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Recommendation of the South Asian Regional Consultation on Refugees
and Forced Migration: Need for Legal Framework
South Asia Forum for Human Rights organised a regional consultation
on "Refugees And Forced Migration: Need for National Laws and Regional
Co-operation" in Delhi from 5-7 September, 1998 in partnership with The
Other Media, New Delhi and with the support of the South Asia regional
office of Friedrich-Naumann-Stiftung. About 30 delegates from human
rights organisations, legal profession, media and academic institutions
from Bangladesh, Bhutan, India, Nepal Pakistan and Sri Lanka
participated. Representatives of diplomatic missions of Bhutan, Pakistan
and UNHCR's mission in India attended some of the open sessions as
observers.
During the Consultation, at the invitation of The Other Media about
25 representatives of organisations of refugees from Afghanistan,
Bhutan, Iran, Myanmar (Burma), Sudan and Sri Lanka met at a separate
venue in Delhi. These persons, some of whom have been living in India as
refugees for nearly two decades without any formal recognition and often
without any material support from the government or the UNHCR, analysed
the practices of the Indian government and that of the UNHCR in the
light of their experiences. They made several valuable recommendations
to the Regional Consultation on the minimum standards required for legal
protection of refugees in host countries as well as reforms required in
the policy and practices of UNHCR in South Asia.
Experts and activists from Bangladesh, Bhutan, India, Nepal, Pakistan
and Sri Lanka presented their analysis of the governmental practices
regarding refugees and the role of UNHCR in their respective countries.
The delegates to the Consultation also considered the Model National Law
on Refugees adopted by the 4th Regional Consultation on Refugees and
Migratory Movements in South Asia (Dhaka, November 10-11, 1997) and the
recommendation of Regional Seminar on Refugees, Migrants, Internally
Displaced and Stateless Persons in South Asia (Kathmandu, November
18-22, 1996).
At the end of the two-day deliberations in working groups and plenary
sessions, the New Delhi Consultation made the following recommendations.
On Definition of Refugee in South Asian context:
The Consultation recognised the importance of developing an acceptable
working definition of refugees if the South Asian states were to be
persuaded to enact national laws for the protection of refugees and
displaced persons. The Consultation also recognised the need to maintain
a distinction between refugees, as those who were forced to seek shelter
and protection outside their own homeland and other victims of forced
displacement who remained dislocated inside the borders of their home
country. In the light of the South Asian experience, the Consultation
felt that the definition of refugees incorporated in the UN instruments
was no longer relevant as it was based on a rather narrow set of
political criteria.
The Consultation was of the view that during the past five decades,
the South Asian states had developed a wider definition of refugees or
threatened population through their practice of providing shelter to
millions of asylum seekers who were forced to cross international
borders for political, economic, social and religious reasons. It was
felt that the pragmatic approach of the South Asian states which has
de-facto established a wider set of criteria for refugees or threatened
populations and respect for the principle of non-refoulement, should be
taken into account while developing a comprehensive definition of
refugees and displaced persons in the South Asian context.
The Consultation cautioned that any attempt to develop a definition
of a refugee for the purpose of creating legal norms for their
protection, also must take into account the historical context of South
Asia and the limitations of the governments of the region. In this
regard the Consultation noted that policy of "divide and rule" adopted
by the British, the former colonial ruler of South Asia, has left a
legacy of hatred and mutual suspicion in the region. The narrow
"national security" perspective through which all the states of the
region view cross border population movements show that the ruling elite
and sections of the civil society of South Asian countries are yet to
shake off their past prejudices. The Consultation further noted that all
the South Asian states in their attempts to build strong national
identities adopted economic and social policies which have resulted in
the suppression of the rights of linguistic, religious and ethnic
minorities often exacerbating tensions between the majority and the
minority as well as among the minorities themselves resulting in
continuous displacement of populations. Additionally, the path of
economic development adopted by the states has caused environmental
degradation and forced displacement on a massive scale leading to the
loss of livelihood of vast numbers of already impoverished people
forcing them to search for alternatives sources of livelihood elsewhere,
at times across international borders.
