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ISIL Year Book of International Humanitarian and Refugee Law |
| You are here: | WorldLII >> Databases >> International >> Journals >> ISILYBIHRL >> 2001 >> [2001] ISILYBIHRL 6 |
B.C. NIRMAL[*]
“Human rights violations are a major factor in causing the flight of refugees as well as an obstacle to their safety and voluntary return home. Safeguarding human rights in countries of origin is therefore critical both for the prevention and for the solution of refugee problems. Respect for human rights is also essential for the protection of refugees in countries of asylum”.[1]
-United Nations High Commissioner for Refugees
As many as 50 million refugees have been resettled or repatriated since the end of World War II, but nearly an equal number of uprooted people are struggling hard to regain their basic human rights. Currently, the Office of the UN High Commissioner for Refugees (UNHCR) is assisting more than 22 million people worldwide.[2] Mass human rights abuses, civil wars, internal strife, communal violence, forced relocation and natural disasters lead to the creation of refugees. While national governments are responsible for the protection of the basic human rights of their nationals, “refugees” find themselves without the protection of a national state. There is thus greater need for according international protection and assistance to these persons than in the case of people living in their home states.
Refugees by definition are victims of human rights violations. According to Article 1(a) (2) of the United Nations Convention Relating to the Status of Refugees 1951 (hereinafter referred to as Refugee Convention) the term ‘refugee’ shall apply to “any persons who, owing to a well founded fear of being persecuted 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 the protection of that country”. Although ‘persecution’ is not defined in the Refugee Convention, Professor James Hathaway defined it in terms of ‘the sustained or systematic violation of basic human rights demonstrative of a failure of state protection’. ‘A well founded fear of persecution’, according to him, exists when one reasonably anticipates that the failure to leave the country may result in a form of serious harm which the government can not or will not prevent.[3] Persecution encompasses harassment from state actors as well as non-state actors.
The Annexe to the Statute of the Office of the United Nations High Commissioner for Refugees 1950,[4] extends the competence of the High Commissioner for the protection of refugees defined in Article 6(a) (1) in terms similar to Article 1(a) (2) of the 1951 Refugee Convention.
The OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969,[5] extended the definition in the 1951 Refugee Convention to include in the term ‘refugee’ also every person who, owing to external aggression, occupation, foreign domination, or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality. The Cartagena Declaration on Refugees of November, 1984 laid down that the definition of refugee could not only incorporate the elements contained in 1951 Convention and the 1967 Protocol (or the 1969 OAU Convention and General Assembly resolutions), but also cover persons who have fled their country because their lives, their safety or their liberty were threatened by a massive violation of human rights.
It is clear from the foregoing discussion that it is the risk of human rights violations in their home country which compels the refugees to cross international borders and seek protection abroad. Consequently, safeguarding human rights in countries of origin is of critical importance not only to the prevention of refugee problems but also for their solutions. “If conditions have fundamentally changed in the country of origin promoting and monitoring the safety of their voluntary return allows refugees to re-establish themselves in their own community and to enjoy their basic human rights”.[6] Respect for human rights is also essential for the protection of refugees in countries where they are integrated locally or re-settled.
Although in the past human rights issues were virtually not allowed to enter the global discourse on refugees under the erroneous assumption that the refugee problem, as a humanitarian problem is quite distinct from a human rights problem, the current trend is towards integration of the human rights law and humanitarian law with refugee law. The growing realisation that given the number, size and complexity of the problem of refugees the limited approach to the problem which was devised in the context of the post-second world war refugees and which placed greater reliance on safety and welfare, rather than solutions to the problem and virtually relieved the refugee-producing countries from their responsibilities towards their nationals living in asylum countries. Today, the discourse has turned the attention of the UNHCR and other U.N. bodies to the intrinsic merits and strengths of the human rights approach to the problem. It is now increasingly recognised that such an approach is not only useful in reinforcing and supplementing the existing refugee law and securing the compliance with its provisions through quasi-judicial human rights implementing bodies,[7] but can also make it more humane and effective. Since today’s refugee problem is global in nature and concerns not only individuals in their relations with states but also states in their relations with one another, we need a law which is not only a law relating to the legal status and protection of refugees but also encompasses the refugee problem as a whole, a law which is solution oriented and imposes collectivised responsibility on all states. It is believed that a human rights perspective of the refugee problem will be helpful in restructuring the present mechanisms of refugee law on these lines. In addition to this, human rights oriented approach may be helpful in providing the necessary legal basis for the protection of refugees in states which have not acceded to the 1951 Refugee Convention and or the 1967 Protocol.
Thus viewing the refugee problem in the context of human rights has assumed unprecedented importance today. Against this background, the present article considers some of the basic human rights of refugees and their implications in the area of refugee protection. It also surveys the human rights of refugees in India and gives a brief account of the impact which human rights principles have made on the current programs and policies of UNHCR and the increasing involvement of human rights bodies in matters relating to refugees.
When a person is compelled to flee his country of origin or nationality his immediate concern is protection against refoulement. Such protection is necessary and at times, the only means of preventing further human rights violations. As his forcible return to a country where he or she has reason to fear persecution may endanger his life, security and integrity, the international community has recognised the principle of non-refoulement,[8] which prohibits both rejection of a refugee at the frontier and expulsion after entry. This rule derives its existence and validity from the twin concepts of ‘international community’ and ‘common humanity’ and must be seen as an integral part of that foundation of freedom, justice and peace in the world which is human rights.
