REFUGEE AND STATELESS PERSON

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    “No one leaves home unless home is the mouth of a shark”

- Warsan Shire

Human rights violations force countless numbers of people to flee their homes and seek refuge in other countries. The violations take many forms: deliberate killings and acts of genocide; political, racial or religious persecution and denial of fundamental, civil, political, economic and social rights. The humanity since its existence on this planet has been a story tales of power struggles, confrontation and an armed conflict between nations, peoples, and individuals which rendered millions of people homeless and forced to take shelter in another country. The refugee problem is a phenomenon of our age. The main consequence of the refugee situation which has aggravated a crisis is the resultant clashes between ethnic groups. It is the product not only of the most destructive and Diabolical wars of history, two World Wars, of modern dictatorial regimes, and of the national awakening of the peoples but also of the closed frontiers which were a characteristic of the 21st century. The principal object of this paper is to highlight the problems which are faced by the refugees and the law of asylum.

REFUGEE AND STATELESS PERSON

Refugees are internationally unprotected persons in the sense that they do not enjoy the benefits of diplomatic protection as they are persecuted by the state. The refugee is law is designed to provide remedy precisely the problem of lack of diplomatic protection because of persecution. Thus the lack of diplomatic protection is an essential condition for the status of refugees. Thus both the stateless and refugees are unprotected persons. A stateless person are de jure unprotected person as they lack diplomatic protection because they lack rationality and nationality is a condition for exercising diplomatic protection. The refugees are the de facto unprotected person as the refugee lack diplomatic protection because of the persecution of the state. Therefore the statelessness can be considered as the key to understanding a refugee. A stateless person is stateless due to the lack of nationality whereas the refugee is stateless because of the lack of benefit effectively from his country.

Though refugees strongly resemble stateless persons historically this rationale does not fit well with the 1951 Convention on Refugees. According to the convention, “well-founded fear of being persecuted” is an essential criterion of the refugee status. The Ad-hoc Committee also decided the convention should not cover the stateless person. In this flux, a different framework was adopted to deal with the problem of stateless person – the Convention relating to the status of the stateless person on 28th September 1954. However, the fates of refugees and stateless persons are the same. Both of them condemned to live in a foreign country and have no meaningful way of avoiding this. Disguising these fundamental differences both refugees and the stateless persons are struggling with legal and social issues such as personal status and social welfare. 

  • REFUGEE AND INTERNALLY DISPLACED PERSON

Refugee and internally displaced persons have been forced to flee from their homes either individually or in groups. Though refugees and internally displaced persons are similar in many regards, there are also significant differences between the two. Refugees have crossed an international border and are entitled to protection and assistance from the host country as well as the international community and United Nations High Commission for Refugees. On the other hand, internally displaced people are displaced within their own country and there is no international law or United Nations agency to ensure their safety. According to the 1998 guiding principle on Internal Displacement, Internally Displaced Person is the person who has been forced or obliged to flee from their homes and places of habitual residence in order to avoid the effects of armed conflict, the general situation of violence, violations of human rights or natural or human-made disasters. Internally displaced persons are often wrongly called as refugees. Unlike refugees, IDPs have not crossed an international border to find sanctuary but have remained inside their home countries. Even if they have fled for similar reasons as refugees such as armed conflict, generalized violence, human rights violations, IDPs legally remain under the protection of their own government even in the case where the government might be the cause of their flight. As citizens, they retain all of their rights and protection under both human rights and international humanitarian law.

INTERNATIONAL INSTRUMENTS

The concept of refugee and asylum are complementary that is one does not exist without the other. Asylum on the territory of a state is of course what interests most refugees. Thus it is true that asylum in the core sense of admission to safety in another country, security against and respect for basic human rights, is the heart of international protection. Without asylum, the very survival of the refugee is in jeopardy. The overwhelming majority of states continue to adhere to generous asylum policies, affording refugees to persons in need of protection until a solution can be achieved. A refugee is not the concept of customary international law. Therefore refugee has not been defined under. A refugee has been the subject of treaties and other international agreements. So, it is impossible to give one definition which could be used in all circumstances. As Professor Goedhart observed that;

"A sociological definition of the term "refugee" differs from a legal one; the definition drafted for the purpose of the binding international agreement will look very different from the definition adopted by an association with a humanitarian aim.

However, in general terms, a refugee is usually thought of a person compelled to flee his state of origin or residence due to political troubles, persecution or another natural disaster. There was no single definition of “Refugee” suitable for all the purposes. When associated with humanitarian law, the connotations of the terms differ from that used in International Agreement since the human aspects of the refugee problem are clearly distinct from the question of the refugee’s status in any given situation. However all refugees have common characteristics- they are uprooted, they are homeless and they lack national status and protection. The refugee is an involuntary migrant, a victim of politics and war, or a natural catastrophe.  Every refugee is naturally a migrant, but not every migrant is a refugee. A migrant is one who leaves his residence owing to economic reasons in order to settle elsewhere, either in his own or in another country. A refugee movement results when the tensions leading to migration are so acute that what at first seemed to be a voluntary movement becomes virtually compulsory.