Some of the delegates also raised the issue of "unrepresented
nations". They pointed out that the borders drawn by the former colonial
rulers of South Asia have left traditional homelands of many
nationalities divided between post-colonial independent states of South
Asia. It was said that since some of these divided peoples were still
struggling to regain their national status of pre-colonial days, such
divided nationalities should be categorised as "unrepresented nations"
and recognised as "refugees" on the basis that their "homelands" have
been taken away from them. However, as the Working Group where this
issue was originally raised failed to reach a consensus on this issue,
and as it involved suppression of human rights of "peoples" who
considered themselves as historically evolved nations, the plenary
recommended that the issue of "unrepresented nations" should be studied
in depth and a report presented before the next Regional Consultation.
Accepting that the work on developing a comprehensive definition of
the refugees and displaced persons must continue, the Consultation
recommended that for the present the two part definition of refugees in
Article 4 (a) and (b) of the Model National Law on Refugees adopted by
the 4th Regional Consultation on Refugees and Migratory Movements in
South Asia, Dhaka, November 10-11, 1997 should be accepted.
On International Refugee Regime: Participation by South Asian
States:
The Consultation noted that the existing international regime for the
protection of the refugee was inadequate for South Asia. It also noted
with serious concern that during the last ten years, the Western states
themselves have initiated such measures which jeopardised the core
protection provisions of this regime. While recognising the urgent need
for reformulation of the definition of the refugee and strengthening the
core provisions of the international refugee regime, the Consultation
unanimously endorsed the view that refusal of the South Asian states to
ratify and accede to the 1951 UN Convention of the Status of Refugees
and its 1967 Protocol presented serious problems for the refugees in the
region. It was noted that the insistence by some of the states to
resolve all issues through a bilateral process has proved to be an
impediment for the growth of a humane refugee policy in the region. In
the bilateral process, national security considerations reign supreme
and refugee were often perceived as threats to national security.
Consequently, the states often failed to approach the refugee issue on
humanitarian grounds, independent of security considerations. The
Consultation noted with serious concern that the refuge issue was linked
to terrorism during the ninth SAARC summit in Male last year for the
first time.
The Consultation identified the following as national hindrances for
the accession to international instruments:
1. Bureaucratic reticence;
2. Ignorance among policy makers;
3. Overriding national security concerns.
The Consultation felt that ratification of the international instruments
would commit the states to respect international norms/standards,
particularly the principle of non-refoulement. It would also provide the
non-governmental organisations and other institutions of the civil
society a footing to campaign against any violations of these
conventions, nationally, regionally and internationally.
The Consultation pointed out that by acceding to these international
instruments (in letter and spirit) South Asian member states would get a
platform within the UN body to pressurise the countries of the North to
adhere to international instruments in letter and spirit, which these
states were undermining through the so-called "non-entree" procedure
created to keep out asylum seeker.
The Consultation recommended that human rights groups, academics,
members of the legal profession and other concerned organisations of the
South Asian countries should campaign for accession to the 1951 UN
Convention on the status of Refugees and its 1967 Protocol by the states
of the region.
In order to overcome the State's reticence, the Consultation
recommended that policy makers should be informed of the incentives the
states will enjoy once the international instruments are acceded to and
ratified. The international instruments would lay a framework for
dispute settlements.
The Consultation further recommended that concerned activists and
academics engage the mass media in a dialogue to sensitise the civil
society of the need for accession of international instruments.
On Regional Co-operation for Protection of Refugees and reduction
of Statelessness:
The Consultation recognised that in the current political situation
it would be difficult get the states of South Asia to accept a regional
convention or a protocol for the protection of refugees and displaced
persons. However it felt that as the entire region was affected by a
continuing process of transborder population flux, a problem that the
South Asian region shares with Africa and Latin America, the states
could be persuaded to develop regional standards and instruments for
co-operation in the lines of the OAU Convention and the Cartegana
Declaration on refugees.
Taking note of the draft for an instrument for regional co-operation
on refugees prepared by the a "Group of Eminent Persons" brought
together by UNHCR in 1997 under the Chairmanship of the late Justice
Dorab Patel of Pakistan and the recommendations of SAFHR's 1996
Kathmandu seminar on refugees, the Consultation felt there was scope for
developing a comprehensive document which could be presented to the
states as a model for a regional mechanism for co-operation on refugee
issues. The Consultation further suggested that though the document
should ideally be addressed to the states, it could also be used by
civil society organisations of the South Asian countries to build a
non-governmental regional net-work of co-operation It was pointed out
that as the states often have adopted the agenda of the civil society
organisations, this effort of the non-governmental bodies might also
similarly influence the states.
