IMPACT: International Journal of Research in Humanities, Arts and Literature (IMPACT: IJRHAL) ISSN (P): 2347-4564; ISSN (E): 2321-8878 Vol. 6, Issue 7, Jul 2018, 333-342 © Impact Journals 1951 REFUGEE CONVENTION AND ITS PROTOCOL: IMPERATIV ES TO INDIAN PERSPECTIVE K. Noushadali1 & Nishtha Kaushiki2 1Research Scholar, School of Global Relations, Cee fnotrr South and Central Asian Studies, Central University of Punjab, Bathinda, Punjab, iIan d 2Assistant Professor, School of Global Relationsn,t rCee for South and Central Asian Studies, Central University of Punjab, Bathinda, Punjab, iIan d Received:1 2 Jul 2018 Accepted: 24 Jul 2018 Published: 31 Jul 2018 ABSTRACT Being not a signatory to the notable Internationleagl al provisions passed for the betterment of reefusg such as the United Nations Convention (1951) and protoc1o9l 6(7), the Indian approach towards the refugeews oisrt hy to do researches. It is for this reason that India resdpso nsympathetically towards its refugee populatioolnlo wf ing the principles of humanitarian considerations. Further, it is inretesting to see that the Indian constitution is arisnsgu some definite fundamental freedom to all without discriminatinigtiz cens and non-citizens. In order to preservef uthned amental freedoms of the foreigners and of course refugees (non-ecnitsiz), the Indian government had given them jud ibciaclkup too. This paper is an attempt to look at the importaonfc teh e International refugee conventions for thelis htioc betterment of the global refugee population. Further, the paper onuetlsi the Indian perspectives on the global refugaewes land conventions. It also emphasizes that the Indian constitution ajundiciary plays an important role in accommodat inregfugees, in relation to its political others, as well as eth naifcfinities. KEYWORDS: Refugees, International Law, India, Humanitariann Csioderations, Supreme Court, Indian Constitution, Foreigners Act Impact Factor(JCC): 3.7985 - This article can be downloaded from www.impactjournals.us 334 K. Noushadali & Nishtha Kaushiki INTRODUCTION The number of the refug1epeopulation is increasing year by year from the l fidneacades of the 2th0 century. That is why from the second half of the t2h-0century refugee studies have got a prominent amciacd seeat due to its relatedness with the foreign policy designs of the global countr(ieBsla ck, 2001). In 2017, the rate of global forceidsp dlacement marks record than the past years. The global trends tr eopf othre United Nations High Commissioner for Reefeugs (UNHCR) puts forward that 68.5 million people were expelled fr othmeir country of origin due to persecution, disepsu, tand disagreements by the end of 2017. In 2017, the number of newslyp ldaiced persons was recorded as 16.2 million. Oe no tther side, about 44,400 people enforced to leave back their couonft royr igin in the very same year. Further, the tr eonf dthe year shows that another 3.1 million were waiting for asylum. Anort hneotable fact of the year is that an average o pf e8r5cent of the global refugee population is hosted by the developingo rnesg iunder the mandate of UNHCR (UNHCR, Global Tsre, n2d017). In this context, it is essential to the various UorNg ans to put forth concrete laws and legislatnio no rider to control/stop the actual reasons behind the mass refugee outflowws m(Naen and Selm, 2003). The complete control or ecaratidoin of the global refugee population cannot be fulfilled bye tUhNHCR or any other UN mechanisms in this era voefr wohelming ethnic disparities, conflicts, civil wars, naturhaal zards etc. However, the unified leadership of UthNeHCR and the collective responsibility of all nations can cobnutrtie together to control or manage the actual c bauehseind the increasing amount of the global displacement year by year. Present days refugees have become a global chea llaefnfegcting state, society, and individual, esplelyc itao the host countries. The influx of refugees inflicts uam nber of socio-economic and political burdens oen hthost countries in response to accommodate them through the measuf rerse seottlement and rehabilitation. It is essenttioa