The Grounds Of Refugee Protection In The Context Of International Human Rights & Humanitarian Law.
Indian And Us Practice Compared
The research problem mainly revolves around the refugee law mechanisms adopted by India and United States of America. The research mainly focuses upon how these mechanisms are in compliance with the international standards set up in various conventions and to what extent are they being enforced and practiced in the respective nations. The judicial system of both the nations specifically dealing with refugee laws has been mentioned and an analysis has been made based upon this research.
The research methodology is doctrinal. The author has referred the books and sources mentioned in the bibliography given at the end of this project. These sources have been used only for establishing the concepts of refugee law in the author’s mind and to get details upon the mechanisms of implementation of these laws in India and United States of America.
International Refugee Law has developed in noteworthy ways over the last fifty years, as it has been obligatory to acclimatize to new and changing refugee situations and humanitarian challenges. The removal of dateline and geographical limitations by virtue of 1967 protocol, have essentially transformed the 1951 Convention from a document fixed in a specific moment in history into a human rights mechanism which deals with modern-day forms of human rights abuses. The Preamble of the 1951 Convention calls on States ‘to assure refugees the widest possible exercise of [their] fundamental rights and freedoms’, demanding an investigation of refugee law within the larger humanitarian and human rights context.
International Human Rights Law and International Humanitarian Law appliances harmonize the safeguards for refugees specified in the 1951 Convention. Importantly these bodies of Law support the unbiased basis of international law in general, which affects the international refugee law in particular.
The paper will focus upon the grounds of protection provided to refugees as per the international laws and will make a comparative analysis of how the implementation of these laws is practiced in India and United States of America.
Main Object And Purpose
The main object of this paper is to identify the clashes between the United States and Indian practices of Refugee Law as per the recommended directions by the International Human Rights and Humanitarian Law.
The purpose is to identify the mechanisms used in both the nations and find out the differences and similarities and make a comparative analysis on how they both can benefit by adapting certain procedures from each other’s parctices.
The Legal Framework Of The International Refugee Protection System
In the repercussion of World War II, the United Nations General Assembly created the Office of the United Nations High Commissioner for Refugees (UNHCR). UNHCR is authorized to defend and find long-lasting solutions for refugees. Its functions are based on a structure of international law and standards that consists of the 1948 Universal Declaration of Human Rights and the four Geneva Conventions (1949) on international humanitarian law, as well as an array of international and provincial accords and assertions, both obligatory and nonobligatory that expressly address the needs of refugees.
The Convention Relating to the Status of Refugees is the base of international refugee law. The Refugee Convention characterizes the term “refugee” and sets minimum standards for the treatment of persons who are established to meet the criteria for refugee status.
1951 Convention Relating To Status Of Refugees.
According to the 1951 Convention relating to the Status of Refugees, a refugee is someone who:
- Has a well-founded fear of persecution because of his/her
- Membership in a particular social group, or
- Political opinion;
- Is outside his/her country of origin; and
- Is unable or unwilling to avail him/herself of the protection of that country, or to return there, for fear of persecution.
Now the word ‘persecution’ was left open-ended by the framers of the convention as it was unfeasible to itemize in advance the countless outlines it might assume. But this oversight also gave states a large gauge of discretion, resulting in the deficiency of a ‘coherent or consistent jurisprudence’
1967 Refugee Protocol
The 1967 Refugee Protocol is autonomous of, though integrally associated to, the 1951 Convention. The Protocol takes away the time and geographic limits found in the Convention’s refugee definition.
Together, the Refugee Convention and Protocol cover three main subjects:
- The fundamental refugee definition, along with provisions for cessation of, and elimination from, refugee status
- The legal position of refugees in their country of asylum, their rights and duties, including the rights to be guarded against forceful return, or deportation, to a country where their lives or freedom would be in jeopardy
- States’ obligations, including collaborating with UNHCR in the exercise of its purposes and smooth the progress of its duty of administering the appliance of the Convention.
By agreeing to the Protocol, States consent to affect nearly all of the articles of the Refugee Convention (Articles 2 through 34) to all people covered by the Protocol’s refugee definition. Yet the enormous mainstream of States has favored to comply with mutually the Convention and the Protocol. In doing so, States reiterate that together the treaties are fundamental to the international refugee protection structure.