On Internally Displaced Persons:
Recognising the seriousness of the situation of Internally Displaced
Persons (IDP), and also realising that it would be very difficult to
include the issue of IDPs in any regional instrument, the Consultation
urged human rights groups and other civil society organisations to focus
on the shortcomings in the efforts of the states to provide relief and
rehabilitation to those IDPs who are victims of protracted armed
conflict and sexual violence with a view to generate a transborder
humanitarian response. These efforts by non-governmental organisations
would help in establishing a mechanism for a regional humanitarian
intervention for the IDPs. The Consultation felt that if necessary two
separate documents on regional co-operation for refugees and
humanitarian intervention for IDPs could be prepared.
The Consultation further recommended that the issue of persons
displaced by development projects and man-made environmental disasters
should be taken up separately as they were also victims of forced
displacement. To ensure the proper focus of the initiative, the victims
of armed conflict/generalised violence should be given topmost priority.
As the programme of resettlement of the IDPs was linked with politics
of control over resources, and often the states were parties to the
conflicts which cause these displacements, the Consultation felt that
the regional humanitarian intervention could also act both as an
impartial mediator as well as a pressure group to promote peace and
monitor the refugee/displaced situations.
The Consultation suggested that SAFHR should be the focal point of
NGO co-operation on refugees and IDPs. SAFHR should also create a larger
forum for discussion on the issue of international displacement which
has thrown up many serious questions like the right to resettle when
people have been displaced for many years in the places to which they
have been displaced and the "right to peace".
In this connection, the Consultation SAFHR should take the following
initiatives;
a. Formation of a South Asian eminent persons group who could issue
early warning on refugee movements, monitor state and non-state actors
in situations of conflicts and monitor functioning of UNHCR in the
region.
b. Formation of a lawyers' forum to prepare a compendium consisting of
the legal situation prevailing in the South Asian countries with respect
to the refugees. Such an effort should take note of the basic law of the
countries of the region, status of other similar enactment and
judgements of South Asian courts
c. Set up a research groups
1. study the impact of protracted internal armed conflicts on
institutions of governance, armed non-state combatant groups and the
affected civilian populations with a view to developing a list of best
practices on relief and rehabilitation,
2. to develop an understanding of women's transformed roles in conflict
situation so that the their rehabilitation process is not hampered by
the traditional view of women
3. and to address the challenge faced by humanitarian aid agencies in
situations of complex emergencies created by internal conflicts. .
d. To identify specific issues to be taken up for campaign on an annual
basis. For the 1999 campaign, the Consultation recommended adoption of
the issue of statelessness with particular reference to Bhutan.
On Need for National Laws on Refugees:
The Consultation expressed its appreciation of the work done by the
South Asian Eminent Persons Group on national law on refugees. It
recommended that the draft of the "Model National Law on Refugees"
created by this group and adopted by the 4th Regional Consultation on
Refugees and Migratory Movements in South Asia, Dhaka, November 10-11,
1997, should be taken up for lobbying the legislature, policy makers and
the media after incorporating the following modifications;
1. In Article 6 clause (b), of the Model National Law on Refugees (MNLR)
the word "final" should be deleted and in lieu of the expression
"serious crime", "a crime against peace, war crime or crime against
humanity" should be incorporated in tune with the one used in Article 5
clause (a).
2. The composition of the Refugee Committee as provided in Article
10, clause (ii) of MNLR should be modified to consist of members of whom
two - preferably gender-balanced - should represent refugee community or
communities. A new clause - (iii) - may be added to the Article to this
effect.
3. As there may not be any High Courts in some of the South Asian
countries, the Article 10 clause (a) of MNLR should be suitably amended
to read as follows, "A sitting or retired judge of a High Court or an
Appellate Court, as the case may be, to be designated by the government
in consultation with the Chief Justice of the Supreme Court".
4. In recognition of the fact that the "interview" is only a part of
"Refugee Determination" process the scope of article 12 clause (b) on
MNLR should be widened by replacing the word "interview" with the word
"process". Similarly, in Article 14, clause (iii) of MNLR the word
"sympathetic" should be replaced by the word "humanitarian".
