Punitive Policies: Australia’s Engagement with Asylum

Sana Yasmin Chaudhry.

Sana Yasmin Chaudhry of University College of London can be reached at sana.chaudhry.12@ucl.ac.uk.

Australia’s engagement with international humanitarianism is continually undermined by mean-spirited national policies toward asylum seekers. This took a turn under Hawke-Keating in 1992 when delayed legal access and court amendments of the Migration Acts severely impeded the assimilation of Cambodian asylum seekers (Manne 2013: 19). Since then, callous policies have continued despite Australia’s open programme of accepting refugees during World War II, at a time when political leaders espoused multiculturalism as a bedrock policy for the nation. However during the 1990s, appeals to xenophobia were proving to be politically profitable, therefore punitive policies were introduced for all those who arrived without proper documentation (Kipnis 2004: 262).

Today, “those seeking asylum who make it to Australia are sent to detention centres where conditions are harsh and access to legal aid and the media is strictly limited, if not curtailed completely” (Mares 2002). What is more, these detention centres are geographically located in “marginal spaces where social ‘unmentionables’ and dangerous wastes are located and removed from mainstream society” (McLoughlin and Warin 2003) thus stripping asylum seekers of their rights to a strong network of social capital. Furthermore, Howard’s creation of a ‘temporary safe haven’ VISAs means those asylum seekers continue to live in limbo, constantly fearing forcible repatriation. This temporary status “legalizes the ambiguity through which asylum applicants are positioned outside the nation-state” (Mountz et al 2002: 340), consequently leading to further marginalisation.

Rights of a Refugee. The Court as Refuge

Arani Sanyal and Anwesha Sengupta

Say this city has a million souls,
Some live in mansions, some live in holes:
Yet there is no place for us,
My dear, there is no place for us,
Once we had a country and we thought it fair,
Look in the atlas and you will find it there:
We cannot go there now,
My dear, we cannot go there now.

W.H. Auden, ‘Refugee Blues’

Being a Tamil in Sri Lanka had been increasingly difficult since 1980s when the country witnessed intense civil war between the government and LTTE, the most important Tamil militant organisation. The war had killed thousands, forced millions of Tamils to migrate to India and caused massive hardship for the people, economy and the environment of the country. Tamil refugees from Sri Lanka arrived in India in four waves. Among them, one was Chandra Kumar who fled to India in 1990 as the second Elam War began. After spending around two decades in India, he decided to go to Italy in search of a better life. However, he was arrested by the immigration officers as he did not have valid travel documents. He was charged for committing the offences of cheating, impersonation and forgery r/w/s 14 of the Foreigners Act, 1946. He spent six months in judicial custody before he was brought to the court. There, Chandra Kumar admitted his crime, but claimed that he committed them unknowingly, being duped by a travel agent. If he was an Indian citizen, in all probability he would have set free, after spending 6 months in judicial custody. But his status was complicated because of his refugee identity. The government wanted this man to be deported to Sri Lanka for his offence. This position was based on the Government Order F.No. 25019/3/97 – F.III dated 2.7.1998 of the Foreign Division, Ministry of Home Affairs, which stated that a foreigner is to be deported from India in case s/he commits any offence.

For Chandra Kumar, deportation would mean going back to Sri Lanka. Of course, Kumar was unwilling to make this return trek to his homeland, as he feared persecution. The counsel of the convict tried to revoke the verdict. He pointed out that according to the principle of non-refoulement of Customary International Law; Indian government had no right to deport him to Sri Lanka as his life was not safe there.1 And, the Article 51(c) of the Constitution of India states that ‘the State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised people with one another.’ According to the Indian Constitution too, the government is bound to protect the life and liberty of all citizens and non-citizens alike (article 21). The counsel also referred to numerous other judgments delivered by various High Courts of India, where the High Courts have stopped the deportation proceedings on humanitarian grounds. Since, Kumar, had done nothing that might have threatened the security of the country, he ought not to be deported, argued the Counsel. He requested the court to allow his client consult UNHCR, Delhi to avert deportation.

After listening to both the sides, Arul Varma, a metropolitan magistrate of New Delhi (Special Court No 2, Dwarka Courts), gave his verdict in favour of Chandra Kumar. Recognising the plight of the Tamils in Sri Lanka, he accepted that Chandra Kumar indeed had a ‘well founded fear of persecution’ (wherein he stated that such possibility must appear to be reasonable and the refugee need not show that persecution will result on deportation) in case he was sent back to Sri Lanka. Therefore, deportation would mean a violation of the principle of non-refoulement, which was ‘a cornerstone of basic human rights’. Though India is not a party to the 1954 Convention or its optional protocol relating to status of refugees (1967), the principle of non-refoulment is implicit in the Article 21 of Indian Constitution, opined Arul Varma. He cited a particular verdict (Louis De Raedt Vs. Union of India, AIR 1991 SC 1887) of the Supreme Court which stated that this Article, which guarantees that no person shall be deprived of his life or personal liberty except according to procedure established by law, was valid for citizens and non-citizens alike. Similarly, citing another case, the judge argued that every person, irrespective of his/her nationality, should be considered as equal before the law and the state should protect his/her life and liberty. Since persecution denies the right to live with dignity, deportation of Chandra Kumar to Sri Lanka would mean denial of Article 21. To quote Arul Varma: ‘By handling over a person to a nation where he fears persecution, would make us nothing short of abettors in that persecution’. Also, Varma questioned the definition of ‘foreigner’ in the 1946 Foreigners Act, where a foreigner was defined as a non-citizen of India, and therefore included refugees within its ambit. He stressed on the need of treating the refugees in a humane way and to consider them as a separate category different from tourists or illegal migrants as otherwise, refugees would be deprived of privileges available under numerous international instruments. The Court opined that treating refugees, and illegal migrants on the same footing as the Foreigners Act does, would be violative of Article 14 of the Constitution which mandates equality before the law. (A logical extension of this is that unequals are to be treated unequally by applying the principle of ‘intelligible differentia’) Also, a ‘well founded fear of persecution’ includes, within its scope, a fear of being subject to torture and since India is a signatory to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, should ideally be bound by its international commitment to follow the principle of non-refoulement.

The judge applied a liberal interpretation of Constitutional tenets to accommodate refugees’ rights under Article 21 and went as far as to say that a law (The Foreigners Act, 1946) which treats persons unequally circumstanced at par, is on the face of it unconstitutional. He also laid emphasis on the non-derogability of the principle of non-refoulement and more importantly, by citing Vishakha vs. State of Rajasthan, 1997 (6) SCC 241, he noted that in case of a void in domestic law, it was the Court’s prerogative to fill such void by taking recourse to international law. (Something which the Court actually did in this case)

Notes

1. Non-refoulement is a principle of the international law, i.e. of customary and trucial Law of Nations which forbids the rendering a true victim of persecution to their persecutor; persecutor generally referring to a state-actor (country/government). See en.wikipedia.org/wiki/Non-refoulement

Bangladesh’s Obligation for the Protection of Refugees

Srabani Mia

[Is an LL.M. Student at Stamford University Bangladesh and an Intern at the South Asian Institute of Advanced Legal and Human Rights Studies in Dhaka]

A person becomes a refugee because of circumstances that are beyond her/his control. Refugees are human beings.

Bangladesh is the host country of asylum seekers and refugees, mainly from Myanmar (Burma). It has been hosting the Rohingya, an ethnic Muslim minority from Myanmar for decades.

As per records of the United Nations High Commissioner for Refugees (UNHCR) and Government of the People’s Republic of Bangladesh, there are around 28,000 Rohingyas who are “officially recognized refugees” now living in two camps in the southern district of Cox’s Bazaar. They are the residual of recorded 258,800 Rohingyas who fled Myanmar during 1991-92 and took refuge in Bangladesh. Apart from that there are reportedly 300,000 to 500,000 Myanmar nationals, mainly the Rohingyas in Bangladesh without any status.

Though, Bangladesh does not have a national legislation to deal with asylum seekers and refugees, however, the State has registered and granted “refugee status” once to those 258,800 Rohingyas through an “executive order” 1991. By the time, UNHCR was invited and it signed a Memorandum of Understanding (MoU) with the Government and mandated to look after the protection issues.

Bangladesh is also not a party to the 1951 UN Convention Relating to the Status of Refugees (Refugee Convention) or its 1967 Protocol. Despite of that the state has been providing refuge to the Rohingyas along with tolerating their “illegal presence.”

