Introduction
The South Asian region has been under constant duress due to inter and intra-state conflicts, ethnic cleansing, economic subversions, and foreign invading forces. The result has been a steady rise in the number of refugees in recent years in the region. South Asia has faced an unprecedented reorganization of political governance and is now home to over 2.5 million refugees (75,927 in Afghanistan, 932,209 in Bangladesh, 197,122 in India, 21,467 in Nepal, 1,393,132 in Pakistan, and 820 in Sri Lanka).[1] The beginning of mass migration in South Asia can be traced back to the partition of the Indian subcontinent in 1947, right before the creation of the United Nations High Commissioner for Refugees (UNHRC). The partition triggered a mass religious migration between the borders of India and Pakistan. By 1951, over 14 million people were displaced; the exodus recorded is probably the largest and the most concentrated in modern history.[2] The second mass displacement (involving over 10 million people) came about in the year 1971 because of the third war between India and Pakistan. The Indo-Pakistan war led to the division of Pakistan as well as the secession of Bangladesh between East and West.[3] This research article investigates the challenges surrounding refugee protection in South Asia and the lack of a national framework for refugee protection. I argue for the need for regional cooperation to ensure the development of a legal framework, national or otherwise, that will not only regulate refugee influx but also prioritize the human security of refugees across the South Asian region.
Human Security: Refugee Protection in South Asia
Despite the mass movements in the region, it was not until more recently that a clear nexus between migration and security was established. The threats and humanitarian crisis that emerged from the large displacement due to protracted conflicts—the rise of the mujahedin and the Taliban, along with the concentrated international interest and manipulation in Afghanistan, subjugation of Rohingyas in Myanmar (South-east Asia) which led to their migration to the neighbouring country of Bangladesh, Kashmir conflict and the instability in India’s northeast resulting from a steady stream of migration from Bangladesh—among the others. This varied constellation of insecurities invites a deeper analysis of the actors involved in the security dilemma.[4]
According to the U.N. Commission on Human Security (CHS) established in 2000, human security translates to protecting “vital freedoms.” It means protecting people from critical and pervasive threats and situations and building on their strengths and ambitions. In addition, it means creating systems that give people the survival basics, and secure dignity and livelihood. To achieve human security, two general strategies are suggested: protection and empowerment.[5] However, in recent years, the challenge to integrate the diverging security interests and strategies of the various parts of the refugee regime has grown more multifaceted. The rise in xenophobia and fear of asylum seekers in many countries due to protracted conflicts, and military occupations, led to refugees being seen as perpetrators of insecurity rather than victims. This perception encouraged aggressive interception measures, higher barriers to entry, and unprovoked and indiscriminate detention, which poses new security risks to refugees.[6]There is a wide array of factors that adds to people feeling insecure; however, one of the main factors of human insecurity is surely the lack of effective political and security instruments to address conflicts.[7]
All actors involved in refugee protection—states, host populations, or humanitarian aid organizations, share similar broad security concerns. Traditional perceptions of security only in terms of the state’s territorial integrity have been increasingly linked to new concepts of human security.[8]This new concept of human security highlights the interdependency of security threats in refugee situations. It recognizes that long-term state security is ultimately dependent on the security provided to non-state actors such as refugees. In addition, it links the security concerns of individuals and communities to a broad spectrum of threats, which is not limited to physical violence. Thus, protection now entails safeguarding not just the physical integrity but also the human dignity of every refugee.[9]
Though South Asia has a complex community network based on variegated identities comprising caste, ethnicity, religion, and race, the countries’ response to a mass exodus requiring immediate action and comprehensive arrangements have almost always been positive —according refugee status to all and providing the necessities within the economic capacity of the receiving nation. For the longest time, these countries have extended protection to refugees and have shown an extremely tolerant attitude towards differences in language, culture, or race. There are several examples demonstrating the protection and acceptance of refugees. For instance, India accorded refugee status to the Tibetans fleeing China in 1959, Nepal extended protection to Lhotsampa refugees from Bhutan, India protected Sri Lankan Tamils and Bangladesh protected Rohingya refugees from Myanmar. The protection extended to the thousands of Afghan refugees and the continued assistance of the remaining Afghans in Pakistan is another example of their contribution to refugee protection.[10] Until the Syrian crisis which resulted in the mass exodus to Turkey and Jordan, Pakistan was the world’s top refugee hosting country. Thus, history substantiates that migrants and refugees have been widely accepted and normalised in South Asia.[11]
However, a drastic change in the conditions of refugees can be observed as was predicted more than a decade ago: ‘Against a backdrop of burgeoning social, economic and ethnic tensions, the issues relating to these population movements are likely to become more complex’.[12] This is evident in the treatment of both refugees and migrant workers in India, Pakistan, and Bangladesh, yet it somehow aligns with the global trends in which receiving states return refugees with little to no consideration of the situation in their origin countries. For example, Pakistan and Iran were accused of forcefully returning Afghan refugees. Around 170,000 Bihari were also deported to Pakistan as part of the 1974 New Delhi Tripartite Agreement.[13] In addition, there have been reports of the repatriation of about 40,000 Rohingyas from Bangladesh and India in the New Delhi discussions with governments in Bangladesh and Myanmar. These regional and extra-regional dimensions necessitate regional cooperation on the issues of refugees through the South Asian Association for Regional Cooperation (SAARC).[14]
