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A Critical Analysis of Refugee Protection in South Asia

Abstract instruments internationaux dans le Asian Association for Regional Coop-

domaine des droits de l'homme. Sont eration (SAARC). None of the seven
Many countries in Asia and all the coun- qfiqu&sicilesmisonsprobhblespourla countries in this region is a party to the
tries in South Asia have not acceded to non-mti'cation dela Convention surles 1951 Convention or the 1967 Protocol
the Refugee Convention of 1951or the r6fugids ou le Protocole,l'absence totale relating to the Status o f ~ e f u ~ e eHow-
Protocol of 1967 in spite of the fact that d'une approchedgionale ou deldgislation ever, these countries have ratified some
a large number of refugees come from nationalepour&lerleprobl&ne,la contri- of the human rights instruments in the
this region. The reasons for not ratifying bution faite par la communautd recent past. All these seven countries
them are not clear even though many internationalepourrdglerlescrisesdela have ratified the International Conven-
international human rights instru- dgion,lanature delaprotection,l'dtendue tion on the Elimination of All Forms of
ments have been ratified by many of des droits consentis aux &figit%, ainsi Racial Discrimination, 1969, the Con-
them. The probablereasons for notrati- qu'unebr2vewmpamison e n t r e l e s p - vention on the Rights of the Child, 1989
fying the Refugee Conventionor the Pro- tivesNord-Sudsurcesquestions.Pourfhll.e and the Convention on the Elimination
tocol, thelack of any regional approach l'apprdciation de ces ddveloppements, of All Forms of Discrimination Against
or national legislation to address the l'article s'appuie sur certaines ddcisions Women, 1981.All of them have ratified
problem, the contribution made by the juridiquesimportantesdel'hde.L'article the four Geneva Conventions as well. In
internationalcommunity to the crises in conclutensoulignantlefdtqu'h tmversm e relation to other human rights instru-
this region, nature of protection, the analysecompamtivedesperspectivesNod ments, some of them have ratified a few
extent of rights available to the refugees - Sud concernantlaprotection deslPfugids, more and some are in the process of rati-
and a brief comparison between the chacunpeut tirerprofitdel'eqBriencede fying them. A large part of this region
Northern and Southern perspectives l'autre, amdlioreret bhtir un projetpour was under foreign rule for a long time
have also been explained. Some of the s 'mperdesmillionsdedfigiBs,aussibien before independence was given to them
importantjudicial decisions from India que d'autres personnes h risque, dansle after the World War 11. The reasons for
have been relied upon to appreciate the nouveaumilldnaire. not acceding to the international instru-
developments.This article concludes by ments relating to refugees, the extent of
emphasizing that through a compara- Many of the countries in Asia in general refugee problems in the region, status
tive analysis of both the Northern and have not ratified the 1951Refugee Con- determination, the nature of protection,
Southern perspectives relating to the vention or the 1967Protocol due to one refugee rights, the role ofwestern coun-
protection of refugees, each can benefit reason or the other. Within Asia, the tries to refugee problems in this region,
from the experiences of the other, im- countries in the South Asianregion that the role of UNHCR and other institu-
prove and build a scheme to care for the witnessed the largest of the population tions as well as the prospect for develop-
millions of refugees as well as others of movements over the last 50 to 55 years ing a legal regime relating to the refugees
concern in the new millennium. have not become parties to the interna- in this region are discussed briefly.
tional instruments relating to refugees. Reasons for not Aceding to the
The developments regarding the popu- Refugee Convention
Beaucoupdepaysd;4sieengdndmle,ettous lation movements in this South Asian
lespays delJAsiedu Sud en particulier, region, their status, nature ofprotection There seems to be no official document
n'ontpas adhdrdhla Convention de 1951 and the like are discussed in this paper to indicate or explain the reasons for not
relative au statut des rdfigids ou au briefly in an attempt to compare the ratifying the Refugee Convention or the
Protocole de 1967, en ddpit dufait qu 'un same with the developments taking Protocol. However, various writers
pscontingent dedfigidsprovientde cette place in the West. However, towards the have indicated the reasons for this be-
@ion. Lesmisonspourcettenon-mtifica- end, frequent reference to the develop- haviour based on their knowledge and
tion nesontpas claires, alorsm6me que ments in India is made to substantiate expertise in this region. Many other
beaucoupde cespaysontmtifidplusieurs the views. opinions have been expressed by the
The term 'South Asia' is used in the officials in the respective ministry on
Dr.V.Vijayakurnar, a Visiting Scholar at the this issue and as such cannot be quoted
CentreforRefugee Studies during2000, i s a context of a group of nations consisting
ProfessorofLawattheNational LawSchoolof ofBangladesh,Bhutan, India, Maldives, with authority. This has allowed the
India University [NLSIU),Bangalore, India Nepal, Pakistan and Sri Lanka. This critics the freedom to infer the reasons
andalso administersthe Chairon RefigeeLaw group of seven nations also has a re- for not signing these two international
endowed by the UNHCR. gional organization called the South instruments, based on their own under-

