RESEARCH AND ORIENTATION WORKSHOP ON FORCED MIGRATION

The Orientation Course on Forced Migration 2013

Modules Notes - Module C

Legal Regimes for Protection of the Victims of Forced Migration: Refugees, IDPs, and the Stateless Population Groups
(Concept Note, and Suggested Readings)

Concept Note

This module will deal 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. The context in which the idea of refuge or asylum is to be understood in contemporary times is provided by the general global recession, the changing landscape of migration as a result, the unashamed manner in which certain states have announced that they are not bound to fulfill their obligations under international refugee law and the events involving individuals such as Snowden and Assange where seemingly, the 1951 Convention on the Status of Refugees is unable to to deal with.

The 1951 Convention is a remarkable document; emerging out of the cold war, it provided a framework that would bind states to their primary responsibility of protecting refugees and lead them – by way of articulating the refugee “law” and in practice upholding values of the rule of law and due process – in ensuring that those fleeing persecution would be provided protection. 60 years later however, it has had its share of critiques too. McFayden[i] argues that “…the engagement with the refugee has declined over the years: hostility has replaced hospitality, detention has replaced assistance. The refugee is seen as a burden rather than an individual who is at risk and seeking sanctuary.” Jacqueline Bhabha[ii] (156-157), writing in 2002, argued that “classic” asylum cases were sure to have received assistance under the refugee protection regime, but given that the character of an individual fleeing had changed, it had become difficult for an individual to go through a determination process without being suspected, her bona fides questioned and her application rejected. Thus, a refugee would be better off projecting herself as someone coming from the most oppressive state where barbarism was the rule and civility non-existent. In Bhabha’s words “…the more oppressive the home state the greater the chances of gaining asylum in the host state.”[iii] We now see that Assange and Snowden seem to question the concept of “fear of persecution” under international refugee law in yet another changing political and economic fabric. Are these individuals refugees whose rights are protected under the 1951 Convention or criminals who are running away from the law? Each has its share of fierce critics and supporters.

Has the 1951 Convention reached a state of crisis? Can it be considered a document that has for long allowed primitive notions of asylum and refuge to be articulated and by doing so, failed to factor in contemporary concerns where it is impossible to paint a black and white picture of who is worthy of asylum and who is not? Have we not witnessed war, violence and persecution over the last 50 years that calls into question the relevance of the wisdom that resulted in the adoption of the 1951 Convention? 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 these ‘primitive’ constructions by the Northern countries that can extend asylum only when ‘barbarity’ marks the state in the asylum seekers country of origin. The module will draw out 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. In doing so, it shall also consider whether clear distinctions are infact possible and if yes, the limits of their utility.

The eviction of indigenous people from their land is a recurrent theme in South Asia. Be it Ranigaon, Golai, Motakeda, Somthana, Ahmedabad, Bandarban, or Trincomalee, thousands of families are being evicted from their homes either in the name of conflict or in the name of modernization. The last two decades have witnessed an enormous increase in the number of internally displaced people in South Asia. Since the early 1990s the need for a separate legal mechanism for IDPs in South Asia has increasingly been felt. Only recently has the international community developed such a mechanism: the UN Guiding Principles on Internal Displacement. This has given us a framework within which rehabilitation and care of internally displaced people in South Asia can be organised. This module discusses in detail the ways in which the South Asian nation states has addressed the issue of internally displaced persons, the policies regarding the rehabilitation and care of these groups within South Asia.

This module will also examine the various aspects and intricacies enmeshed with the issue of statelessness in general and the way it thwarts South Asia. Statelessness refers to the condition or quality of being, in some way, without a state. In fact it means someone without a nationality, or at least without the protection that nationality should offer. Nationality is the legal bond between a state and an individual. It is a bond of membership that is acquired or lost according to rules set by the state. Within the realm of public international law, rules have evolved in response to the problem of statelessness.

Against the backdrop of the 1954 Convention Relating to the Status of Stateless Persons and 1961 Convention on the Reduction of Statelessness this module intends to analyse the dynamics of this problem in South Asia.

Notes

[i]Gillian McFayden, The Contemporary Refugee: Persecution, Semantics and Universality, eSharp, Special Issue: The 1951 Convention – 60 Years On (2012), pp.9-35 at pp.9-10.

http://www.gla.ac.uk/media/media_234569_en.pdf (Last accessed 6 September 2013).

[ii] Jacqueline Bhabha, Internationalist Gatekeepers?: The Tension Between Asylum Advocacy and Human Rights, Harvard Human Rights Journal, Volume 15, Spring 2002, pp.156-181 at p.156-157

[iii] Ibid. p.163.

 

Suggested Readings

A note of introduction:

This list of suggested readings are intended to serve two purposes. One is to introduce some of the older but essential literature that adds to our understanding of the forced migration studies. In List One, you will find some of the more recent references which indicate a few of the many strands of thought specific to South Asia as well as developments taking place now, in the areas of forced migration. List Two contains the older texts and only a very few of these have been suggested here. Some of these were given as suggested readings for the previous Winter Course and there is good reason, to my mind, why this should continue to be read by others similarly interested. The long essay by Edward Everett Hale is particularly interesting and relevant in the Snowdenian era. List Three has tried to suggest some of the research with specific reference to the research areas that have been chosen by participants in 2013. Some, as you will notice, are extremely general, for instance in case of Sri Lanka but they nonetheless offer a good frame with which to analyse the developments and displacement crisis occuring there. Some others are also slightly older, but this in itself may provide insights into the developments or the lack of it in certain jurisdictions.