l look at the other dimension too; by resettling and reilihtatbing the refugees; countries of refuge aret ingge tmuch economic assistance and grants from the various Internal tionbaodies and other NGOs (Jacobsen, 20 0 2 ) . Further, within the global political scenario theb dates on the resettlement, rehabilitation, reaptaiotrni and socio-economic development of refugees play a major role in diincgta tthe foreign policy equations of the states; eecsiaplly 1Article 1 A (2) of the 1951 Convention relatingt htoe status of refugees defines the te‘Rrmef ugee ’as: A. For the purpose of the present Convention, the ‘treerfmugee’ shall apply to any person who: A (2) As a result of events occurring before 1 Jaaryn u1951 and owing to well founded fear of beingrs peecuted for reasons of race, religion, nationality, membersohfi pa particular social group or political opinioins, outside the country of his nationality and is unable or, owitnog s uch fear, is unwilling to avail himself of thpero tection of that country; or who, not having a nationality and be oinugtside the country of his former habitual rescidee nas a result of such events, is unable or, owing to such fearn, wisi luling to return to it. In the case of a person who has more than onen naalitiyo, the term “the country of his nationalityh” asll mean each of the countries of which he is a national, and a opne rsshall not be deemed to be lacking the prote cotfio tnhe country of his nationality if, without any valid reason basoend well-founded fear, he has not availed himse ltfh oef protection of one of the countries of which he is a national (SBeroewnlie, & Goodwin-Gill, (Eds.). (2007)B. asic documents on human rights. Oxford University Press. Pp. 289, 290). NAAS Rating: 3.10- Articles can be sent to editor@impactjournals.us 1951 Refugee Convention and Its Protocol: Imperatives to Indian Perspective 335 when it comes under the purview of border sharionugn ctries and it is most relevant in the case oft hS oAusian Region. The other challenge is, of course, affects theg reeefus themselves, especially in concern of theeir/l ilfief lessness, socio-political mobilization, attributes of citizsehnip as a human being and other probable tensfi ornesp aitriation requires by the country of refuge. Being non-citizens of nctoriues of refuge, most of the present refugees sasc trhoe world face a number of socio-economic and political challengeitsh wrespect to their life/lifelessness. In otherr dwso, only the status of citizenship provides a person to engage in allo s-ocuciltural and political activities without any cdrisimination against the fellow citizens (Bellamy, 2008). Practically, in msto of the states from Asia, Latin America, Africnad a the Caribbean ; non-nationals-particularly refugees cannot entne rtthaei citizenship rights (Kibreab, 2003). In ther dwso of Grahl Madson, the major problem of a refugee is statelessnestsh w(Naani, 2003) similarly, it is evident that the elilvihood of the refugee population in any country of asylum is not fullyt isafactory, as they enjoyed earlier in their coyu notfr origin or residence. In addition, the problem of ‘repatriation’ hangs tahse sword of Damocles above the heads of refugaeneds i t becomes problematic to them when it happens involuntarirl yw oithout giving much time to precede the proceFsosr. a successful movement of repatriation, it is inevitable to bes ebda on the voluntary nature (Dasgupta, 2003). dIne ro tro concern with the all above-mentioned issues of refugees, the 195n1v eCnotion relating to the status of refugees an d1 9it6s7 Protocol were framed subsequently. 