6 Refuge, Vol. 19,N o 2 (January 2001)

standing and circumstances. Apart edly neutral multilateralorganizations, tion or the Protocol relating to refugees.
from the sources that can be quoted au- are a violation of sovereigntyand con- However, what they really mean by
thoritatively, the rest of the reasons are stitute an unacceptable interference in material improvement is not clear. The
at best only inferencesthat canbe drawn their internal affairs.' The solutions predominant apprehension may be
from the past behaviours and practices. taken in the cases of Chaluna refugees, that by accedingto the instruments, the
Some of the reasons would include the Rohinga refugees and the ongoing dia- South Asian region would still con-
following. logue between Nepal and Bhutan in tinue to face all the issues relating to the
The first and the foremost reason that resolving the Bhutanese refugee prob- refugees (probably in terms of finding
can be given is the non-acceptance of a lem indicateunshakablefaith the states durable solutions or finding a mean-
broader definition of refugees as ad- in this region have in resolving their ingful international burden sharing).
vanced by India and Pakistan by the conflicts throughbilateralnegotiations In the next place, there is bureau-
internationalcommunity.In a debate on of the parties concerned. cratic insensitivity coupled with the
the successor to the International Refu- In the fourth place, the states in this lack of politicalwill that seems to be the
gee Organization (IRO),both India and region allege that even the states that dominating practical reason in the
Pakistan stronglyrecommendedfor ac- have ratified the Convention or the Pro- South Asian region. Whenever ques-
ceptance,a liberal meaning for the term tocol are not following the provisions tions relating to the accession of these
'refugees' so as to include the 'internal effectively and as such would not be two instruments are raised, there is as-
refugees' as well.' However, it was not beneficialto the countries in the South tonishingly a uniform response given
accepted and arestrictive meaning was Asianregion to ratify them now. These that it is not in the priority list of the
accepted. After this, there has been a countries also fear that they would be state. Justice V.R.Krishna Iyer, former
negative attitude developed towards the obliged to take additional burdens and judge of the Indian Supreme Court, had
Refugee Conventionby both countries. responsibilitieswhen these two instru- observed in this regard that 'India
The second reason is based on this ments are ratified. While there may be should be a member state and play a
continuum. Both India and Pakistan some truth in their analysis, there are role by being on the ExecutiveCommit-
have been advancingthe argument that states that have taken the Convention tee of the High Commissioner's pro-
the refugee definition is very narrow as and the Protocol seriously and have gramme. To waver or wobble or
well as Euro-centric and that it would evolvedbetternorms in the protectionof vacillate when moral values dictate, is
not serve the objectives in the South the refugees. However, these develop- bankruptcy of leadership. Let us not fail
Asian context. ments seem to have no positive impact humanity, especiallythat sector which
In the third place, the countriesin the on the countries in the South Asianre- is desparate, driven out and wanders
South Asian region have placed reli- gion yet. homeless in the world for sheer sur-
ance on a 'bilateral approach' rather The nextreason advocatedbysome of ~ival.'~
than 'multilateral approach' in their the countries in the South Asianregion This naturally leads to the next rea-
policies toresolve their conflicts,includ- is that the Conventionand the Protocol son that when there are appropriate
ing the policies on 'population dis- have not addressed the larger issues and suitable statutes to deal with the
placement' and 'refugees'. The line of relating to 'security' and as such the refugees present in the states, why
argument taken by them seems to sug- provisions are being invoked by eco- should they think in terms of enactinga
gest that by internationalizing the refu- nomic migrants, terrorists and other statute afresh to give effect to interna-
gee issues, there is more scope for groups of forced migrations. tional obligationsto be undertaken? As
international criticism resulting inun- In the next place, the argument that some of the countries remained the colo-
necessary interference in internal mat- the office of the United Nations High nies under foreign rule for quite some
ters of the countries concerned. This Commissioner for Refugees is not a per- time, these states would like to have the
phenomenon is also explained in terms manent one as the life of the organiza- continued benefit of the existing pre-
of reluctance on the part of the states to tion is periodically being extended from independent statutes that give them
cede their policy-making autonomy to time to time, depending upon the cir- more powers to deal with the situations
an outside authority.* The countries in cumstance~.~ That being the case, why than passing a statute afresh and to be
this region have given their highest pri- should the instruments be acceded to if subjected to the scrutiny of the interna-
ority to the concept of national sover- there is no specific guarantee as to its tional community. It becomes conven-
eignty and as such they usually frown existence in the future, seems to be the ient for the states to follow the already
at any type of intervention in their inter- logical conclusion.However, this argu- existing pre-independent statutes like
nal affairs. Explaining the concept of ment focuses on a technical aspect and Foreigners Act, the Registration of For-
burden sharing, Amitav Acharya and skips the substantive part of it. eigners Act and the Passport Act that
David B. Dewitt have observed that 'the The seventh reason is based on the give them more and more discretionary
governments in the Third World are sixth one. The states in this region argue powers. Vitit Muntarbhorn has effec-
extremely sensitive to the fact that hu- that there is going to be no 'material tively advanced the sameview with ref-
manitarian operations,even by suppos- improvement' by signing the Conven- erence to Asia. According to him ' [a]

Refuge, Vol. 19, No. 2 (January 2001) 7

constant dilemma fxing the Asian re- the establishmentof a number of admin- (A) Refugee Movements within
gion is the conflict between interna- istrative and quasi-judicial bodies for South Asia
tional and national perceptions of the status determination and that involves
refugeeproblem. Thegovernmentscon- enormous expenditure from the state WhentheBritishleft India in 1947,they
frontedwith an undesired influx of asy- exchequer.As the states in the region are divided the country to establish two in-
lum seekers may choose to ignore all developing countries, they cannot dependent Dominions, i.e. India and
internationalrefugee law as a matter of afford to spend huge sums of money in Pakistan. Because of this there was a
expediency,thereby using local immi- the process of status determination as natural flow of Muslims towards East
gration law and terminology to con- well as other related areas. and West Pakistan and the Hindus to-
strain such in flu^'.^ The same is true Finally, the states in the South Asian wards India. Anestimated 15 to 20 mil-
with the countries in the South Asian region also argue that group or category lion people who were persecuted or had
region as well. based determination has not been given the fear of being persecuted left their
In the next place, the argument tar- importance under the convention or the properties, trade and business behind
gets the nature of 'international burden Protocol. So far the countries in this re- in an attempt to cross the newly estab-
sharing' stating that it is neither effec- gion have placed greater reliance on this lished borders. In the establishment of
tive nor meaningful. The largest move- group or category approach to determine two Dominions, Pakistan had two terri-
ments of population so far in the world the status of refugees as such, an ap- tories, the West and the East that itself
have taken place within this South proachthat allows theretention of afinal had become the reason for further flow
Asianregion that have been met with a say with the respective governments. ofrefugeesat alatterpoint of time. How-
very poor response by international The individual status determination is ever,these people who were called refu-
community.Timely assistance was also not at all followed as the government in gees, evacuees,migrants and displaced
not forthcomingduring the crisis in this power at the centre would like to have the persons by various orders, rules, regu-
region.' This seems to be the more justi- discretionary power as well as a greater lations and statutes passed in India
fiable reason when compared with the say in either accepting or rejecting the and Pakistan, quickly got settled with
other reasons given above. refugees as a single group. The reasons the series of efforts taken by the respec-
In the next place, linking population mentioned here are not exhaustive and tive governments.
movements with the concern for the are based on inferences drawn from vari- A large section of people of Indian
growth of the regional organization ous sources. origin (Tamils)taken to Sri Lanka by the
have also contributed to ignoring the British and employed in tea estates and
accession of these two instrunlents.
The Nature of Refugee other agricultural activities for genera-
Myron Weiner has observed that 'po- Movements in this Region tions were rendered 'stateless' with the
rous borders and cross-border popula- The following paragraphs focus on the introduction of the Citizenship Acts in
tion movements in South Asia are major refugee movements that have oc- 1948 and 1949 in Sri Lanka. Various
regarded as issues that affect internal curred since 3 947 as well as the contem- agreements between India and Sri
security,political stability and interna- poraryrefugee issues in this region. For Lanka resulted in India taking about
tional relations, not simply the struc- the purposes of appreciatingthese issues 338,000stateless personsfor settlement
ture and compositionof labour market, better, the presence ofrefugeecrisis in the and rehabilitationduring 1964-1987.''
or the provisions of servicesto newcom- South Asian region is divided into two Apart from this, there have been three
ers and advanced the reason for not tak- broad categories. The first category in- major refugee flows from Sri Lanka into
ing up the issues relating to migratio-1in cludes the refugee movementswithin the the province of Tamil Nadu, in south-
the region'. He went on to observe that region,fromone countryto another in the ern India from 1983. This flow of Sri
'in the circumstances the states in the region. The second category would in- Lankan refugees continues even today.
region do not want to deal with the is- clude those movements of refugees from Theserefugees are housed in 136camps
sues concerned through multilateral countries outside the region to the coun- establishedby the state and in 1990an
channels. Indicativeof the desire to deal tries within the South Asian region. This estimated 120,000Sri Lankan refugees
bilaterallywiththe entiregamut of prob- region has witnessed a number of refu- were present in these camps.Apart from
lems is the fact that the paramount re- gee movements both from within the re- themmore than80,OOO'wellto do' (rich)
gional organization, the South Asian gion as well as from outside the region. refugees were living outside the
Association for Regional Cooperation About 12.04%of the globalrefugee popu- camps.12These refugees were not regis-
(SAARC),has chosen to exclude the is- lation continueto remain in this r e g i ~ n . ~ tered earlier and the number of refugees
sue of population movement from its According to the statistics provided by staying outside the camps is much
purview for fear that it would disrupt theU.S Committee for Refugees, 12.02% higher than what is indicated in the re-
the organizati~n.'~ of the total refugee population lives in ports. According to the U.S Committee
Another important argument against Bangladesh, India, Nepal and Paki- for Refugees, there are 110,000 Sri
the accessionto the Refugee Convention stan.1° Some of the refugee movements Lankan Tamil refugees in the State of
and the Protocol is that it would lead to are mentioned here in brief. TamilNadu.I3 During 1990, a Special

