Module C deals with the national, regional and global legalities of refugee rights, focusing on developing a critical understanding of the history and politics of the international protection regime, which includes questions of citizenship, state accountability, the transnational forced migrant subjectivity and representation, and asylum jurisprudence.

Despite the well-established status of refugee protection in today’s international law regime, most refugees fleeing to safety, by crossing international borders, do not reach the state where they will seek asylum with a ready guarantee of access to enduring human rights. They enter as “asylum seekers” – a temporary and increasingly disenfranchised category of non-citizen – who need to establish their eligibility for refugee status before they can enjoy the prospect of long-term safety and non-discriminatory treatment (Bhaba 2002: 155).

While statistics collected by the United Nations High Commissioner for Refugees (UNHCR) show a decline in the number of ‘refugees’ who have crossed an international border and who fear persecution on return to their home states, the number of individuals in refugee-like situations (like the internally displaced or internally ‘stuck’) has grown considerably. ‘Refugees’ constitute only a small part of today’s estimated 50 million uprooted people, many of whom are forced to move on account of a variety of artificial disasters, including armed conflict, persecution, severe economic insecurity, environmental degradation, or other grave failures of governance.

The reason for the inability to flee persecution by crossing international borders has to do with the difficulty faced in qualifying for refugee status as per international legal principles of refugee determination. Further, the notion of ‘persecution’ in international refugee law, especially the 1951 UN Convention on the Status of Refugees (Refugees Convention) and its 167 Protocol being atavistic in nature and the increasing reluctance of governments to grant asylum has led to the escalation in the number of people in refugee-like situations: who are facing persecution, have not been able to cross their national borders, and are yet being denied basic citizenship and human rights. However, it is primarily the recourse to refugee law that can provide an international and institutionalized mechanism for formal protection to forced migrants.

The international refugee law regime’s fundamental standards of determination, protection and care are set out in the post-Cold War document of the 1951 Refugees Convention and its 1967 Protocol, which made the standards laid down in the convention universally applicable to refugees worldwide. Along with the Refugees Convention, the UNHCR was also set up in 1951. The purpose of the convention was to provide the definition of who was to be considered as a refugee and to define his/ her legal status. The UNHCR’s mandate is to provide international protection to refugees and seek durable solutions to their problems.

Since the application of the human rights standards in the Refugees Convention and the 1967 Protocol operate on the basis of ‘treaty obligations’ on countries that are parties to the convention, there have been hurdles to its universal applicability as many states from the Global South have refused to accede to the convention arguing that it is ‘Eurocentric’ and does not respond to the unique nature of refugee movements in their parts of the world. The ‘Eurocentric’ argument has also been used by many states (like India and all other South Asian countries) to evade the responsibility of protecting the rights of refugees in their own country and region in accordance with the standards set in the convention. However, in Africa and Latin America, the Organization of African Unity (OAU) and the Cartagena Declaration on Refugees respectively have built on the basic structures and legal provisions of the Refugees Convention to create a refugee protection regime suited to their geo-political conditions. Unfortunately, with no obligation to meet the refugee rights standards in the Refugees Convention and without any national or regional protection regime for South Asia, refugees in this part of the world are at the complete mercy of the political will of states to respond to their crises.

Article 1A (2) of the Refugees Convention, as amended by the 1967 Protocol relating to the Status of Refugees, defines a ‘refugee’ as: “…any person who… owing to a fell-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/her nationality and is unable or, owing to such fear, is unwilling to avail himself/herself of the protection of that country; or who, not having a nationality and being outside the country of his/her formal residence, is unable or owing to such fear, is unwilling to return to it.” However, there exists no comprehensive definition of concepts of ‘persecution’ and ‘well-founded fear of persecution’ in international law. The drafters of the Refugees Convention framed an open-ended and flexible approach to the concept of persecution in the form of a universal framework.

When it comes to establishing ‘fell-founded fear of persecution’ as a means to substantiate the ground for persecution, there is a challenge to the ‘subjective’ notion of ‘well-founded fear’ as espoused by the UNHCR. Hathaway understands the concept of ‘well-founded fear’ as inherently objective and opines that it was intended by the Refugees Convention to restrict the scope of protection to persons who can demonstrate a present or prospective risk of persecution, irrespective of the extent or nature of mistreatment or harm. He says: “Well-founded fear has nothing to do with the state of mind of the applicant for refugee status, except insofar as the claimant’s testimony may provide some evidence of the state of affairs in her home country” (Hathaway 1991: 65, 74).

This understanding as pointed out by Hathaway subverts the processes of determination, care and protection of refugees within the international asylum and refugee protection regime. With states becoming increasingly restrictive and stringent with their refugee and immigration policies, the concept of ‘fell-founded’ fear which evolved from a relatively simple inquiry within which the refugee’s subjective feelings of terror were prominent, has now undergone a transformation informed by the politics of state sovereignty where concepts like ‘safe state’ have increasingly become the sole determinants of the issue of the well-founded fear (Tuitt 1996: 80).

In the process of determining asylum claims questions of human rights abuse arise, generally, in three circumstances: persecution in the state of origin (the basis of the claim to asylum); rights violations in the course of migration (which may impinge on the substance of the claim); and abusive host state practices at the point of reception (which may relate to procedural questions about where a claim should be lodged or whether the applicant is credible).

In one of her seminal essays titled “Internationalist Gatekeepers?: The Tension Between Asylum Advocacy and Human Rights”, Jacqueline Bhaba points out that refugee movements today are increasingly becoming more torturous and facilitated by commercial intermediaries and false documents. According to her in a situation like this the bona fide of the asylum seeker raises some critical questions: What is the nationality of the applicant? Which state should be responsible for providing protection in cases where the applicant’s flight itinerary has involved various safe ‘third’ states en route to the state where asylum is being sought? Why did the applicant not present her asylum claim at the first opportunity? (Bhaba 2002: 156, 157).

In a climate where escalating concerns about terrorism, economic recession, and state security heighten exclusionary and xenophobic impulses in developed states considering asylum applications, the challenge of establishing a particular host state’s obligation to protect is particularly great (ibid.).

A critique of the international asylum adjudication system is therefore necessary to do a reality check with regard to what it can exactly offer when it comes to drawing the fundamentals of refugee rights guarantees from the basic principles of international human rights law. While human rights guarantees are understood to be universal and inherent across the world, when it comes to the determination of an asylum seeker as a refugee, to establish ‘fell-founded fear’ in an objective fashion, asylum adjudicating officers tend to “generate simplistic, even derogatory characteristics of asylum seekers’ countries of origin, as areas of barbarism or lack of civility in order to present a clear cut picture of persecution” (ibid: 162). The central guiding principle of this kind a construction of the asylum seeker as the ‘native’, who needs to be ‘civilised’ and rescued out of the clutches of a ‘barbaric’ state might be best described as “the worse the better” – the more oppressive the home state, the greater the chances of gaining asylum (ibid.).

The need for Southern countries, especially those in South Asia, to develop a refugee protection regime, over and above a human rights protection system, should ideally be premised on countering such ‘primitive’ constructions by the Northern countries that can extend asylum only when ‘barbarity’ marks the state in the asylum seekers country of origin.

In the context of the above issues, this module will use documentary films, interdisciplinary readings, international/ regional/ national legislations and human rights instruments, and some contemporary landmark case laws to discuss the potential and perils of the present refugee protection regime globally, and in South Asia particularly. The module will also draw out the distinctions between the categories of refugee, internally displaced persons, and stateless people in the light of the contested debates around persecution, well-founded fear and asylum adjudication systems.