1951 REFUGEE CONVENTION AND ITS 1967 PROTOCOL: AN OUTLINE ‘International refugee law’ is or can be used abslu ae print or model in order to address the prob leomf rsefugees and other migratory flows. However, it is not itfs ae l‘resolution’ to all of the aforementioned iss,u ebecause without the determined will of states, the effective proces st hoef same cannot fulfill (Goodwin-gill, 2017, P. ).1 0The fundamental regulations and orders of the International refu lgaewe and its applicability depend on the act ofi oanc tand reaction. On the other side, many of the transnational and regioinnsatrl uments are willingly misused or utilized duoe t hte present forms of regime gaps and ill governing mechanisms. To susr pthaesse problems of manifestation there is a reiteq uoisf proper leadership, bold thinking, and systematic changhe. oTffice of UNHCR has to shoulder the responstyib inli order to fulfill the above-mentioned prerequisites for the succe smsaivnifestation of a refugee policy (ibid, P. 1 4). The paramount foundation to the International reefu gprotection is constituted by the combination1 9o5f 1 convention and its protocol of 1967 protocol alownigth a number of other regional instruments (Hyndnm, 2a000, P. 38). The Convention of 1951 has its own noteworthinens tsh ei fields of legal, political and ethical appaltiicons. When its legal realm is concerned; it dispenses the elementarlyit iqeusa on which righteous activities can be basTehde. political speciality of the convention indicates on a comprehensivec tsutreu with which the states can collaborate to es hthaer responsibility of the burden of forced displacement. Its ethical epnretastion is signified by the large ratificationa o lfa rge number of states in order to protect the world’s endangered and disrrdeegda displaced people (Feller, 2001, p. 582). Icnt, ftahe reach of the 1951 convention was confined to the incidents hnaipnpge in Europe and before the deadline of Janua, ry1 9151 (Weis, 1995, p.5). However, these geographic amnde tsihortcomings were removed by the introductio nth oef Protocol Relating to the Status of Refugees in 1967 (UNT9S6,7 1, p. 267). Impact Factor(JCC): 3.7985 - This article can be downloaded from www.impactjournals.us 336 K. Noushadali & Nishtha Kaushiki REFUGEE RIGHTS IN THE CONVENTION AND ITS PROTOCOL Refugees had provided many of basic rights in ethael srense in the political boundaries of the coieusn torf refuge. International refugee law along with global humaignh trs instruments and international humanitariawn ilma part a huge number of rights and provisions to the refugees teinrm s of their rehabilitation, resettlement, andp arteriation. To understand the actual conditions and poignaanlitt irees of the displaced persons and refugees v iet riys much essential to understand and analyze the practical applicabiolift y those legal documents and their provisional mfeasntai tions. To achieve this goal, it is inevitable to check andalyze the delivery and allocation of the rigthot s‘s eek asylum and leave behind the country of origin’; without which othdeer tail explanation of the refugee rights cannodt ibsecu ssed. Various rights of the refugees have explicitly duissced in the original text of the 1951 conventiAornti.c le 3 of the convention sees the global refugees through a es imngirlror without having any discrimination on thaes bis of religion, country of origin or rac2e. Article 20 speaks about the rationing system lsdh boeu distributed to the refugees as same as the nationals3. Article 21 is about the housing, to the refugseteasy ing in the territory of the contracting sta taes ,a favorable and possible treatme4n. tPublic education of the refugees settled in tohnet rcacting states has mentioned in Article 22 oef th convention5. Furthermore, Article 23 of the convention is abll out the overall public relief should be extendtoe dt he refugees which stay lawfully within the territoryf tohe contracting state6.s Article 26, 27 and 28 deal with the refugee’s freedom of movement, identity papers and theire tlr advocuments respective7.l y Article 31 of the convention is not to follow puinviet actions with response to the illegal arriva le oxristence of the refugees within the boundary of the contractingte s8t.a Article 32 and 33 refuses expulsion of refugenelsa wufully and their refoulment and repatriation respectiv9.e lAy refugee settled in any one of the contractitnagte s of the convention can approach the courts, when he/she refuses or dtehnei ersig hts depicted in the convention. Article 1f 6th oe convention gives this right to refugee1s0. In Other Words, the 1951 Convention Covers a Wide aRnge of Measures to Protect the Rights of Refuge eass, Feller Notes: • Refugees should not be returned to persecutiohne o trh treat of persecution (the principlen ofn -refoulemen);t • Protection must be extended to all refugees wit hdoisuctrimination; 2 See Brownlie, & Goodwin-Gill, (Eds.). (2007B)a. sic documents on human rig.h Otsxford University Press. P. 291) 3 See Brownlie, & Goodwin-Gill, (Eds.). (2007B)a. sic documents on human rig.h Otsxford University Press. P. 294). 