Still Far to Go: World Refugee Day in India

2013-Malischewski-100x100By Charlotte-Anne Malischewski

Today marks World Refugee Day. The number of refugees worldwide is at an 18-year high and the UN high commissioner for refugees Antonio Guterres told reporters that, around the world, a person is forced to flee every 4.1 seconds.

While much of the world’s attention is placed on the crisis in Syria and countries which continue to produce huge numbers of refugees such as Pakistan and Afghanistan, there is much to be concerned about when it comes to the plight of refugees in South Asia.

No country in the region is party to the United Nations Convention Relating to the Status of Refugees, 1951 or to the Protocol Relating to the Status of Refugees, 1967.

In India, the central argument against ratifying the 1951 Convention is that it is too much a representation of European ways of addressing European problems to be effectively implemented in India.  Presently, India is not bound by the provisions of these key tools of international refugee law. That said, article 51 (c) of the Indian Constitution provides that India “shall endeavour to foster respect for international law and treaty obligations in the dealings of organized peoples with one another”.   So, the principles of refugee law are often adopted in India, but the state is not bound by them in the way that a signatory country would be.

To make matters more ambiguous, India has no domestic refugee policy. Because there is no legal framework for asylum, the UNHCR conducts refugee status determination for asylum-seekers from non-neighbouring countries and Myanmar.

In an address in honour of World Refugee Day, Dr. Shashi Tharoor (former Minister of State for External Affairs and now a  Member of Parliament who spend much of his career working for the UNHCR) said:

“It troubles me that a country with our proud traditions and our noble practices remains neither legally committed nor obliged to do anything for refugees, even if we behave humanely in practice. I think it is high time the Government reviewed its long-standing reluctance to sign up legally to what it is already doing morally. The Convention and the Protocol involve no obligations that we have not undertaken voluntarily.”

To say that the convention is in keeping with existing Indian intentions towards refugees, to draw parallel’s with India’s ancient historical of acceptance of migrants, or even to demonstrate that the current situation is inconsistent with constitutional principle is useful in trying to convince the powers that be to sign the convention, but to say that India is already doing morally what it would be required to do legally if it signed the convention is somewhat misleading. It masks the fact that India is not only resisting signing the 1951 convention, it is resisting implementing an effective legal system of refugee protection – period.

It’s been a year since the government committed to new long term visa that all refugees are suppose to be able to apply for, but those on the ground are not seeing the benefits of these new visas. An article in The Hindu today tells the story of refugees from Myanmar still waiting to hear from the Foreigner Regional Registration Office about these long-term visas. In it, a UNHCR official is quoted as saying:

“The Government of India has committed to allow all UNHCR-registered refugees in India to apply for long-term visas, which will also allow them to work in the formal sector and enrol in any academic institution. The process is slow and it is not clear how long it will take for all refugees registered with UNHCR to obtain them. So far, according to our information, refugees from Myanmar and some Somali refugees have obtained them. Refugees from other nationalities have also applied but have not received them yet.”

If India is to live up to the “heritage of diversity” Dr. Shashi Tharoor celebrates, it has a long way to go.  Signing the 1951 refugee convention will likely not be enough, because as a product of post-War Europe it is ill-suited for the South Asian context, but it could be a start.  A regional mechanisms is another option. A mixture of the two might be ideal.  Ultimatley, though –  while the means are many, the need is clear.

India needs to to implement a legal framework for refugee protection that is in keeping with international legal norms and responsive to South Asia realities and then, it needs ensure that these laws become practice.

As an advocate of the Supreme Court of Hinda and  human rights activist, Rajeev Dhavan, said five years ago on this day:

“India needs to review its ambivalent refugee law policy, evolve a regional approach and enact rules or legislation to protect persecuted refugees. This is one step towards supporting a humanitarian law for those who need it. As a refugee-prone area, South Asia requires India to take the lead to devise a regional policy consistent with the region’s needs and the capacity to absorb refugees under conditions of global equity.”

For those forced to flee and  now stuck in a legal lacuna, India’s history of hospitality is meaningless.  They need legislated rights protection mechanisms and active efforts to ensure social, political, and economic inclusion in the present.

Law as a tool for development?

kelly_mcmillanBy Kelly McMillan

After finishing an undergraduate degree in international development studies, I was eager for some “real field experience”. Sure, I had participated in a number of valuable development-related internships in Canada, but I wanted a taste of how Development (as industry) operates on the ground. In 2006, I headed to Cameroon to participate in a 10-month internship on housing rights. I touched on a wide range of projects over those months, from trainings on income-generating activities for women, to facilitating the commercialization of local produce, to improving an existing microcredit facility, to organizing workshops on gender-based violence, to offering legal information seminars on housing and family law issues.

It was this last experience that ultimately motivated me to study law. Over the course of that year, I was exposed to a number of consultants in various fields passing through the organization and offering their expertise with concrete, tangible results. I felt my background in IDS was insufficient to allow me to make any really meaningful contribution. In particular, I was frustrated by the small scale of the community-based interventions I was involved in, and was discouraged by the lack of immediate results in some of the more policy-oriented initiatives. I felt that law—and community legal services in particular—would be my own “tool” to use to further women’s rights in the international context.

So, four years later, I was thrilled to have been selected for McGill CHRLP’s internship placement at the Refugee Law Project. I have already worked for two legal clinics in Montreal, and love the satisfaction that comes from solving a real human being’s concrete problem. It was a perfect combination of my IDS background and legal skills.

Perhaps it shouldn’t have come as so much of a shock to me that a few short weeks into my internship, the things that seemed less significant to me in my first overseas experience are the exact ones I find starkly absent in my present placement—namely, small-scale income-generating activities, vocational training programs and microcredit facilities! Not to mention an overarching philosophy of what is trying to be achieved.

On one of my first days, a counsellor at RLP summed up the general feeling of frustration I have since heard echoed by a number of RLP staff: “I refuse to counsel a hungry refugee!”

For someone who had initially been so optimistic about the promise of legal aid in development, this was a disturbing thing to hear. I have been thinking about it more and more: legal aid and psychosocial support is well and good, but is not enough for a person who fails to meet even the basic daily needs of herself and her family. Many refugees wait outside RLP all day without a meal. Many of the children cannot attend school for want of funds for transportation, uniforms and supplies and so instead work as house girls under oftentimes harsh conditions. I have heard the children themselves articulate education as their single biggest priority. As Intake Officer, a majority of my clients’ problems are not really legal, but medical or financial.

Although, admittedly, one organization cannot do everything, perhaps CONGEH did have the right recipe after all: an integrated approach focusing on finding sustainable ways to meet communities’ basic needs first, with some small resources to address individual legal problems in the short-term, but with a greater emphasis on preventing the legal issues from arising through information campaigns. I certainly don’t have an easy answer to this (surely there isn’t one), but now I have an even greater respect for (and am more in tune to) the priorities as identified by refugees, rather than donors.

So while Uganda’s theme for this year’s world refugee day (June 20th) is “Self-Reliance: Life Beyond Relief Aid”, I am perplexed by an almost total lack of services available to Kampala’s refugees to assist them in actually building such a life. For a person who has just lost everything, a start-up loan could go a long way…

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