by Sriya Shubhalaxmi Mishra 30 January 2022
Today’s world, which is advancing towards the championship of Human rights, is still bound with the chains of derailment of those very rights and grappling with the issue of displacement of people from their lands, leading to the birth of a community that no one wants to shelter, protect and feed: The Refugees.
With the advent of the Covid-19 pandemic, the issue of the Refugee crisis has, once again, been propelled to the limelight but this time instead of proposing new laws and policies, maybe the focus should be on addressing the shortcomings of the existing laws and ways to bridge that gap. Although intricate laws have been formulated to address and solve the issue, the Refugee crisis is still a major concern looming without a solution. Can a solution be possibly found in the municipal citizenship laws of the nations?
Thus, in an attempt to resolve the dilemma, this article seeks to answer two questions: Firstly, Whether the International Law on Refugees is adequate to deal with the crisis at hand and secondly, Whether States’ domestic Citizenship legislations have proven to be adequate in eradicating the said crisis with India as a Reference Nation?
Understanding the Present Laws on Refugees
The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol form the genesis of the understanding of refugees. UNHCR is regarded as the ‘guardian’ of both the frameworks and the nations are expected to cooperate with it to ensure the protection of the rights of refugees.
Article 1(A)(2) of the 1951 Convention ponders upon the meaning of a Refugee in a quite extensive manner. According to the convention, “A refugee is someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”
The key requirement to claim refugee status is that the claimant must be ‘genuinely at risk’. Various interpretations have been made as to what constitutes being genuinely at risk or a well-founded fear of persecution. In INS vs Cardoza Fouseca, it was stated that the ‘well-founded fear’ standard should indicate that “so long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is not enough that persecution is a reasonable possibility…” The Convention also spells out certain categories of people, such as war criminals, who do not qualify for refugee status.
At its very inception, the 1951 Convention was limited to protecting European refugees in the aftermath of World War II. But, with time, the challenges due to incessant displacement outgrew the scope of the convention. Thus the 1967 Protocol expanded the scope of the Convention. The core principle of the documents is non-refoulment, a rule of customary international law, which asserts that a refugee should not be returned to a country where they face serious threats to their life or freedom.
The perpetually Growing Global Refugee Crisis
Even with specially curated laws in place, the global refugee crisis is still a looming issue. UNHCR reported in 2020 that the number of people forcibly displaced is 82.4 million, and over 26.4 million refugees. Some illustrations are necessary to highlight this aspect.
Over 25% of the total global refugee population are part of the global diaspora in the wake of the over a decade long Syrian crisis. Millions of Syrians have sought refuge, primarily in Lebanon, Jordan, Iraq, Egypt, and Turkey.
The Taliban takeover of Afghanistan led to millions fleeing to neighboring countries. For the sake of estimation, just within the short period between January 1-July 22, 2021 nearly 40000 Afghans were estimated to have become new refugees in Iran, Pakistan, and Tajikistan according to data released by the UNHCR. The situation in Afghanistan is so dire that it was ranked the least peaceful country in the world by the Global Peace Index.
Additionally, there are often inner turmoils that lead to peoples’ displacement as refugees. The Venezuelan refugee and migrant crisis is one such example. While other refugee crises have been triggered by conflict and war, the situation in Venezuela was triggered by the unprecedented humanitarian crisis fomented by years of economic and political instability. Apart from these three countries, there are nations like Burundi, the Democratic Republic of Congo (DRC) Crisis, Iraq, Rohingya, Yemen, and many more, which have been gripped by intense refugee crises in the past years.
International Refugee Laws: Insufficient?
Although the global caretakers of the crisis are initiating mechanisms to fight the Refugee Crisis, the apparent failure of all the initiatives presents a clear stance that the crisis is nowhere being well managed. There are certain reasons for this issue.
Initially, refugee law was segregated from the development of international human rights law. This idea has stuck even to this day, although it is fairly self-evident that refugee law is and should be part of human rights law, since it is ultimately concerned with the protection of a human, albeit of a more vulnerable kind.
Refugee-hood which is premised on the crossing of borders has long been distinguished from general human rights law based on the fact that the issue canopies domestic jurisdiction of not one, but two sets of states: the country of origin of the refugee and the country of asylum. The 1951 Convention with its 1967 Protocol relies on traditional concepts of state territorial jurisdiction, and the sovereign right of states to decide on admission and expulsion of all those not linked by the bonds of nationality.