4 See Brownlie, & Goodwin-Gill, (Eds.). (2007B)a. sic documents on human rig.h Otsxford University Press. P. 295). 5 See Brownlie, & Goodwin-Gill, (Eds.). (2007B)a. sic documents on human rig.h Otsxford University Press. P. 295). 6 See Brownlie, & Goodwin-Gill, (Eds.). (2007B)a. sic documents on human rig.h Otsxford University Press. P. 295). 7See Brownlie, & Goodwin-Gill, (Eds.). (2007B).a sic documents on human rig.h Otsxford University Press. P. 296). 8 See Brownlie, & Goodwin-Gill, (Eds.). (2007B)a. sic documents on human rig.h Otsxford University Press. P. 297). 9 See Brownlie, & Goodwin-Gill, (Eds.). (2007B)a. sic documents on human rig.h Otsxford University Press. P. 297, 298). 10 See Brownlie, & Goodwin-Gill, (Eds.). (2007B)a. sic documents on human rig.h Otsxford University Press. P. 297, 293). NAAS Rating: 3.10- Articles can be sent to editor@impactjournals.us 1951 Refugee Convention and Its Protocol: Imperatives to Indian Perspective 337 • The problem of refugees is social and humanitairnia nna ture and, therefore, should not become a c oafu tseension between States; • Since the grant of asylum may place unduly heavryd ebnus on certain countries, a satisfactory solu toio nthe problem of refugees can be achieved only throutgehr ninational cooperation; • Persons escaping persecution cannot be expecteady sa ltwo leave their country and enter another coy uint ra regular manner and, accordingly, should not be lpizeenda for having entered into or being illegally tihne country where they seek asylum; • Given the very serious consequences that the eioxpnu olsf refugees may have, this should only be rtesdo tro in exceptional circumstances to protect national siteyc our public order; and • Cooperation by States with the High Commissioner r Rfoefugees is essential if the effective coordoinna toi f measures taken to deal with the problem of refu gise teos be ensured (Feller, 2001, PP. 582, 583). On the other side, the 1967 Protocol relating teo stthatus of refugees is not dealing directly whiteh pt ersonal rights or basic needs of refugees. However, it kssp eoaf the overall responsibilities of the count riweisth respect to the refugee protection (UNTS, 1967, P.267) REFUGEES IN INDIA As one of the most notable refugee-receiving s toaft etshe world, India is having a large number orfe afu gee population that has entered from Sri Lanka, TibCehti,n a, Burma, Bhutan, Afghanistan, Nepal, Banglha daensd from other countries too (Benoit, 2004 and Bhattacharya, 2.0 H08o)wever, the Indian approach towards the refu gceoemses from various countries were/is not always the same (UNRH, 2C011). More often, political and other sociot-ucrual l motives had played/ are playing as the pushing factors thaitd dee tche status of different refugee groups in I n(dHiRa LN, 2007). Being not a signatory to the notable Internatiolneagla l provisions passed for the betterment of reefusg such as the United Nations Convention (1951) and protoc1o9l6 (7), India wants to resolve the refugee issu etsh eo fSouth Asian region following its own resettlement mechanismsa s(gDupta, 2003). On the other side, India is a stoigryn aa number of global human rights mechanisms. It denotes thet ys afned protection of the refugee population withthine country in a practical level (Bhattacharjee, 2008). In this bgarcokund, India has to frame a national legal framrekw oon the refugee concern along with taking initiatives to establais hS outh Asian regional refugee convention/law; uacsc esssfully made in the regions of Africa and Latin America. INDIA AND THE GLOBAL REFUGEE REGIME India is not a signatory to the major global refeu gregulations of 1951 convention relating to