Role of SAARC
South Asia hosts one of the largest refugee populations in the world, yet the countries continue to resist complying with the existing international legal instruments. It must be noted that international law, irrespective of its noble intentions, failed to prevail upon modern nation-states to provide opportunities for survival to immigrants and refugees due to the non-obligatory nature of the international legal regime and the pre-eminence of domestic laws.[15]Although Bangladesh, India, and Pakistan aremembers of UNHCR’s ExCom or its Executive Committee – meaning that in principle, the region has a voice in global policy-making on the issues of refugees – no SAARC members (except for Afghanistan)[16] is a party to the Refugee Convention of 1951 which has been ratified by 134 countries, nor has any of the countries ratified the 1967 Protocolrelating to theStatus of Refugees.[17] This involuntarily reflects the reluctance of regional governments to submit to international scrutiny.[18] Thereafter, making the condition of the refugee, stateless people and undocumented migrants as a marginal element in a state incessantly unstable and insecure.[19]
Several reasons explain why most countries are not signatories of the Refugee Convention of 1951, even though there is no official document to indicate or explain such reasons. One of the foremost reasons suggested by scholars is the non-acceptance of a liberal definition of ‘refugees’ to include the ‘internal refugees’ as put forward by India and Pakistan, by the international community. It is also argued that the Convention is largely Eurocentric and is irrelevant to South Asia as it emphasizes reliance on a ‘bilateral approach’ rather than a multilateral one in its policies to resolve conflicts which include population displacement and refugees. In addition, given the financial and economic conditions, there exist an underlying fear of additional burdens and responsibilities that comes with ratifying the two instruments.[20]
Many scholars and practitioners have spoken about the importance of a regional mechanism for addressing the refugee crisis in South Asia. It makes sense for a regional institution to address a regional issue; however, no SAARC member states have any national frameworks existing in place. The members prefer to adhere to bilateral refugee policies between origin and host countries. But the process is not exclusively bilateral due to the involvement of UNHCR in the ongoing bilateral negotiations between Afghanistan and Pakistan.[21] Since 1985, SAARC has organised 18 summits of the heads of state. By 2017, the organization should have organised 30 such annual meetings. However, it faced several setbacks due to the bilateral tensions existing between states—primarily India and Pakistan. For instance, the 2016 SAARC summit, which was to be held in Islamabad was cancelled mainly due to India’s refusal to participate.
A strong liaison exists between human and traditional security in the region because of the bilateral tensions of some countries over refugees, illegal labour migrants, human trafficking, and smuggling of drugs. SAARC’s approach to human security and its development archetype is perhaps the only politically feasible regional scheme complementing its members. If the model is to benefit the people in the region, patience, resources and joint member actions in human security are needed. This may facilitate strengthening collective regional identity, which is largely missing at this stage.[22] There have been many attempts have been made by SAARC scholars to establish regional refugee protection frameworks to manage the current of refugee migration. However, such efforts were thwarted due to national security concerns, far-right nationalist propaganda and religious discrimination, all of which undermine human security imperatives. [23]
SAARC, despite facing complicated challenges that restrict its ability to promote regional cooperation on contentious matters, has been able to develop some level of cooperation at sub-regional levels to suit South Asian regionalism. There is a provision for sub-regionalism in the SAARC Charter which promotes cooperation between three to seven member states. The SAARC leadership comprehends sub-regional cooperation as complementary to bilateral and multilateral relations among member states.[24] Sub-regional cooperation on refugee issues may potentially work because not all SAARC members find regional agreements relevant to their national interests. Additionally, there must also be a focus on the SAARC Refugee Convention for a more equitable distribution of responsibilities in managing the refugee crisis in the region and beyond.[25]
The Way Forward
The immensity of refugee trends in the region has now morphed into a crisis and is likely to more or less be seen as a permanent fixture of the South Asian community. The countries’ reluctance to provide refugee protection under the Refugee Convention is documented throughout its history. As a consequence, there are protection gaps and volatility in the regional refugee policy. Major governments in the region have adopted refugee policies that are religiously discriminatory. Refugees belonging to minority religions are often considered a threat to national security, political stability and major communities. Thus, there is a need for SAARC member states to accede to the 1951 Convention as it’s still the most comprehensive collection of international refugee norms in a legally-binding instrument, even though many challenges can be associated with ratifying the Refugee Convention. In arguing their case, SAARC states cited that radicalization of refugees has become one of the most apparent challenges and that refugees in the Global North have abused the Refugee Convention by raising funds and building terror networks in their countries of origin. Furthermore, some countries neglected the core principles of refugee protection with the emergence of right-wing nationalism.[26]
However, some eminent South Asian scholars have publicized in favour of ratification, including B.S. Chimni, who once argued that South Asia should refrain from acceding to the Convention[27] and now claims that acceptance of the Convention will promote refugee protection in the wake of India’s signing the Global Compact on Refugees (GCR).