Legal basis for protection against forced return of refugees to countries where they apprehend danger to their lives, safety, security and dignity can also be found in the law relating to the prohibition of torture and cruel or inhuman treatment.[9] Thus Article 7 of the ICCPR which prohibits torture and cruel, inhuman or degrading treatment casts a duty on state parties not to expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return ‘to another country by way of their extradition, expulsion or refoulement’.[10] Forcible return of an individual to a country where he or she runs the risk of violation of the right to life is prohibited by international human rights law.[11] Indeed, as the European Court of Human Rights has held, the decision of a state to extradite, expel or deport a person “may give rise to an issue under Article 3 (European Convention of Human Rights), and hence engage the responsibility of that state under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country”.[12] This observation is also valid for forcible return of refugees to territories where there is a real risk of their being subjected to torture, or to inhuman or degrading treatment or punishment or to killing. The act of handing an individual over to his torturers, murderers or executioners constitutes a violation of the obligation to protect individuals against torture and unlawful deprivation of life. In this regard it is the liability of the state which handed over persons to the actual perpetrators of torture or prescribed ill treatment, and not of the receiving state.[13]
Thus the principle of non-refoulement is well entrenched in conventional and customary international law. Despite this, of late governments everywhere are adopting unilateral restrictive practices to prevent the entry of refugees and other forcibly displaced persons into their territories.[14] Refugees are interdicted on the High Seas. [15]Penalties have been imposed against airlines or shipping companies carrying suspected passengers. New concepts such as ‘temporary protection’ and the ‘safe third country rule’ which allow officials to eject people on flight who have already transited another state have been introduced. Hundreds of thousands of refugees seeking shelter in the refugee camps have been demarcated in airports where physical presence does not amount to legal presence and from where summary and arbitrary removal is permissible. Besides, safety zones have been created inside countries as in Northern Iraq and former Yugoslavia to stop asylum seekers moving out and seeking refuge. Asylum seekers have been held in offshore camps which have been effectively declared rights free zones.[16] Not content with these measures Europe and North America have codified the so called ‘country of first arrival’ principle which purports to ‘assign’ refugees to be the responsibility of a single asylum state, without regard for the quality of protection offered there. The ‘safe third country’ concept (which purports to deny asylum seekers access to a comprehensive asylum determination procedure because they could have sought protection in countries they passed through to reach their ultimate) has come into force in Europe and the United States.[17] The Dublin and Schengen Conventions which lay down new criteria for determining claims of asylum seekers have also complicated the problem. Ironically, these unethical and illegal practices are being resorted to by those countries which were instrumental in the initial drafting and adoption of the 1951 Refugee Convention and have the economic ability and indeed, the duty to give them both asylum and protection. As refugee protection is an important dimension of human rights protection, unilateral restrictive practices adopted by both the developed and developing countries are inconsistent with their obligations under international refugee law and humanitarian law and constitute a serious violation of human rights.
Once a person fleeing persecution enters a state other than that of his origin or nationality, what he needs most is asylum. “Asylum is the protection which a State grants on its territory or in some other place under the control of certain of its organs, to a person who comes to seek it”.[18] Asylum is necessary not only for safeguarding his right to life, security and integrity but also for preventing other human rights violations. Thus the grant of asylum in the case of refugees who constitute a unique category of human rights victims is an important aspect of human rights protection and hence should be considered in the light of the U.N. Charter as a general principle of international law and an elementary consideration of humanity. No wonder then, not only the right of a person to leave the other or his country is recognized in several human rights instruments but even his right to seek and to enjoy in other countries asylum from persecution has been proclaimed as a human right.[19] And, if a state grants asylum to persons entitled to invoke Article 14 of the Universal Declaration of Human Rights, it can not be regarded as an unfriendly act by any other state (including the state of origin or nationality of asylum seekers).
Under traditional law, asylum is the right of the state, not of the individual who can only seek it and if granted enjoy it. Unfortunately, all attempts to provide that every one has the right of asylum from persecution have been frustrated by states. As refugees need at least temporary refuge pending durable solutions either in the form of resettlement in a third state or repatriation to refugee’s own country, a denial of asylum in the case of genuine refugees is nothing but a denial of the existence of any international community as well as a denial of the existence of a common humanity. It is also repugnant to the principle of common concern for the basic welfare of each human being which forms the basis of the current refugee regime and furthermore runs counter to the oft-repeated assertion at the global level that the promotion and protection of all human rights is a legitimate concern of the international community and accordingly humanitarian intervention in certain circumstances is permissible and justified. Denial of asylum to genuine refugees is also against UNHCR policies. In this context, it may be noted that the underlying principle for the UNHCR is that “In cases of large-scale influx, persons seeking asylum should always receive at least temporary refuge”. [20] Therefore, it is no longer sufficient for industrialised countries to make refugee assistance available to developing countries. “The industrialised countries must also share the burden of accepting those ... who seek asylum outside their regions. [21] In 1986 the UNHCR had taken the position that “Refugees and asylum seekers who are the concern of ...office should not be the victims of measures taken by Governments against illegal immigration or threats to their national security, however justifiable these may be in themselves”. [22]
Ironically, it is the so-called champions of human rights and humanitarian intervention which in the name of security of the state are putting all kinds of barriers to prevent the entry of the hapless victims of human rights abuses into their territories and thereby exposing them to further human rights violations. The deflection of responsibility by the North towards refugees, exacerbating the economic burdens of the South, which today hosts 90 percent of the total refugee problem has also compelled many Southern States to emulate Northern non-entree practices.
A refugee is entitled to be treated with humanity by the state of asylum. The obligations of the State of refuge on this count are derived from the rules and principles, which enjoin respect and protection of fundamental human rights, general international law and elementary considerations of humanity and are founded on the international community’s interest in and concern for refugees. Refugees under the Refugee Convention are entitled to relatively higher standards of treatment[23] than those belonging to B status category or mandate refugees. Since as a general rule, the rights and freedoms recognised by international human rights law apply to everyone, including refugees, the latter are also entitled to respect for, and protection of their basic human rights like nationals of the state of refuge. Of crucial importance to the protection of human rights and fundamental freedoms of refugees is the rule of non-discrimination laid down in several global and regional human rights instruments,[24] because being foreigners in the asylum country they are most vulnerable to discrimination. It must be recognised that refugees often lack proper identification and official documents and as such might encounter problems with the authorities. Their presence in a foreign country might be resented or they might be received with suspicion because of their religion or ethnicity. They might also counter difficulties due to absence of sufficient provisions in the national laws of the country of asylum for refugees or because of uncertainty about the extension of the benefits of the laws to refugees.[25]
However, even though refugees are foreigners in the asylum country, by virtue of Article 2 of ICCPR they enjoy the same fundamental rights and freedoms as nationals. The right to equality before the law, equal protection of the law and non-discrimination which form a cornerstone of international human rights law appear to ban discrimination against refugees based on their status as such. In addition, such provisions would prohibit discriminatory conduct based on grounds commonly related to situations of refugees, such as race, religion, national or social origin, and lack of property.[26] In addition, all guarantees providing protection against specific categories of discrimination such as race and gender specific discrimination are also applicable to refugees[27].
