● Dr. Nafess AHMAD
(Refugee Status – a political challenge and legal limbo)
The moniker “refugee” is identified by the academics, aid agents, media persons, governance architects, political establishments from multiple perspectives regarding their protection, rights, and responsibilities. Today, refugees depict the global landscapes with conflict and divergence of assessments that invigorate the global normative debate on the protection, resettlement, reintegration, and management of the 65.6 million of refugees worldwide. The refugee problem is convoluted, and refugee groups and stakeholders create difficulties in addressing global canvas of refugee issues. There are few questions to attend the refugee concern such as who is a refugee in the present circumstances and what are the most critical issues before the refugee communities and institutions entrusted with their protection, collaboration, and interaction? I will try to address this miasma by concentrating on the legal definitions of the term “refugee” and what are the categories of displaced people included and nature of issues attended by the impugned definition.
There are two scenarios to appreciate and understand the legal definitions, one is of refugees who have been grappling with the problems of multidimensional implications and second is of nation-states and institutions who have been striving hard to protect the refugees. These definitions govern the standard of qualification where under legal and physical protections are made available to the refugees fleeing from the well-founded fear of persecution and conflict. The principal definition of a refugee has been provided in the 1951 UN Convention Relating to the Status of Refugees (UNCSR) and its 1967 Additional Protocol Relating to the Status of Refugees (APSR) that delineates a refugee as an individual or a person “owing to a well-founded fear of being persecuted due to the reasons of religion, race, membership of a particular social group or political opinion, nationality is outside the country of his nationality, and is unable or — unwilling to make available to himself or herself of the protection of that country.” It is evident from the above statutory definition it does not cover the refugee situations of mass war exoduses.
However, the Organization of African Unity has developed refugee protection arrangement at regional level by concluding and adopting the 1969 OAU Convention where under the definition of refugees has been broadened that include group of people and individuals who face persecution as well as every individual who, “owing to foreign domination, occupation, external aggression, or events seriously disturbing the public order…is compelled to leave…to seek refuge or reception in another place outside his country of origin or nationality.” However, OAU refugee definition must be treated as an element of complementarity to the UNCSR refugee definition. At international level, the instruments such as UNCSR and APSR have been recognized as the subject-matter of International Refugee Law (IRL) along with the relevant provisions of a vast pool of instruments of International Human Rights (IHRL), International Humanitarian Law (IHL), Customary International Law (CIL) and International Criminal Law (ICL).
In 1984, Latin American states adopted the Cartagena Declaration on Refugee (CDR) where under a new ground “massive human rights violations” was added to the grounds of refugee qualifications at the Colloquium on “the International Protection of the Refugees in Latin America”, Panama, and Mexico, held at Cartagena, Colombia on 19-22 November 1984.Latin America widened the refugee definition and proposed new approaches to the humanitarian needs of refugees and displaced persons in a spirit of solidarity and cooperation. However, the CDR is a non-binding agreement, but it carries collective ethical and moral commitments beyond Latin America. The 30th anniversary of the CDR was commemorated in Brasilia on 2-3 December 2014 when governments of Latin America and the Caribbean assembled and 28 countries and three territories of the Latin America region and the Caribbean adopted the Brazil Declaration known as “A Framework for Cooperation and the Regional Solidarity to Strengthen the International Protection of Refugees, Displaced and Stateless Persons in Latin America and the Caribbean” and a Plan of Action called “A Common Roadmap to Strengthen the Protection and Promote the Sustainable Solutions for Refugees, Displaced and the Stateless Persons in the Latin America and the Caribbean within a Framework of Cooperation and the Solidarity.” Therefore, the people or group of persons crisscrossing international borders to escape civil strife, conflict or war have also been recognized as refugees on the prima facie basis in Africa and Latin America as well as Asia and Middle Eastern region. The Poverty-stricken countries in the region prefer the expanded refugee definition as they do not have the proper administrative wherewithal to determine the refugee status. Among the Global North countries, the mass exoduses are not automatically recognized as refugees rather they are subjected to the “individual refugee status determination” procedure under the restricted refugee definition of UNCSR.
