by Gopal Krishna Siwakoti, PhD
Absence of legal framework
Children at a refugee camp in Pakistan
The world is witnessing a grave humanitarian crisis of forced displacement due to unprecedented internal civil strife resulting in systematic and gross violation of human rights and humanitarian law. The Convention on the Status of Refugees-1951 is the commanding instrument to govern refugee situation worldwide. This Euro-centric document promulgated soon after the World War II to cope with the influx in Europe have many shortcomings in the present context, including rights that fail to respond to the real human rights dilemmas faced by refugees, rights framed such that they are irreconcilable with states’ legitimate self-interest, rights that should be included but are not, and rights that need not be included at all.
The South Asia region is rapidly growing as a refugee melting pot. None of the member nations of the SAARC (South Asian Association for Regional Cooperation) has ratified the Convention (except the newly joined member Afghanistan) and its Protocol. However, as compared to many developed countries of the world who have adopted very strict entry procedures, SAARC nations have adopted rather soft policies on entry of asylum seekers. The states have also given shelter and other humanitarian relief to different varieties of victims of forced migration, including victims of natural disaster, people fleeing generalized violence, abuse of human rights by state and non-state parties, communal and ethnic strife and even the victims of man made ecological disasters even though the incidences of refoulment in some instances are prevalent.
Accommodating as the actual response of the SAARC on the whole may be, governments have followed differentiated policies towards different groups of refugees or asylum seekers originating from within the region. While a state might welcome some groups of asylum seekers it may not be receptive or kind to others. The powers to grant residential permits have been relegated to administrators at district and sub-district levels who grant and revoke these certificates at their discretion. These policies have been dictated by the politics of kinship and inter-state relations. There is no consistency in admissions, grant of asylum, education, employment, rehabilitation and repatriation. Each influx of refugees receives a different package depending on political motivation and ethnic and religious linkages.
Mass population movements across the borders of the countries of the region is a grim reality while equally large numbers of internally displaced people remain within the borders as potential cross border migrants. Militarism, discrimination against minorities, ecological consequences of developmental policies, emergence of integrated labor markets – these and other factors have contributed to large scale forced movement of peoples in the region. The phenomenon of statelessness has become more acute due to the lack of human rights and the absence of a proper care and rehabilitation system of the displaced persons and above all protection. The lack of national laws and a regional instrument on refugees and IDPs has grossly accentuated this crisis.
As the states look upon cross-border migrations as a bilateral issue within the framework of national security, the refugee issue has also been ignored at the regional level and also within the framework of the SAARC Charter. In the absence of laws concerning treatment of asylum seekers/refugees, the response to refugee influxes remains ad hoc. The refugees have no legal protection against summary expulsions as they are treated as illegal immigrants and not as refugees fleeing persecution. As a result, the UNHCR has not been able to provide effective and meaningful protection to most refugees in the region. Even international humanitarian agencies are often not allowed to assist meaningfully refugees in most of these countries. Many of these problems can be avoided both through the enactment of legal norms on entry procedure status and 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
The ground reality
Refugees, asylum seekers and irregular migrants are no longer hidden from the public eye tucked away inside refugee camps in the sub-continent. These people are visible every where. In the big and small cities of the subcontinent they work in peoples homes, factories and shops. They provide many essential services to the inhabitants of these cities. In rural areas they also work as farm labor. They provide cheap labor and make very little demands on their employers. From time to time the some of these immigrants are rounded up by the police and are thrown into makeshift detention centers. Most of these “illegal aliens” often slip out of these detention centers taking advantage of the prevailing rampant corruption in our law enforcement agencies. The sporadic attempts by states to deport these persons have made little difference to the cross border flows. Erection of barbed wire fences along the borders and increasing the number of border check-posts have been counter-productive as the borders of the post-colonial South Asian states are too long and too porous.
It is generally (mis!)understood that the presence of vast numbers of ‘illegal’ people is adversely affecting the society and polity in the region. Their ‘illegal’ status makes them vulnerable to the machinations of the corrupt and other unscrupulous elements of the host countries. It further depresses the already low wage rates for unskilled and semiskilled jobs. It increases corruption in our societies as these people in desperate attempts to “legalize” their presence in the host countries buy false citizenship documents from corrupt officials. Political parties of these countries in search of captive “vote banks” often pressurize officials to “regularize” these “illegal” migrants. It is obvious that it is not the “illegal” immigrants, whether “forced” or “voluntary” who suffer under the present system, it is also effecting our societies and undermining the democratic foundations of our polities. One of the major difficulties created by the absence of a legal framework for refugees and asylum seekers is that there no method of separating the really vulnerable who need the protection of a host state from the ordinary job seekers.
Exploring viable strategies
South Asian practices towards refugees and asylum seekers of various types have on the whole been generous and accommodating despite the absence of a legal framework dealing with refugees. Nevertheless its absence results in arbitrary, ad hoc and discretionary decision making which undermines fair and unilateral refugee protection. Refugees and the asylum seekers can end up being treated like any other foreigner. A legal structure is necessary to effectively deal with a complicated refugee problem. In the absence of a legal framework, refugee policies 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.
The adoption of national laws for refugees will not only help 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. 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 is a first step towards seeking a regional solution to this problem.
It is highly recommended that the states of the region ratify the Refugee convention and its Protocol without further delay. This would commit them to respect international norms/standards, particularly the principle of non-refoulement. It would also provide the human rights community and other institutions of civil society a basis to campaign against any violations of these conventions, nationally, regionally and internationally. By acceding to these international instruments (in letter and spirit) the SAARC member states would attain a platform within the UN body to pressurize western countries to adhere to these international instruments, which are being undermined by their “non-entree” procedure to keep out asylum seekers.
The SAARC is the appropriate platform to open its corridor for regional debate on the issue of refugee crisis. These countries could take a lead to open up the agenda for the organisation’s formal business and demonstrate their commitment towards refugee protection and restore their gradually tarnishing image due to harsh measures taken against some refugees specially towards the enjoyment of rights and previliges. Additionally, the “Peoples’ SAARC” needs to frame this agenda as a central theme for a collective regional campaign to galvanize the opportunity to take appropriate action by this regional body.
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