List One

1. James C. Hathaway, Anthony M. North, And Jason M. Pobjoy, Supervising the Refugee Convention: Introduction, Public Law And Legal Theory Research Paper Series, Paper No. 350, September 2013, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2323495

2. Need for Fresh Look at 1951 Convention and Relevance of Post Colonial Experiences by K.M.Parivelan

3. Need for Fresh Look at 1951 Convention and Relevance of Post Colonial Experiences by Patrick Hoenig

4. Lenore Taylor, Gillard for a regional solution to asylum, The Hindu, 21 June 2013, http://www.thehindu.com/todays-paper/tp-international/gillard-for-regional-solution-to-asylum/article4836164.ece

5. Barbora S, Thieme S, Siegmann KA, Menon V, Gurung G. 2008. Migration matters in South Asia: Commonalities and critiques. Economic and Political Weekly 43(24): 57-65.

List Two

1. James Hathaway, The development of the Refugee Definition in International Law, in The Law of Refugee Status, Toronto: Butterworths, 1991, pp.1-27.

2. Malkki, Liisa H. 1995. “Refugees and Exile: From ‘Refugee Studies’ to the National Order of Things.” Annual Review of Anthropology 24 (1):495-523.

3. Visweswaran, Kamala. 2004. “Gendered States: Rethinking Culture as a Site of South Asian Human Rights Work”, Human Rights Quarterly – Volume 26, Number 2.

4. Jacqueline Bhabha, Internationalist Gatekeepers?: The Tension Between Asylum Advocacy and Human Rights, Harvard Human Rights Journal, Volume 15, Spring 2002.

5. Chimni, B.S. (1999) ‘ From resettlement to involuntary repatriation’: towards a critical history of durable solutions to refugee problems.’ New Issues in Refugee Research, No. 2, UNHCR.

6. The Man Without a Country: The classic story of a man who learns to love his country only in exile, Edward Everett Hale, Nov 8 2011, The Atlantic. http://www.theatlantic.com/magazine/archive/1863/12/the-man-without-a-country/308751/?single_page=true (First published in December 1863 in The Atlantic)

7. Giorgio Agamben, We Refugees, Symposium, 49:2 (1995: Summer) p.114.

8. Guy S. Goodwin-Gill, The Refugee in International Law, Third Edition, Oxford University Press, 2007

List Three

Bhutan refugees in Nepal

1. Ahura Bhutan (1994) ‘Bhutanese refugees’: victims of arbitrary deprivation of right to nationality and political repression. A report’. http://repository.forcedmigration.org/show_metadata.jsp?pid=fmo:1776

2. Grenier, M. (1999) ‘Nowhere to turn’: Bhutanese refugees in Nepal’, British Refugee Council.

3. A site exclusively focusing on Bhutanese refugees – http://www.bhutaneserefugees.com/

Afghanistan – internal displacement and refugee flows

1. Schmeidl, S. (2009) ‘Repatriation to Afghanistan’: Durable Solution or Responsibility Shifting?’ Forced Migration Review, No. 33. http://www.fmreview.org/FMRpdfs/FMR33/20-22.pdf.

2. Turton, D. and Marsden, P. (2002) ‘Taking Refugees for a Ride?’ The Politics of Refugee Return to Afghanistan’, Afghanistan Research and Evaluation Unit (AREU).

3. Memorandum of Understanding between the Government of the Islamic Republic of Pakistan (GOP) and the Office of the United Nations High Commissioner for Refugees (UNHCR) on the Registration of Afghan Citizens Living in Pakistan, http://www.unhcr.org/449aaa1a2.html

4. Joint Programme between the Government of the Islamic Republic of Iran, the Islamic Republic of Afghanistan, and UNHCR for voluntary repatriation of Afghan refugees and displaced persons, http://www.unhcr.org/4416d4892.html

Nepal – internal displacement

1. Voiceless Citizens: A case study of Internally Displaced Persons in Nepal by Som Prasad Niroula, Refugee Watch, 32, December 2008.

2. (Updated?) National Policies on Internally Displaced Persons, 2063 (2007) available at www.internal-displacement.org/8025708F004CE90B/(httpDocuments)/634C98DB1EB6BD2DC12572D70029553B/$file/IDP+Policy.pdf

3. Bhattarai-Ghimire A, Upreti BR. 2008. Conflict Induced Displacement: An Emerging Phenomenon of Internal Migration in Nepal. In: Pyakuryal KN, Upreti BR, Sharma SR, editors. Nepal: Transition to Transformation. Kathmandu: HNRSC, NCCR North-South, pp. 101-139. www.nccr-north-south.unibe.ch/publications/Infosystem/On-line%20Dokumente/Upload/Pages%20from%20Pyakuryal_Upreti_Sharma_Nepal_Transition_NCCR_North_South_2008(2)-2.pdf

4. Deep Ranjini Rai, A pilot survey of internally displaced persons in Kathmandu and Biratnagar, South Asia Forum for Human Rights, 2005.

Sri Lanka – war and recent developments

1. Report of the Commission of Enquiry on Lessons Learnt and Reconciliation, November 2011, Goverment of Sri Lanka. Available at http://www.presidentsoffice.gov.lk/index.php?option=com_content&view=article&id=54:llrc-report&catid=53:nomenuarticles&Itemid=290

2. Kusal Perera, Will Sri Lanka now get on with the job? Kafila, March 2012, http://kafila.org/2012/03/28/will-sri-lanka-now-get-on-with-the-job-kusal-perera/

3. State Facilitated Colonization of Northern Sri Lanka – 2013 http://groundviews.org/2013/09/19/state-facilitated-colonization-of-northern-sri-lanka-2013/