Throughout many years people were forced to flee their homes in search of a life free from fear. The number of refugees, in need of protection and resettlement at the end of World War II moved to host countries. In the present decade, Asia can be regarded as a generous host to the refugee. The principle of non- refoulement is not sufficient as what they have to face in real life, their camps often lack basic facilities, the right to education and employment are not available to all, children and women were not given special attention, the practices of involuntary repatriation of refugees is often observed. This essay is inclined to consider the ways of improving the human condition of refugees in Asia[1].
‘Asia is a region of vast proportions and marked contrasts. It is the largest continent on the globe, with some two- thirds of the world’s population. Its multitude of races, languages, and cultures indicates the difficulties of attempting generalizations. Its heterogeneity militates against the search for a comprehensive approach towards the refugee problem within the region.’[2]
It is difficult to take out the common problems, which prevent the rights-based and humane treatment of refugees. However, I would like to begin by clarifying the definition of a refugee.
DEFINITION OF ‘REFUGEE’
In 1951, the United Nations defined “refugee” as a person who “ owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of that country. This definition was customarily adopted which take account of the capability of state or multinational body to offer assistance to refugees. It is applicable only to a predetermined group put to question as to who comes within the criteria of eligibility. The dilemma arises as an unpredictable occurrence that could result in new groups of persons becoming eligible can be eliminated. Each state according to its geographical location, internal political composition, and national prejudices will react to the question of the refugee. Thus the question arises whether the 1951 convention or the OAU convention definition should be adopted in national laws to protect refugees. Apart from this, the question arises on the word ‘persecution’ in definition, whether it includes persecution by non- state agents. By amending definition, Article 14 of Universal Declaration of Human Rights which proclaims that everyone has the right to seek and enjoy in other countries asylum from persecution. Next to it the limit on refugees whether Internal Flight Alternative (IFA) will be taken into consideration in the process of determining status. Further, the gender guidelines as those which have been issued by countries like the United State and Canada should whether accompany national law. This controversial issue, need to be addressed as this effect the part of world society.
ASIAN STATES APPROACH TO THE REFUGEE PROBLEM
Political realism as an interstate relation paradigm in the region put an effect on the status and welfare of refugees. International politics seems to be seen as a struggle for power. The goal of state shifts from the concerned welfare of refugees to securing national interests. Ultimately for enhancing the power host countries use refugees as a resource or a bargaining chip. Further state in safeguard its territory being suspicious of all alien groups led to the compromise in terms of the quality of refugee offered. In terms of duration also, the host country expects to be satisfied with the assistance provided and to be satisfied with the assistance provided and to return home as soon as the host state decides. The issue with enhancing ‘power’ makes states ‘wary of accession to the international instruments on human rights for fear of accountability at the international level’[3]. When states do sign these instruments on human rights considerations are secondary to political expediency.[4] Membership of humanitarian organization are also used to pursue the power agenda, for example- the membership of the executive committee of the United Nations High Commissioner for Refugees(UNHCR) does not mean for the welfare of refugees for Bangladesh, India, Pakistan, and Thailand but to securing its geopolitical interests. The problems of refugees are not confronted in the face of world due to lack of voice provided by the realist approach of state, making limit over the interaction of civil society with refugees. States usually deny non- governmental organizations (NGOs) access to such camps where refugees reside as it may portray the negative image intentionally. Foreign policy by the political classes needs to be reassuring for the humane treatment of refugees. Reassuring does not mean to be ignorant of ideology or security concerns of individual states. It merely means that the policy must be within framework, which recognizes the distinctive essence of humanitarian problems. These individual concerned, NGOs and the UNHCR need to be concerted to assure the solution of humanitarian issues as it must be given their proper place in the domestic and foreign policies of states.
HUMAN RIGHTS REGIME AND INSTITUTION
The provisions of international protection to refugee and organizational arrangements must be supported with the national level institution because the tension arises within the state premises. The process of creating national identity makes it necessary to ensure the laws which protect the rights of minorities and aliens. There independent human rights institutions must take up the concerns at governmental and non- governmental level, for example- National Human Rights Commission (NHRC) of India which was established in 1993, which in 1995 took up the case of 65,000 Chakma refugees settled in Arunachal Pradesh in India since 1965 and sought the intervention of the Judiciary (an independent body), the supreme court of India to safeguard their life and freedom. The decision was strictly to impose the duty of the state of Arunachal Pradesh to protect the life and liberty of Chakma refugees, no inclination was given weight to the arguments that the settlement of such large numbers of them would disturb its ethnic balance and destroy its culture or identity. The apex court affirmed that ‘the state is bound to protect the life and liberty of every human being, be he a citizen or otherwise’.[5] The international community needs to frame policies that help to combat poverty and institutionalize the principle of burden-sharing. There is a complete absence of national legal regimes dealing with the status of refugees is a concern of the Asian region.