thaet usst of refugees and its 1967 protocol. However, India esse ravs the executive committee member of the UNHACsR P. rasad mentioned in his thesis, India does follow and gb riinn practice certain articles of the conventio n1 9o5f 1. This includes: Article 7; India provides refugees with the sameea tmr ent as all aliens, Article 3; India fully applies a policy of non-dirsimc ination, Article 3A; No penalty is imposed on illegal ent ry, Impact Factor(JCC): 3.7985 - This article can be downloaded from www.impactjournals.us 338 K. Noushadali & Nishtha Kaushiki Article 4; Religious freedom is guaranteed, Article 16; Free access to courts is provided, Articles 17 and 18; it provides wage-earning rig ahntsd as work permits have no meaning and refugoe ewso drk, this article is complied with, Article 21; Freedom of housing allowed and refug neeesd to stay in camps. Freedom of movement asa ngtueaerd to aliens except in certain areas where speciaml iptse rare required not only for aliens but alsoI nadlli ans, Article 27 and 28; the issuing of identity and teral cvards (Prasad, 2010: 23). On the other side, it is interesting to note thnadt iaI follows major human rights conventions suc hI CaCsPR, the ICESCR, and the CRC and CAT in its state pcrea c(tSi anderson, 2015). So, it can be evaluatedth teh aInt dian treatment with its various refugee population is based on atbhoeve mentioned human rights conventions follow tihneg principle of ‘human consideration’ without being differentiat itnhge citizens or non-citizens. TREATMENT OF REFUGEES IN INDIA The entry, treatment, and security of the varioeufsu gree's population in India follow the norms anedg urlations depicted in the 1946 Foreigners Act. The Act inrtetrsp the term ‘foreigners’ to all, they are noti zceitns’ of the country (Sanderson, 2015). Further, in practical terms ,a tbhseence of a specific refugee law in India hasn bset eadily a co-product of its security concerns and other political urg(Seas nderson, 2015). It is also noted here that nthdeia nI approach varies with the different refugee population in the couyn tirn terms of its actual political and administvraet i treatments (Prasad, 2010). So, India has to develop some bleagsaicl and legislative framework to address invbalyri awith the various refugee groups hosted in the country (Bhattach,a r2je0e08, Chimni, 1994, Chimni, 2003, Gorlick, 199K8h, an, 1997, Oberoi, 2006 and Verma, 1997, Singh, 2010). Ast hfoer Indian domestic law is concerned; it is not inhga vprovision to protect displaced persons from the notion of ‘relefomuent’ (Sanderson, 2015). In order to preserve the fundamental freedoms eo ff othreigners and of course refugees (non-citiz etnhse) ,Indian government had given them judicial backup too. eFxoarm ple, in a case held among the State of Arunl aPcrhaadesh versus Khudiram Chakma, the state council was orderedh eb yc tourt (on the basis of article s2t o1f the constitution-protection of life and liberty’) not to compel any Chakma refusg etoe repatriate from the state (Bhattacharjee, )2. 0T0h8is must be read with the Supreme Court declaration of 2006 tha t haell refugees settled in the country must be ptreodte fcrom the process of involuntary repatriation as mentioned in the sctoitnutional provision ‘the right to life and persaol nliberty’ (Nayak, 2013). Chimni observes the Indian refugpeeec-isfic treatment: India does not pass refugee-specific legislatio nre tgoulate the entry and status of refugees; rait hhears handled the influx of refugees at the political and admtirnaitsive levels. The result is that the refugees t raeraeted under the law applicable to the aliens (Chimni 1994: 379) The National Human Rights Commission (NHRC) is mthaej or Indian official instrument with respect toe th refugee treatment hosted in the country (Chimn0i,5 2).0 To preserve the political and administratiivgeh trs of the refugees, the Government of India follow certain safeguarPdrsa.s ad observes: NAAS Rating: 3.10- Articles can be sent to editor@impactjournals.us 1951 Refugee Convention and Its Protocol: Imperatives to Indian Perspective 339 The Indian Government deals refugees