Pros and Cons of India Signing the 1951 Refugee Convention

INTRODUCTION

The western world post second world war agreed to a convention wherein member states were required to follow some minimal standards with regard to their treatment towards refugees. The Convention relating to the Status of Refugees, 1951 (“Convention”) was thus born. It established minimal rights for refugees and asylum seekers. The Convention attempted to resolve the problems of the past and at the same time also reflected on the hesitancy of the nation states to be bothered with the problem of refugee.

India at this point still reeling from its independence had taken a definite stance to stay “non-aligned”. During this time Russia played father to India and helped strengthen its defence and even passed on lessons on living and implementing communism. India during these times was definitely leaning towards the eastern bloc. In such circumstances it recognised the Convention as a part of the ―cold war strategy of the western anti-communist bloc and having nothing to do with the cold war stayed away from the Convention. India’s stance during that period was best described by Rajeev Dhavan, in an article in The Hindu, a daily newspaper.

“―It (Convention) was seen as Euro-centric and, essentially, anti-communist. Indeed, in 1953, India’s Foreign Office (through R.K. Nehru) told the office of the United Nations Commissioner for Refugees (UNHCR) that the global refugee policy was essentially part of the Cold War. It took years for the Convention of 1951 to be amended by the Protocol of 1967.” (Emphasis supplied)

This being India’s outlook about the Convention it chose not to sign the Convention or the protocol.

CONVENTION: A WESTERN IMPORT

The Convention recognised that refugees had a right to seek asylum, though what constitutes asylum was not defined. The signatories to the Convention  however were prohibited from returning the refugees to their countries of origin. The Convention defined a refugee to be the following:

“A person 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it..”

Further, the Statute of the UNHCR (United Nations High Commissions on Refugees) – agreed to in a General Assembly Resolution of December 14, 1950, emphasized UNHCR’s responsibilities to promote legal protection of refugees and measures to reduce the number of refugees requiring protection. It referenced voluntary repatriation, assimilation and naturalization of refugees into countries of asylum and resettlement as the durable solutions which UNHCR should be promoting (Gallagher, 1989). Essentially the responsibility of providing a safe heaven for the refugees was on the NHCR and not on the member states.

By 1960 the European refugee problem had greatly reduced in scale. However, refugee problems were burgeoning in other parts of the globe and new approaches were needed to address them. A General Assembly Resolution of 1961 recognized that where the UNHCR was confronted with a massive influx of people it might not be possible to review claims to refugee status on an individual basis. The international community, acknowledging that these mass movements of people were of concern, began to examine means of extending similar treatment to them as was extended to Convention refugees. In 1964, UNHCR’s Executive Committee recommended that the possibility of deleting the time limitation clause of the Refugee Convention be examined. A Protocol based upon recommendations of an international colloquium of legal experts was approved by UNHCR’s Executive Committee and forwarded to the General Assembly in 1966. The required minimum number of states this time including the United States quickly acceded to the Protocol, and thus it  became effective in October 1967. (Gallagher, 1989)

Thereafter the countries in  Asia-Pacific were looked upon by the western world to reciprocate and accede to the convention. The Asia-Pacific region is home to 7.7 million people of concern: they include 3.5 million refugees, 1.9 million internally displaced people (IDPs), and 1.4 million stateless people. This makes it clear that there is definitely a need for the Asia-pacific region to accede to the Convention and the protocol or start a more regional organization so that pressure can be put on the member states to liberalize their policy towards refugees.

In accordance to the recent UNHRC reports majority of the refugees originate from Afghanistan and Myanmar. Over two thirds live outside camps, mainly in urban environments where they often find inadequate protection, leading to onward irregular movement by sea. Though it is true that most countries and territories in Asia- Pacific continue to uphold their long tradition of hospitality to refugees and displaced people only 20 of them have acceded to the Convention and the Protocol and an even lesser number have a formal policy in this regard.

INDIA’S POLICY SET UP AND THE PROS AND CONS OF SIGNING THE REFUGEE CONVENTION

India is neither party to the 1951 Convention on Refugees nor the 1967 Protocol. The lack of specific refugee legislation in India has led the government to adopt an ad hoc approach to different refugee influxes. The status of refugees in India is governed mainly by political and administrative decisions rather than any codified model of conduct. The ad hoc nature of the Government’s approach has led to varying treatment of different refugee groups. Some groups are granted a full range of benefits including legal residence and the ability to be legally employed, whilst others are criminalized and denied access to basic social resources.

The legal status of refugees in India is governed mainly by the Foreigners Act 1946 and the Citizenship Act 1955. These Acts do not distinguish refugees fleeing persecution from other foreigners; they apply to all non-citizens equally. Under the Acts it is a criminal offence to be without valid travel or residence documents. These provisions render refugees liable to deportation and detention. Though lack of implementation has ensured that except for a few cases here and there no one really has been criminalised especially refugees.

Further the United Nations High Commissioner for Refugees (UNHCR) is based in New Delhi and has been involved in recognizing refugees and granting them need based and blanket allowances. Once recognized, Afghan, Burmese, Palestinian and Somali refugees receive protection from the UNHCR. Many refugees receive a small monthly subsistence allowance and all have access to the services provided by the UNHCR’s implementing partners in Delhi: the YMCA, Don Bosco and the Socio-Legal Centre (SLIC). The YMCA helps refugees to find accommodation and provides access to education for children and young adults in government schools through the provision of an education allowance. Don Bosco provides psychosocial support and vocational training such as English language classes and computer courses. It also funds other vocational courses such as beautician training and driving lessons. The support of these organizations is vital, providing a degree of support to the refugee community. In addition to these initiatives, SLIC provides legal aid, legal trainings and sensitization programmes, carries out file renewals for the UNHCR and provides naturalization assistance for eligible refugees. Despite the support provided by these organizations, the majority of refugees in India experience great hardship, both economically and socially (HRLN, 2007).