The international definition of the term “refugee” is constricted and restricted, but its dynamics are susceptible to much delineation that is rudimentary as well as fragmentary and cannot be applied to all situations of human displacement and migration and refugee groups and refugee exoduses. These situations may have profound ramifications for the entire gamut of refugee entitlements from migration, transition, and destination based on their endurance and existence. The expression “refugee-like situations” is used to portray people such as Biharis in Bangladesh, Burmese in Thailand and Malaysia, Bedouin in Kuwait and Iraq who are stateless and deprived of the national protection of their countries of origin, countries of nationality and countries of habitual residence but they have not been recognized as refugees under the IRL. Therefore, the situation of refugees in the age of Securitization and Restrictionism of Asylum has become extremely precarious, and 1954 and 1961 UN Conventions on Statelessness and Reduction of Statelessness respectively have done a fraction of service under the auspices of the UNHCR in assuaging their predicament. Further, the phrase “internally displaced persons” (IDPs) refers to people who move or migrate due to the same reasons as refugees within their homelands, and they do not cross international borders. There is no international body specially empowered to look after the IDPs, but the UNHCR can take their responsibility upon the request of a national government and the UNHCR designate them as “People of Concern to UNHCR” but national governments generally do not invite the good offices of the UNHCR or other agencies in the name of sovereignty, homeland security, and terrorism.
The international legal definition of expression “refugee” also makes an exclusion of those people who do not flee or move due to persecution but they migrate due to climate change-linked human displacement in the forms of droughts, famine, floods, earthquakes, environmental degradation, global warming, depletion of ozone layer, erosion of landmass of littoral areas, and soaring of sea-level. It is a fact that such a new class of people now called “forced migrants,” “forced displaced peoples,” “climate migrants,” or “climate refugees” who desperately require international protection and humanitarian assistance. Similarly, the catchphrase “refugee” also rejects people who move due to economic considerations owing to economic apartheid based nationalism, economic boycott based on communalism, economic ostracism based on casteism, economic immigration based on political liberalism and extreme poverty and such peoples are branded “economic migrants.” Another group of people is “asylum seekers” who migrate as consequences of political opinions, and offenses and diplomatic omissions. They get refugee status provided their claims are adjudicated upon by the IRL.
The refugees flee, leave, move or migrate from their homelands due to the persecution that is a central ground for their protection, recognition, and reception as refugees in the land of asylum. However, there is a debate in the juridical domain as to what signifies and frames the “persecution” as some stakeholders catechize should persecution be state-sponsored, state-patronized or state-linked and riveted upon individuals, or should pervasive practices, audacious attitudes and autochthonic approaches in the society meet the requirements for persecution. Even there are plenty of arguments that gyrate around as to what are the contours of human rights abuses and cultural practice and common tradition. These questions crop up in gender- connected instances; i.e., many countries in Afro-Asia regions practice female genital mutilation (FGM), Taliban regime has thwarted girl education that too against Islamic tenets, prohibited the sexual orientation predilections of Afghan men and women, Iran handed down severe punishments to gays and lesbians and sent them to gallows and it is an offence to talk of LGBTQ rights in many countries. Nevertheless, there are many critical issues of the international forced migration studies that have not been ruminated according to a gendered perspective, and in turn, many crucial topics for gender-linked have been neglected when studying migrants and mobile people while answering a pertinent question as to how marital status, age, and ethnicity shaped migration and settlement patterns in specific economic, cultural and political contexts. There has to be a more razor-sharp dialogue between migration studies and gender studies while taking into account the fact that male and female roles were, and are, the result of social, cultural and economic construction from the late Middle Ages to the early 21stcentury.Therefore, gender-related aspects and dynamics have shaped the grounds for granting asylum and refugee status to persons, of course, on a case-by-case consideration. In many countries, religious, racial, linguistic, coloured and cultural minorities are subjected to persecution in violation of IHRL, IHL, IRL, CIL, and ICL, etc. However, international understanding and consensus are conspicuously absent on the global norms and human rights standards in this regard.