Refugees as a group are the most endangered people in the world. Most of their basic human rights are threatened during flight and upon their relocation in camps in the sanctuary state and finally during their return to their countries of origin or nationality. In the initial and most desperate phase they often lose all their belongings, their basic security, family and often their own lives. For majority of refugees, life in exile is as bad or worse than the conditions in their own country which compelled them to flee. Gil Loescher describes vividly the plight of refugees in the sanctuary states in these words:[28]
“Many are confined to camps or ramshackle settlements close to the borders of their home countries where, deprived of opportunities to work or farm their own land, they depend on international charity for survival. Refugees are often separated from members of their families, exposed to the danger of armed attack, subjected to many forms of exploitation and degradation, and haunted by the constant fear of expulsion and the forced return to their countries of origin. Vast numbers of children have spent all their lives in refugee camps. The longer they live there, the less chance they have of ever experiencing some semblance of a normal life”.
Refugees frequently are at risk of various acts of violence which may include killings, torture, rape, genocide, extra-judicial executions, forcible disappearances etc. They are also vulnerable to direct and indiscriminate attacks during hostilities, acts of terrorism, and the use of dangerous weapons and land mines.
Many states in the South make it impossible for refugees to remain there by cutting food rations, by imprisoning them behind barbed wires, and otherwise making their lives impossible. And, when refugees return their home they are often not able, as in Bosnia, to reclaim their old homes or political rights.
Women have always been vulnerable and easy victims in the so-called refugee cycle, but over the years violence against them have been manifested in the ugliest forms creating a blot on the human conscience[29]. In the context of his encounter in Tanzania, what a Burundi refugee said is an eye opener for all of us :
“They took the children and my wife away into a neighbouring house. So I remained with my eldest daughter whom they began to undress before my very eyes. They raped her for over an hour and when they had finished, they forced me to mount my child who lay there like a corpse”[30].
In view of the foregoing the provisions of human rights law guaranteeing the right to life[31] and protection against genocide,[32] which is a grave form of violation of the right to life, are of direct relevance and far-reaching importance to refugees. It is true that most of the human rights treaties do allow for certain forms of taking of life (e.g. in the form of the death penalty or in defence of unlawful violence), but arbitrary deprivation of the right to life is prohibited in all circumstances. In protecting against ‘arbitrary deprivation of life’, State Parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces.[33] In the context of loss of life from war and other acts of violence it has been stated that “States have the supreme duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary loss of life”.[34] Since the right to life is a non-derogable universal right, refugees are protected from arbitrary deprivation of life. The Vienna Declaration and Programme of Action, (1993) recognised the linkage between massive violations of human rights especially in the form of genocide, ‘ethnic cleansing’ and systematic rape of women in war situations and mass exodus of refugees and displaced persons and reiterated the call that “perpetrators of such crimes be punished”.[35] The Declaration also reaffirmed that “it is the duty of all states, under any circumstances, to make investigations whenever there is reason to believe that enforced disappearances has taken place on territory under their jurisdiction and, if allegations are confirmed, to prosecute its perpetrators”.
The human rights regime guaranteeing freedom from torture and cruel, inhuman or degrading treatment or punishment[36] is of paramount importance to refugees, particularly women and girls who may be compelled to suffer violence or ill treatment during flight and upon their relocation in camps. Refugees like other persons are entitled to be treated with humanity and respect for the inherent dignity of the human person,[37] when they are held in prisons, hospitals, detention camps or correctional institutions or elsewhere. It is the duty of the State “to afford every one protection through legislative and other measures as may be necessary against torture and cruel, inhuman or degrading treatment or punishment, whether inflicted by people acting in their official capacity or in a private capacity”.[38] Therefore, refugees might be entitled to request positive measures by authorities against unlawful acts by non-state actors.
With regard to rape, sexual attack and general physical attacks, states have been urged under several human rights instruments to adopt measures directed towards the elimination of violence against vulnerable women, a category that encompasses refugee women. It has been recognized both at the global and the regional levels that violence against women prevents and nullifies the exercise of civil, political, economic, social and cultural rights. The failure to protect them from the above kinds of violence not only impairs or nullifies the enjoyment of the right to liberty, security and integrity of persons[39] but in some instances the right to life also. Therefore, human rights norms addressing the problem of violence against women might prove to be of great assistance to refugee women who at times are coerced into providing sexual acts in return for essential food, shelter, security, documentation or other forms of assistance. It should be recognised that as a result of such acts many victims not only suffer physical and psychological trauma but also run the risk of being inflicted with sexually transmitted diseases, including HIV/AIDS.
