nation. States are under an obligation to encourage voluntary repatriation. The Executive Committee of UNHCR has declared since the 1980s that voluntary repatriation is the preferred durable solution, favored over resettlement and local integration 16. The High Commissioner had further declared that the 1990s would be the decade of voluntary repatriation 17.In its Handbook On Voluntary Repatriations the UNHCR has specifically laid down that the host state would have to ensure that refugees return back to their home state with dignity. It is a noticeable fact that the success of the UNHRC hinges majorly on states adherence to such guidelines. Human rights organization, Human Rights Watch comments on the push factor of voluntary repatriation by citing the example of the Tajik refugees in Afghanistan. The government of Afghanistan has cut short ‘ration’ for refugees thereby resulting in Tajik refugees returning to their home state 18. Even in repatriation the framework for refugee protection provides for excessive discretion in determining what ‘voluntary’ would mean, resulting in many situations similar to that Afghanistan.
Resettling refugees in a third State which has agreed to admit them – as refugees - with permanent residential status, has emerged as another important method of refugee protection. The status provided ensures protection against refoulement and also provides the resettled and his/her family or dependants, an access to civil, political, economic, social and cultural rights similar to those enjoyed by nationals 19. It serves three important functions. First, it is a tool to provide international protection and meet the special needs of individual refugees whose life, liberty, safety, health or other fundamental rights are at risk in the country where they have sought refuge. Second, it is a durable solution for larger numbers or groups of refugees, alongside the other durable solutions of voluntary repatriation and local integration. Third, it can be a tangible expression of international solidarity and a responsibility sharing mechanism, allowing States to help share each other’s burdens, and reduce problems impacting the country of first asylum 20.Resettlement might just have certain problems, majorly regarding application of municipal laws of the state which allows resettlement. In the United States, several resettled refugees had faced problems with the “lawful permanent residential status”(LPR). Refugees who were not able to acquire LPR status were detained after one year of arrival by the government 21 .
Although UNHCR has played a vital role in refugee protection, it depends largely on states to perform their duties. Its ability to critique state actions and inactions is constrained by the funds received from states. Lastly, allowing states to interpret the 1951 Convention in a manner convenient to them runs the risk of crisis far bigger than what we are suffering.
1. United Nations High Commissioner on Refugees(UNHCR), Note on the Principle of Non-Refoulement, http://www.unhcr.org/refworld/docid/438c6d972.html (Last updated- 4 October 2012).
2. Part III 5, Cartagena Declaration of Refugees, 1948.
3. T.Ananthchari, Refugees in India-Legal Framework Law Enforcement & Security, 2001 ISIL Year Book of Int’l Humanitarian & Refugee Law pg. 7.
4. SAHRDC, Refugee Protection In India
5. For example, the NHRC v. State of Andhra Pradesh (Supra) case, where the NHRC had noted the co-ordinated move taken by the Arunachal Pradesh government with the All Arunachal Pradesh Students Union, to move out the Chakma refugees.
6. See Reg. vs. Bouchereau, 2CMLR 800(European Court of Justice) & Supra note 3.
7. Our modern day understanding of a refugee camp is based on the camp model created by the United Nations Relief and Rehabilitation Administration (UNRRA) in 1943. The main purpose and function of UNRRA was to: “plan, coordinate, administer or arrange for the administration of measures for the relief of victims of war in any area under the control of any of the United Nations through the provision of food, fuel, clothing, shelter and other basic necessities, medical and other essential services . . .”
8. As per the report of ‘Refugee International’ available on:www.refugeesinternational.org/where-we-work/middle-east/iraq (Last updated on 10/04/2012).
9.UNHCR, 2012 -UNHCR Country Operations Profile – Jordan, available on: www.unhcr.org/pages/49e486566.html [Last updated on 5th October, 2012 at 4:30 PM].
10. The Guardian, Dadaab Refugee Camps: 20 Years Of Living In Crisis, http://www.guardian.co.uk/global development/2011/mar/24/dadaab-refugee-camps-living-in-crisis (last updated on 4th October, 2012)
11. UNHCR, Rights of Refugees in Context of Integration: Legal Standards & Recommendations, available on http://www.unhcr.org/refworld/docid/44bb9b684.html [accessed on: 15th January, 2013 at 4:00 PM].
12. Gail Hopkins, Casamance Refugees In The Gambia:Self-Settlement And The Challenges Of Integration http://www.unhcr.org/4e79ef7c9.html [accessed on:5th October, 2012 at 12:30 PM].
13. Human Rights Watch, Giving Refugees Hope Beyond Camps, http://www.hrw.org/news/2012/09/09/giving-refugees-hope-beyond-camps( Last updated on 5th October, 2012).
14. Alexandra Fielden , Local Integration: An Under-Reported Solution To Protracted Refugee Situations (October 3rd, 2012) http://www.unhcr.org/486cc99f2.pdf
15. Supra note 11 at pg. 3.
16. Executive Committee of UNHCR Conclusion 18 (XXXI) (1980).
17. Speech of the High Commissioner, June 26, 1992. See also UNHCR, State of the World’s Refugees: In Search of Solutions, (Geneva: 1995), p. 31.
18. Human Rights Watch,Helsinki, A Return to Tajikistan: Continued Regional and Ethnic Tensions, in A Human Rights Watch Short Report, vol. 7, no. 9, May 1995, p. 10; Human Rights Watch, Uncertain Refugees-International failures To Protect Refugees,(October 3rd, 2012) http://www.hrw.org/sites/default/files/reports/general974.pdf.
19. UNHCR, Resettlement Handbook, pg. 2 (October 3rd 2012) http://www.unhcr.org/refworld/pdfid/3ae6b35e0.pdf.
20. Strengthening and Expanding Resettlement Today: Challenges and Opportunities, Global Consultations on International Protection, EC/GC/02/7 of 25 April 2002, (4th Meeting), as quoted in UNHCR, Resettlement Handbook, pg. 1, (October 3rd, 2012) http://www.unhcr.org/refworld/pdfid/3ae6b35e0.pdf.
21. Human Rights Watch, Jailing Refugees Arbitrary Detention of Refugees in the US Who Fail to Adjust to Permanent Resident Status, pg. 4 http://www.hrw.org/sites/default/files/reports/refugees1209webwcover.pdf (Last update-October 4th, 2012).