The national governments and international organizations and bodies are significantly engrossed to formulate international policy framework to address the refugee issues and population mobility. Refugees, asylum seekers, and IDPs perceive legal protection as the principle and most enduring global issue. The responsibility to protect (R2P)is based on the principle of sovereignty where under nation-states have the primary obligation to protect their citizens and subjects against all hostile circumstances. But, unfortunately, modern nation-states are flagrantly recalcitrant to perform their international human rights obligations. These legal protection obligations are embedded in the concept of sovereignty, and the international community is equally obligated to maintain international peace and security under Article 24 of the UN Charter. Moreover, there are umpteen and specific international legal arrangements, covenants, charters, pacts, treaties and declarations relating to IRL, IHRL, IHL, CIL, ICL and municipal law to protect the human rights of all across the world. Even the legal protection of refugees is central to the mandate of the UNHCR while taking into account all policy matters of refugee protection backed by the UN Commission on Sovereignty and Intervention. However, there are many issues involved in the R2P such as at what stage does international community decides the international invention to protect the refugees? What should be a threshold of military intervention and its legal justification? There have been instances of international intervention like the Gulf War (1991-1992), Somalia (1992-1993), Bosnia Herzegovina (1995) and Kosovo (1999) whereas international intervention was not invoked in Rwanda (1994). However, currently, there is as many as 110,000 UN Peacekeeping field personnel including military, police, and civilians and 14 UN peacekeeping missions are active across the four continents. In past 70 years, more than 1 million men and women have served 70 UN peacekeeping operations. Therefore, nation-states must follow the R2P Covenant in the situations of ethnic cleansing, genocide, war crimes, and crimes against humanity, rape, murder, and massive violations of human rights and beyond.
International humanitarian assistance organizations have been in Catch-22 situation that requires as to how best extending assistance and protection during conflicts. There are challenges when humanitarian assistance, UNHCR officials, and NGO staff per se become the target of combatant parties. Therefore, international humanitarian agencies confront incredibly hostile scenarios that pose pertinent questions like do these humanitarian agencies require military intervention for the security of UNHCR officials, NGO staff, and assistance operations? Should these agencies circumvent the principles of neutrality and impartiality while performing their works? Should these agencies prefer to remove the people from conflict zones as a solution? Are there options before the humanitarian agencies to prefer withdrawal from the zones of hostilities while maintaining the equilibrium in their responsibilities to protect refugees, displaced people and the workforce? These challenges require a reliable solution at the anvil of human rights.
There is another dimension to the current discourse on the lego-institutional response of the aid agencies during population migration, protection in the refugee camps and treatment of combatants, military deserters and war criminals. Under international law, refugee camp communities and voluntarily migrant populations are often considered vulnerable civilian targets, but people are privy to military engagement are excluded from refugee status and benefits incidental there under. However, there are sizable armed combatants engaged with opposition armed forces in their country of origin whom I address as “refugee crusaders” who have been witnessed fighting in their own or lands of their reception, particularly the Rwandans in the DR Congo aided and supported by other countries and Afghan Mujahedeen in Pakistan who were aided and armed by the Pakistan, US, Saudi Arabia, and the China to fight and flush out the Soviet military from Afghanistan.
The international community is also confronted with another prominent dimension of refugee exoduses into the adjacent countries. The “Global North” countries do not approve of the comprehensive regional refugee definitions contained in the 1969 OAU Convention and 1984 Cartagena Declaration where under mass exodus of refugees have been recognized. But the disdaining the idea of R2P, contempt for humanitarian sensitivities, municipal lego-institutional political ramifications, entreating for systematic population migration, unwillingness of the neighboring nation-states to host the mass influxes of refugees and disregard for the concept of global refugee shared-responsibility(GRSR) have paved the way for temporary refugee protection (TRP) programmes where under temporary refugee status (TRS) is granted in the Global North countries, and it is called “B-status” or “Extended Leave to Remain” in Europe. These TRP programmes have the provisions to grant “temporary residence permits” to people in flight sans the full implementation of the 1951 UNCSR norms on refugee status and IHRL standards. For examples, the Bosnians and Kosovars in Western Europe and Salvadorans in the US were granted TRS. However, the principle of TRP is circumscribed by a vortex of complications such as offering the TRP by many countries to evade their permanent global obligations enunciated in the IRL, IHRL, IHL, and CIL, case-by-case approach based conferment of TRP with protracted parleys on “burden-sharing” by many states and the justifiable allocation of refugees among receiving states. The concept of “burden-sharing”about refugees has a volatile history, and it commenced in the 1950s as a principle for promoting international solidarity among the refugee-hosting countries.