UNHCR – United Nations High Commissioner for Refugees an international apex organization is working for refugees, to face the problem of refugees, it deals with and implementing several actions through and by compelling inter and intra-national institutions and governments to recognize the full dimensions of the problem of displacement, and response to the needs of the uprooted. But, what required is a serious attempt to resolve the underlying problems of refugees and resulted consequences; stressing the need to assess protection in the context of human needs and analysis of the international protection provisions and the role and mandates of the international organizations concerned with protection; guiding to find ways to strengthen the enforcement of existing laws of protection; and encouraging new initiatives to enable the inter and intranational community to respond in a coherent manner to solve the humanitarian problems of displacement (like right to justice, right to health, right to basic needs, and thus, right to live) in today's world.

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INDIAN POSITION ON LEGAL STATUS OF REFUGEES

India is one of the few countries in the world which has experienced refugee situations time and again and that too on gigantic scale in the last less than half a century. History of India is marked by large scale migrations of people from other countries and continents. These migrations had principally been taken place across the two gateways- Hindukush Mountains in the west and the Patkoi range in the east. As professor M.P Singh observed;

"From the times immemorial, people from different parts of the world have been coming to India in various categories such as travelers, invaders, settlers, refugees, etc., and have made, this land their home with or without separate identity"

India after the first twenty-five years after independence India had to accept the responsibility of 20 million refugees. It was mainly because of the partition of the country. As a result of the partition of the Indian Sub Continent in 1947, India had confronted a gigantic task of proving relief assistance and rehabilitating displaced persons from West Pakistan. The situation was described in the words of Professor J.N Saxena in the following words;

"The Declaration of Independence in 1947 resulting in the creation of India and Pakistan, caused the world' s largest uprooting and movement of population in recent history in the Indian sub-continent estimated at 15 million, nearly 8.5 million immigration from India to Pakistan and 6.5 million the other way round." 

 

At the initial stage, 160 relief camps were organized and the total expenditure incurred on relief up to the end of 1950 was Rs.60 crores. Various schemes were prepared for the rehabilitation of the refugees. The Government of India took necessary legislative and administrative measures to meet the situation. The Rehabilitation Finance Administration Act, 1948 was passed in this direction. The two Governments (India and Pakistan) entered into a special treaty on April 8, 1950, regulating the flow of refugees and evolving modalities for settlement of claims of refugees over property, land, and payments. As Prof. Rahmatullah Khan observed that

 

"The main features of the Agreement could be divided into four parts. The first part aimed at allaying the fears of the religious minorities by giving them assurance about their basic human rights. The second part was concerned with the solution to the immediate problem by promoting communal peace and normalizing the disturbed situation. It was sought to be achieved by restoring confidence among the members of the minority community. The third part aimed at establishing a climate in which other differences could be solved amicably. The last part referred to the implementation machinery which aimed at redressing the grievances of minority communities of the two countries".

 

As a result of the Chinese take-over of Tibet in 1950, India had faced another refugee influx in 1959 when Dalai Lama along with his 13,000 followers fled the country and reached India as refugees. The Government of India granted political asylum to the Dalai Lama and his followers. The institution of Dalai Lama was dealt a severe blow. It was politico-religious persecution. "One can state candidly that the political asylum granted to the Tibetan refugees did play a small but significant part in the evolving hostility between the two nations. India faced another massive refugee influx in 1971 when 10 million people fled from East Pakistan, now Bangladesh and reached India as refugees. India was forced to abide by its humanitarian obligations and gave shelter to these people on the condition that these people would have to return to their own country when the conditions improve there. However, after a gap of one decade, India was once again severely affected by the influx of thousands of refugees from Sri Lanka and Bangladesh since 1983 and 1986 respectively. As per the record of the 'World Refugee Report', prepared by the Bureau for Refugee Programmes, Department of States (July 1993): at the end of 1992 India hosted approximately 400,000 refugees along with at least 2,000,000 migrants and some 237,000 internally displaced persons. It is interesting to note that India is not a party to the 1951 UN Convention on Refugees or its 1967 Protocol, nor is there any Indian law establishing asylum or refugee status. The Government of India handles refugee matters administratively, according to internal domestic and bilateral political and humanitarian considerations. UNHCR has no formal status in India and it is usually permitted to deal only with nationals from countries not bordering India. The Indian authorities generally grant renewable temporary residence permits to UNHCR-recognized refugees. The official policy of the Indian government is that all refugees, whether those it protects or those under the UNHCR mandate, are allowed temporary refuge only in India. Besides, India does not offer permanent resettlement to refugees granted temporary asylum –elsewhere.