Dire need for a global consensus on refugees

With several recent instances of migrants being left in the lurch, the international community must arrive at a consensus to protect refugees.

Updated - November 17, 2021 01:00 am IST

Published - July 14, 2015 02:11 am IST

Over the past few months, the headlines have been dominated by the plight of people fleeing their countries and seeking refuge elsewhere.

Thousands of Rohingyas, an ethnic Muslim minority indigenous to the Myanmarese state of Rakhine, fled Myanmar to escape widespread murder, rape, torture and forced labour at the hands of the junta. It triggered a regional crisis, when boatloads of migrants were abandoned at sea, off the coast of Thailand and Malaysia, with no country willing to take them in. The immediate crisis was relieved only after sustained international pressure and a multinational conference, when the migrants were granted temporary refuge in Indonesia, Malaysia and Thailand.

Jay Sanklecha

Events such as these have underscored the importance of international law and its ability to deal with the refugee crises. This is by no means a recent predicament. Traditionally, under international law, states were recognised as having a sovereign right over their territory, including the unqualified right to decide whether to admit or expel aliens. This sweeping power was often exercised by the states in a rather indiscriminate manner, which resulted in several innocent deaths, particularly during the World War II. The atrocities brought home to the international community the need for international rules for restricting the deportation of aliens who faced the possibility of post-deportation mistreatment, a rule now embodied in the principle of non-refoulement articulated in a number of international law instruments, most famously Article 33 (1) of the Refugee Convention, 1950. Under the principle, states are prohibited from expelling or returning refugees who have a well-founded fear of persecution to a country where their life or freedom would be under threat.

However, this prohibition is not absolute. At the insistence of the British and French delegates, a national security exception was carved out, allowing states to expel refugees whose presence was regarded as a security threat.

However, states have, both then and now, fiercely resisted adopting any absolute duty to grant a safe haven to threatened aliens.

Accordingly, the Refugee Convention and other subsequent international law instruments fall short of recognising a specific right to asylum from persecution. The treaty framework does not even explicitly recognise the right for persecuted persons to be admitted within the states’ territory — a right critical for the majority of today’s refugees — a harsh truth that rang true in the case of the stranded Rohingyas.

This is not to say that there has been no progress in the international law framework to deal with refugees. The principle of non-refoulement has increasingly come to be recognised as a pre-emptory norm of customary international law.

Perhaps of greater significance to the majority of today’s refugees is the emerging customary norm of temporary refuge, which prohibits a state from expelling foreign nationals who have fled armed conflict and civil strife. Such persons are not the targets of persecution but are innocent civilians whose own government cannot guarantee their safety. The situation in Syria perhaps represents the need for such a norm.

Nevertheless, the events over the past several months have brought into sharp focus the limitations of the existing regime and the need for greater consensus building at the international level to put in place new norms to deal with the evolving migrant situation. India, with its long history of providing shelter to the persecuted, from the Zoroastrians to, more recently, the Tibetans, is perhaps uniquely positioned, particularly in the Asian subcontinent, to take the lead in any international consensus building on the subject.

(Jay Sanklecha is a graduate of the West Bengal National University of Juridical Sciences, Kolkata, and is working with a law firm in Mumbai. The views expressed are personal.)

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