Amongst the many dangers which refugee may face in the asylum/refuge country are hostage taking, forcible recruitment,[40] and abdication into slavery like practices[41]. Provisions of human rights law proscribing these acts will provide safeguards to all persons, including refugees. Besides, it can be argued that refugees can not be deprived of their liberty except on such grounds and in accordance with such procedure as are established by law.[42] They might also be entitled to claim legal safeguards listed in Article 9(2) of the ICCPR and also to challenge their detention. Since holding refugees in closed camps will also constitute ‘detention’ under Article 9 (1) of the ICCPR, states should refrain from such practice.[43] In no case is arbitrary detention allowed. But when their detention is in the interest of their security or is dictated by public necessities, doing so will be permissible.[44]
Refugees need to be guaranteed the right to return voluntarily and in safety to their countries of origin or nationality. They also need protection against forced return to territories in which their lives, safety and dignity would be endangered. Human rights law recognises the right of an individual, outside of national territory, to return to his or her country.[45] The U.N. Security Council has also affirmed “the right of refugees and displaced persons to return to their homes”.[46] In a similar vein, the Sub-Commission on Prevention of Discrimination and Protection of Minorities has affirmed “the right of refugees and displaced persons to return, in safety and dignity, to their country of origin and or within it, to their place of origin or choice”.[47] The right of a refugee to return to his country of origin also arises from the rules of traditional international law which stress the duty of the State of origin to receive back its citizen when the latter is expelled by the admitting state and to extend its diplomatic protection to him. Besides, the social fact of attachment, together with the genuine connection between a national and his state, his sentiments, and emotional ties with his motherland give rise to the above mentioned obligations of the State of origin.[48] Therefore, if a state of origin chooses to ignore the link of nationality and to ‘write off those who have fled, it may involve a breach of obligation to the state of refuge and perhaps also to the international community.[49] This is the case, even though, given the conditions prevailing in the country of origin, the actual return of refugees may be barred by that complex of duties ergo omnes which derives from the principle of non-refoulement”.[50]
Thus a refugee has the right to return to his or her country and enjoy his or her basic human rights. It in turn casts an obligation on the state of origin, the state of refuge and also the international community to create conditions conducive to his voluntary and safe return to the country of origin since refugee status is a temporary state of affairs and its only objective is to deliver human rights protection for the duration of risk, it should extinguish as soon as that risk comes to an end by reason of a fundamental change of circumstances.
It is now increasingly recognised that voluntary repatriation will provide both effective and durable solutions to the refugee problem and allow the returnees to re-establish themselves in their own community and to enjoy their basic human rights. Despite this, due to political reasons in the not too distant past refugee status was equated with permanent immigration and ‘external settlement’,[51] return was not seen as the normal solution of the problem of refugees. It is true that the UNHCR Statute mentioned voluntary repatriation as one of the durable solutions, but it was included, as the first High Commissioner Van Heuven Goedhart admitted, as ‘the somewhat hypocritical compromise to which the interminable discussions in the United Nations had led’.[52] It is therefore not surprising that in the Western-inspired international instrument and documents on refugees and asylum, the emphasis has been mainly, if not exclusively, on exile.
For long the UNHCR, a non-partisan, non-political humanitarian organisation responsible for the implementation of the 1951 Refugee Convention, consistently refused to accept the human right to return as the starting point for a consideration of voluntary repatriation.[53] However, since 1980’s the focus of international attention is mainly on voluntary repatriation and prevention of the mass exodus of refugees and the linkage between the two has been asserted in the international debates on the refugee problem. Pursuing this line of approach Dr. Ghassan Arnaout said as early as 1989 that “in a proper and normal scale of concerns, prevention should have its pre-eminence by virtue of the principle that prevention is better than cure. Voluntary return, of course, is closely linked with the aspect of prevention. In the context of a broad approach to the refugee problem, therefore, the notion of solution must be seen today in a comprehensive and balanced manner which gives due value to the concerns of prevention and of voluntary return”[54]. The concerns for prevention and voluntary return, he stressed, “must relate only to the rights and freedoms of the individual and not to the desire to prevent trans-frontier movement or to compel a return movement regardless of circumstances in the country of nationality”.[55]
Thus the recent trend is towards facilitating the voluntary repatriation of the refugees by involving both the country of refuge and the country of origin and also the UNHCR. So far as preconditions for organised voluntary repatriation are concerned, Article V of the 1969 OAU Convention stressed the essentially voluntary character of repatriation, the importance of collaboration by country of origin and country of asylum, of amnesties and non-penalization, as well as assistance to those returning. The 1979 Arusha Conference, on the situation of Refugees in Africa, went a step further and recommended that appeals for repatriation and related guarantees should be made known by every possible means.[56]
The “Conclusions” adopted by the Executive Committee of the High Commissioner’s Programme (1980)[57] recognised that voluntary repatriation is generally the most appropriate solution for refugee problems, particularly when a country accedes to independence. The other conclusion stressed that the essentially voluntary character of repatriation should always be respected, and that appropriate arrangements should be made to establish this, both in the individual cases and in large scale repatriation movements, and that UNHCR should be involved ‘whenever necessary’. The Executive Committee noted the joint responsibilities of country of origin and country of asylum. The importance of refugees being provided with the necessary information regarding existing conditions and visits by individual refugee or refugee representatives to the country of origin for this purpose was recognized. Governments of countries of origin were called upon to provide formal guarantees for the safety of returning refugees. Arrangements must be made in countries of asylum to ensure that the terms of such guarantees and other relevant information regarding conditions prevailing there were duly communicated to refugees. The UNHCR could appropriately be called upon with the agreement of the parties concerned to monitor the situation of returning refugees with particular regard to any guarantees provided by the governments of the countries of origin. The Governments concerned were requested to provide repatriating refugees with the necessary travel documents, visa, entry permits and transportation facilities and to arrange for the re-acquisition of nationality where it had been lost. Finally, the Executive Committee noted that reception arrangements and re-integration projects might be necessary.