However, recent denial by the Bangladesh Government of extending any refuge to the Rohingyas fleeing communal violence in the Northern Rakhine State, and apparent “push back” have created concerns among the human rights organizations and international communities.

Obligation of Bangladesh Under International Law

The 1951 Refugee Convention and its 1967 Protocol are basic legal instruments with regard to protection of refugees.

The 1951 Convention provides criteria to be recognized as a refugee, their rights and obligations, and visa vie obligations of State parties.

Under 1951 Convention, a person can claim refugee status with three conditions: (i) being out of the country, (ii) well-founded fear of persecution for specific grounds, and (iii) unable or unwilling avail protection from the government of the country of origin. And, the specified grounds are of persecution are based on one’s race, religion, nationality, membership of special group, and political opinion.

The Convention (Article 33) also provides the principle of non-refoulement- meaning no person shall be return to a territory where he/she may be exposing to persecution. This principle is now considered as part of international customary law and is widely practiced (including Bangladesh in previous years, even for the Rohingyas).

The Principle has indeed expanded State's protection obligations beyond the 1951 Refugee Convention framework; therefore, one cannot be returned to his or her country of origin; hence, contributing to deprivation of life, and putting forward to torture, or cruel, inhuman or degrading treatment or punishment.

Generally, those countries which are parties to the Refugees Convention are legally bound to follow all the provisions thereof.

Bangladesh, despite of not being a party to the Refugee Convention is expected to respect the principle of non-refoulement as part of customary international law, as argued by Mostafa Mahmud Naser, an Assistant Professor of Law at the University of Chittagong in his article published in The Daily Star on 23 June 2012 (link: http://www.thedailystar.net/law/2012/06/04/index.htm). According to this academic, who is now pursuing his doctoral research at Australia’s Macquarie University, Bangladesh has obligation to asylum seekers and refugees despite of not ratifying the 1951 Convention or 1967 Protocol as because it is a member to the United Nations and is thus obliged to protect and promote human rights. Apart from that Bangladesh is a party to the International Covenant on Civil and Political Rights, 1966 (ICCPR) and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 (CAT) among other human rights isnstruments.

Article 14 of the Universal Declaration of Human Rights 1948 (UDHR), guarantees for “…right to seek and to enjoy in other countries asylum from persecution.” The UDHR is consider as jus cogens, thus those rights are universally accepted and enforced by all parties despite of whether they are party to the 1951 Convention or 1967 Protocol.

Bangladesh has also obligation under Article 3 of CAT (non-return of a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture).”

In case of the Rohingays, it is very likely that they would be targeted for torture, inhuman and degrading treatment upon pushed back to Myanmar which is tantamount to persecution.

Also, persecution by “non-state actors” (in presence of apparent reluctance or inability by State actors to prevent or/and prosecute such persecution) does qualify one for a refugee status under refugee law.

Obligation Under National Laws

Though Bangladesh does not have any national law as such to deal with asylum seekers and refugees; however, some Constitutional provisions are instrumental in protecting and promoting their rights.

Article 25 of the Constitution states that “…State shall base its international relations on the principles of respect for .... international law and the principles enunciated in the United Nations Charter”.

Article 31 of the Constitution provides for equal protection of law for “each citizen” and “every other persons staying in the country for time being.” Thus, the Article extends protection the asylum seekers and refugees (non-citizen) who for the time being are staying in the country.

The Constitution also guarantees for right to life and personal liberty for all (Article 32).

The Supreme Court of India has also upheld “right to life and personal liberty” for refugees in India despite of the State not being a party to the 1951 Convention [National Human Rights Commission v.The State of Arunachal Pradesh (1996 (SC) AIR 1234)].

The Foreign Minister of Bangladesh, Dipu Moni has reportedly said in the National Parliament that: “ it is not in the country's best interest to allow more Rohingyas into the country while Bangladesh is already burdened with Rohingya refugees, and many of them are involved in subversive and militant activities.”

This generalized branding of Rohingya population in Bangladesh does not relieve the State from its international obligations.

Opinion: South Asian Framework for Refugee Protection

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.

Pending Questions: UNHCR Recommendations Rgarding the Cessation Clause for Rwandan Refugees

Guillaume Cliche-Rivard

The 1951 Convention Relating to the Status of Refugees defines that the refugee status is temporary. Articles 1C (1) to (6) describe the so-called ‘Cessation Clauses’. When invoked, these provisions cease the international protection of a specific group of refugees: ‘He [the refugee] can no longer, because of circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality’[1]. Since 2002, the Government of Rwanda has repeatedly requested UNHCR to recommend the invocation of the Cessation Clause for Rwandan refugees. This pressure succeeded as UNHCR’s Executive Committee’s 60th Session (2009) declared that it was considering invoking the Clause in 2011.


To counter this measure, the Fahamu Refugee Programme, other NGOs and concerned individuals signed a petition, which argued that such a drastic measure was not appropriate at this point in time. This strategy succeeded in temporarily postponing the invocation of the Cessation Clause to June 2013, while UNHCR has recommended that States ‘commence to progressively implement throughout 2012 all aspects of cessation of refugee status’ [2]. Invoking the Cessation Clause signifies the end to the international protection of certain refugee groups. UNHCR’s recommendation at this time, in the case of Rwanda, raises fundamental political, ethical and juridical concerns. This article examines these issues and questions the whole rationale behind UNHCR’s recommendation to invoke the Cessation Clause and aims to mobilise the international community to request its withdrawal.

Assessing Change in Rwanda 

UNHCR’s Comprehensive strategy for Rwanda recalls that both the 1951 Refugee Convention and the OAU Refugee Convention require that cessation of refugee status can only occur when ‘positive changes have taken place in the country of nationality (or country of habitual residence), such that the causes of refugee flight no longer exist. The changes must be of a fundamental and durable character’[3]. This requirement, however, necessitates further elaboration: How have ‘positive’, ‘fundamental’ and ‘durable’ been defined? After what period of time are changes reputed to be durable? How are host States to be convinced that these changes are real?

NGO reports, such as the 2011 country report by Amnesty International, raise important concerns with the political stability of Rwanda and the protection of fundamental human rights under President Kagame’s administration, especially the violation of freedom of expression and the vague charge of ‘genocide ideology’[4]. There are also numerous concerns regarding Kagame government’s claims of free and fair elections and substantive democratic reforms. In light of the evidence that civil and political rights in Rwanda continue to be violated, how can it be argued that fundamental and durable changes have occurred justifying the invocation of the Cessation Clause? As the recommendation expresses that the Cessation is not going to be applied on Rwandans who escaped the country after 1998 or are still seeking asylum, it clearly indicates that fundamental, durable, and positive changes have not occurred in Rwanda.

Additionally, the Guidelines on International Protection state that ‘changes in the refugee’s country of origin affecting only part of the territory should not, in principle, lead to cessation of refugee status’ [5]. According to the Internal Displacement Monitoring Centre (IDMC): Some refugees had been prevented from returning home by the [Forces Democratiques de liberation du Rwanda] FDLR, but they had also been reluctant to return because did not trust the Rwandan Gacaca courts and did not think they would be able to reintegrate. The prospects of returnees and those resettled depend on continuing reconciliation and the equitable distribution and management of scarce land [6].

How could any host State and UNHCR justify the invocation of the Cessation Clause when these changes are not countrywide and understanding that some Rwandan refugees do not trust the country’s administration?

Moreover, Paragraph 135 of the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees states that the Cessation Clause will be invoked when ‘fundamental changes in the country, which can be assumed to remove the basis of the fear of persecution’ have occurred [7]. Paragraph 115 states that the Cessation Clause can be invoked only if ‘the reasons for a person becoming a refugee have ceased to exist’. Is there a difference between ‘fundamental changes’ in the country and ‘ceased to exist’ conditions? What could be understood as ‘fundamental changes’ and is this requirement less restrictive than the ‘ceased to exist’ conditions? These conflicting terminologies are confusing to both legal advisors and refugees. Even if it were agreed that fundamental changes have occurred in Rwanda, given that Rwandans continue to flee, it would be impossible to argue that the previous conditions leading to these exiles have ‘ceased to exist’.

