Nirbhay Prakash

UN 19 - The UN commemorates 61 years of refugee protection in the world today. The 1951 Convention on the Status of Refugees was adopted by the world parliament to protect refugees displaced by World War II. The temporal and geographical limitation of the 1951 Convention was removed with the adoption of the 1967 Protocol, which brought refugees originating in any part of the world under the protection of the international refugee regime. 

Refugee protection in South Asia has posed unprecedented challenges to international law in general and international refugee law in particular, as South Asia has become a flash point of human displacement owing to reasons beyond the mandate of the UN High Commissioner for Refugees (UNHCR). Since 1947, more than 30-40 million people have crossed the borders of South Asian states in search of refuge and almost every country has produced and/or received refugees. In a conference deliberating on refugee protection in South Asia, Tapan Kumar, Secretary General of The South Asian Forum for Human Rights opined “when you have no law, everything becomes arbitrary”. This is precisely the overall situation in all South Asian countries which are often vehemently criticised for the inadequacy of their laws on one of the greatest problems facing the world. 

The 1951 Convention and 1967 Protocol relating to the Status of Refugees provides a basic framework for refugee protection in the world. It provides a cohort of rights for asylum seekers and a set of obligations for member states to follow. Its wide acceptability has transformed its position from just a convention to being treated as a ‘bill of rights for refugees’ and sometimes even adorned with the status of a ‘Magna Carta’ for refugees. Despite its wide acceptability in various parts of the world, none of the South Asian countries, except for Afghanistan, are party to the existing regime. It is surprising to note that a region which holds one fifth of the world population does not have any binding standards and norms for refugee determination and protection. South Asian countries have been critical about the fact that the existing refugee regime is Euro-centric and was designed as a cold war instrument, which makes it unsuitable for the region. The socio-economic situation of the countries further discourages them from ratifying the instruments and being bound to follow international standards. This, however, should not become a reason for not following the best international practices on refugee protection and taking a cold approach to the human rights of refugees in the wake of ‘non-refoulement’ (a binding principle of refugee law that prohibits states irrespective of being a party to the 1951 convention from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened) being recognised as a principle of international customary law. Refugee issues in the region are considered an interstate policy and are usually governed by bilateral relations. Instead of considering refugee issues from a human rights perspective, they are regarded as a matter of national security. The countries follow an ad-hoc arrangement in granting protection to asylum seekers, which is influenced more by the bilateral relationship governing the states and less by humanitarian considerations. 

In recent years, there has been a rise in regional consciousness with regards to refugee protection in the form of consultations and negotiations. Many non-governmental organisations have been trying to promote cooperation among states in the region for promulgating national legislations on refugees. Such initiatives advocate that South Asia should develop its own regional instrument. States in different parts of the world have evolved policies to grant asylum and refugee status that are wider than the five grounds of fear of persecution—race, religion, nationality, membership in a particular social group and political opinion—enumerated in the 1951 refugee convention (for example, gender-based prosecution, people fleeing from armed conflict, etc) taking cue from regional instruments like the Organisation of African Unity (OAU) Convention in Africa and Cartagena Declaration in Latin America. South Asian countries have taken initiatives at the regional level in the form of Colombo Consultation (1995), New Delhi Consultation (1996) and Dhaka Consultation (1997), where the countries have agreed on a model law requiring South Asian states to draft a domestic legislation in accordance with it. However, nothing concrete is being heard of or has been achieved owing to political reasons and inter-animosity between the states.

In this backdrop, it is suggested that South Asian countries should address the regional refugee problem with humanitarian concerns rather than treating it as a security threat. The countries can take action along the suggested lines which have been almost agreed upon by the scholars working on refugee protection in South Asia. They are (a) Acceding to International Refugee Instruments, (ii) Developing a regional instrument for South Asia and/or (iii) Framing national legislation. South Asian countries should formulate a legal mechanism in the form of a convention/treaty at the regional level to provide a durable solution to its refugee problem. Emphasis should be given on ensuring peace and stability in the region to stop the growing number of refugees from escalating. Further constructive cooperation between member states in the form of bilateral and multilateral relationships can help ease the refugee problem in South Asia and at the same time, provide a platform for burden sharing. 

Prakash is an LL.M graduate from South Asian University, New Delhi

Published on: 20 June 2013 | The Kathmandu Post