The UNHCR Executive Committee re-examined the subject of voluntary repatriation at its 1985 session. The “Conclusions” adopted at that session[58]reaffirmed the right of refugees to return, conditional upon their truly expressed wishes, stressed the voluntary and individual character of repatriation and the necessity for it to be carried out in conditions of safety, preferably to the refugee’s former place of residence. The other conclusion emphasised the inseparability of causes and solutions, and the primary responsibility of states to create conditions conductive to the return. The Executive Committee noted that “the existing mandate of the High Commissioner is sufficient to allow him to promote voluntary repatriation by taking initiatives to this end”. These include promoting dialogue between all the main parties, facilitating communication between them, and by acting as an intermediary or channel of communication from the outset of a refugee situation, the High Commissioner should at all times keep the possibility of voluntary repatriation for all or for part of a group under active review. Whenever the High Commissioner deems that the prevailing circumstances are appropriate, he should actively pursue the promotion of this solution. The other conclusions dealt with the establishing of a tripartite commission, assistance for the re-integration of returnees in the country of origin to be provided by the international community and the involvement of the UNHCR in assessing the feasibility, planning, and implementation. Of particular significance was the recognition of the importance of spontaneous return of refugees to their countries of origin.
The above principles emphasise the voluntary character of repatriation and lay stress on the physical safety and social reintegration of the returnees. But in practice “a somewhat less individual and less voluntary standard has been accepted and applauded”[59]. Besides, in the last few years the consensus contained in the above mentioned texts is being increasingly questioned.[60]
Recently, U.N. Sub-Commission on Prevention of Discrimi-nation and Protection of Minorities has affirmed “the right of persons to remain in peace in their own homes, on their own lands and in their own countries”. [61] The Turku/Abo Declaration on Minimum Humanitarian Standards[62] also provides in Article 7: 1 “All persons have right to remain in peace in their homes and their places of residence.” Article 7 runs : “No person shall be compelled to leave their own country”. This right which is also known as ‘the right not to be refugees’ has provided the jurisprudential basis for the concept of ‘preventive protection’. Articulating the concept the U.N. High Commissioner for Refugees, Sadako Ogata has urged the international community to address and remedy the root causes of displacement.[63] Failing this, it must assist and protect people in their own countries. At the same time she has cautioned that “the notion of prevention....can only be effective if backed by political action for a peaceful settlement”.[64]
The concept of ‘preventive protection’ is postulated on the following premise. ‘Recognition of the relevance of root as well as of immediate causes can lead to a beneficial consideration of the whole range of human rights applicable to the refugee problem including ‘collective’ rights as well as the rights of “individuals” and economic, social and cultural rights as well as civil and political rights. In practical terms, it can entail acknowledging the fundamental importance of international solidarity in economic and social development”.[65]
Although developed countries and the UNHCR have come openly in support of fixing the problems, where refugees originate, rather than worrying so much about the legal rights of involuntary migrants this strategy has several pitfalls and limitations. While the need to address the causes of trans-boundary movements can hardly be questioned it would be wrong to see it as an alternative to the duty to protect whichever persons are able to leave situations of danger, until and unless the ‘root causes’ of the problem there are in fact eradicated.[66] Indeed, both are parallel projects which must be simultaneously pursued. While the humanitarian aspects of the problem of refugees should continue to be addressed by UNHCR, the U.N. Security Council and the human rights infrastructure are the most effective organs to address the causes of flight.[67] Appropriate lessons should be taken from the failures of the so-called ‘Fly Zones’ or ‘Safe Havens’ in recent years,[68] leading to the slaughter of thousands’ of innocent civilians.
In a very forceful critique of ‘the right to remain’ strategy Professor James Hathaway draws our attention to the un-workability of the system and regrets that in championing ‘preventive protection’ the UNHCR has forgotten its institutional responsibility to affirm the critical importance of a legal regime to ensure the welfare of involuntary migrants.[69] In his view ‘if states are failing to abide by their truly assumed duties towards refugees, the answer is not to accommodate their breaches’, but in being creative about protection.[70]
However, it should be recognised that solution oriented and human rights informed appropriate responses to the refugee problem are the need of the hour. In the context of this broad approach prevention will become a part of the solution. But such an approach demands the abolition of those measures which are designed to make trans-boundary movement difficult or even impossible for those who because of adverse and unfavourable circumstances in their countries of origin or nationality might seek leave.
It emerges from the foregoing discussion that like any body else refugees are also entitled to human rights and fundamental freedoms set forth in human rights treaties, covenants and declarations. Looked at from this perspective, the restrictive practices adopted by the countries vis-a-vis asylum seekers are legally unjustified, morally reprehensible and strategically counter-productive. The international community must therefore take initiatives to address the human rights concerns of refugees in a positive and constructive way. A victim oriented approach needs to be adopted.
There is need for better cooperation between the UNHCR and the U.N. High Commissioner for Human Rights. NGOs should also be knit together more closely than in the past. In recent years UNHCR has incorporated a number of human rights principles in its working e.g., legal rehabilitation, institution building, law reform and enforcement of the rule of law, humanitarian assistance to internally displaced persons and given due importance to the establishment of increased cooperation with international and regional human rights mechanisms.[71]
Another important positive development has been the concerns expressed by the Human Rights Committee, the Committee on the Rights of the Child, and the Committee Against Torture over the treatment of refugees by state parties to the respective conventions.71a For example, in 1997, the Human Rights Committee recommended that the definition of ‘persecution’ be broadened to include not only state harassment but also persecution by non-state actors.[72] It further said that a country ignored its obligations by detaining a refugee and without allowing for a regular review of the detention.[73] The Committee against Torture reviewed the situation of many asylum seekers and concluded that several states had threatened to return those people to their home country in violation of their international obligations.[74]
As part of the efforts to prevent refugee flows, the U.N. and others, especially NGOs are engaged in providing technical assistance to states within a general human rights framework. Since refugee protection has now come to be recognised as a part of the U.N. agenda for human rights, the possibility of the use of the current structure of international human rights treaty obligations and the mechanisms established by the Commission on Human Rights for analysing the problems and proposing remedial action have greatly increased.