According to the UNHCR Executive Committee Conclusion 69, before invoking the Cessation Clause ‘States must carefully assess the fundamental character of the changes in the country of nationality or origin’ (emphasis added) [8]. Given that this statement stresses that States are responsible for assessing these ‘fundamental changes’, why is UNHCR appearing to have already made this determination in the case of Rwanda? Moreover, if UNHCR has already determined that the changes in Rwanda are fundamental and durable, under which criteria was this assessment made? What response was given to NGO concerns? Understanding that both the invocation of the Cessation Clause and the assessment of fundamental changes are States’ responsibilities, why does UNHCR seem to be leading the discussion of States’ obligations? What is driving UNHCR’s agenda? How was the decision to recommend the Cessation Clause for Rwandan refugees made? Understanding the current situation presented by Amnesty International and IDMC, why is cessation recommended at this time?

Internal Contradictions

In 2003, UNHCR produced Guidelines on International Protection: Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees (the “Ceased Circumstances” Clauses). The Guidelines state ‘Cessation under Article IC(5) and IC(6) does not require the consent of or a voluntary act by the refugee’ [9]. However, this interpretation in contested in some host States. The First Secretary of the Rwandan High Commission in Uganda, Mr John Ngarambe, at a meeting held in Nakivale Refugee Camp on 28 February 2012, was reported as stating that ‘the Cessation Clause does not allow anyone to forcefully repatriate Rwandan refugees’ [10]. It is unclear when — and to whom — UNHCR or a State intends to ‘operationalise’ the ‘non-requirement for consent. What is UNHCR’s response to this statement of Mr Ngarambe?

In addition, is UNHCR promoting the Cessation Clause globally or just for Africa? It has appointed ‘focal points’ for 21 African States, but remained silent on how the invocation is to affect other continents. Have all African States hosting Rwandan refugees accepted UNHCR’s recommendation for invocation and does UNHCR expect States to apply its guidance on the exemptions procedures guidelines?[11] What if States develop their own guidelines or if they do not decide to invoke the Cessation Clause at all? What would be the consequence of inconsistent decisions? Could refugees then seek asylum in another State that had refused to invoke it?

Other Protection Issues

If the Cessation Clause is invoked by 30 June 2013, as recommended by UNHCR, the process will raise several other protection issues — particularly with regard to legal aid and State assistance. The Comprehensive Strategy states that ‘UNHCR will provide advice and technical or such other support and resources as may be required by States for the implementation of the Cessation Clauses’ [12]. What will this ‘advice and technical or such other support and resources’ constitute? Will UNHCR recruit lawyers for each African host State to assist in interviewing Rwandans as was done for Sudan?[13] There is strong evidence to suggest that most Rwandan refugees currently resist the notion of return. Will there be any legal aid provided so as to ensure they are competently represented before a State or UNHCR adjudication process?

Concerning Rwandans in Europe, a telephone conversation on 17 April 2012 with Michele Cavinato (Policy Officer at UNHCR’s European Bureau in Brussels and focal point for Rwandan Cessation Clause in Europe), assured that Europe is unlikely to follow UNHCR’s recommendation to invoke the Cessation Clause for Rwandan refugees [14]. What impact could such a decision have on UNHCR’s credibility?

While Mr Cavinato noted that the majority of Rwandans have been locally integrated in their host States, the concern was expressed for those currently seeking asylum in Europe. Mr Cavinato was reassuring in his confirmation that Europe will normally not consider Rwanda as a safe country of origin, and hopes that the recommendation will not affect the new refugees or persons who are seeking asylum for facts occurring after 1998.

Unlike Europe, up until now, no provisions for local integration in Africa have materialised, and the cessation recommendation is still pending. Why is UNHCR pursuing cessation before provisions for local integration are official? How can refugees be asked to choose between repatriation and local integration when the terms of ‘local integration’ have not yet been defined?

As this article was being revised, The Daily Guide reported on the situation of Liberian refugees in Ghana who are facing the Cessation Clause on 30 June 2012. Those who do not want to repatriate must report to the Ghanaian immigration office by 30 April to seek local integration. However, provisions for local integration ‘[have] not yet been defined by the Ghana government’ [15]. This situation is not unique to Ghana as the Lusaka Times[16] reported on 26 April 2012 a discussion about Angolans in Zambia also facing cessation in June 2012. What choice are refugees expected to make if the provisions for local integration are inexistent? There is, in fact, no choice [17].

Exemptions

Paragraph 5 of the Guidelines on Exemption Procedures describes two categories of refugees who should be exempted from cessation: ‘(1) refugees who continue to have a well founded fear of persecution, despite general positive changes in the country of origin, and (2) refugees, who due to compelling reasons arising out of previous persecution, cannot be expected to return to their country of origin’ [18]. The Guidelines on Exemption Procedures admit that there is ‘no fixed definition of, or scale on which acts of persecution are so severe that an exception on the basis of ‘compelling reasons’ is warranted’. However, it defines that ‘sufficient severity can be inferred from the act itself, e.g., including but not limited to genocide, torture and other degrading treatment, detention in camps or prisons, acts or threats of severe violence, including mutilation, rape and other forms of sexual assault’ [19]. If the recommendation is maintained, will every person who feared the genocide or acts/threats of severe violence be exempted? Would people who fled Kagame’s military intervention in DRC (including innocent Hutu and civilian Tutsis) be included in the exemptions as defined? Moreover, is a test (singular) necessary to assess the severity of the acts? Whether UNHCR will then provide the necessary medical and physiological expertise remains to be seen, and it is possible that refugees will be responsible for paying these services.

We know of cases of ‘Hutu’ refugees of ‘mixed’ parentage who came to Uganda before 1998 and subsequently returned to Rwanda, only to find living there intolerable and thus returned to Uganda. If they have returned to Uganda since 1998, will they be exempted?

Acquired Rights?

In several discussions at the annual UNHCR/NGO Consultations, George Okoth-Obbo, of UNHCR’s Africa Bureau, has spoken about ‘acquired rights’. The document, UNHCR Note on Suspension of ‘General Cessation’ Declaration in respect of particular persons or groups based on acquired rights to family unity, refers to social and economic rights.

UNHCR Note on Suspension of ‘General Cessation’ Declaration in respect of particular persons or groups based on acquired rights to family unity provides for a suspension of the Cessation Clause ‘to particular persons or group based on right to family unity’. This ‘suspension’ can be declared for someone who ‘cannot be expected to leave the country of asylum, due to a long stay in that country resulting in strong family, social and economic links’.

The suspension is not an exemption to the Cessation Clause and is limited to a maximum of one year. It would allow refugees to continue to benefit from protection ‘until such arrangements are agreed and/or implemented’ [20]. What constitutes these ‘arrangements’? Would one year be enough to establish the right to remain with one’s spouse? Do all States have such provisions for respecting family unity? And, more importantly, what is this document suggesting when it refers to ‘social and economic links’? Is this a reference to rights conferred by the International Covenant for Economical, Social and Cultural Rights?

Many Rwandans in Uganda have acquired land and property, the majority of whom have paid taxes to the Ugandan government over many years. Unknown numbers of Rwandan refugees have received university education in their host countries in Africa. Tutsi Rwandans in Tanzania were naturalised; have any of these Rwandans returned to Rwanda after the genocide, but returned to Tanzania again? Rwandans in Uganda and Tanzania were employed in various sectors of the economy. The majority of these refugees arrived before 1998. Would these elements facilitate local integration and status regularisation?

Some Final Questions

In its document, UNHCR Comprehensive Strategy for Rwandan Refugee Situation, UNHCR admits that the likelihood for local integration remains low. It states that, ‘broadly speaking, governments in countries of asylum have yet to step forward with concrete offers of local integration for Rwandan refugees generally, or to define the categories of refugees who may be eligible for this solution, many being reluctant to commit to local integration options absent clear progress with regard of voluntary repatriation’ [21].

Which States are expected to change their position and allow local integration? What would be Rwandans’ immigration status? What rights would be granted to them? Have any States agreed to naturalise Rwandans? We have noted that neither Ghana nor Zambia have done so yet. Despite this, the cessation clause is still recommended for Rwandans for June 2013. What is the rationale behind such a hurry?

The cessation of refugee status itself is not the fundamental problem raised by this recommendation. The main issue represents the absence of local integration policies and the inexistent choices that Rwandan refugees have to face. A cessation clause accompanied by large provisions for local integration would mean there is a real choice for refugees; it would not force them to repatriate. This article raised an important number of political, ethical and juridical issues generated by UNHCR’s recommendation to invoke Cessation Clause for Rwandan refugees and has demonstrate why it is not time for such decision for Rwanda. The Fahamu Refugee Programme is asking individuals, NGOs, and governments to refuse the recommendation for cessation.