International Refugee Protection In Practice:
United States Of America
Before going to the legal practice of the refugee protection in United States of America, it is important to understand the nature and working of refugee cases in their court system. The refugee cases are dealt by the Immigration and Naturalization Service specially set up for this purpose. This is an exclusively federal branch.
Firstly the immigration application by the refugee is inspected by the Immigration Judge. The decisions from the Immigration Judge’s court go to Board of Immigration Appeals (BIA). From BIA the appeals are further forwarded to the Federal Court of Appeals and finally from FCA the appeals go to the United States Supreme Court.
If the Immigration Judge’s decision is not satisfactory a “reserve appeal” has to be made within 30 days from the decision.
In US they have different circuits for different regions and have specified jurisdictions. The Board of Immigration Appeals is only bound by the court of appeals decisions from the respective circuit. I.e. BIA of 9th Circuit is not bound by the decisions of 3rd Circuit.
Alienswho want to continue in the United States of America because they panic persecution in their homelands have two legal alternatives:
- They can petition the US government for political asylum, if they have a “well-founded fear” of persecution in their homeland.
- And if they face a “clear probability of persecution” in some nation, the US may not refoule them to that country.
Congress has articulated an objective that the eligibility necessities for both asylum and deportation withholding should be conventional with US commitments under the 1967 United Nations Protocol concerning to the Status of Refugees. But by using faintly different indistinguishable language to describe the eligibility requirements for the two options available to the refugees, Congress compromised the matter of which aliens justify refuge in the United States.
The uncertainty over eligibility requirements has caused the Immigration and Naturalization Service (INS) to treat aliens in front of neutrally analogous persecution threats disparately. Some of this disproportion – “random” disproportion – shows unreliable interpretations of legislative language. Other disproportion – “political” disproportion – reflects bigotry among aliens on the basis of such political contemplations as national derivation.
These two kinds of disproportions correlate: Random disproportion grants the prospects for political disproportion to both burgeon and continue secret. Random disproportion has also disallowed judicial power of illicit political bigotry in refugee determinations.
In 1984, the Supreme Court of US endeavored to elucidate the necessities for deportation withholding and asylum. In INS v. Stevic it held that the two forms of aids have diverse principles of evidence: The “clear probability” essential for withholding is counterpart to a “more likely than not” customary and is stricter than the “well founded fear” mandatory for asylum.
Eventually Stevic’s holdings have proved erroneous. First, the peculiarity has little practical efficacy: Almost all aliens who qualify the asylum burden also convince the tentatively heavier withholding standard and those who do not succeed to qualify the withholding standards hardly ever convene the lighter asylum burden. More prominently, the requisites “clear probability,” “well founded fear”and“persecution” remain unformulated and pliability exists. And even if the first two terms had contextually apposite connotations – connotations which act in response to the authenticity of refugeeship – the description of persecution would still be too formless to offer that smallest certainty required to shield any legal rule from the impulse of its officers: Clear burden of proof principles are of minute use devoid of accord on the basic substantive concerns to which they apply.
Of course the Supreme Court did not profess to illuminate all of the interpretational issues these provisions engross. However the ongoing circuit court incongruity over who qualifies refuge under the 1980 Refugee Act? Until that issue is decided, efforts to illuminate principles of proof will function in vacuity of peripheral nature, consuming gigantic burdens of litigation endeavor, but resulting in little respite or sureness to refugees.
UNITED STATES – Humanitarian Treatment Of Persecuted Refugees.
The Decision Making Context Of Asylum And Deportation.
Aliens looking for asylum or deportation withholding submit an application to the INS, which governs and puts in force the Immigration and Nationality Act, 1985. Aliens who are by or inside US borders and not deportable can pertain to the nearest INS district director for asylum. To be qualified for asylum, they have to prove that they are “Refugees” – and also that they have a “well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” from which their home government cannot or will not protect them. District directors withhold asylum on the base of substantiation and authentication given by the aliens.
An alien who is deportable can file for withholding and asylum both, in spite of a district director having declined his asylum application before he became deportable.
Justness For Deportable Aliens.
As aliens are “persons” within the meaning of the 5th and 14th amendments of the US Constitution, they are prevented from unjust federal and state exploitation. Even the Civil Rights Act, 1964 shield the aliens from violating their due process rights. Yet as compared to the applicability of these rights to the citizens, they are very weak when applied to aliens.