Turning to human rights of refugees in India one is wonderstruck by the fact that India has neither acceded to the 1951 Refugee Convention nor enacted any legislation for the protection of refugees, although it has always been willing to host the forcibly displaced persons from other countries without adopting legalistic approaches to the refugees issues. All persons who flee their homelands have invariably been provided refuge, irrespective of the reasons of their flight.[75] Taking a broader view of the concept of ‘refugees’ which somewhat resembles the one found in the 1969 OAU Convention, rather than the narrow definition provided in 1951 Refugee Convention, the Government of India recognises Tibetans, Chakmas, Sri Lankan Tamils and Afghans and thousands of people of other nationalities from Iran, Iraq, Somalia, Sudan and Myanmar as refugees. However 20,000 refugees are not recognised as refugees but foreign nationals temporarily residing in India. These persons are assisted by the UNHCR and provided international protection and assistance under its mandate. Its policies are discriminatory and inequitable, even to members of the same group. Thus it granted substantially less assistance to the Tibetan refugees arriving after 1980 than to the Tibetans who arrived here prior to 1980.[76]
In the absence of accession to the Refugee Convention by India and any national legislation on protection of refugee the legal status of individuals recognised as refugees by the Government of India is not clear.[77] Also not clear is the relationship between refugee status granted by the Government and corresponding laws governing the entry and stay of foreigners (i.e. Foreigners Act, 1946).
As Justice J.S. Verma, Chairman of the National Human Rights Commission recently observed, “the provisions of the (1951) Refugee Convention and its Protocol can be relied on when there is no conflict with any provisions in the municipal laws”.[78] Fortunately, the judiciary has sought to fulfil the void created by the absence of domestic legislation by its landmark judgments in the area of refugee protection. It extended the guarantee of Article 14 (right to equality) and Article 21 (right to life and liberty) to non-citizens including refugees. The Madras High Court in P. Neduraman and Dr. S. Ramadoss v. Union of India and the State of Tamil Nadu (1992) emphasized the need to guarantee the voluntary character of repatriation. The National Human Rights Commission has also come to the rescue of refugees ‘approaching it with their complaints of violations of human rights.’
While India’s record with respect to protection of human rights of refugees has been generally satisfactory, the Human Rights Committee recently expressed concern at reports of forcible repatriation of asylum seekers including those from Myanmar (Chins), the Chittagong Hills and the Chakmas. It recommended that in the process of repatriation of asylum seekers or refugees, due attention be paid to the provisions of the Covenant and other applicable norms.[79] The Committee also recognised that India, notwithstanding all its historic generosity to refugees, has recently engaged in certain practices vis-a-vis less favoured refugee populations. In this context it needs to be recognised that India is not the only country which resorting to such practices. Indeed, as already noted there are many states in the South which starve refugees out, imprison them behind barbed wire, and otherwise make their lives miserable. At a time when the West is willing to undermine even the most basic premises of international refugee law in the name of ‘compassion fatigue’, ‘saturation of absorbing capacity’ or religious intolerance and xenophobia of a section of the local population towards refugees, and already has ignored its commitments flowing from the concepts of ‘international solidarity’ and ‘burden sharing’, developing countries alone can not be singled out for condemnation. Use of these practices or schemes by them are legally and ethically repugnant but unless the refugee regime is rejuvenated and revitalised and the interests of the receiving state and refugees find proper accommodation therein, such practices, are likely to continue even in future. Be that as it may, India should reconsider its refugee policy and enact a separate national legislation on the treatment of refugees considering that India presently shelters one of the largest refugee populations in the world, its refusal to accede to the Refugee Convention or its Protocol is not only beyond comprehension but unnecessarily tarnishes its image at the international level.
Now is the time for a progressive development of a global approach to the refugee problem, an approach which takes due cognizance of the basic human rights of refugees and interests of the asylum countries and the international community, and secures the cooperation of all parties in seeking a solution to the problem. Given the close link between refugees and human rights, international human rights standards are powerful ammunitions for enhancing and complementing the existing refugee protection regime and giving it proper orientation and direction. Since the refugee problem is an important aspect of human rights protection, human rights groups, humanitarian organisations, the UNHCR, Governments and U.N. human rights agencies should take a hard look at their respective roles and make coordinated efforts for elimination of human rights abuses and protection of the rights of refugees.
[*] Senior Reader, Faculty of Law, Banaras Hindu University, Varanasi.
This article is the revised version of his lecture delivered at University College of Law, Kakatiya University, Warangal (A.P.).
[1] Statement made at the 50th session of the UN Commission on Human Rights (1994) Quoted in UNHCR, Human Rights and Refugee Protection, Part I: General Introduction (October, 1995), p.4.
[2] Some of the standard works on the refugee problem include, Atle Grahl-Madsen, The Status of Refugees in International Law vols, 1&2, (1966 - 1972); Guy Goodwin-Gill, The Refugee in International Law ( Oxford, 1983); Gilbert Jaeger, Status and International Protection of Refugee (Leiden, 1978); Peter Macalister-Smith, International Humanitarian Assistance : Disaster Relief Actions in International Law and Organization (Oxford,1985); Gill Loescher and Laila Monahan, Refugees and International Relations ( Oxford,1989).
[3] James Hathaway, “Fear of Persecution and the Law of Human Rights”, Bulletin of Human Rights, 91/1, United Nations, (New York, 1992), p.99, quoted in Brian Gorlick, ‘Refugees and Human Rights’, Seminar (March 1998), P.23.
[4] G.A. Resolution 428 (v) of 14 December, 1950.
[5] UNTS No 14691.
[6] UNHCR, Human Rights and Refugee Protection, note 1, P.3.
[7] Ibid, pp. 7-9.
[8] The 1951 Refugee Convention (Art. 33(1)), UNHCR, Basic Legal Documents on Refugees (1999), 8-37; Article 3, United Nations Declaration on Territorial Asylum, Art. VIII of the Asian- African Legal Consultative Committee, Bangkok Principles, Art.II (3), OAU Convention 1969, Article 22(8), American Convention on Human Rights Convention, 1969.