5. A new sub-clause (viii) should be added to Article 14, clause (a)
of MNLR, which should read as "be given the right of access to
education, health and other related services."
6. Article 17 of MNLR should include a new clause - clause (a) asking
the state to frame a guideline taking care of the problem of "safe
return of the refugees to their countries of origin."
The text of the "Revised Model National Law on Refugees" is enclosed.
Revised Model National Law on Refugees*
1. Purpose of the Act
The purpose of this Act is to establish a procedure for granting of
refugee status to asylum seekers, to guarantee to them fair treatment,
and to establish the requisite machinery therefor. For the purposes of
this Act the grant of refugee status shall be considered a peaceful and
humanitarian act, shall not be regarded as an unfriendely act and does
not imply any judgement on the country of origin of the refugee.
2. Terminology
In this Act, unless the context otherwise requires :
i. 'Asylum seeker' means a foreigner who seeks recognition and
protection as a refugee.
ii. 'Refugee' means a 'refugee' defined in Section 4 and includes
dependants of persons determined to be refugees.
iii. 'Country of origin' means the refugee's country of nationality, or
if he or she has no nationality, his or her country of former habitual
residence.
iv. 'Commissioner' means the 'Commissioner for Refugees', an executive
officer, referred to in Section 8 of this Act.
iv. "Commissioner' means the 'Commissioner for Refugees', an executive
officer, referred to in Section 8 of this Act.
v. 'Refugee Committee' means the 'Committee' established as an appellate
tribunal by the Government under Section 8 of this Act.
3. Non-Obstante Clause
The provisions of this Act shall have effect notwithstanding the
provisions of any other law including The Foreigners Act.
4. Definition of Refugee
A refugee is :
a. any person who is outside his or her country of origin, and who is
unable or unwilling to return to, and is unable or unwilling to avail
himself or herself of the protection of that country because of the
well-founded fear of persecution on account of race, religion, sex,
nationality, ethnic identity membership of a particular social group or
political opinion,1 or,
b. any person who owing to external aggression, occupation, foreign
domination, serious violation of human rights or other events seriously
disrupting public order in either part or whole of his or her country of
origin, is compelled to leave his or her place of habitual residence in
order to seek refuge in another place outside his or her country of
origin2.
5. Persons who shall be excluded from refugee status
A person shall be excluded from refugee status for the purpose of this
Act if:
a. he or she has committed a crime against peace, a war crime or a crime
against humanity, as defined in the international instruments drawn up
to make provision in respect of such crimes;
b. he or she has committed a serious non-political crime outside the
country of asylum prior to his or her admission into this country as a
refugee3.
6. Principle of Non-Refoulement
a. No refugee or asylum seeker shall be expelled or returned in any
manner whatsoever to a place where there are reasons to believe his or
her life or freedom would be threatened on account of any of the reasons
set out in sub-sections (a) or (b) of Section
b. The benefit of the present provision may not, however, be claimed by
a refugee or asylum seeker where there are reasonable grounds for
regarding him or her as a danger to the security of the country or who
has been convicted by a judgement of a crime against peace, war crimes
or crimes against humanity and constitutes a danger to the community.
7. Application
a. Where an asylum seeker requests to be recognised as a refugee either
at the point of entry or subsequently, the country concerned shall act
in accordance with the principle laid down in Section 6 and refer the
case to the Commissioner of Refugees for disposal.
b. Where an application is made by an asylum seeker for determination of
his or her status as a refugee, pending determination of such status, no
restrictions shall be imposed on the asylum seeker save and except those
that are necessary in the interests of sovereignty and integrity of the
State or public order.
8. Constitution of the Authorities
In order to implement the provisions of this Act the Government shall
appoint:
a. Commissioners for Refugees; and
b. A Refugee Committee as the appellate authority.
9. A Commissioner for Refugees shall be of a rank not less than that of
an Administrative Head of a District.
10. a. The Refugee Committee shall be the appellate authority and
receive and consider applications for refugee status suo moto, or those
made by the asylum seekers in appeal against the decision of the
Commissioner.
b. the Refugee Committee shall consist of the following three members:
i. a sitting or retired High Court or Appeal Court Judge designated by
the Government in consultation with the Chief Justice of the Supreme
Court as Chairperson,
ii. two independent members, preferably gender balanced conversant with
refugee matters.