Moreover, there is an urgent need for a tailored yet diversified and regionally cooperative refugee protection framework that will prioritize human security and regional solidarity. Experiences of other regional structures must also be incorporated into refugee protection. There are several instruments that exist which can serve as building blocks for a broader regional framework. SAARC states must also reform their domestic refugee protection laws. National protection is what guarantees the human dignity of refugees under the International Human Rights Law (IHRL).[28] National Government Organizations (NGOs) and Civil Society Organizations (CSOs) have also been on the frontline in advocating for refugee protection by engaging with the regional governments. All these efforts might eventually contribute to the institutionalization of refugee protection in South Asia.
[1] Nafees Ahmad, ‘Options for Protecting Refugees in South Asia’, Harvard International Law Journal https://harvardilj.org/2019/09/options-for-protecting-refugees-in-south-asia/.
[2] Susanne Schmeidl ‘(Human) Security Dilemmas: Long-term Implications of The Afghan Refugee Crisis’, Third World Quarterly, vol 23, no. 1 2002, p. 7-29 https://doi.org/10.1080/01436590120114328.
[3]Supra
[4]Ibid, Schmeidl
[5]Alice Edwards, ‘Human Security and the Rights of Refugees: Transcending Territorial and Disciplinary Borders’, Michigan Journal of International Law, vol 30, no. 3 2009, p. 763 https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1133&context=mjil.
[6] UNHCR, ‘Human Displacement in the New Millennium’, The State of the World’s Refugees 2006, p. 63-87 https://www.unhcr.org/4444afc80.pdf.
[7]“Human Security: A Refugee Perspective” – Keynote Speech by Mrs. Sadako Ogata, United Nations High Commissioner for Refugees, at the Ministerial Meeting on Human Security Issues of the “Lysoen Process” Group of Governments, Bergen, Norway, 19 May 1999.
[8]Ibid, Edwards
[9]Supra
[10] Zahid Shahab Ahmed, ‘Managing the refugee crises in South Asia: The role of SAARC’, Asian and Pacific Migration, Sage Journals 2019 https://doi.org/10.1177/0117196819837044.
[11] Supra
[12] Abrar R. Chowdhury, ‘Legal Protection of Refugees in South Asia’, Forced Migration Review 10, 2001 https://www.fmreview.org/unhcr-convention-50/abrar.
[13] Supra
[14]Ibid, Chowdhury
[15]AnasuaBasu Ray Chaudhury and Ambar Kumar Ghosh, ‘Trans-Border Migration: Bridging the Gap between State and Human Security’, Observer Research Foundation, ORF Occasional Paper no. 311, 2021, https://www.orfonline.org/wp-content/uploads/2021/04/ORF_OccasionalPaper_311_Migration_26April.pdf.
[16] Afghanistan has signed the 1951 Convention relating to the Status of Refugees and its 1967 Protocol in 2005. See “Afghanistan signs 1951 Refugee Convention”,UNHCR, September 2, 2005,https://www.unhcr.org/news/latest/2005/9/431857ba4/ Afghanistan signs-1951-refugee-convention.html#:~:text=GENEVA%2C%20Sept%202%20 (UNHCR),of%20refugees%20and%20asylum%20seekers.
[17]Veerabhadran Vijayakumar, ‘A Critical Analysis of Refugee Protection in South Asia’, Refuge: Centre for Refugee Studies, vol.19, no.2, 2001, p. 6-16 https://doi.org/10.25071/1920-7336.22073.
[18] Ravi Nair, ‘Refugee Protection in South Asia’, Journal of International Affairs, vol. 51, no. 1, South Asia: The Challenges of Statehood, 1997, p. 201-220 https://www.jstor.org/stable/24357479.
[19]Ibid, Chaudhury and Ghosh.
[20]Ibid, Vijayakumar.
[21]Ibid, Ahmed.
[22] Ibid, Ahmed.
[23]Ibid, Ahmad.
[24] 2008a, ‘A brief on SAARC. Kathmandu: South Asian Association for Regional Cooperation (SAARC).’
[25] Ibid, Ahmed.
[26] Ibid, Ahmad.
[27] Ibid, Chowdhury.
[28] Ibid, Ahmad.
Melody Khuoltaikim Singson is a law student from Campus Law Centre, Faculty of Law, University of Delhi who often delves into research, content writing and editing with a profound interest in international law, refugee law, human rights law, and peace, conflict & security studies. She intends to pursue a Master of Law degree in the same field to further her knowledge and contribute meaningfully to what she considers her purpose.