References

[1] UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137.
[2] UN High Commissioner for Refugees, Implementation of the Comprehensive Strategy for the Rwandan Refugee Situation, including UNHCR’s recommendation on the Applicability of the ‘Ceased Circumstances’ Cessation Clauses, Inter-Office Memorandum No. 093/2011, 31 December 2011, AF/00/DIR/048/11.
[3] Ibid.
[4]Amnesty International: Rwanda Annual Report 2011; ‘Rwanda urged to end clampdown on dissent as Charles Ntakirutinka released’, March 2012; ‘Vague laws used to criminalise criticism of government in Rwanda’, 2010.
[5] UN High Commissioner for Refugees, Guidelines on Exemption Procedures in respect of Cessation Declarations, December 2011.
[6] International Displacement Centre, Rwanda: Ensuring durable solutions for Rwanda’s displaced:a chapter too early closed.
[7] UN High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, January 1992.
[8] UN High Commissioner for Refugees, Cessation of Status, ExCom Conclusions 69, October 1992.
[9] UN High Commissioner for Refugees, Guidelines on International Protection No. 3: Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees (the ‘Ceased Circumstances’ Clauses), 10 February 2003, HCR/GIP/03/03.
[10] Mutuyimana Manzi, Report of the meeting of the 28 February 2012 held in Nakivale Refugee Camp, unofficial.
[11] Op cit., UN High Commissioner for Refugees, Guidelines on Exemption Procedures.
[12] Op cit., UN High Commissioner for Refugees Implementation of the Comprehensive Strategy for the Rwandan Refugee Situation.
[13] Siddiqui, Y. Reviewing the Application of the Cessation Clause of the 1951 Convention relating to the Status of Refugees in Africa, 2009, Oxford University.
[14] Telephonic communication with Michele Cavinato, Policy Officer of UNHCR’s European Bureau and focal point for Rwanda Cessation Clause in Europe, 17 April 2012.
[15] The Daily Guide, ‘The Dilemma Liberian Refugees’, 28 April 2012.
[16] Lusaka Times, ‘Angolan Refugees Asked to Leave Zambia’, 26 April 2012.
[17] See also Lusaka Times, ‘Zambia has no intentions of integrating refugees’,12 July 2011.
[18] Op cit., UN High Commissioner for Refugees, Guidelines on Exemption Procedures.
[19] Ibid.
[20] UN High Commissioner for Refugees, Note on Suspension of ‘General Cessation’ Declarations in respect of particular persons or groups based on acquired rights to family unity, December 2011.
[21] Op cit., UN High Commissioner for Refugees Implementation of the Comprehensive Strategy for the Rwandan Refugee Situation, including UNHCR’s recommendations on the Applicability of the ‘Ceased Circumstances’ Cessation Clauses.

The author wishes to acknowledge the helpful comments on this article by Dr Alice Edwards, Dr James Hathaway, Martin Jones, Dr Galya Ruffer, and Manzi Mutuyimana, and states that any errors in interpretation are his own.

Courtesy – FAHAMU Refugee Legal Aid Newsletter –
http://frlan.tumblr.com/post/22196505143/may-2012

People of Nowhere: Stateless in South Asia

Anasua Basu Ray Chaudhury

Statelessness is the quality of being, in some way, without a state. In fact it means without a nationality, or at least without the protection that nationality should offer. Nationality is the legal bond between a state and an individual. It is a bond of membership that is acquired or lost according to rules set by the state. Once held, nationality or membership of a state – brings with it both rights and responsibilities for the state and for the individual. Within the realm of public international law, rules have evolved in response to the problem of statelessness. According to the International Law Commission, the definition of stateless persons contained in Article 1 (1) of the 1954 Convention relating to the Status of Stateless Persons now forms part of customary international law. The Article defines ‘stateless persons’ as those who are not recognized as nationals by any state under the operation of its law. They therefore have no nationality or citizenship and are unprotected by national legislation and left in the arc of vulnerability. The International Law Commission has observed that the definition of a stateless person contained in Article 1(1) is now part of customary international law. 1954 Convention Relating to the Status of Stateless Persons and 1961 Convention on the Reduction of Statelessness exclusively deal with the issue of statelessness. These two legal instruments explain statelessness mainly in two ways de jure and de facto. A stateless person as defined by the 1954 convention is generally equated with the term de jure statelessness. Besides, the Convention also refers to the category of de facto stateless persons - who remain outside the country of their nationality and hence are unable, or, for valid reasons, unwilling to avail themselves of the protection of that country.

Statelessness most commonly affects refugees although not all refugees are stateless, and not all stateless men, women and children may be able to qualify as refugees. Refugee status entails the extra requirements that the refugee be outside his or her country of nationality (or country of habitual domicile if stateless), and is deserving of asylum based upon a well-founded fear of persecution for categorized reasons which make it unwilling or unable to avail itself of the protection of that country.

The possible consequences of statelessness are profound and touch on all aspects of life. It may not be possible for them to work legally, to purchase property or to open a bank account. Stateless people may be easy prey for exploitation as cheap labour. They are often not permitted to attend school or university, may be prohibited from getting married with a persons from other communities and may not be able to register births and deaths. Stateless people can neither vote nor access the national justice system.

Causes and Context of Statelessness in South Asia

Normally statelessness emerges from succession of states or territorial reorganizations. But it also emerges from persecution of minorities and state’s majoritarian bias, which lead the states at time to expel citizens or inhabitants. This condition reinforced by the protracted refusal of the involved states to take them back creates a condition, which may lead at times to loss of their nationality and citizenship. Also, states of South Asia being what in academic circles are called ‘kin states’ represent social and ethnic continuities across the borders and the cases selected here illustrate both these albeit overlapping sources of statelessness in contemporary South Asia. The experts have identified three salient facts while analyzing the causes of statelessness in South Asia.

• Very few contiguous South Asian states have entirely normalized relations with each other, usually on account of disputes concerning borders and cross-border movements, or histories of unwelcome intervention in each others’ affairs. The inherent and massive heterogeneity of South Asian states has frequently given rise to militant resistance – often with a secessionist agenda – to the exercise of central power and the project of national consolidation. These resistances have usually obtained support and legitimacy from the governments or societies of neighbouring states. As threats to the project of national consolidation have accumulated over the past decades – because of interstate conflict, border and territorial disputes, insurgencies, illegal migration, increasing competition for resources and unfavourable demographic drift – the resistance has intensified, and so has the tension of regional relations. It would not be incorrect to say that an atmosphere of suspicion lies over South Asia. Suspicion has driven South Asian states to progressively tighten the strings on who may claim membership goods, thus creating growing pockets of statelessness at their cultural and geographical margins. Examining the changes that have been introduced to citizenship laws of South Asian states provides a clear narrative of how this tightening of strings has proceeded: largely by restricting the acquisition of citizenship by right in favour of granting citizenship at the government’s discretion.

• The second salient aspect of South Asian statelessness is its production as a result of political turmoil. In almost every case, such turmoil has manifested post-colonial South Asia’s attempt to mould itself into culturally unique nation-states by favouring dominant national claims to cast out a minority; or, the attempt of a disgruntled minority to secede from the dominant majority to create their own uniform homeland. The two largest cleavages in independent South Asia occurred for precisely these reasons – the Partition of India in 1947 and the secession of Bangladesh in 1971. It follows, then, that these nation-building experiments created the ideal conditions for inducing statelessness.

• The third aspect of statelessness in South Asia is as a product of economic migration between states. Borders in South Asia, in the pre-colonial, colonial and post-colonial periods, have been unregulated or unsuccessfully regulated, engendering traditions of seasonal migration but also permanent minority settlements. Migrant populations are of all different vintage: Nepali migrants from as early as the seventeenth century in Bhutan, Tamil labourers from the nineteenth century in Sri Lanka, and continuing flows of Bangladeshi Muslims in India. Since the advent of independent nation-states, however, majority leaders have argued for the disenfranchisement of such groups, which appear to have closer ties to the national identity of a neighbouring state than to the identity of the state of their residence. The political centres have demanded the migrants’ ‘repatriation,’ which has been refused by the neighbour state on account of resources constraints and political concerns of its own, leaving the group stateless.