8 Refuge, Vol. 19,No.2 (January 2001)

Commissioner was appointed by the the actions taken by the Government of cept of temporary asylum. In contrast,
Government of Tamil Nadu as the state Bhutan including the passing of the the concept of temporary protection is
had an average expenditure of about Citizenship Act. These people are now understood as aprotection for alimited
Rupees 30 crores (approximately 26 settled in about 7 camps in Southern period of time in the developed coun-
million U.S $per annum).14Recent de- Nepal. India also hosts some of them.lg tries until a durable solution is found.
velopments in Sri Lanka are likely to Apart from theserefugees, an estimated The existence of the cold war period
lead to further flows of refugees into In- 40,000 ChinIArakanese refugees from coupled with the Soviet Union's inva-
dia. Burma and ten million illegal immi- sion of Afghanistan in 1979resulted in
The Chakma refugees, the tribal grants are also present in India today.20 a large-scale migration of the Afghans
groups of ChittagongHill Tracts (CHT) into Pakistan. Prior to this, there were
consisting of Chakmas, Murangs and (B)Refugees from Outside the movements of the Afghans into Paki-
Tripuras migrated to the territories of South Asian Region stan after the coup in 1973. The subse-
Assam, Tripura, Arunachal Pradesh, When Burma (now Myanmar) was quent civil war kept the problem alive
Mizoram and Meghalaya after the par- granted independence by the British in and as a net result of these develop-
tition in 1947. During 1963, about 1948,a large number of people of Indian ments, an estimated 6 million Afghans
45,000 Chakmasfled to IndiafromEast origin were pushed out. These people were uprooted. With the withdrawal of
Pakistan as victims of theKaptaiHydro who migrated to Burma under British Russianforces,the repatriation process
electric project that inundated their patronage and settled there had no op- took place.23 However, the continued
homelands. They multiplied and their tion but to return to India as refugees. infighting kept the problem alive and
numbers swelled to 85,000.15After the Burma again sent refugees to India after Pakistan has about 1,200,000 Afghan
liberation of Bangladesh, erstwhileEast political changes in 1962.An estimated refugees even today. India also hosted
Pakistan, about 50,000 refugees have 150,000refugees came to India during about 40,000Afghanrefugees,their sta-
been repatriated back to CHT last year that period. As many as 200,000 tus being determined by the UNHCR.
i.e. in 1998. Rohingya refugees sought asylum in However, their number has come down
Between April 1 and mid October Bangladesh as a result of the Burmese to 18,607andmajorityofthemliveinthe
1971, a total of 9,544,012 officially re- army's operations in the Arakan region New Delhi area. By the end of 1998,there
corded refugees from East Pakistan during 1978in an attempt to check ille- were still 14,500Afghanrefugeesliving
moved into India. This flow of refugees gal migrants and fight insurgency. inIndia.24
into India is unparalleled in modern There was a second flow of refugees into There are also other refugeesfrom the
history.16 These refugees continued to Bangladesh and by 1992 there were African countries as well as West Asia,
stay in India until 1973and manyrefu- 300,000 refugees. However, an agree- but in small numbers. Many of them are
gees have stayed back in India with ment between Bangladesh and Burma recognized by the UNHCR's office in
their friends and relatives. Predomi- resulted in repatriation process for India as refugees and some of them are
nantly, these were from the 2-3 million sometime. Yet these refugees continue living there in the same status for more
refugees living with the relatives and to stay in Bangladesh2' as well as in than 10years. These refugee movements
friends in the State of West Bengal.17 India. only indicate the gravity of the problem
The language they speak acted as a In 1959, the Dalai Lama, a religious with very little attention given by the
facilitator for such local assimilation and political leader and his followers countries in this region.
without being identified as foreigners fled Tibet and came to India seeking
by any one. The number of people who asylum. Asylum was granted to them by
Refugee Protection in South Asia
stayed back without being identified by the then Prime Minister of India, Whenever a mass exodus takes place
the authorities for repatriation is very Mr.Jawaharla1 Nehru, and these Ti- necessitating immediate and elaborate
high. The process of repatriationof these betan refugees continue to stay in India arrangements, the countries in South
refugees back to the newly established even today. By 1993,there were 133,000 Asia have responded positively in ac-
state of Bangladesh was in fact very Tibetan refugees in South Asia out of cordingrefugee status to all and in pro-
quick and encouraging for the host whichIndia alone hosts about 120,000 viding the basic necessities within the
country. According to the UNHCR, a of them in 42 settlements spread over economic means of the receiving state
daily average of 210,000 persons different provinces in India. Apart from concerned. South Asia as a whole has
crossed the Bangladesh border from the settlements there are also 88 scat- extended protection to refugees for a
India in the process of repatriation dur- tered communities in different parts of long period of time and has been ex-
ing the months of Januaryand February India.22There has been a steady flow of tremely tolerant of the incomingpopu-
1972.All these refugeeswere returning Tibetan refugees into India through lation witha different culture, language
from India to their native places in East Nepal during the recent past as well. or race. The protection extended to the
Bengal.18 The continuedpresence of these Tibetan hundreds and thousands of Afghan
About 125,000Bhutanese of Nepali refugees in India over the past forty refugees and the continued assistance
origin were forced to leave Bhutan by years seemsto be undermining the con- for the remaining Afghans in Pakistan