[9] Universal Declaration of Human Rights, Article 5; UNHCR, Basic Legal documents, pp.43-47; See also Convention Against Torture, Articles 2 and 6. Article 7 of the ICCPR (1966).
[10] HRC General comment No. 20, para 9.
[11] Ibid., paras 14.1 and 15.3.
[12] Cruz Varas Case, Judgment of 20 March 1991; Quoted in UNHCR, International Legal Standards Applicable to the Protection of Internally Displaced Persons: A Reference Manual for UNHCR Staff, (Geneva, 1996), p.65.
[13] Cruz Varas Case, note 12. Series A no. 161. Para 91.
[14] See, Amnesty International, ‘The Barriers are Going up’, Refugee (Spring 1998), 19; B.S. Chimni, ‘Refugees in International Law’, Seminar n.463, (March 1998), pp.18-22; James Hathaway, ‘Crisis in International Law’, Indian Journal of International Law, vol. 39 (1999), pp. 9-11.
[15] In an unfortunate decision Sale v. Haitian Centres Council C1/3 Set 2549 (1993), the U.S. Supreme Court decided that such action is not violative of Art. 33 of the Refugee Convention.
[16] When the U.S. started holding Haitian and Cuban refugees at Guantanamo Bay, a territory leased out from Cuba, a U.S. Court of Appeals ruled in Cuban American Bar Association (Cuba) v. Christopher [43 F. 3 A. 1412 (11th Cir. 1995) that refugee in ‘Safe haven’ camps outside the U.S. did not have the constitutional rights of due process or equal protection and were not protected against forced return. Also See, Chimni, note14, p.22.
[17] The German Federal Constitutional Court, in May 1996, upheld the German safe third country law. See Chimni, note 14,p .22.
[18] Article 1 of the Resolution adopted by the Institute of International Law in Sept. 1950, American Journal of International Law, vol. 50, Supplement ( 1951), p 15.
[19] Article 14 (1), Universal Declaration of Human Rights (G.A. Resolution 217 (III); Art. XXVII, American Declaration, Art. 22 (7), American Convention on Human Rights, ILM, vol. 9 (1970), p 673, Vienna Declaration, part I (1993), para 23.
[20] Michell Moussalli, “Who is a Refugee?” Refugee Magazine, (September, 1982), p.42.
[21] Opening statement by the High Commissioner for Refugees at the Thirty-Seventh Session of the Executive Committee of the High Commissioner’s Programme, 6 October 1986.
[22] Ibid.
[23] The Refugee Convention contains certain rights provisions- protection from refoulement, protection against unlawful expulsion or detention, the right to employment and education, access to the courts, and freedom of movement. In respect of many of these rights, refugees are supposed to receive the same treatment as nationals in the country of residence.
[24] ICCPR, Art. 2(1) ILM., vol. 6 (1967), p. 3687; ICESCR, Article 2 (2), ILM., vol.9 (1970), p.360, U.N. Charter, Arts. 1 (3), 13 (1) (b), 55 (c) and 76 (c); Universal Declaration of Human Rights, Art. 2; European Convention, Article 14 213 UNTS 221; American Convention, Articles. 1 and 24; African Charter, Articles 2, 13, 18 (3)- ILM.,vol. 21 (1982),p. 58.
[25] UNHCR, Human Rights and Refugee Protection, note 1, p. 37.
[26] UNHCR, International Legal Standards, note 12 at p. 18.
[27] Relevant instruments include the U.N. Declaration and the International Convention on the Elimination of All forms of Racial Discrimination (CERD), 60 UNTS 195; The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), I.L.M., vol. 19 (1980),p. 33, the UNESCO Convention against Discrimination in Education, 1960; The Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief, 1981; The UNESCO Declaration on Race and Racial Prejudice, 1978; The Declaration on the Elimination of Discrimination against Women (G.A. res. 2263 (XXII) of 7 Nov. 1967).
[28] Gil Loescher, ‘Refugee Issues in International Relations’, in Gil Loescher and Laila Monahan, (eds.) Refugees and International Relations (Oxford,1989), pp. 1-2.
[29] Quoted in Refugees (1998) Spring, p.9.
[30] Ibid., p. 10.
[31] Universal Declaration of Human Rights, Article 3; ICCPR, Article 6(1), American Declaration, Art. 1; American Convention, Art. 4 (1); European Convention, Art. 2 (1); African Charter, Article 4; CRC., Articles 6 (1) and 19.
[32] Article II, Genocide Convention, 1948.
[33] Views of the Human Rights Committee on Communication No. 45/1979 (Suarez de Guerrero v. Colombia), Paras, 13.2 and 13.3.
[34] H.R.C. General Comments, , No. 86, paras 2,3 and 5.
[35] Vienna Declaration, 1993, para 28.
[36] Universal Declaration, Article 5; ICCPR, Art. 7; CRC, Art. 37 (a); American Convention, Art. 5 (2); European Convention, Art. 3; African Charter, Art. 5.
[37] Art. 10 (1) of the ICCPR, See also HCRC General Comments, No. 21, paras 2,4.
[38] HRC General Comment No. 20. para 2.
[39] See generally CRC, Article 28 (3), ILM. vol.28 (1989),p. 1448; ICCPR, Article 8 (3) and Article 26.
[40] See UN Declaration on the Elimination of Violence Against Women; Article 9 of the Inter-American Convention on Violence Against Women. See also Article 25 of Universal Declaration; ICESCR, Article 12; American Declaration of Rights and Duties of Man 1948, Article XI; European Social Charter, Article 11. States may be held responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence and for providing compensation. CEDAW General Recommendations, No.10, U.N.Doc. HRI /General /1/Rev.2 (29 March 1996), para 9.
[41] See Universal Declaration, Article 4; ICCPR, Article 8(1) (2); African Charter, Art. 5. See also 1926 Slavery Convention 60 UNTS 25/3, CEDAW, Article 6; Supplementary Slavery Convention, Article 1 (C). Marriage against consent is prohibited, see Universal Declaration, Article 16 (2) 266 UNTS 3; ICCPR, Article 23 (3), Women’s Convention, Article 16 (1) (b); American Convention, Article 17.