‘…the status of refugees in these countries is precarious. More often than not, it is subject to executive discretion, bolstered by claims of national security and foreign policy consideration. Law for the protection of refugees is the exception rather than the rule in the majority of Asian countries.’[6]
The absence of legal regime creates a major condition of refugees. These are dealt with the political and administrative levels. According to the Muntarbhorn notes: ‘ A perennial problem facing all asylum- seekers in the region has been the uncertainty of their rights upon arrival, pending the search for long term solutions’[7]. The example can be seen from the Human Rights Watch writes of Thailand:
‘Thailand has no domestic legislation covering the treatment of refugees. The 1979 Immigration Act which was amended in 1980 was the only a piece of legislation, and under this law, all undocumented asylum seekers are considered illegal immigrants and liable to summary deportation. Appeals by asylum- seekers against deportation are rare since, although such appeals can generally be made to the Ministry of Interior, they are not allowed in case of those without passports, equivalent identification documents, or visas. Even when the case of appeals against deportation is made by asylum seekers, the courts have rejected attempts to invoke the Refugee Convention’.[8]
For removing the hurdles in the pursuit of a favorable environment there must be an institution for implementing the rights of refugees, the refugee community must be consulted at all stages. Finally, the regional level judiciary is needed to familiarize with the refugee. Few efforts are made towards this such International Law Association of Refugee Law Judges (IARLJ) Held symposia on refugee law for the judges in this region.
There is a need for constructive linkage between the international and its implementation at the national level. There is important to emphasize the distinctive essence of humanitarian problems through a campaign to secure the passage of national laws. There is also a question on conditions of refugee in the countries which does not become a part to the 1951 Convention, or the 1967 protocol. In Asia, no country other than Cambodia, China, Japan, and the Philippines is a party to the 1951 convention. The countries of this region must collectively conclude that they would consider acceding to the Convention at least if the western world was willing to withdraw those measures which contradict the principle of burden-sharing and instead practice burden shifting.
PRINCIPLE OF NON- REFOULEMENT
It is a fundamental principle of international law that safeguards asylum seekers from returning them to the country which they would not like to go due to fear of persecution based on race, religion, nationality, membership of a particular social group or political opinion. The major problem which was identified is that the border guards and officials are highly trained to return back such people seeking help rather than accepting their explanation for presenting themselves without proper papers. The countries of this region also need to ratify the Convention against Torture (CAT). Therefore it is important to have domestic legislation which ensures that the principle of non- refoulement also includes non-rejection at the frontiers. The precedent in this regard in the Bangkok Principles adopted by the Asian African Legal Consultative Committee (AALCC) in the year 1966. Article III paragraph 3 states that-
‘No one seeking asylum in accordance with these Principles should, except for overriding reason of national security or safeguarding the populations, be subjected to measures such as rejection at the frontier…’
THE STATELESSNESS
The problem of stateless is a major concern in this area. The problem with such people who leave their country and reside in host countries is the disputed nationality which is a major obstacle in the process of repatriation. For example, there are four large groups of stateless people in the South Asian region are Rohingya from Myanmar, Bihari Refugees in Bangladesh, Lhotsampa refugees from Bhutan and Chakma refugees in India. The statelessness within the state should be considered as an important part of it. A stateless person is defined in international law as one ‘who is not considered as a national by any state under the operation of its law’ according to Article 1 of 1954 Convention relating to the Convention on Statelessness. A de facto stateless person are those who are unable to establish their nationality or whose citizenship is disputed by one or more countries, or all those who lack effective nationality.
The human condition of refugees in third world countries cannot be seen in isolation from developments in the first world because while the rights of refugees to live in dignity in nowhere linked to how they are treated. In the absence of the global regime of the third world, states are hard to manage the concerned issue.
The detention without justification is a problem which is confronted by the asylum seeker in this region. Prevention of unlawful detention must be viewed as an exceptional measure and its solution must be ensured by the national laws. The fate of refugees must not differ within the same country due to improper measures. As the right of refugees in this region is the arbitrary determination of what constitutes minimum material assistance which got provided to the refugees. The camps of refugees must meet the fundamental requirement. The NGOs must not be denied by the host countries to access because of saving such a state to embarrass at the international level. The special concern for the problem of women and children is sensitive for example Afghan refugees in Pakistan, where women have suffered much more than any other group of people. The UNHCR guidelines which focus on how to best protect and assist refugee women and Article 22 to the Convention on the Rights of the Child, 1989, where special provisions on the refugee child are given should be proposed in dealing with such national laws.
CONCLUSION
The refugee phenomenon is now a matter of global concern and needs to be supported by the international community as a whole for its solution and the principle of burden-sharing must be viewed. The refugees must be defined in such a way that it includes all the groups of a deprived alien group or could be mold with the passes of time. Refugees must not be overlooked for the reason of public interest as a fundamental right of man is more important to save instead of citizens. The national steps should also be mandated in such a way that resources for camp, safe return, and other basic facilities not got compromised.
[1] As of January 1997, some 1.5 million persons were of concern to UNHCR. This population compromised 905,000 refugees and asylum – seekers, 406,000 returnees, and 229,000 internally displaced persons. Of the refugees, the largest caseloads were in China (290100), India (268,400), Nepal (126,800), Thailand (108,000) and Bangladesh (30,700). Whereas the largest number of assisted returnee caseloads were in Myanmar (219,300), Vietnam (105,600) and Sri Lanka (54,000).
[2] Visit Muntarbhorn, The Status of Refugees in Asia, Oxford: Claredon Press, 1992, p.3.
[3] Ibid.,p.13
[4] Ibid.
[5] NHRC V. State of Arunachal Pradesh and Union Of India, 1996 [1] Supreme 295; 1996 SCC 742
[6] Muntarbhorn, n. 2, p.5.
[7] Ibid., p.154
[8] Human Rights Watch 1998.
This article is authored by DEEPA SHREE and AKSHIKA KRITI, student of B.A. LL.B (Hons.) at Central University of South Bihar.
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