Refuge, Vol. 19,No. 2 (January 2001) 9

is an example of this protection. India's In this analysis of the nature of pro- very little time to thinkabout any other
decision to accord refugee status to the tection extended by the countries in the alternative. When the Tibetan refugees
Tibetansfleeing China in 1959and their South Asianregionto therefugees,men- sought asylum during 1959 in India, it
continued presence even after 40 years tion must be made to the Tibetan refu- was alarge group. When the East Paki-
is another example for South Asia's con- gees in India. They are treated well, stani refugees started moving into In-
tribution to refugee protection. Again compared to all other refugees in this dia, it was the largest movement of
the movement of 10 million refugees region. The extent of the rights and free- refugee population that has taken place
fromerstwhile East Pakistaninto India, dom extended to them are explained in in the human history so far. At one point
the largest refugee influx the world has this article subsequently. A number of of time, there was an average daily in-
seen so far, met with the same positive human rights instruments ratified by flux of about 97,821 refugees moving
approach to the sufferingsof the people. the countries in the South Asianregion into India during May 1971.~' A large
The protection extended by Bangladesh have also contributed to the positive number of refugees came to India in
to the Rohingya refugees from Myan- initiatives taken by them from time to 1983 onwards from Sri Lanka. During
mar, the protection extended by Nepal time. The role played by international July 1990, about 2000 to 3000 Sri
to the Lhotsampa refugees (from Bhu- politics in this region has also contrib- Lankan refugees arrived per day in
tan) and the protection extended by In- uted to these measures taken by the Tamil N a d ~ Pakistan
. ~ ~ and Bangla-
dia to Sri Lankan Tamils are the other states in protecting the refugees with in desh also faced similar situations in
examples of the nature of protection the limited resources they possess. accepting the Afghan refugees and the
extended to the refugees over a period of Rohingya refugees from Myanmar re-
time. In doing so, the judiciary as well as
The Determination of Refugee spectively.
the administration in these countries Status These countries cannot even think of
have directly or indirectly recognized Countries in the South Asian region establishing independent administra-
the principles of international refugee have not established any administra- tive or quasi-judicial bodies to deter-
law and have adhered to them although tive or quasi-judicial bodies to deter- mine the status of each and every
the states have not become parties to the mine the status of refugees. Broadly refugee like the developed countries.
relevant international instruments. The speaking, there are four types of deter- When it is very difficult for them to look
people in these countries deserve spe- mination of refugee status that take after the refugees within their financial
cific appreciation for having been not place in this region. These procedures resources, the establishment of such
only tolerantbut also contributing to the are explained here briefly. authorities to determine the status of
meaningful protection within their eco- refugees cannot be even thought of. The
nomic means. 1. Group Determination lack of political will to think on these
These factorshave contributed to the All the refugee-receiving states in this lines in establishing appropriate ma-
presence of at least three members from region have resorted to this group deter- chinery coupled with 'bureaucratic
this region on the Executive Committee mination of the refugee status to a large caution', probably, strengthened the
of the UNHCR. Pakistan, Bangladesh extent. By and large they have followed group determination procedure in this
and India have become active members the mandate of the UNHCR as provided region. The determination of the status
of the EXCOM of the UNHCR even with- in the Statute of the UNHCR.25In the of refugees in this manner provided the
out being parties to the international movement of the Rohingya refugees policy makers with the ultimate deci-
instruments. This is indicative of the from Burma, during 1978, an estimated sion-making power. Moreover, such
appreciation by the international com- five to ten thousand refugeeswere cross- decisions cannot be questioned in any
munity for the nature of initiatives taken ing the border each day.26 During an- court of law, in the absence of any refu-
by them over a period of time. In the same other movement of the same refugees in gee specific legislation. As it gave the
continuum, all the seven countries in 1992, the UNHCR Technical Mission governments unquestionable and arbi-
the region have allowed the office of reported that the refugees were stream- trary decision making power, more reli-
UNHCR to work closelywith the respec- ing into the country (Bangladesh) at a ance was placed on this group
tive governments. UNHCR has estab- rate of thousand a day.27The movement determination of refugee status in this
lished its officesin many of the countries of large numbers of refugees in to these region.
in South Asia and in a couple of states it countries from time to time can not be
operatesfrom the offices close by. Thus managed in any other way than by the
2. Determination of Status by the
the countries have permitted the group determination of their status. In UNHCR
UNHCR to exercise its mandate in their the absence of any mechanism to deter- In a few cases where large numbers of
respective territories and have tacitly mine the status of refugees, states have people were not involved and at the
approved the mandate refugees. How- placed greater reliance on this proce- same time the country concerned is not
ever, this optimism is to be read and dure. Almost all the refugeemovements willing to involve itself politically in the
understood with some amount of cau- in this region required immediate ac- determination of the status of refugees,
tion. ceptance by the receiving states, giving they have permitted the UNHCR to de-