In this context, one can cite example of the Rohingyas, who being deprived of their nationality by the Burmese junta are surviving in the camps in Bangladesh. While the Chakmas were encouraged by the Indian government to come and settle in India as refugees when they were displaced from the Chittagong Hill Tracts due to the building of the Kaptai Dam in 1964 but the Indian government has not yet granted them citizenship. They are neither the citizens of Bangladesh nor India, which has made them de jure stateless. Many Muslims from Bihar left India during partition as they wanted to become Pakistani citizens but they could only travel to East Pakistan. When East Pakistan became Bangladesh in 1971 they were denied Bangladeshi citizenship and not conferred a new Pakistani citizenship by the government of Pakistan and so they lost their nationality. In this context one can refer to the cases of the Hindu refugees from Pakistan living presently in Jammu valley and in the districts of Barmer, Jaisalmer, Bikaner and Ganganagar of Rajasthan. In case of the Lhotsampas, the Bhutanese monarchy marked them as people of Nepali origins and deprived them of their nationality. About a 100,000 of them are today living in UNHCR run refugee camps in Jhapa and their protracted refugee-hood has lead towards their statelessness.

References

1. Batchelor, C. A. (1998) ‘Statelessness and the Problem of Resolving Nationality Status’, International Journal of Refugee Law Vol. 10, pp156-182.
2. Karnad, R.A., Dhawan, R. and Acharya Bhairav, Protecting the Forgotten and Excluded Statelessness in South Asia,
http://y4e.in/pdf/wc/Refugees%20and%20Displacement/Statelessness%20in%20South%20Asia.pdf accessed on September 12, 2011.
3.Special Protocol Concerning Statelessness, The American Journal of International Law, Vol. 24, No. 3, Supplement: Official Documents (Jul., 1930), pp. 211-21.


 

Law, Islamophobia and the United States of Exclusion

Geetisha Dasgupta

It is widely known that post 9/11, the world, for more than half of its population has spun on the axis of renewed racial hatred that found expression in xenophobic profiling of the other half. Overnight, as Richard Seymour [1] and Moustafa Bayoumi [2] have pointed out, Islam became a race in the western imagination, adding to the already existing ones like the racial imaginations of Latinos and Asians. The last two have existed, alongside the black identity as age old borders within the US ground zero. Although twelve years have passed, there has been no slackening of the hatred that was spun around the incident. While statelessness and invisibilization of Latinos and Asians are well known facts, a new category of stateless is shaping fast. This is the new race and founded on exclusion based on religious identity.

Despite loud and clear declarations at the administrative levels that the United States government will not support any activity in hatred towards the believers of Islam or of Arab origin; there have been steady repercussions from the agents of the state and the government on these lines, when it came to arresting people for suspicion of terrorist activities. As a result, there have been repeated strikes and counter strikes and all over the last twelve years during which a large group of people became homeless and stateless. Such statelessness was created with legal measures, so as to sanitize the society off all potential terror strikes and keep the trouble makers behind the bars. Results are: fresh batches of illegal migrants who, if successful in keeping themselves out of Immigration agencies, get absorbed as menial workers on wage rates that are far lower than the legal minimum. As a natural corollary, they do not belong to this state, nor are eligible for any benefits. Moreover, such people have to live under a blanket suspicion authorized by the state.

The racial profiling that took off as the Bush administration’s domestic policy counterpart to preemptive strikes as foreign policy measure raised a ghost of its own. The war on terror outside the US soil created ‘aggressive’ population groups inside the borders of the state (where minimally aggressive behaviour became a benchmark for activities qualifying for arrest). In fact, newer borders were laid, inside the territory, where the Muslim and the Arab identity have collapsed together to give birth to a new form of not-belonging. It is therefore not surprising that every terrorist strike inside or outside the US territorial jurisdiction has produced a fresh batch of people that fell out of the safe zone, and entered the list of ‘being watched’. For example, there have been huge repercussions felt after the Norway terror attacks and Congressmen were vilifying all organizations off alternative faiths in the US [3]. A minimal effort to build an Islamic study centre in New York City raised much dirt from the ground in 2010: it was said that Muslims in the US, numbering anywhere between 4-7 million are not ‘sorry’ enough for what ‘mayhem’ they ‘caused’ in 2001 [4]. This is not a standalone incident. Several such attempts as posters in California shouting: ‘Wake up America, the enemy is here’ or ‘No temple for the god of terrorism’—have regularly been put away as classified news.

As Salah Hassan [5] would say, the act of being watched produces its counterpart in ensuring oblivion. The more there was vigilance at the ports of entry and combing through the society, the more number of alternative economies and underground ways of existence came about. With legal protocols as the USA Patriot Act, 2001 which was later redrafted by the Obama administration as the National Defense Authorization Act, the jurisdiction of preventive detention was extended to levels hitherto untouched and a point was reached where people could be arrested on the slightest suspicion of deterring national security and detained for an endless period without due process of law. By virtue of this, intelligence and law enforcing agencies will have unprecedented access to private and personal domain of everybody living under its premises. Therefore, something that was shaped as a mechanism of combing out the bugs has now become an instrument in the hand of the administration (which is also the embodiment of the greatest and most notorious alliance of capitalist interests of accumulating ever increasing amounts of surplus) for pushing all sort of dissidents to peril. This is a classic example of the way law produces its own chosen group of illegals and also maintains them.

Again, legal tools like the NDAA does not need to stop at the domestic level only, as foreign policy and geopolitical status of the country affirms its ability to reach anybody that it deems inimical to its own security. Therefore, students could be picked up from rallies of the Occupation Movement in New York City or Boston, and detained in federal prisons for anything up to three months without questions being asked. There has been an increase in hate crimes; counting also those who associate with people of Islamic faith. One of the college students detained in New York was suspected of plotting terrorist activity because he was talking ‘too much’ with a Pakistani girl in an Occupy rally, because he wanted her as a girlfriend. Here is what one blogger [6] says:

Since the death of Osama bin Laden I’ve found more reasons to worry as I leave my home. As footage of (mostly white) Americans in the streets screaming “U.S.A.! U.S.A.!” and “WE GOT HIM!” began rolling in, I grew increasingly nervous about what reaction I’d receive walking down the street the next day. I later awoke to (barely reported) news coverage of masjeds spray painted with messages of “GO BACK HOME” and “OSAMA TODAY, ISLAM TOMORROW [sic],” which quickly confirmed my fears. September 11th and the death of bin Laden should serve as reminders to those of us actively working against Islamophobia and other oppressions of the inherent link between nationalism and violence. American nationalism is dependent on the violent exclusion of those who are decidedly not American; just as the narrative of September 11th cannot include the stories of the Arabs, Iranians, Turks and Muslims who were killed in the World Trade Center or the Muslim firefighters who worked in the wreckage of the Twin Towers, the eerily joyous and celebratory national memory of the death of bin Laden will not include the stories of spray painted masjeds or brown folks harassed on the streets or the nationally unacknowledged but paralyzing fear that regulates the life of so many brown folks in the United States. (http://atlanta.ihollaback.org/2011/05/20/961/ access date: 27/04/2012)

A new exclusion act was introduced in 2002. Since September 11, many Arab and Muslim immigrants have faced dire prospects of detention, secret trial, deportation and what is now beginning to look more and more like a new exclusion act aimed at impeding the immigration of people from the Middle East. The Justice Department announced its intention to implement the National Security Entry-Exit Registration System (NSEERS) on September 11, 2002. This would be a system involving the fingerprinting of "high-risk" foreign visitors. In addition, the program will require targeted foreign nationals to register their residence with authorities and to confirm their exit. According to a Justice Department statement, foreigners "will be selected according to intelligence criteria reflecting patterns of terrorist organizations' activities." But the system will begin by tracking "all nationals of Iran, Iraq, Libya, Sudan and Syria," though no nationals from these countries were involved in the September 11 hijackings. In addition, the system will tag for fingerprinting any "non-immigrant aliens whom the State Department determines to present an elevated national security risk, based on criteria reflecting current intelligence" as well as aliens "identified by inspectors at the port of entry, using similar criteria." The ultimate design of the system is to create an enormous database of foreign visitors that can be used to track and locate "terrorist suspects." Rather than relying on "intelligence criteria," NSEERS will generate intelligence to facilitate the detention and deportation of certain visitors and immigrants.

