Refugees and Human Rights

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. 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. 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, 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.

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”. Respect for human rights is also essential
for the protection of refugees in countries where they are integrated locally or re-settled.

BASIC HUMAN RIGHTS OF REFUGEES

1. Right to Protection Against Refoulement

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, 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.

2 Right to Seek Asylum

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”. 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. 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).
3 Right to Equality and Non-Discrimination

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 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, 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.

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. In addition, all guarantees providing protection
against specific categories of discrimination such as race and gender specific discrimination
are also applicable to refugees.

4 Right to Life and Personal Security

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.

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

5 Right to Return

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.

6 The Right to Remain

U.N. Sub-Commission on Prevention of Discrimination 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”. The Turku/Abo Declaration on Minimum Humanitarian Standards
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. 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”.

HUMAN RIGHTS OF REFUGEES IN INDIA

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. 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.

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. 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”. 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.
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.