10 Refuge, Vol. 19, No.2 (January 2001)

termine their status individually. How- 4. Determination of Refugee also stayed the deportation order issued
ever, such decisions gave only limited Status by UNHCR at the against 21 refugees from Burma who
powers to the UNHCR. For example, the Instance of the Courts were in the Andaman islands and al-
decision of the Government of India in lowed them to seekrefugee status with
allowing the UNHCR's office in New This type of determination of refugee the UNHCR's office in New Delhi.
Delhi to determine the status of the Af- status is very limited as it permits only Apart from this, the Supreme Court also
ghan refugees can be referred to. Once those refugees who take the issues to the directed that these refugees should not
the individual status of the refugees is court of law challengingtheir detention be deported until their applications for
determined, the UNHCR issues a certifi- under the Foreigner's Act. As there is no refugee status is disposed of by the
cate indicating the 'refugee status' of the legal framework in this region relating UNHCR. Acareful analysis of the deter-
individual. Such individuals whose to the refugees specifically, all the refu- mination of refugee status in the devel-
status is determined by the UNHCR in gees are at times brought under the For- oped countries wouldreveal the distinct
India will have the right to stay inIndia eigner's Act for taking appropriate features of the scheme followed in the
for a period of one year and receive actions. This is a statute enacted by the South Asian region.
material assistance from the UNHCR. British Parliament but adapted by the
This certificate is valid for only one year. states concerned after their independ- Rights and Freedoms of the
However, the UNHCR is also permitted ence with necessary modifications. Refugees
to renew the certificatesevery year if it is Some of the instances where the courts Indeterminingrefugee status, the states
necessary to do so. The Government of directed the respondents or appellants in this region have received refugees
India retains the power to expel anyrefu- to approach the UNHCR in New Delhi from other countries and have not dis-
gee so determined by the UNHCR in the to seek refugee status are mentioned criminated on the basis of race, reli-
larger interest of the country. The 16,000 here briefly. gion or country of origin. This in effect is
Afghan refugees present in India have In N.D.Pancholiv. State o f P ~ n j a b , ~ l also the nature of the obligation under-
the certificates so issued by the UNHCR the Supreme Court of India stayed the taken by the parties under Article 3 of
and continue to receive the renewals as deportation order issued against a refu- the Refugee Convention. The refugees
well as material assistance from the of- gee from Burma (Myanmar) and al- have the freedom to practice their own
fice in New Delhi. The UNHCR's office lowed time to enable the refugee to seek religion. They have access to the courts
also determines the status of few refu- refugee status from the UNHCR office in in the respective country of asylum as
gees from West Asia as well as from New Delhi. InZothansanguli v. State of providedunder Article 16,Chapter IIof
Africa as their number is very small. M a n i p d 2 and Bogyiv. Union oflndia, 33 the Refugee Convention. The judicial
the High Court of Gauhati stayed the decisions mentioned above would sub-
3. Determination by the State with
deportation orders issued against refu- stantiate this point. Within the existing
UNHCR's Assistance gees from Burma and allowed them to socio-economic environment, the refu-
The UNHCR is also involved in assist- seek refugee status from the UNHCR gees are permitted to have wage earning
ing a particular group of refugees by office inNew Delhi. The court released employment or self-employmentas pro-
providing them with financial assist- them from custody to enable them to seek videdunder Articles 1 7 and 18(Chapter
ance to enable them to reach their final refugee status from the UNHCR's office 111)of the Convention. Again within the
destination and seek refugee status inNew Delhi. The same Highcourt also economic resources available in the
with the appropriate government. The gave similar orders inKhyHtoon v. State state, provisions for rationing of essen-
~ f M a n i p u r .Orders
~ ~ were also issued tial commodities and at reduced rates
recent arrivals from Tibet into Nepal are
by the same High Court in U. Myat are extended to the refugees. The facili-
received at the reception centres set up Kayew&Anotherv.State ofManipur as ties, though not the same, extended to
in collaboration between the UNI-ICR In this case, the petitioners were the Sri Lankan Tamil refugees and the
and the Central Tibetan Administra- from Burma and entered into India ille- Tibetan refugees in India are good ex-
tion, in Nepal. As the status of the Ti- gally. They had taken part in the 'move- a m p l e ~Provision
.~~ for housing, public
betan refugees cannot be determined by ment for democracy' in Burma and had education and public relief and assist-
the UNHCR, it provides some material to flee the country to escapepersecution. ance as provided under Articles 20,21,
assistance at the reception centres to They voluntarily surrendered to the 22, and 23 (Chapter IV-Welfare)respec-
facilitate the onward travel of these refu- authorities in India. The court did not tively are also made availableto the refu-
gees to Dharamsala inIndia.30 Thus it is insist on sureties for their release as they gees, subject of course, to the
clear that the individual status detenni- were total strangers and it would be socio-economic conditions. The refu-
nation by any body or authority exists difficult for them to obtain any local gees are provided with freedomof move-
surety. The Punjab and Haryana High ment, subject to the provisions of
only to a very limited extent in this re-
court also granted similar relief.36 existing rules and regulations (Article
gion. This should be taken only as an The Supreme Court of India in 26). In the case of Sri Lankan and Ti-
exception rather than agenerahle. Dr.Malavika Karlekarv. Union ofIndia3' betanrefugees, they were also provided
- - -

Refuge, Vol. 19, No. 2 (January 2001) 11

with the Identitypapers (Article27).The Indian Government still bears 25% of To illustrate the nature of assistance,
Sri Lankan refugees who were arriving the total rehabilitation e ~ p e n d i t u r e . ~ ~ reference may be made to the 1971crisis
in 1984were registered, photographed Many of the rights provided under when an estimated 10million refugees
and issued refugee identity certificates. the 1951Refugeeconvention have been came to India from East Pakistan (now
At the transit camps (Mandapam)refu- granted to the Tibetan refugees to the Bangladesh). 48 countries contributed
gee families were given cooking and maximum possible extent, subject of in cash or in kind, by and large for the
other utensils, clothing, bed sheets and course to the restrictions under various relief operations in India, to the extent of
reed mats. After they were transferred to statutes. In this sense, Article 42 of the U.S $203,612,281. The contributions
refugee camps, they received a monthly 1951Conventionand Article VII of 1967 made by the countries like Canada,
dole of Rupees 110 per head of house- Protocol must be kept inmind. Accord- Australia, Belgium, France, GDR, FRG,
hold and proportionately smaller ing to these two provisions, the state Netherlands, Norway, Sweden, Swit-
amounts for each dependant. Essential parties may make reservations on many zerland, U.S.S.R, UnitedKingdom and
commodities like rice, sugar and kero- of the provisions of the Convention and the U.S.A, including the EEC was to-
sene were available for purchase at sub- Protocol respectively, relating to the tal1edU.S $193,948,535.Thecontribu-
sidised rates.39 The Tibetan refugees, rights and freedoms of the refugees. In tions made by the U.S alone stood at
who would like to travel abroad were considering this interpretation and U.S.$89,257,000,almost 44%ofthe total
also given the travel document (Article keeping the economic conditions pre- refugee aid t 0 1 n d i a . ~ ~
28)under the Passport Act 1967 as well vailing in the South Asian countries, Although these figures indicate the
as the rules made thereunder in 1980. what they have provided to the refugees nature of international concern and
These rights fall under Chapter V on so far is indeed remarkable.In few cases, burden sharing, it was far below the
Administrative measures of the 1951 there is continued assistance forthcom- requirements of the situation. The total
Refugee Convention. ing from UNHCRoffice itself to therefu- direct cost to India caused by the refugee
In reviewing these rights and gees in this region. influx was estimated to be ar0undU.S.
freedoms of refugees in the South Asian Whenever there is reluctance on the $800millionup toMarch 31,1971and
region, the prevailing socio-economic part of the states in providing the basic more than that for the subsequent pe-
conditions of the asylum states should necessities, the refugees have been suc- riod of three months i.e. up to June 30,
be kept in mind and should not be com- cessful in getting them remedied 1971.It was estimated that maintaining
pared with the nature and extent of through legal initiatives taken directly the refugees for one year would directly
these rights provided to refugees in the by them or through the initiatives taken cost India U.S $500 millionmore than
developed countries that are parties to by the NGOs on their behalf. Some of the net foreign aid it received from all
the 1951 Refugee Convention or the these developments are briefly ex- western nations.43 Senator Edward M.
1967Protocol. plained in this article, relating to the role Kennedy described the nature of the
Among the refugees, the Tibetanrefu- of the UNHCR and other institutions in assistance extended by the western
gees have been enjoying better facilities this region. countries in his report on '[tlhe Crisis in
when compared with the other groups South Asia'. According to him 'The in-
of refugees. The development of five
Involvement of Developed ternational community's response to
major agricultural settlements in India Countries in this Region the refugees has been unconscionably
and several small ones in Sikkim and The international community as a whole lethargic and wholly inadequate. It is
Bhutan began immediately after their and the developed countries in particu- characterised by little sense of urgency
arrival. These settlements received no lar have been involved in the refugee and a low priority of concern for this tide
outside assistance after 1965 but they crisis of this region in one form or the of human misery unequalled in modern
became self-supporting and emerged as other. Apart from funding development times'. In yet another context, he com-
one of the most successful refugee com- projects in the countries of the South mented that '[wlhen we realise that In-
munities in the world. They are being Asian region, some of the developed dia faces the prospect of a budget for
described as a 'model refugee commu- countries have also liberally contrib- refugee relief totalling $500 million to
nit^.'^' During the early 1960s,the State uted to refugee relief in South Asia, ei- $1 billion over this coming year alone,
of Karnataka came forward to settle ther in the form of financial assistance or we realise how little the outside world is
3000 Tibetan refugees on 3000 acres of in kind. Choleravaccine, tents, oil, rice, really doing, and how paltry the Ameri-
land and the Government of India ex- sugar, milk, vitamin tablets, clothing, can contribution is ~omparatively.'~~
tended Rupees 3,784,800 for the pur- other medicines and food grains have The international community has
poses of rehabilitation. In 1965, the been contributed by these countries di- been also attempting to find durable
Tibetan Industrial Rehabilitation Soci- rectly. Indirectly, they have also been solutions to some of the refugee prob-
ety was formed. The Government of In- contributing to the funds of the UNHCR lems in the South Asian regionby telling
dia helped them to establish a home for from which the money is also spent on the countries concerned to start a mean-
the aged and the handicapped, Tibetan the South Asian countries for various ingful dialogue to resolve the conflicts
schools and cultural institutions. The activities related to refugees in the re- relating to the flow of refugees. For ex-