The oppression of laws such as the NDAA and its attendants like the NSEERS have delivered more blows to these communities which have been forced to take recourse to illegal paths to continue to live and earn livelihood in the country; thus invisibilizing themselves. Accounts of how many muslims or Arabs were turned away at the ports of entry are yet to come; accounts of how many of them are working as industrial labour undercover and under perpetual fear of being caught will never be brought to daylight. But the general mood is corroborated in the following verses:

First they came for the Muslims, and I didn't speak up because I wasn't a Muslim.
Then they came to detain immigrants indefinitely solely upon the certification of the Attorney General, and I didn't speak up because I wasn't an immigrant.
Then they came to eavesdrop on suspects consulting with their attorneys, and I didn't speak up because I wasn't a suspect.
Then they came to prosecute non-citizens before secret military commissions, and I didn't speak up because I wasn't a non-citizen.
Then they came to enter homes and offices for unannounced "sneak and peek" searches, and I didn't speak up because I had nothing to hide.
Then they came to reinstate Cointelpro and resume the infiltration and surveillance of domestic religious and political groups, and I didn't speak up because I had stopped participating in any groups.
Then they came for anyone who objected to government policy because it aided the terrorists and gave ammunition to America's enemies, and I didn't speak up because...... I didn't speak up.
Then they came for me....... and by that time no one was left to speak up.

For Further Reading, Refer to:

[1] http://www.isj.org.uk/index.php4?id=638&issue=126 access date: 25/04/2012
[2] http://www.merip.org/mer/articles/author/483 access date: 25/04/2012
[3]http://mondoweiss.net/2011/07/the-same-islamophobic-bloggers-and-pundits-that-influenced-norway-killer-also-influence-congress.html#more-48291accessdate; 27/04/2012
[4]http://articles.latimes.com/2010/sep/09/opinion/la-oew-esposito-islamophobia-20100909 access date: 28/04/2012
[5]http://www.merip.org/mer/mer224/arabs-race-post-september-11-national-security-state access date: 22/01/2012
[6] http://atlanta.ihollaback.org/2011/05/20/961/ access date: 06/03/2012

Political Ecology of Big Dams in India’s North-East Frontier: Emerging Critical Issues and Environmental Concerns

Dilip Gogoi

[Is an Assistant Professor in Political Science, Cotton College, Guwahati]

Dams, development and nationalism have historically evolved as potential agendas for nation building since 1950. The Nehruvian modernization dream was to transform agrarian India into a powerful industrialised nation based on scientific temperament. In the post 1990, these dreams have been more enthusiastically pursued to engulf our frontiers and borderlands as potential sites for the experimentation of modernity. Sanjib Baruah in one of his papers terms this as a process of ‘nationalizing frontier space’. The era of protected regime till the 1980 had a strong policy towards restricting mega structures to the core or mainland. The obvious reflection can be seen in Punjab, J&K and the North Eastern part of the country where big dams and heavy industries were not planned because of the regions proximity to hostile neighbours. In the post 1990 period one of the single determinant of India’s growth has been dragged by an acute power shortage. The growth of Indian economy is dependent on harnessing power from all potential sources. Hydro-power in this regards has emerged as a viable compliment to hydrocarbons, Coal, as a clean energy source and the Brahmaputra River basin its largest repository. Before the liberalization era power prospecting and harnessing was monopolised by public sector companies, however with the deregulation of this sector private players have conglomerated to harness more and more power. There is a spate of Memorandums of Understanding (MoUs) with different hill states. In the North East India, Arunachal Pradesh has the most vibrant potential to generate hydro power. However, the innumerable network of dams that are proposed for the different river basins in Arunachal Pradesh, do not only threaten displacement that are projected to be small as compared to their counterparts in Narmada and Tehri, but will have more complex outcomes as the communities in the states are innumerable, small in size and heterogeneous.

Big dams will have serious implication on the cultural bonds that the Arunachali tribes maintain. But, the challenge towards contesting such vehement resource use lies in understanding how marginal landscapes are integrated into a nationalist dream of integrating frontier space. The logic of resource exploration to propel the national economy is linked to the very process of the production of capital. Beyond the ecological consequences of mega projects, question of displacement of local communities, the cultural diversity of the local region presents unique challenge to the production of capital. Dam construction in recent years has invited lot of controversy. Lack of comprehensive EIA and project planning threatens local biodiversity and has tremendous downstream and upstream upheaval affecting livelihood and aquatic life. Poor EIA appraisal has already led to unwanted deluge in the lower riparian areas of Assam. Beyond these obvious imperatives of damming fast flowing Himalayan tributaries, the location of these dams in highly sensitive seismic zone hinges the danger of flash floods in the event of a dam burst triggered by earthquake tremors. Underscoring the geo-ecological sensitiveness of the region, dam building is promoted as the most important developmental goal for the Himalayan state and the north-eastern region in particular. The Power Grid Corporation of India is one power sector player that has integrated the regions power potential with the nation. This mean the power produced here will be transmitted to other parts of the country to server the deficit regions. It strongly permeates the philosophy, the Nehruvian idea of development that marginal communities should pay for the development of a nation. Big Dams do not only represent states resourcefulness they also generate a sense of nationalism. This paper looks into not only the traditional challenges posed by big dams and but also tries to look into the other challenges, posed by ideas of modernization, developmentalities and privatization of resource use. What are the stakes of the local community? Here it will also be interesting to see how the neo-Nehruvian dream of calling to duty the marginalised people of the periphery are negotiated by local elites who act as brokers in bridging nexus with corporate interest in power projects.

State of Northeast Today

The north eastern region, which comprises eight Indian states , is connected with mainland India through a narrow corridor of land and , it has some unique features which sets it apart from the rest of the Indian landmass. The geo-strategic location of the North east region is also unique as it is surrounded by China, Myanmar, Bangladesh, Bhutan and Nepal. The contemporary NE India is witnessing grave challenges: from within – contested ethnicities and complex historicity, from external environment – especially from Bangladesh, China and Myanmar and finally from the Indian state in context of not granting sufficient autonomy, regional underdevelopment and disparity which is responsible for the instability in present day NE India. There is a growing tension between the center and the people of the periphery regions due to the predominance of the center in certain matters and also due to the negligence towards the region which resulted in widespread unrest and insurgency and people’s discontent in the region.

The area has a rich natural resource base and the potential to emerge as a developed region. However due to the lack of effective strategies and will on the part of the Indian state and the on-going armed insurgency, the region has lagged behind the rest of the developed areas of the country. among the people there is a perceived notion that New Delhi is treating NE India as a “neo-colony” within India the way the British did with the region. There are several popular uprisings against this attitude of the center the most recent being in the context of the anti-dam uprisings hugely protesting against the construction of mega dams in ecologically and seismologically sensitive zone.

Projecting NE as India’s Future Power House

As India has a highly centralized planning process which is a conventional top down model, it identifies north east India as future power house considering its vast potential of hydroelectricity generation. India in order to keep up the development pace and growth India needs power. As India is witnessing several resistance movements against dams in various parts of India, northeastern region is an easy catch because of its —strategic location, vast potential for power generation and relatively low level of population density in comparison to other parts of India. In 2001 the Central Electricity Authority has done a preliminary study of the hydroelectric potential of the various Indian rivers. It has identified 168 prospective projects in the Brahmaputra Basin alone, which could generate more than 60,000 mw of hydel power.

On the basis of this report, GOI and Arunachal Pradesh Govt decided to initiate both medium and large dams through memorandums with the both Public Sector Power Company as well as private sector power companies. Accordingly, large dams are being constructed in many parts of ecologically sensitive zones of Arunachal Pradesh including 2000 MW Lower Subansiri Dam without addressing the serious people’s concerns and proper downstream impact assessment. It generate considerable debates and invites popular resistance movement from the local people and the civil society specially in Assam and Arunachal Pradesh by the students bodies Such as AASU and KMSS. The expert committee, consist of IIT, Guwahati, Gauhati University and Dibrugarh University , in its reports raised serious concerns and faulty design of the lower Subansiri project .The Assam Assembly House committee report also showed similar view and suggested without comprehensive downstream impact assessment study and addressing the genuine grievances of people , there should not be construction of large dam , particularly lower Subansiri dam.