Yet the courts oblige to two limitations on the exercise of their power of deporting an alien:
- the aliens are assured due process rights
- the quasi-substantive due process limits the INS from treating correspondingly persecuted aliens in a different way.
This due process need creates rules of obligation to reliable law for all government agencies. Hence the INS acts within the framework granted by its legislation.
Humanitarian Treatment Towards Aliens Who Are Persecuted.
Quasi substantive due process entails that any evaluation of substantive, rather than procedural, discrepancy in the conduct of aliens must rely on what inconsistency germane law can rationalize. The primary basis of legal validation is legislative law, predominantly INA sections 101(a)(42)(A), 208(a), and 243(h). In section 101, a refugee is any individual remote to his native soil who doubts persecution if he returns there. Section 243(h) prohibits extradition of any alien to a nation if his life would be endangered there. These indications to “individual” seem to proscribe distinctive treatment among aliens who convene the other eligibility necessities on the foundation of their state origin or on the base of foreign guidelines consideration. But the problem remains unsolved:
- What deliberations, if any, can validate distinctions between aliens in front of impartially parallel intimidations in choosing whether they make it up to those other necessities?
- What dissimilarities are permissible in formation of which aliens face persecution and therefore are qualified for release?
- When is it lawfully acceptable to articulate that one, but no other, of two aliens facing without prejudice analogous threats faces persecution?
The orientation to persecution in section 101 is too intangible to decide these questions for asylum contender.
International Refugee Protection In Practice: India.
Unlike United States of America, India does not have a specified legislation specifically dealing with Refugee Law. Yet we cannot say that India does not comply with the Humanitarian Laws with regard to the protection of refugees. India in spite of not being a party to the 1951 Convention or the 1969 Protocol, it is not comforted of neglecting the international human rights and humanitarian law as per the other international covenants.
The main questions which arise are:
- Which legislations in India put the protection of refugees in practice?
- Whether these legislations are in compliance with the International Human rights and Humanitarian Law specifically drafted keeping in mind the status of refugees?
- Which authority sanctions these refugee laws in India and keeps a check on their implementations and remedy for violations of the rights of refugees?
Which Legislations In India Put The Protection Of Refugees In Practice?
To begin with there are no definitions of the word alien given anywhere in the Indian legislation. Still ‘alien’ has been used in a number of statutes like the Article 22 and Entry 17; List one, Schedule Seven of the Indian Constitution. It can also be found under section Eighty Three of the Civil Procedure Code and also in section 3 of The Citizenship Act, 1955. Apart from these ‘lien’ has been used in various other legislations.
As there are no specialized Acts dealing with the rights of refugees in Indian law, we have to derive the provisions relating to them from the general and fundamental principles of the Indian statutes. Like the refugees get the following rights from the fundamental rights given under the Indian Constitution :
- Right to Equality – Article 14
- Right to Life and Liberty – Article 21
- Right to Freedom to Practice and propagate their Religion – Article 25.
Refugees, like normal citizens of India can appeal to the High Courts under article 226 and to the Supreme Court under article 32, on violation of the rights derived by them under the fundamental rights. Hence it can be said that the fundamental rights given by Indian constitution are also applicable to Refugees, although subject to certain interpretational restrictions.
Moreover Article 21, which ensures Life and Liberty of the refugee too, inflicts certain constraints upon the States, making sure that the aliens do not suffer any harm or danger to their life and personal liberty, in a case where proper modus operandi has not been followed by the state, with regard to their deportation.
Article 21 includes the theory of non-refoulment which needs that a state shall not drive out or return a refugee to such a land where his life is endangered on account of his race, religion, nationality, membership of a particular social group or political opinion.
Hence we can see that although not properly compiled or codified, the Indian law does have a special consideration in terms of refugees and their protection. Even though India does not have a special court system separately made for the matters pertaining to refugees, yet it makes sure that none of the aliens are devoid of their basic rights which are necessary for him and are to be secured as per the international humanitarian law.
Whether These Legislations Are In Compliance With The International Human Rights And Humanitarian Law Specifically Drafted Keeping In Mind The Status Of Refugees?