12 Refuge, Vol. 19, No.2 (January 2001)

ample, the European Parliament has in Bangladesh, Nepal and Sri Lanka. past, as indicated above, has only
unanimously adopted a resolution call- Apart from this, the UNHCR was in- strengthened this understanding and
ing on Bhutan to take back the refugees volved in the repatriation of the relationship.In a different situation,the
from Nepal and safeguard the rights of Rohingya refugees back to Myanmar. High Court of Madras, allowed the
the minorities on its territory. The Euro- Similarly, the Extension office of UNHCR office to verify the voluntari-
pean Parliament had also called on In- UNHCR established in Madras, Tamil ness present in the repatriation of Tamil
dia to release hundreds of Bhutanese Nadu, also monitored the voluntari- refugees back to Sri Lanka.50
refugees who have been arrested while ness in the repatriation of Sri Lankan Apart from this, the National Human
they were trying to reach Bhutan via Tamil refugees. The office of UNHCR Rights Commission (NHRC) estab-
India to press their demands for human provided vocational training to the Ti- lished under the Protection of Human
rights and r e p a t r i a t i ~ n .The
~ ~ United betan refugees and came to be estab- Rights Act, 1993 in India has also con-
Kingdom blamed the Sri Lankan Gov- lished in India in 1969 based on a tributed significantly to the protection
ernment for the Jaffna exodus.46 The Memorandum of Understanding of refugees in India. The NHRC had is-
European Union in its first substantive signed between India and UNHCR. A sued directions to the stategovernments
internationalreaction to the current cri- similar exercisewas also carried out in of Tamil Nadu, Arunachal Pradesh and
sis in Sri Lanka has called on the Gov- Nepal. In 1971,the UNHCRwas desig- Mizorarn to provide immediatemedical
ernment as well as the Liberation Tigers nated by the U.N Secretary General as treatment to some of the Sri Lankanrefu-
of Tamil Eelam (LTTE)to stop fighting the focal point to co-ordinate the relief gees and to take all possible measures to
and start negotiations with a view to operations and assistance coming from ensure the safety of lives and properties
securinga peaceful resolution to the Sri various countries and organisations of the Chakmarefugeesre~pectively.~~
Lankan conflict that has displaced a during the largest refugee influx. The NHRC had also brought a chal-
large number of civilians both within In an attempt to resolve the issues lenge before the Supreme Court of India
Sri Lanka and to other c~untries.~' relating to the Bhutanese refugees in seekingto protect the ChakmaRefugees
Many of the developed countries Nepal, and other related issues, the present in the state of Arunchal
have granted asylum to refugees corn- High CommissionerMrs. Ogata under- Prade~h.~~
ing from the countries in South Asia.48 took a nine-day trip to the Indian sub- Even with a very limited exposure to
Canada has acceptedthe majority of the continent during May 2000. During her the refugee regime, an NGO had come
Tamil refugees from Sri Lanka in the last first visit to the region, Mrs. Ogata met forward to protect the basic rights and
fifteen years. However, some of the with the Kings of Bhutanand Nepal and needs of the refugee children in the State
northern states like U.K, have increas- other top leaders ofthese two countries. of Karnataka. In Digvijay Mote v. Gov-
ingly adopted restrictive measures in Both Nepal and Bhutan have accepted ernment ofIndia and Others,53the Peti-
the recent past. These developments the High Commissioner's proposal to tioner successfullybrought a challenge
should be kept in mind in appreciating use UNHCR's refugee database as a before the High Court of Karnataka to
the contributions made by the devel- reference for joint verification. The High get appropriaterelief for the 250 refugee
oped countries to the refugees coming Commissionerbelieves that the visit has children present in a boarding school.
from the countries in South Asia or re- been timely and has created a momen- Based on this, immediatehumanitarian
maining within that region. However, tum whichneeds to be maintained. She assistance to the school was provided
when compared to the number of refu- also met with the external affairs and by the government. This clearly indi-
gees protected within South Asia, the law ministers of India and obtained the cates the developments that are taking
number of refugees coming from South support of India for UNHCR's efforts to place in some of the countries in South
Asian region to these developed coun- resolve the Bhutanese refugee prob- Asia (India particularly) in protecting
tries is relatively less. lem.49 the rights of the refugees. In People's
Thus, the countries in this region, Union for Civil Liberties v. Union of In-
Role of UNHCR and Other thoughnot parties to the 1951Refugee d i ~the , Supreme
~ ~ Court of India held
Institutions Convention or the 1967Protocol,have that the customary principles of inter-
Five counties in this region,i.e.Bangla- permitted the establishment of the of- national law is a part of the domestic
desh, India, Nepal, Pakistan and Sri fices of the UNHCR and extended full law of the land as long as these princi-
Lanka, have the UNHCR offices estab- co-operationto those offices. The pres- ples are not inconsistent with the exist-
lished in their territories.In some of the ence of three members from the South ing laws in the domestic sphere. The
countries, the UNHCR also has an addi- Asian region (Bangladesh, India and court also observed that '[Ilnternational
tional branch to look after a specific Pakistan)on the Executive Committeeof law is now more focused on individuals
function assigned to it. These offices are the UNHCR indicates the nature of the than ever before'. The High Courts in
actively involved in a series of activities, relationship in working together for the India have also issued a number of or-
except the determinationof the status of protection of the refugees in this region ders in an attempt to protect the rights
refugees.. The UNHCR office is actively as well. The reliance on the office of the and freedoms of the refugee^.^^ The re-
involved in the assistance programmes UNHCR by the judiciary in the recent cently concluded Judicial Colloquium