However, this discretionary right of States has certain limitations such as the principle of non-refoulement This principle, embedded in Article 33 of the 1951 Convention, lies at the core of refugee protection. But such limitations do not imply an absolute obligation to admit on a durable basis. This means, if, according to Article 14 of the Universal Declaration of Human Rights, the individual has the right “to seek and to enjoy in other countries asylum from persecution”, they still continue to lack an enforceable right to be granted it.
Furthermore, while the criterion of a “well-founded fear of persecution” based on race, religion, nationality, membership of a particular social group or political opinion, marks a fundamental part of the definition of a refugee, it bears relevance only with respect to determination of status in the country of asylum and has no concern with the human rights situation prevailing in the State of origin or that State’s legal responsibility.
Sometimes a shroud of exilic bias envelopes the attempts to resolve the issue and with a singular solution of integration into a new community, no regard is given to the root causes of flight while evaluating the conditions favorable to repatriation.
Apart from this, there is a lack of precise definition of the term ‘persecution’ which serves as one of the key elements of the refugee definition. In UNHCR’s 1979 publication, the ‘Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status’, persecution was defined as “any threat to life or freedom, whose existence had to be assessed on the basis of both objective and subjective criteria.” But this connotation is very broad to be implemented properly.
Additionally, the five grounds of persecution (race, religion, nationality, membership of a particular social group and political opinion) mentioned in the refugee definition also create limitations as only the presence of at least one of them can warrant application of the 1951 Convention. The exclusion of climate change and natural disasters leads to people affected by them not getting the protection they deserve.
Over the years, these shortcomings have been addressed in some ways at the regional level. For instance, instruments like the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa and the Latin American 1984 Cartagena Declaration on Refugees. have tried expanding the traditional definition of refugee by including external aggression, generalized violence and massive violation of human rights as possible reasons for determining the refugee status.
The most apparent loophole lies in the non-applicability of international refugee instruments in a country that has either not acceded to them, or maintains reservations to its provisions. However, this is not necessarily reflected in the actual provision of protection. Nations usually strive to protect and admit as many refugees as they can but the lack of enforceability creates a sort of unaccountability and discretion.
Discordant views on different elements of the refugee definition give rise to varying rates of refugee recognition among states, with asylum seekers subjecting their futures to what has been described as an ‘asylum lottery’.
A particular gap has arisen in situations where asylum seekers and refugees are deterred from reaching a territory, including when traveling by sea. Measures to deter or prevent the arrival of asylum seekers include tightened entry controls, border closures, restrictive visa requirements, offshore border controls, interception at sea, with instances of mandatory detention on immigration grounds.
(In)Adequacy of Domestic Refugee laws
The refugee crisis often finds its roots in the deprivation of citizenship rights. As citizenship is a matter which falls within the local domestic jurisdiction of the states, a reference nation is necessary to be taken as an example. For this purpose, there is no better nation than India, which has seen its own share of trials and tribulations in the field of handling the ongoing refugee crisis. The idea of whether the Citizenship and Refugee crisis can be weighed in on a single scale is to be considered in this part.
India’s approach towards Refugee Crisis: Assessing through Citizenship laws
India has neither signed the 1951 convention nor the 1967 protocol nor has it enacted any specific laws to deal with refugees. Thus the mechanism at present is to act according to the Constitution of India, the Citizenship Act, The flow of foreign nationals into the country is meant to be regulated by the Foreigners Act of 1946, the Foreigners Order of 1948, the Passport Act of 1967, and the Registration of Foreigners Act of 1939 and procedures are issued by Ministry of Home Affairs to deal with refugees.
Citizenship is distributed according to passive criteria of belonging, like birth upon a piece of land, which is called jus soli; and ethnic belonging to a group of people, which has been called jus sanguinis.
The Refugee Crisis often tends to affect internal security, political stability, and international relations, therefore, the issue of the Refugee crisis’ standoff with citizenship often causes internal disturbances inside a nation.