In spite of India not being a party to the 1951 Convention and the 1967 Protocol, yet it complied with the two Covenants on basic rights in March 1979. The two Covenants deal with Civil and Political Rights of an individual and also granting the economic, social and Cultural Rights. Yet it must be kept in mind that India has retained its right to apply its domestic law to refugees and aliens. Furthermore as the covenants are not passed into Indian Law the principles of law laid down in them can not be applied in Indian courts in a very strict sense. But this does not mean that India can neglect and ignore the international commitments under these Covenants. The courts can always consider the principles provided in the covenants, where they face any difficulty in deciding any apt case.
Moreover article 22 of the Indian constitution gives the rights to a child seeking refuge in India. It makes sure that if a child is seeking refuge in India, alone or accompanied by his guardians, he will receive the rights set forth in the Convention on child rights which India joined in March, 1979. These rights make sure that the child is provided proper security and also that he is guided and his interest in given utmost importance while dealing with hi refugee application. This plays as a very important block of laying down of humanitarian law’s steps in India.
Hence it cannot be said that the laws concerning refugees in India are devoid of being in compliance with International Human Rights and Humanitarian Law for the protection of refugees.
Which Authority Sanctions These Refugee Laws In India And Keeps A Check On Their Implementations And Remedy For Violations Of The Rights Of Refugees?
Although there is no specified authority set up for implementation and enforcing the refugee laws in India, there are many adhoc organizations dealing with the rights of people falling under this category and make sure that the laws of India are interpreted properly in accordance with the international humanitarian laws while providing proper treatment to the refugees.
A very good example of such a adhoc organization is NHRC, National Human Rights Commission. In the functions of NHRC, they make sure that refugees in India are not devoid of the rights they must get as per the international human rights specially provided to refugees. In the Chakma case, NHRC had appealed on behalf of the refugees in North-East, when eviction activities were feared by this particular group of refugees.
At times the courts have even rejected directions from the Government of India of any evictions of people, to see to it that they comply with the humanitarian principles provided for refugees in UNHRC.
However, these instructions being ‘adhoc’ in character, the literal legal situation in this area has continued to be imprecise with concern to refoulment.
The suggestion is that international obligations must persuade the Courts in making provisions to ensure the extinction of flaws left around in the Indian legislations when they are concerned with refugees.
It is clear from the above analysis that US practice on the grounds of refugee protection in the context of international human rights and humanitarian law is much more organized and very much strongly codified and implemented than as compared to the same in India.
Recommendations can be made for India to set up a special tribunal for dealing exclusively with refugee cases, dealing with matters related to Asylum and Deportation. Yet it is not a very easy task, because of the complexities in the democratic set up in India. Whereas US has very successfully established a completely separate branch of law in the form of immigration which has in a very beautiful manner complied with the Conventions and Protocols, which cannot be said about India.
To deal properly with refugee laws, special amendments will have to made in the constitution, like defining the exact scope of the “alien” and also dealing with the specific rights of the Refugees.
But still we can conclude that in one area Indian law beats US, that is where US refugee laws come into conflict with each other due to the separate circuit system prevailing in their judicial system. In this way Indian law is more effective as it maintains uniformity and equality under any circumstances.
Hence although good at their own stands, yet Indian and US refugee laws can adapt a lot from each other an improve their practice of refugee protection in the context of International Human Rights and Humanitarian Law.
- International Law, Fifth Edition, Malcolm N. Shaw Q.C. Cambridge University Press.
- Human Rights and Refugees, Dr. N. Subramanya.
- International Refugee Law, A Reader, Edited by B.S. Chimni, Saga Publications.
- International Law and Human Rights, Dr. H.O. Agarwal. 14th Edition, Central Law Publications.
- Human Rights, Volume 3, U.N. Gupta.
- Refugee Protection: A Guide to International Refugee Law. By Ms. Kate Jastram and Ms. Marilyn Achiron, UNHCR.
- Refugee Protection in International Law: An over all perspective. By Volker Turk and Francis Nicholoson.
- Refugee Law and International Humanitarian Law: Parallels, Lessons and Looking Ahead. By Rachel Brett and Eve Lester.
- Upholding International Refugee Protection Principles Today. Addressed by Ms Sadako Ogata to Law Association for Asia and Pacific, 2003. Tokyo, Japan.
- The Need for a Codified Definition of “Persecution” in United States Refugee Law. Sophie H. Pirie. [LexisNexis Academic].
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