Refuge, Vol. 19,No. 2 (January 2001)

held in New Delhi during November their rights,that may not provide a com- ternational efforts should focus on fa-
1999 brought a number of judges and plete framework. Unless there is inter- cilitating the legal framework and insti-
seniorlawyerstogether for the first time national pressure coupled with public tutions to be established for the
andis likelyto contributeto this trend in opinion in these states, getting the nec- protection of human rights. This could
the future for better protection of refu- essary legal framework is a difficult address both the economic policies and
gees, particularly in India. proposition.At the same time, it is also social policies of these countries that
not necessaryto have alegalframework would go a long way in preventing out-
The Prospects for Refugee Law to extendprotectionto the refugees. The ward flows as well as tolerance towards
The states in this region have adapted SouthAsian countries have proved that inward flows of refugees. This would
the British legislation passed prior to by accommodating a large number of also facilitate new approaches to refu-
independence,like the Foreigners Act, refugees. In this context, developing a gee protection in the South Asian con-
Registration of Foreigners Act and the legal framework for the protection of text. This approach can also contribute
Passport Act. These laws provide the refugees by the states may have very both to the regional and global opinion
required balancing between refugee little effect. Yet, the arbitrariness on contentious issues that could be ef-
protection andnational interest. These present in treating different groups dif- fectivelyused against the states that vio-
laws are being put to use on a regular ferently can be prevented only if a law late the internationally accepted norms.
basis to remove 'unwanted' people from relating to refugees is present in these Taken together,there is an excellent and
the territory of the state.Apart from this countries. conducive atmosphere in the South
the non-existence of any specific refu- The initiative taken by the Eminent Asian region more than ever before for
gee legislation has also contributed to Persons Group from Bangladesh, In- evolvinga legal framework in the protec-
the differential treatment of refugees dia, Nepal, Pakistan and Sri Lanka in tionof the refugees.
from time to time. developinga draft regional declaration
There seems to be a predominant as well as a Model National Law relat-
The Comparison
opinion among the governments in the ing to the refugees is to be appreciated. Against this backdrop, comparing two
SouthAsianregion that the Convention The former Chief JusticeofIndia,Justice incomparables is a difficult task. How-
of 1951was drafted in a different politi- P.N.Bhagwati, has recently presented ever, within the framework provided, a
cal environmentand that there is every the revised draft to the Ministry of Law general observation comparing the
need to review the Convention. The and Justice in India for considera- Northern perspective with that of the
speech delivered by Ms. Arundathi ti~n.~ ' must be taken to logical con-
This Southern perspectivecan be attempted.
Ghosh, India's permanent representa- clusions with the efforts taken by Some of the important distinctions
tive to the U.N. at the EXCOM very UNHCR and other international bod- between the Northern approach and
clearly indicates the same.56Although ies. The efforts taken by Asian-African Southern approach to the refugee prob-
the states have reposed confidence in legal Consultative Committee lem would include the following. In the
the UNHCR, they are hesitant, for one (AALCC),both in the areas of human first place, mention must be made to the
reason or the other, to ratify the Conven- rights and refugees should also be pro- determinationprocess. While the devel-
tionor theProtocolrelatingto the Status jected effectively to achieve this end. oped countries engage in individual
of Refugees. However, such areview, if The other existing regional forum, determination by and large, the coun-
and when takenup should concentrate South Asian Association for Regional tries in South Asia engage in the group
on specific spheres like evolving more Co-operationcould alsobe the platform determination of refugees. In this proc-
meaningful burden sharing, specific to project this view. In getting the re- ess of determination, the developed
durable solutions,more meaningful in- gional declaration accepted by all the countries have established a variety of
ternational obligations, and account- states. Already the efforts taken by administrative, quasi-judicial and ap-
ability of refugee producing states if SAARC LAW in this regard needs to be pellate mechanisms while the countries
they are primarilyresponsiblefor send- pursued. Efforts taken by other institu- in South Asia have not. The developed
ing the refugees to other states within tions,NGOs and bodies like LAW ASIA countries have enacted appropriate do-
the existing framework. This review is should be relied upon to achieve the mestic legislation to give effect to the
to be undertaken not for having wider desired objective. international obligationsthey have un-
acceptance but for making the instru- The present trend in favour of dertaken under the 1951 Refugee Con-
ment as well as institution createdthere- globalisationand economicliberaliss- vention and/or the 1967Protocol, while
under to be more meaningful and tion can be effectivelyutilised by adopt- there is no such legal framework in the
effective.Proposals to make UNHCR a ing a two dimensionalapproach. In the South Asian countries. While the South
permanent specialised agency should first place, international efforts should Asian countries rely very heavily on the
also be pursued. be concentrated on genuine develop- bilateral approach to resolve refugee
Although the provisions of the re- ment programmes including institu- crises, there is no such reliance placed
spective constitutions are invoked in tional and human resource capacity on it by the developed countries. Again
an attempt to protect the refugees and building. In the second place, such in- the South Asian countries have at-
tempted to resolve the problems of 'state- cate the people as well as training of of- Law and Refugee Law, Vo1.2, No. 2(A),
lessness' by accommodatinglarge num- ficials in these countries in the areas of p.313.
bers of people of their origin and by human rights, assisting them in setting 6. VititMuntarbhorn, The Status ofRefugees
providing citizenship to them. The up institutionsand training of the judges in Asia (Oxford: ClarendonPress, 1992)
at 52.
emergenceof joint responsibility in this at all levels would go a long way in the
7. The developments during the 1947 exo-
regard can also be seen in that process of protection of human rights of every indi-
dus as aresult of theestablishment of two
resolvingthe issues arising out of popu- vidual in this world. The primary task independent Dominions of India and Pa-
lation movements. The willingness on for the developedcountries would be to kistan must be kept in mind. An esti-
the part of India in according citizen- assist the developing countries to estab- mated 15 to 20 million people have
ship to 338,000 stateless persons from lish the appropriate legal framework in crossed the newly drawn international
Sri Lanka and the efforts of the Sri the protection of the refugees. To sustain boundaries. During the 1971 war be-
tween India and Pakistan, 10 million
Lankan Government to accommodate this effort, an attemptmust alsobe made people have taken refuge in India with
the rest of them is to be appreciated. The to establish the necessary links at two delayed assistance from international
developed countries in resolving some different levels,with the academic insti- community. For details on this issue, see
of the refugee problems have also taken tutions of higher learningin these coun- Crisis in South Asia, AReport by Senator
up such joint responsibility. Thou- tries for a constant and ongoing Edward M.Kennedy, Committee on the
sands of refugees from Burma, as indi- interactionwith those institutions. Net- Judiciary,United States Senate,Novem-
ber 1,1971.
cated earlier, have alsobeen assimilated working of educational institutions
in India without allowingthem to create within these developing countriesin the 8. Myron Weiner, Rejected PeoplesandUn-
wanted Migrants in South Asia, Eco-
a refugee problem elsewhere. As far as first place and then linking them with nomic and Political Weekly, Vol.XXVII1,
the rights and liberties of the refugees the institutions in the developed coun- No.34, August 21, 1993,at 1745.
are concerned, there seemsto be a wide tries would certainly enhance the pace 9. The State of World Refugees, 1997-98,
gap between these two schemes.The de- of establishing a human rights culture in UNHCR, Geneva.
veloped countries have provided a the developing countries in South Asia. 10.WorldRefugee Survey, 2000, U.S. Com-
number of rights and libertiesas well as Reliance on a comparative analysiscou- mittee for Refugees, at 3.
extended anumber of welfare measures pled with the perspective on human 11.LokRaj Baral and S.D.Muni, Eds., Refu-
when compared to the countries in rights and refugee protection would cer- gees andRegiona1Security inSouth Asia,
South Asia. tainly promote best practices inboth the (Delhi: Konark Publishers Private Lim-
When the systems present in these Northern and Southern countries in the ited, 1996) at 10.
two groups of states, one can also iden- years to come.. 12. Ibid., at 195.
tify certain similarities. Both the 13. WorldRefugee Survey, 2000, U.SCom-
schemes permit the judiciary to resolve mittee for Refugees, at 3.
Notes 14. The Hindu, dated January 6,1991.
certain specific questions of law arising 1.Guy S.GoodwinGil1,The Refugee inInterna-
out of their determination,removal or in tional Law, 2nd Edition (Oxford: 15. The Statesman, (Calcutta Edition),
safeguardingtheir rights and liberties. ClarendonPress, 1996)at 12 note48. Also dated June 2, 1994.
There seems to be an active role placed see Ivor C. Jackson,TheRefugeeConceptin 16.Crisis in South Asia, A Reportby Senator
by the human rights institutions, di- Group Situations, (The Hague, Martinus Edward M.Kennedy, U.S Senate Com-
NijhoffPublishers,l999) at62. mittee on the Judiciary, November 1,
rectly or indirectly, in both groups of 1971 at 5.
countries. An increased number of 2. Pia Oberoi, 'Regional Initiatives on Refugee
Protectionin South Asia', (1999) 11I Jour- 17. Nicole Ball, Regional Conflicts and the
NGOs are taking keen interest in the nal of Refugee Law.1 at 193. International System, (IS10 Mono-
protection of refugees. Finally, there is 3. Amitav Acharya and David B. Dewitt, Fis- graphs, First Series, Number Nine, Insti-
an ever increasing awareness arising cal Burden Sharing, James C. Hathaway, tute for the Study of International
out of the 'HumanRights' concept that Ed., Reconceiving International Refugee Organisation, University of Sussex,
contribute to better protection of refu- Law, (The Hague: Martinus Nijhoff Pub- 1974) at 29.
gees throughbut the world today. lishers, 1997)at 126. 18.UNHCR, AStoryofAnguishand Action,
To conclude, it maybe observed that 4. G.A Res. 521104, 12 December 1997. Geneva, 1972 at 79.
the purpose or the object of such a com- Through this Resolution, the term of office 19. The World Refugee Survey, 2000, U.S
parison is not to find out who is doing of the UNHCR was extended by another Committee for Refugees at 3 indicates
five years with effect from 1January 1999. that 110,000 Bhutanese are in Nepal
the bestinprotectionofrefugees. On the Through this Resolution it was also decided whileIndiahosts 15,000.
contrary, keeping the huge population, to reviewthearrangements for the Office of 20. The Week, Vo1.17, No.40, September 19,
conditions of poverty, illiteracy and the UNHCR with a view to determining 1999 at 20.
like in the developingcountries,the de- whether the office should be continued be-
21. Supra, n.6 at 10 and 23.
veloped countries have a definite posi- yond 31 December 2003.
22. Ibid., at 18-19.
tive role to play. Apart from the funding 5. JusticeV.R.KrishnaIyer, The Legal Saga for
Refugees and Humanitarian Odyssey, 23. Mahendra P. Lama,Refugee Situation in
for developmentextended to the devel- South Asia: Critical Issues in Perspec-
Bulletin on International Humanitarian
oping countries,a constanteffort to edu- tive,(1999) 3 Bulletin on International