Though this has been true in the past for some time now, India’s concerns about security have had a more restrictive impact on asylum space in the country. Mixed migration flows have further complicated the identification and protection of refugees and UNHCR has significantly modified and increased its registration activities to cope with this and provide the necessary support to the Government. In the absence of a national legal and administrative framework, UNHCR, based in New Delhi, conducts refugee status determination (RSD) for asylum-seekers from non-neighbouring countries and Myanmar. UNHCR also has a presence in Chennai, Tamil Nadu in the south to support the voluntary repatriation of Sri Lankan refugees. Although India has a large population of stateless people, no accurate estimates of the number are available. UNHCR is working to identify and map stateless groups (UNHRC).

India has been absorbing refugees from the start, starting from Tibetan Refugees in 1959, the Bangladeshi refugees in 1971, the Chakma influx in 1963, the Tamil efflux from Sri Lanka in 1983, 1989,and again in 1995, the Afghan refugees from the 1980s, the Myanmar refugees for a similar period and migration and refugee movements from Bangladesh over the years. India’s ambivalence towards the UNHCR is characterised by its act of indirectly seeking its assistance through the Red Cross in the 1960s, and later allowing the UNHCR to determine the refugee status of those from beyond South Asia, asking the UNHCR to assist in verifying the voluntariness of the repatriation of the Tamils to Sri Lanka, and permitting an office in Delhi through the UNDP programme. In 1995, India, following Pakistan’s example, joined the Executive of the UNHCR. Though welcome, this halfway house seems odd since India refuses to sign the 1951 Convention (Dhavan, 2004).

We need to examine what India’s doubts about protecting refugees are all about. The `Cold War’ reasons for not having a global refugee policy have gone cold. Security could be a concern that is playing on the minds of the policy makers. Though, it is true that having a set policy in place could actually address this issue and resolve a highly porous border that presently exists. One could ascribe the present problem of not having a fixed policy to lack of political will amongst the many ruling parties and also to some extent a lack of political will.

The foremost reason for refusing to concretise a refugee protection policy is the threat of terrorism that the policy makers have believed it will pose. There is no reason for sustaining such a fear. The SAARC Anti-Terrorism Protocol of 2004 ensure that suspected `terrorists’ are not treated as refugees. Under the proposed model law, India may exclude even other undesirable persons provided they are not sent back to the country of persecution. The second reason for resisting the model law is that such liberality would precipitate a flood of migrants — especially from Bangladesh. This reason is also fallacious. In fact, a proper `refugee’ law would distinguish between refugees and migrants by a fair, fast and stringent procedure.

From the perspective of a refugee, this is a good and a bad thing all depending on which country you belong to. Refugees from Tibet, Tamilians from Sri-lanka, chakmas from Bangladesh, Nepalese from Bhutan have all been well received and have even been assimilated into the mainstream society. Some refugees on the other hand have been criminalised and have been stigmatised by allegations of taking away the already scarce resources from the citizens. Refugees from Somalia are hugely discriminated and find it very difficult to either find employment or residence.

Clearly therefore there is a need to have a uniform policy that applies to all refugees equally, but what is not required a restrictive and protectionist law as exists in some other developed Asian countries like Japan and South Korea. Closing doors of immigration in the name of a progressive law has become true in case of many western countries. Europe and Australia have tightened their immigration walls with all kinds of sophisticated arguments to deal with refugees on a regional, rather than a global, basis.

CONCLUSION

India being a cultural, racial and religious melting pot and many without the smallest shred of identification paper on them is a different story all together. India can be hugely arbitrary – when it comes to some it is hospitable to say the least and to some others it is discriminatory and racial. Unfortunately for India the brownie points it has gained by the efforts it has put in to provide a safe haven for many refugees is clouded by the fact that is it has still not acceded to the Convention and the protocol.

Further If India wants to play a role in global affairs and make SAARC a success; it must act as a global player entitled to its just seat in the Security Council of the United Nations. But it cannot do so as long it pursues narrow policies. The South Asia region deserves better treatment. There are now ample reasons for India to accede to the Convention and the protocol on political as well as humanitarian basis.

On a closing note it should be noted that the Indian outlook towards refugees over the past years has definitely been remarkable but there is need to formulate it into an open, liberal humanitarian policy that can be equally applied to all the present refugees and the refugees that might need us in the future.

Aishwarya

About Aishwarya

Aishwarya is a practicing lawyer in Bangalore. She has in the past worked with Jyoti Sagar Associates and Poovayya & Poovayya. She is an alumna of Symbiosis International University, Pune and Tata Institute of Social Sciences, Mumbai. During her post graduation her main area of research was environmental justice and issues relating to access to justice for the marginalized in environmental and livelihood issues.

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2 Comments on “Pros and Cons of India Signing the 1951 Refugee Convention”

  1. A very thought provoking article. The writer has written well about the problems faced by the refugees. I hope that India becomes an signatory to this convention, so that we can be able to handle the inflow of refugees in the years to come, on account of war, external aggression, climate change, economic problems, ethnic troubles etc.

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