However, the idea of “burden sharing” is a conspicuous gap in the IRL; therefore, it requires a better lego-institutional response mechanism. Therefore, the United Nations General Assembly (UNGA) has adopted the New York Declaration (NYD) on September 19, 2016, where under more than 193 nation-states committed to the principle of “equitable burden-sharing” and responsibility to host and protect the refugees in mass flight. The New York Declaration contemplates a “Global Compact on Refugees(GCR)” having two modules namely the “Comprehensive Refugee Response Framework (CRRF),”and the UNHCR has been entrusted to formulate the entire GCR. The newest third draft of the GCR has been released on June 04, 2018 and the UNGA shall adopt the final draft of the GCR by the end of 2018. However, it remains to be seen to what extent the GCR would bridge the refugee protection gaps in existing IRL on the burden-sharing. However, the doctrine of Non-refoulement must be invoked to assure the nation-states to grant TRP, but the contemporary discourse is on the timeframe as to when and how refugees should be returned to their homelands. Who should decide their return and what are the contours of such a replacement? However, their return must have IHRL components relating to dignity and safety while critically appreciating circumstances in their homelands.
These protection measures are inherent and entrenched in the principle of “Non-refoulement” enshrined in Article 33 (1)of the 1951 UNCSR stating that “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his religion, race, nationality, membership of a particular social group or political opinion.”
As argued by prof. Anis H. Bajrektarevic in his ‘The Justice-Home Affairs Diplomacy: The Palermo Treaty System’ now, the principle of “Non-refoulement” is an inalienable part of customary international law applicable to all nation-states regardless of their being privy to 1951 UNCSR with its 1967 Additional Protocol or not and it is also central to municipal legal systems. However, it is still debatable whether “Non-refoulement” is a ius cogens of international law or not but Refoulement and Restrictionism are part of modern nation-states, and refugee receiving governments are hell bent to wind up refugee camps. For example; Vietnamese in Hong Kong, Rwandans in Tanzania, and North Koreans in China, some categories of refugees in South Asia, and Syrian refugees in few European States have been bracing these situations that violate the principle of “Non-refoulement.”
There is no wrap-up in evolving the understandings and exploring the options to provide legal protection to refugees around the world, and it requires a proper appreciation of normative perception of protection and humanitarian complexities entrenched in the refugee well-being. The refugee problem in the Global North countries has triggered the societal tensions and anxieties. Many national governments have been extracting fiscal support from rich donor governments in the name refugee hosting without addressing the local repinements due to the presence of refugees. Therefore, the Global North governments ought to be vigilant regarding shifting responsibility for hosting refugees in the Global South or unstable countries. In Europe, recent elections in Germany, France, and Austria have shown that it was immensely challenging to mollify the native people about the refugee protection and it resulted in detrimental repercussions for the political class, regional stability, and homeland security.
There are numerous stakeholders like national governments, academics, refugee crusaders, refugee aid people, RSD personnel and the media that can generate public understanding, motivate international community and formulate pragmatic policies on legal protection gaps under the IRL. The comity of nations is responsible for protecting refugees, motivate all refugee stakeholders including national governments and support the GCR mechanism. The UNHCR has successfully established itself as a catalyst in protecting, fostering and managing refugees and their mobility across the world and its role must be central to the success of the GCR. The nation-states and all the stakeholders must strive to accomplish the human rights-oriented transformation of the lives of refugees and the host communities. There is an indispensable requirement of refugee participation in the Global Refugee Forum under the GCR to disseminate information and share best practices from a multitude of perspectives based on age, caste, creed, ethnicity, disabilities, diversity, gender, race, religion, social origin, political opinion, and regional affiliations. The UNHCR must develop these elements as an intractable part of the GCR regime.
Ljubljana, June 23, 2018