Refuge, Vol. 19,No. 2 (January 2001) 15

Humanitarian Law and Refugee Law.1, at 36. W.P.No. 658197, Punjab & Haryana
95. High Court.
24. WorldRefugeeSurvey, 2000, U.S Comrnit- 37. W.P(Crimina1) No. 583192, Supreme
tee for Refugees, at 3.
Court of India.
25. Article 2 of the Statute provides that 'The 38. WorldRefugee Survey, 1999,U.S. Com- 50. P.Nedumaran and Dr.Ramdoss v. Gov-
work of the High Commissioner shall be of ernment of India and Others, W.P.12343/
mittee for Refugees, at 128-129.
anentirely non-politicalcharacter;it shall 1992, Madras High Court.
be humanitarian and social and shall relate, 39. B.S.Chimni, The LegalConditionofRefu-
gees in India, (1994)7Journal of Refugee 51. Human Rights Newsletter, National Hu-
as a rule, to groups and categories of refu- man Rights Commission,Vol.1, No.2, No-
gees.' Studies 4 at 378-401.
vember 1994, at 3-6.
26. Ivor C.Jackson,The Refugee Concept in 40. Supra, n.8 at 81-84.
52. National Human Rights Commission v.
Group Situations, (The Hague: Martinus 41. Tibet inExile, 1969:3 (c.fAshaHansand State of Arunachal Pradesh, (1996)1SCC
Nijhoff Publishers, 1999)at 314. Astri Suhrke, Responsibility Sharing, 742.
27. Asian Recorder, 1992, March 25-31, James C.Hathaway,Ed., 'ReconcilingIn-
ternational Refugee Law', (The Hague: 53. W.A.No. 35411994, Karnataka High
p.22211. Court.
MartinusNijhoffPublishers, 1997)at 83-
28. Supra, n.12 at 6.
29. The Hindu, dated July 6,1990. 55. K.A.Habib v. Union of India, (1998 (2)
42. Supra, n.12 at 38-41.
30.WorldRefugeeSurvey,1999,U.S.Commit- 43. Ibid., at 34-35. Gujarat Law Herald 1005).In this case, the
tee for Refugees at 128.The World Refugee Gujarat High Court even went to the extent
Survey,2000,at168,relying ontheUNHCR 44. Ibid., at 34 and 41. of readingthe principle of non-refoulement
report, states that during 1999a total 2182 45. Asian Recorder, April 15-21, 1996, as part of Article 21 of the Indian Consti-
Tibetans enteredNepal for onward journey p.25560. tution that guarantees to every person the
to India. 46. Asian Recorder, February 5-11, 1996, right to life and personal liberty and held
31. W.P.No. 243188, Supreme Court of India. p.25404. that the two refugees from Iraqcould not
32. C.R.No. 981189, Guahati High court: besent back to that country becauseof their
47. The Hindu, dated May 17,2000.
fear of persecution.
33.. C.R No.1847189, Gauhati High Court. 48. For details as to the country of origin,
56. Deccan Herald, dated October 17,1997.
34. W.P No. 515190, Gauhati High Court. countryof asylumand the number of refu-
gees admitted, please see the Statistics 57. The Deccan Herald, dated May 8,2000 a
35. C.R.No. 516191, Gauhati Hi& Court.

16 Refuge, Vol. 19, N o 2 (January2001)