Part II of the Constitution of India and the Citizenship Act, 1955 defines citizenship and prescribes several rules for its acquisition. Although India has not defined any category of refugees, it has made sure to accept various refugee communities from Bangladesh, Sri Lanka, and Tibetan refugees But as the idea has not been set in writing, the remedy is often subjective. For example, Chin refugees in Mizoram and Rohingyas have assimilated into local communities but have not been recognised or acknowledged either by the UNHCR or the Indian state. Due to this, they are subjected to persistent harassment and abuse in many forms.
Even though the Constitution of India does not mention the term ‘refugee’, it does guarantee certain rights to all persons within India. These rights are equality before the law under Article 14, Protection of life and liberty under Article 21. The right to a fair trial has also been included in this right which is uniformly applicable to both citizens and aliens. Articles 245 and 246 also give power to the central government to frame laws with respect to matters that broadly fall under subjects relating to foreigners, aliens, and immigrants.
Thus the protection of refugees in India undeniably depends upon the symphony of administrative ad hocism and judicial assertion of constitutional rights A glaring example for this argument could be the case of National Human Rights Commission v State of Arunachal Pradesh, in which the Supreme Court of India restrained the forcible expulsion of Chakma refugees from the state and directed the state government to ensure the protection of their life and personal liberty.
India’s Need for Refugee Laws
India being one of the most prominent refugees receiving countries in the world seems to be committed to refugee protection but lacks clearly defined statutory standards and subjects refugees and asylum seekers to inconsistent government policies. As India has no domestic regulation concerning ‘refugees’, it relies on a thicket of other laws to regulate the refugee crisis.
Because of this lack of concrete definition, there remains room for branding all refugees and asylum seekers as ‘illegal migrants.’ India’s lack of a formal legal framework, domestically and internationally, has led it to follow an ad hoc policy regarding refugees. This leaves the door open for strategic ambiguity.
The Indian constitution was framed with the idea of jus soli (citizenship by birth) as the principal basis for Indian citizenship. Over time, the focus shifted to citizenship by descent. The recent CAA NRC debates have highlighted that India does need a domestic refugee law to protect those persecuted, although not an exclusionary one.
The Indian stand on the Refugee crisis is often displayed by the powerful stance that the country’s judiciary takes to protect the refugees.
In the recent matter of Nandita Haksar v. State of Manipur, the Manipur High Court granted seven Myanmarese citizens, who had entered India without documentation, the authorisation to approach the UNHCR Office in Delhi. The Court noted that the principle of non-refoulement is canopied under Article 21 of the Indian Constitution. The principle being absent from domestic law, the Court took the aid of international law and Article 51 of the Indian Constitution which projects the State’s duty to ‘foster respect for international law and treaty-obligations.’
The Court also relied on the right to equality Article 14 that also applies to non-citizens. It further stated that “though India is not a signatory to the 1951 Convention, its obligations under other international instruments, read with Article 21 of Indian Constitution, requires it to respect the right of an asylum seeker to seek protection from persecution and life or liberty-threatening danger elsewhere.”
Concluding Note
The refugee crisis is a global concern that has marred the goal of inclusivity in terms of belongingness. The complexity of this crisis cannot possibly be contained by the present International and domestic frameworks. A Consolidated solution to this issue must be worked out by political forces around the world
Due to the international community’s gradual globalization, citizenship has become a fragment of cosmopolitanism. Thus, the refugee crisis can be solved in an efficient manner if the flaws of International and municipal laws are amended to cater to the Universal Community of people.
The ongoing Refugee Crisis has to be assessed through the municipal citizenship laws of the nations as this would lead to better awareness of the violations of the rights of these refugees. The idea’s inclusion in the form of domestic legislation would also mean better enforceability.
Although nations are dedicated to a Refugee protection scheme, the inconsistent and arbitrary government policies, which are often dictated by political inclinations rather than by legal imperatives, create several limitations while dispensing justice.
The idea of global citizenship, which would allow anyone to move and reside freely in any part of the world, is also something that can be developed. Global citizenship for refugees could mean something like a Nansen passport which would respect an individual’s liberty at an international platform.
Furthermore, Harmonisation of the idea of refugees and its definition is an absolute need as this would result in one shared idea of what it is that we are fighting against, leading to better global statistics and reports, and thus greater accountability.