However, GOI is continuing the same stand without addressing the genuine apprehensions and risks involved in the mega dam construction in the region in the name of national interest. Recent debates and reports also suggest that while initiating the project, the concerned authorities have overlooked the probable impacts and did not conduct any comprehensive study including that on the downstream impacts as well on the ecological consequences. This raises the serious flaw of mega-project execution and brings to the forefront the ulterior motives behind the construction of mega dams, which goes against the people and the environment.

Social and Environmental Cost

In India, construction of hydroelectric projects needs mandatory environmental clearances from the Ministry of Environment and the Forest, GOI, to review the feasibility on environmental and social grounds. Based on their specific locations they could also require other permissions such as – forest clearance from MoEF and approval from the National Board for Wildlife (NBWL) if protected areas (PAs) are involved. An important part of the clearance process is Environment Impact Assessment (EIA) Report which is a very crucial document in terms of decision making. However, EIA reports revealed insufficient and faulty study in the context of mega hydel projects specially – Kameng. Lower Subansiri, Middle Siang, Tipaimukh and Dibang. All of them without exception, very poorly highlighted the area of conservation of wildlife and critical ecology of the region .This is particularly very important as two out of three bio-diversity hotspots of India pass through the north east – the Himalayas and the Indo- Burma region. However quite interestingly this area is poorly documented and in the recent years biologists have discovered many new species as well as range extension of existing ones in the region.

In specific context of the Lower Subansiri Hydel Project it needs to be realized that it is situated at a highly susceptible environmental location, which has an extremely sensitive ecosystem and above all this it is a part of the Tally Valley Wildlife Sanctuary, known for inter-border diversity. It is also one of the 25 richest bio-diversity hotspots of the world. The region is also affluent in terms of ornithology as the Bird Life International has identified two Endemic Bird Areas in this region.

The region is immensely rich in terms of forest cover as it experiences a very high average rainfall rate which is conducive for the growth of thick vegetation. Besides sporting thick forest and a wide range of bird this area also houses an assortment of animals which are endangered. Examples of such species would be – Great Pied Hornbill, Himalayan Black Bear, Golden Cat, Hill Mayna, Flying Squirrels, and Wild Hog etc. certain varieties of flora and fauna have already been marked as risk species. The National Forest Policy of the country also states that forest which clothes steep slopes, catchments of rivers, lakes and reservoirs and geologically unstable terrain and other such ecologically sensitive areas should be severely restricted. Tropical rain/moist forests particularly in areas such as Arunachal Pradesh, Kerela, and Andaman & Nicobar Islands should be totally safeguarded.

Field survey has revealed that the large scale mining and construction work has had a serious impact on the river flow by increasing the sedimentation. Muddy water and wide-ranging deforestation has resulted in acute land, water and air pollution in this ecologically sensitive zone located at the foothills of the Himalayas in the backdrop of an inadequate knowledge base. Critical concerns such as land degradation, forest land acquisition, generation of muck, increase in turbidity of water, water pollution due to various project activities and sewage disposal, cutting of trees, destruction of wildlife habitat, increased air pollution and most importantly displacement of local village people are witnessed from the project area. Besides all this one most imperative feature which totally goes against the construction of dams in this part of the country is that, this area is a seismic zone as it falls in Seismic Zone – V and thus is highly prone to destructive earthquakes like that of 1950 and periodic occurrence of earthquake in the region. Environmentalists, experts stressed on this vulnerability of the region and its devastative consequences. High pressure of water or a massive earthquake or even a major landslide could increase the flow of the river during monsoon and thus cause a havoc in the lower part of the project area which has thickly populated towns and villages. And this might also have adverse effects on the world heritage site Kaziranga and the much prized possession of the region, the largest river island of the world, Majuli.

Another serious concern is the displacement of the indigenous people, in the downstream area, the violation of their community rights and their livelihood and the issue of their resettlement and rehabilitation. These issues are perceived as grave because community rights are linked to the sources of livelihood of these people living in the lap of nature, specially the Mising community in Assam. The river and its resources are an integral part of the lives of these people living in and around the river; hence inaccessibility to the river and its resources poses as a hindrance in the running of their daily lives. Apart from the downstream people’s livelihood is also at stake, because they primarily rely on natural ecology for their agriculture and other livelihood sources. Hence, probable apprehensions such as large-scale displacement as well as sense of insecurity and environmental consequences cannot be ignored.

Politics behind the Mega Dams in the North East

There is a lot going on in as far as the construction of dams is concerned. The issue is not just one, but many matters entangled with one another. Within this major issue there are many sub-issues which are a matter of concern. The Government of India had adopted a neo liberal policy which is capital intensive and people insensitive. Thus this development through dams is regarded by many as anti-people which is solely focused on benefiting the government. The issue becomes further more crucial because it deals with the northeastern part of India. The northeast is projected as potential power house due to the fact that the GOI is offered strong counter resistance for its development projects in other parts of the country. It has also a strategic dimension as China frequently claims Arunachal as a part of Chinese territory and also China is building a dam in the upstream area. The origin of the Brahmaputra and most other rivers is in the Chinese territory and they flow through Arunachal and Assam of India and finally touch Bangladesh. Hence three countries are involved, thus the strategic importance of the rivers is by large enhanced. Inside India again these rivers by and large pass through two or more states and hence can be characterised as inter-state rivers. And thus unfortunately, the downstream states like Assam are completely ignored in the context of both policy making and shared benefits.

In the context of the proposed mega power project, the plans are also perceived by the local people as essentially neo-colonial in nature because GOI is not addressing local genuine concerns and is bypassing the people’s interests in the name of national growth. Hence critics argue that it ignores the very foundation of equitable justice. The proposed power distribution centre for the project has been fixed outside the region which also causes centre-periphery dilemma as the people at the periphery perceive that the GOI is pursuing a neo-colonial policy bypassing local interests. Also, because of the popular resistance movements spear headed by AASU and KMSS, are fully supported by the civil society including eminent activists like Medha Patkar, the movement is gaining momentum but GOI seems adamant and is sticking to it neo-liberal agenda.

Towards Environmental Security and Sustainable Development

To come to a solution on this issue is a rather critical exercise, as it would require a reconciliation of many critical dimensions of the issue. What is required as of now, that is in the immediate context of mega dam construction is --- identifying the critical environmental concerns through a comprehensive environmental impact study covering all the proposed dams in the region including the Lower Subansiri Hydel Project. As a mere project specific study does not suffice and does not provide a holistic picture of anticipated impacts, hence a comprehensive study is the need of the hour. Secondly it is equally important to address the people’s concerns in a more apposite manner. The Government should keep in mind that development is definitely a priority; we need development for sure, but development for whom? Are the people right? Hence if a development project itself becomes the cause of anxiety for a people that what good is such development?

Thirdly, there should be Permanent Liability Act, back by proper rule of law in order to effectively address the people’s genuine concerns like alternate livelihood, resettlement and rehabilitation of the displaces in case of construction of such big dams. Such an act is imperative because only then will the misery and the woes of the displacees and the sufferers be properly addressed. Projects like mega dams can seriously alter and affect the lives as well as the patterns and sources of livelihood of the indigenous communities who rely to a great extent on community resources like river, land etc. only a Parliamentary legislation can protect their indigenous and human rights and put an end to such grievances of the lot who suffer in the name of such parochial development. Fourthly, there should be initiatives on behalf of the Regional water resource authority for utilizing natural water of north east India with a sustainable approach as these are interstate rivers. This can also provide some kind of a gradual solution to the proper use of water for power generation etc.

What is needed is a coming together of development, sustainability and people’s progress. In brief we need development which is sustainable and people sensitive. An approach which brings development parallel to environment and which also does not overlook the convenience of the people concerned. Therefore the linking of local needs with nation building needs a more amicable cooperative federal approach rather than absolutist central approach.

We as people of the 21st century should be foresighted. We need to think not only about our survival and development but also about the sustainability and development of the future generations, of the people who are yet to come. Hence our approach should be one which is based on --moving ahead on the pattern of -- thinking globally acting locally and living ecologically. Sustainable development, that is, accessing nature sustainably without destroying the needs of the future generations, should be our goal.

