Module C deals with the international and national legal regimes of protection of the victims of forced displacement and their rights.

Refugee Law is a relatively new branch of International Law. The first major step towards developing an international regime of protection was the 1951 Convention that was later modified by the 1967 Protocol. From then on the 1951 convention has formed the core of all Human Rights Law and Humanitarian Law for the protection of refugees. The 1951 Convention defines a refugee as a person:

Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

However since its inception there have been many objections to the provisions of the 1951 convention. It is said that the Convention mandates protection for those whose civil and political rights are violated, without protecting persons whose socio-economic rights are at risk. Also it has been criticised on the grounds of its Euro centrism, and insensitivity towards the internecine racial, ethnic and religious conflicts in third world, which has resulted in the creation of refugees in large numbers. The provisions of the convention have served well for the protection of refugees during the Cold War times but have failed to do so after that. Today the first world often attempts at dealing with the refugee problems ‘at source’. This has led to the international interference in the internal matters of a sovereign nation creating further problems for states and for the displaced. This has been witnessed very recently in the Darfur region of Sudan and in past in former Yugoslavia, Somalia, and other African countries.

Another failure of the Convention has been the inability to recognise the special needs of women, children, and aged people within the sections of refugees, though this has been addressed to some extent in the provisions of CEDAW convention. In 1985, the UNHCR Executive Committee adopted Conclusion No. 39 that recognised that refugee women and girls formed a majority among the world refugee population. The Conclusion also recognised that states were free to consider women facing inhuman treatment as belonging to a particular social group within the 1951 convention. In October 1993 the UNHCR adopted Conclusion No. 73 that stated that all those who have suffered sexual violence should be treated with particular sensitivity. However, there is little in UNHCR guidelines that can make women victims of sexual violence as special claimants for refugee protection.

Today provisions of the 1951 Convention seems dated and in need for further revision due to increased complexities in the process of refugee generation, protection and also due to advances in the field of refugee studies. The increased focus on refugee studies has led to broadening of definitions of ‘refugee’, ‘protection’, ‘rights’, ‘justice’ etc. As a result of all these reasons the 1951 Convention has not been ratified by many nations of the world. Many regions have developed its own regimes for protection of people facing forced displacement. The OAU Convention expanded the definition of refugee contained in the 1951 Convention. The OAU Convention defines the term “refugee” to include persons fleeing their country of origin due to external aggression, occupation, foreign domination, or events seriously disturbing public order in either a part or the whole of the country of origin or nationality. This implies that “well-founded fear” is a subjective category and anyone facing civil and political disturbances and war need not prove their well-founded fear for life. The Cartagena Declaration recommends a definition similar to that contained in the OAU Convention. In so far as Asia is concerned mention may be made of the Asian African Legal Consultative Committee (AALCC) in 1966. But this has not had the impact of either the OAU Convention or the Cartagena Declaration. South Asia has not been able to develop a legal regime for refugees or IDPs.

None of the South Asian states are a signatory to the 51 Convention or the 67 Protocol. India has also stayed away from these mechanisms, citing certain biases in the provisions of the convention. However, it has developed its own provisions to deal with the problems of refugees on a case-by-case basis in absence of a consistent national policy. This has its own problems, for example India has provided all possible help to Tibetan refugee due to its own political necessities but has not done so with the Bangladeshi and Bhutanese refugees. The provisions of Indian state has also not progressed with the evolution of feminist critic of the protection regimes which needs attention and creation of a consistent policy accommodating the faults in current practices.

Refugees are to be distinguished from IDPs and the Stateless Persons. While the 1951 Convention addresses the problem of refugees alone the UN Guiding Principles deal with the IDPs and the international legal rights of stateless persons are addressed in the Convention Relating to the Status of Stateless Persons, 1954, which came into force in 1960. It defines stateless person as a “person who is not considered as national by any State under the operation of its law”. The 1954 Convention was followed by the adoption of the Convention on the Reduction of Statelessness, 1961, which came into force in 1975.

Not everyone who applies for refugee status can get protection. In 1951 Convention there are a list of “exclusion clauses” containing categories of persons who do not deserve international protection. It excludes all those who have committed crimes against peace and security, serious common law criminals and individuals who have acted in contravention of the principles and purposes of the United Nations.

In this module we have focussed on the various aspects of refugee protection at an international level in general and on South Asian level in particular (Module D discusses in details the legal principles of protection of IDPs). To mention a few of them:

1. What do we mean by Refugees, Asylum, and Protection etc in socio-politico and legal terms?
2. What are the special provisions required for protection of women, children and other marginalised communities in the overall context of refugee protection and law?
3. What’s the distinction between the Human Rights Law and Humanitarian Law with respect to refugee protection?
4. What are the safeguards available for the protection of refugees in International Law?
5. What is the responsibility of the state and society towards the refugees? Can they simply be seen as problems and responsibility of the host country alone?
6. Is there a link between the refugee protection regime, international law and globalisation?
7. What has been the record of Indian state vis-à-vis refugee protection since partition?
8. And other related issues.