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|  | Liaison Newsletter > LIAISON Vol. 2, No. 5, September 1998 - Articles
UNHCR and the Protection of Refugees in India The United Nations High Commissioner for Refugees (UNHCR) plays many different roles in order to effect refugee protection in nations around the world. In Canada, the UNHCR has a comparatively passive role beside the multi-tiered system that the federal government has instituted to accomplish the task of determining refugee status. The Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board was created under national legislation pursuant to Canada’s obligations as a state party to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. The CRDD is an administrative tribunal independent of the Canadian government. None of the countries in the region of South Asia is a signatory to the 1951 Refugee Convention or the 1967 Protocol. Neither do these countries address the problem of refugees through domestic legislation or procedures. Thus, in India, the UNHCR is very active, playing one of two roles, depending on the refugee population in question. The Indian government has undertaken to assist the refugees of Tibet and Sri Lanka under its own auspices. With respect to these populations then, the UNHCR plays only a ‘watch-dog’ role, monitoring conditions and ensuring that when refugees return to their home country, their repatriation is voluntary. UNHCR deals almost exclusively with the remaining refugee populations in India, comprising displaced nationals of Afghanistan, Ethiopia, Iran, Iraq, Liberia, Myanmar, Somalia, and Sudan. With respect to these populations, UNHCR performs the function of refugee status determination in addition to providing medical, educational, vocational and financial assistance to those recognized as refugees. Ultimately however, it is the Indian government that must provide for these refugees a suitable environment for asylum. UNHCR works throughout the region of South Asia to increase public awareness of refugee issues and to encourage governments to address both the root causes and the consequences of refugee migration. UNHCR has been instrumental in organizing a series of regional consultations on the problem of refugees. The most recent consultations, held in Dhaka in November 1997, focussed on developing and adopting a Model National Law on Refugees. The participants, including eminent jurists and former politicians from Bangladesh, India, Nepal, Pakistan and Sri Lanka, raised some interesting rationales for their respective countries’ failure to sign the 1951 Refugee Convention. The rationales included the South Asian perceptions: (1) that ‘Western’ signatories only meet their obligations when it suits them to do so; (2) that the Convention is tailored to post-WWII era refugees and has become outmoded, impotent to deal with the mass migrations of recent years; (3) that signing the Convention will mean taking on financial burdens which they cannot bear; and (4) that each of them has been generous and responsive to the needs of refugee populations on a crisis-by-crisis basis. While acknowledging the validity of some of these points, the group urged their respective nations to adopt national legislation which would give the countries the flexibility to meet their own concerns while giving legal force to the humanitarian ideals of the 1951 Refugee Convention. The participants also suggested that the natural extension of the Consultation would be to come to a regional consensus similar to that of the Organization of African Unity. In India, adopting the model national legislation would be a first step toward a greater capacity to protect refugees. India has restrictive laws governing the entry and stay of foreigners. Due to this legislation and the extensive discretion afforded to the authorities who implement it, a refugee may feel that s/he leads an uncertain life, unable to work or travel and protected only according to the whims of the government. A national refugee determination system and government-recognized refugee status would carry the attendant privileges of government-issued travel and identity documents as well as greater freedom of movement within and outside of India. This status, in turn, would afford refugees greater protection from refoulement (involuntary return to their home country) and make their stay in India less precarious. The UNHCR can only act to recognize refugees within its mandate. It is at the national level that asylum is provided. Thus it is incumbent upon India, among the other South Asian nations, to adopt some consistent national approach to refugee status determination and its attendant rights, obligations and privileges. The promotion of a national legislation and framework for refugee protection is inherently a political and gradual process. To see this process from close up and from the perspective of a developing country is indeed a worthwhile experience in respect of understanding the evolution of law. *Christina Harrison is one of two Canadian lawyers placed with the Legal Unit of the UNHCR Office in New Delhi, India. |