with at botlihti cpal and administrative level which is largealyp plicable to the aliens. In the case of refugees' protec tihoen ,constitution of India guarantees certain fumnednatal rights, which are applicable to non-citizen, namely theh tr itgo equality (Article 14), the right to life anpde rsonal liberty (Article 21) and the freedom to practice and proaptea gtheir own religion (Article 25). Any violatioonf these rights can be remedied through recourse to thec ijaurdyi as the Indian Supreme Court has held thautg reeefs or asylum seeker cannot be discriminated against bsec oafu their non- citizen status (Prasad, 2010: 22) NEED FOR SOUTH ASIAN REFUGEE REGIME The birth of the new nation-states in the afterm oaft hthe colonialism caused to make the complexfi tyre ofugee concerns within South Asia (Singh, 2010). Interonnaatil border sharing of the South Asian countrieuss ecsa to the mass influx of refugees and other economic migrantsa. Irne al sense, the south Asian cross-border poopnu lamtiovements are the major threat to the internal security and picoalli tinstability of the region (Weiner, 1993). ‘Security’ concerns are one of the vital regard sa lol fthe countries, as Barry Buzan rightly obser; vliekde ‘justice’, ‘security’ is an inevitable concept within the sitliatyb of any state (Suhrke, 2003). The absence sopf eacified state policy to all countries of the region more often complica tbeede/ n complicating to deal with the various refu gpeoepulation of the region (Nair, 1997). To overcome this problem ocf usreity in terms of the refugee influx and other mraitgory movements within the South Asian region, every state of tehgei orn has to frame first at least their own spce criefifugee framework. Chimni opines that it is essential to all of theu Stho Asian states to frame some domestic laws wchoicvhe r the notion of all dimensions of the term ‘rights’, before signingt htoe 1951 Convention or 1967 Protocol (Chimni, 20. 0T0h)e nation-states are the principal organs to evolve and enforce lathwes and regulations in order to protect refugeHeysn d( man, 2000). Shacknove rightly observes that the refugee trenatt mofe any country is based on both the state inste arend the feeling of human consideration (Steiner, 2000:7). So that Stohuet h Asian echoes of the refugee treatment is lym adienaling in bilateral level (Singh, 2010). Many regional efforts have been made since 197o9r dine r to address and put forth durable solution sth eto refugee problems, such as seen in Africa, Centmrael rAica, South East Asia and Europe (Rogers, 19S9A2A).R C does not initiate any serious sitting over the concern opf uploation movement of the region, foreseeing thes ipboles distort of the Organization, once such discussion has happenedin e(Wr, e1993). Being the prominent political and doimplatic power of the South Asian region, India has to initiate taom fre a refugee-centric regime within the region. CONCLUSIONS 1951 convention relating to the status of refugaeneds its 1967 protocol are the major internationraml fework in order to protect the rights of refugees spreadg a tlhoen globe. Besides these, there are many Initoenrnaal thuman rights laws and regulations which speak eloquently for the afumnedntal and basic rights of the human being wit hhoauvting any discrimination between the citizens and non-citsiz e(wnhich include refugees) of any state. India oist an signatory to the 1951 convention and 1967 protocol relating to tthaetu s of refugees, being it is one of the foremreofsut gee host countries of the South Asian region. However, India is a ptoa rmt ost of the International human rights laws cwhh di irectly speak on the rights all global community without having atneyrr itorial and political distinctions between tshtea tes. Impact Factor(JCC): 3.7985 - This article can be downloaded from www.impactjournals.us 340 K. Noushadali & Nishtha Kaushiki India hosts a huge number of refugee populatiomn ftrhoe South Asian region and outside too. Othenr tIhnadia, all prominent countries of the region are havinbgi ga number of the refugee population. 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