[42] Universal Declaration, Article 9; ICCPR, Article 9(1); CRC; Article 37 (b); American Convention, Article 7(1); American Declaration, Art. 1; European Convention, Article 5(1); African Charter, Article 6.
[43] See, the HRC’s view on Communication 305/1988 (Van Alphen v. The Netherlands) para 5.8, Annual Report of the Human Rights Committee 1990, 115.
[44] HRC General Comments No. 8, para 1.
[45] Universal Declaration, Article 13 (2); African Charter, Article 12 (2); CERD, Art. 5d (ii). Art. 12 (4) of the ICCPR, Art. 22 (5) of the American Convention; Art. 3 (2) of the Fourth Protocol to the European Convention prohibits the deprivation of the right to enter the territory of the state of which a person is a national. The African Charter limits restrictions to those provided for by law for the protection of national security, law and order, public health or morality. Article 12 (2).
[46] U.N.S.C. Resolution 876 (1993) of 19 Oct, 1993 on the situation in Abkhazia on the right of Palestinians to return . See, Kathleen Lawland, “The Right to Return of Palestinians in International Law”, International Journal of Refugee Law, vol. 8 (1996), p.532.
[47] Sub-Commission resolution 1994/24, para 2 and 1995/13 para 2.
[48] See Nottebohm Case, ICJ Reports (1955), 23. See also Ammoun’s separate opinion in the Western Sahara case, ICJ Reports (1975), 12 at pp. 85-6. The learned Judge observed; “The ancestral tie between the land and the man who was born there from, remains attached thereto, and must one day return there to be united with his ancestors. This link is the basis of the ownership of the soil”.
[49] Guy Goodwin-Gill, ‘Voluntary Repatriation’ in Loescher and Monahan (eds.) Refugees and International Relations ( Oxford,1989), p. 255 at p.261.
[50] Ibid.
[51] See generally, UNHCR Resettlement Section, “ Resettlement – An Instrument of Protection and a Durable Solution”, International Journal of Refugee Law, vol.9 (1997), p.666.
[52] See Gervase Coles, ‘Approaching the Refugee Problem Today’ in Loescher and Monahan (eds.) note 49, p.389.
[53] Ibid., p. 390.
[54] Arnaout, “Refugee Law Today”, Refugees, p. 11.
[55] Ibid.
[56] See Goodwin-Gill, note 49 , p.263.
[57] 1980 (Executive Committee-31st Session) No. 18 (XXXI) Voluntary Repatriation, Conclusion endorsed by the Executive Committee of the High Commissioner’s programme upon the recommendation of the Sub-Committee of the Whole on International Protection of Refugees.
[58] 1985 (Executive Committee-36th Sesssion) No.40 (XXXVI) Voluntary Repatriation, Conclusion endorsed by the Executive Committee of the High Commissioners Programme upon the recommendation of the Sub-Committee of the Whole on International Protection of Refugees.
[59] Fred Cuny and Barry Stein, ‘Prospects for and Promotion of Spontaneous Repatriation’, in Loescher and Monahan (eds.), note 49, pp. 308-309.
[60] For an interesting account of the current critical legal issues relating to voluntary repatriation, see Jens Vedsted-Hansen, ‘An Analysis of the Requirements for Voluntary Repatriation’, International Journal of Refugee Law, vol.9 (1997), p. 559.
[61] Sub-Commission resolution 1994/94, para, 1, UN Doc. E/KN.4/ Sub.2/1994/56, 28 Oct. 1994 at 67. See also, resolution 1995/13, para 1, Report of the Sub-Commission on its Forty Seventh Session, Geneva 31 July-25 August 1995.
[62] Reprinted in American Journal of International Law, vol. 89 (1995), pp. 218-23.
[63] Sadako Ogata, Statement at the Round Table Discussions on United Nations Human Rights Protection of Internally Displaced Persons (Nyon, Switzerland, 5 February 1993).
[64] Statement of the UNHCR in the International Meeting on Humanitarian Aid for Victims of the Conflict in Former Yugoslavia (Geneva, 29 July 1992).
[65] Arnaout, note 54, p. 12.
[66] James Hathaway, note 14, pp. 12-13.
[67] Ibid.
[68] Ibid.
[69] Ibid. For the forceful defence of the recent UNHCR response, see Nicholas Morris, ‘Protection Dilemmas and UNHCR’S Response: A Personal View From Wilhum UNHCR, International Journal of Refugee Law, vol. 9 (1997),p. 492.
[70] See, note 14.
[71] Brian Gorlick, “Refugee and Human Rights”, Seminar (1998 Spring), p. 19.
71a. See generally, Gil Loescher, “Refugees, A Global Human Rights and Security Crises’ in Dunne and Wheel, Human Rights in Global Politics, (1999), p. 245.
[72] See, “The Barriers are Going Up”, Refugees : (1998 spring), p. 19.
[73] Ibid.
[74] Ibid.
[75] See generally, J.N. Saxena, “Legal Status of Refugees: Indian Position”, Indian Journal of International Law, vol. 26 (1986), p. 501.
[76] See H. Knox Thames, “India’s Failure to Adequately Protect Refugees”, Human Rights Brief, (Issue I, 1999),p.7; (Centre for Human Rights and Humanitarian Law, Washington College of Law), p.20.
[77] See, Gorlick, note 71, p. 26.
[78] Mr. Verma made this observation at the SAARCLAW and UNHCR Seminar on Refugees in the SAARC Region held in New Delhi on 2 May 1997. This reasoning has been recognized in Visakha v. State of Rajasthan, AIR 13 August 1997.
[79] National Human Rights Commission v. State of Arunachal Pradesh and another, (1996) 1 SCC.295; Khudiram Chakma v. Union of India (1994) Supp. 1 SCC 614.
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