11. Finality of Order
Every order of the Refugee Committee shall be final.
12. Determination of RefugeeStatus4
a. As asylum seeker who wishes to claim refugee status under the terms
of this Act shall be heard by a Commissioner for Refugees before the
determination of his or her status.
b. During the Refugee determination process, the asylum seeker shall be
given necessary facilities including the services of a competent
interpreter where required, and a reasonable opportunity to present
evidence in support of his or her case.
c. The asylum seeker, if he or she wishes, shall be given an
opportunity, of which he or she could be duly informed, to contact a
representative of UNHCR.
d. The Asylum seeker, if he or she wishes, shall be entitled to be
assisted in the determination of the status by a person of his or her
choice including a legal practitioner.
e. Where an application by the asylum seeker is rejected, the
Commissioner for Refugees shall give reasons for the order in writing
and furnish a copy of it to the asylum seeker.
f. If the asylum seeker is not recognised as a refugee, he or she could
be given a reasonable time to appeal to the Refugee Committee as the
appellate authority for reconsideration of decision.
g. If the asylum seeker is recognised as a refugee, he or she shall
informed accordintly and issued with documentation certifying his or her
refugee status.
13. Persons who shall Cease to be Refugees
A person shall cease to be a refugee for the purpose of this Act if:
a. he or she voluntarily re-avails himself or herself of the protection
of the country of his or her origin; or
b. he or she has become a citizen of the country of asylum; or
c. he or she has acquired the nationality of some other country and
enjoys the protection of that country, or
d. he or she has voluntarily re-established himself or herself in the
country which he or she left or outside which he or she remained owing
to fear of persecution; or
e. he or she can no longer, because the circumstances in connection with
which he or she was recognised as a refugee, have ceased to exist,
continue to refuse to avail himself or herself of the protection of the
country of his or her nationality.
14. Rights and Duties of Refugees
a. Every refugee so long as he or she remains within this country, shall
have right to:
i. fair and due treatment, without discrimination on grounds of race,
religion, sex, nationality, ethnic identity, membership of a particular
social group or political opinion.
ii. receive the same treatment as is generally accorded to aliens under
the Constitution or any other laws and privileges as may be granted by
the Central or State Governments.
iii. receive sympathetic consideration by the country of asylum with a
view to ensuring basic human entitlements.
iv. be given special consideration to their protection and material
well-being in the case of refugee women and children.
v. choose his or her place of residence and move freely within the
territory of the country of asylum, subject to any regulations
applicable to aliens generally in the same circumstances.
vi. be issued identity documents.
vii. be issued travel documents for the purpose of travel outside and
back to the territory of the country of asylum unless compelling reasons
of national security or public order otherwise require.
viii. be given the right of access to education, health and other
related services
b. Every refugee shall be bound by the laws and regulations of the
country of asylum.
15. Situations of Mass Influx
a. The Government may, in appropriate cases where there is large-scale
influx of asylum seekers, issue an order permitting them to reside in
the country without requiring their individual status to be determined
under Section 12 of this Act, until such time as the reasons for
departure from the country of origin have ceased to exist, or the
government decides that their status should be determined on an
individual basis under this Act.
b. In the case of asylum seekers who have been permitted to reside in
the country under this provision, they may be subject to reasonable
restrictions with respect to their location and movement, but will
otherwise be granted normally the same rights as refugees under this
Act.
16. Refugees Unlawfully in the Country of Refuge
The Government shall not impose penalties, on account of their illegal
entry, or presence, on refugees who, coming directly from a place where
their life or freedom was threatened in the sense of Section 4, enter or
are present in the country of asylum without authorisation, provided
they present themselves without delay to the authorities and show good
cause for their illegal entry or presence.
17. Voluntary Repatriation5
a. The repatriation of refugees shall take place at their free volition
expressed in writing or other appropriate means which must be clearly
expressed. The voluntary and individual character of repatriation of
refugees and the need for it to be carried out under conditions of
safety to the country of origin shall be respected.
b. The states should frame guidelines to ensure safe return of the
refugees to their countries of origin
18. Rules and regulations
The Government may frame rules and regulations, from time to time, to
give effect to the provisions of this Act.
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