Post Return Vulnerabilities among the Displaced Women in Sri Lanka

Pakkeer Mohideen Mohamed Feroz

[Works at the Human Rights Centre for Social Justice, Sri Lanka]

Introduction

The protracted armed conflict in Sri Lanka between government forces and the Liberation Tigers of Tamil Eelam (LTTE) ended in May 2009. The massive displacement of the population in the north of the country which took place in the final stages of the war, nearly 684,276 people have experience in displacement as IDPs, refugees, asylum seekers. Significant numbers of the people who were allowed to return to their areas of origin in late 2009 from the IDP camps in north and east. In western Sri Lanka, over 70,000 Muslim IDPs remained in displacement in Puttalam. 20 years after being forced out of the north and north-west by the LTTE in 1990. According to the government between 8,000 and 10,000 have returned; Many still faced poverty and difficult living conditions. With the end of conflict, the older generation of IDPs was keen to return but the younger generation, which had not known life outside the camps and the region, was uncertain about this option. The women who were living in IDP’s camps or return areas, their position in Sri Lankan society is extremely vulnerable because they are dependent on the state and humanitarian agencies, with little ability to determine the course of their own lives.

Causes and Consequences of Vulnerabilities

Armed Conflict: The armed conflict affected women and men differently. Men were the main casualties of the war. Of the survivors, women were the most affected by the loss of family members, death and disappearance of income earners, migration of young men and displacement. All women were affected by the conflict though they experienced different effects based on their ethnicity, location, class and socio-economic status.

Women’s physical mobility was restricted during the conflict. And the war has resulted in large numbers of female-headed households where women have to carry out the farming and fishing activities and support parents and children. Poverty and hardship have been increased among the women.

Displacement: A large majority of the women were living in camps and return villages in Sri Lanka have lived in displacement for 10 years or more under conditions in which basic dignity and fundamental rights are merely ideals. Also the ability of women to freely make decisions about their own best interests has been curtailed nearly completely. Privacy is difficult to obtain even for toileting and bathing even after the return. The Muslims evicted from the North were living as displaced persons in other parts of the country, some on their own and some in welfare camps, some were returned to their place of origin after 20 years. Sinhalese women and their families fled the conflict areas to the South, all of the displaced either having lost their spouses or children or livelihoods; Women’s responsibilities increased in the absence of income sources. Poverty, unemployment, alcoholism, sexual abuse, and domestic violence are widespread in the return areas. Due to cultural and social factors the victims are fear to report it or hide the abuses; it makes them more vulnerable even in post conflict situations. Even though, there are lacks of data available in this regard, it could be observed that more number of victims get treatment from the hospital in case of serious (for instant it could be observed in Batticaloa Teaching Hospital). The Refugees who returned Sri Lanka from India are helpless to rebuild their life after return beyond the end of war. The refugee women are more vulnerable while they lost their spouse, family members during flee by sea.

Loss of Income Source: Rural women’s lives are tied to the natural resource base. Collapse of the agricultural sector during the conflict impoverished rural women and their families.

For instant the people from Keerisuddan return village of Mannar District had half acre land which was provided by the government with land permit, under the settlement programme in 1977/78. It was highland crop lands and the people were engaging in crop cultivation, livestock activities and poultry, home gardening and wage laboring during the harvesting in suburb villages before the displacement. After the return, they lost all the income resources, now depending on dry ration for food for survival. Each family of the 35 families who are presently living in the village were provided Rs. 35,000.00 valuable livelihoods supportive items such as sewing machine, water pump, knife and axe by a NGO function under the Madhu Church. The women headed families mentioned that the dry ration will be stopped in coming end of April 2011, after that they will face difficulties getting food for their survival.

Women have limited livelihood options in return villages. Although their main occupation was home gardening and high land crop cultivation, inadequate profits and risk of crop failure made livestock rearing preferable. Except for preparation of cooked food and a few other income-generating activities such as dress making, women had few skills for self-employment activities. Lack of employment opportunities compel many women to depend on government and nongovernmental relief while Muslim women, especially from the welfare camps, increasingly looked to overseas contract employment as a survival strategy. Further, it could be seen that presently women were engaged in domestic workers for low wage.

The women were paid less than men for equal work and experienced difficulty in rising to supervisory positions. For instant, the women farmers who were engaged in paddy harvesting in Chenkalady and Kiran DS division of Batticaloa district have been paid half of the wage of male workers during the last harvesting. The reason was gender perception. The women farmers were paid 2000 LKR per acre while men received 4000LKR for same work.

On the other hand, it is obvious in print and electronic media about the abuses and hardship faced by the housemaid who went to Middle East for the foreign employment and domestic workers within the country ( there is a need to have a study on this issues).

Domestic violence: Physical and psychological abuse within the home resulted from increased incidences of alcoholism in return villages. There are some individual incidents took place in the return villages in Batticaloa district that the male family head used to have alcohol after selling dry ration given by the state or NGO. It caused to create domestic violence against women in return villages. Due to the cultural and social factors the women family members not interested in reporting to the law enforcement mechanisms. This kind of activities makes women more vulnerable in post return situations.

According to a field study carried out by a university student in Eastern Province, the women are under mental stress due to domestic violence, difficult living conditions and the burden of household management, loss of family members, displacement and loss of assets. In Vavunatheevu Division of Batticaloa district women identified men’s alcoholism as a major issue.

Women Headed Families: Women who became heads of households with the loss of their spouses are the most visible victims of the conflict. Abandonment, separa¬tion and divorce also resulted in female-headed households. The inability of the spouse to engage in income generation pushed women to become principal income earners.

For example there are 10.52% of population is women headed families in Keerisuddan return village of Madhu division of Mannar District. The 04 women headed families consisting 06 members are living in this village. Out of these families 75% of families do not have income resources. Only one young widow (27 years old) engages as a preschool teacher for a sum of 3500.00LKR monthly remuneration, others living with relatives and surviving by getting dry ration. There is no any income generating opportunity in this village. Because they lost their all income generation sources such as live stock, home gardening, poultry due to war and displacement. Also there is no paddy cultivation done due to displacement. Due to cultural / traditional habits no widows got married in second time. 02 young widow families out of 04 widow families (50%) do not have legal document for their land. Also all the widows do not have permanent shelters. But these families were given temporary shelters by a NGO.

Poor Access to the State Mechanism: Gradual subside of public service systems due to conflict and displacement and migration aggravate women’s problems. Government services are limited and there is acute shortage of public servants and medical officers in return areas. Local representatives are ineffective. The women had no legal protection against discrimination in the private sector, where they sometimes were paid less than men for equal work and experienced difficulty in rising to supervisory positions.

According to the returnee women in Mannar District, after the return they do not suffer any attacks, harassment or any other form of punitive actions. And all the returnees who were staying at village were given temporary shelters and they enjoying by getting this without discrimination. An adequate standard of food /dry ration were providing for all the returnees families even for short period after the return. And all the returnee persons have been able to reunite with family members if they choose to do so. They are able to exercise the right to participate fully and equally in public affairs in the villages.

Although, people in remote village do not have full and non discriminatory access to national and divisional protection mechanisms, such as services from Assistant District /Divisional Registrar, Social Service Officers and Medical Officer of Public Health. Further, children who born during the displacement at the security zone which were declared by the government in the LTTE control area in the time last war do not have access to personal documentation, which typically is needed to access public services.

Lack of Commitment of Public servants: The domestic violence, spousal abuses were prohibited by the law but it was not effectively enforced. The systematic violence, discrimination during the public service was also thought to be widespread. However, enforcement of the law was not effective. While the protective measures taken by the State party for women who migrate from Sri Lanka, these women remain vulnerable to illegal employment agencies, and that many work in exploitative situations and experience violence and abuse at the hands of their employers.

Lack of knowledge among the Women : Most of the return areas were under controlled of the LTTE for two to three decades, thus there are bare about available legal protection systems in the country among the women in return area. There is a need to make aware the women & men on gender awareness, rights based approaches, legal protection systems. There is a requirement to work toward women’s participation in local governance and local level representatives to ensure attention by political leaders and government officers.

Conclusion

Overall, the conflict changed women’s circumstances by they have assumed roles in sharp contrast to notions of femininity and cultural values by becoming of the breadwinner of the family. Although, they are negatively affected by the poor condition of access roads, minimal transport facilities, inadequate housing, poor water supply and sanitation and limited access to health care services. The rehabilitation of infrastructure facilities and restoration of services will enable women and their families to improve their quality of life. And all programmes and projects in returnee area should include mandatory provision for a gender responsive strategy to mobilize women, overcome constraints that limit their participation and improve their capacity.