Apoorva, Sabavath

Reddy, Avinash

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The necessity to develop a RegionalRefugee Framework for South AsiaVölkerrechtsblog 2019-04-24T12:57:20There are more than two and half million refugees in the South Asian countries,with majority of them residing in Pakistan, Bangladesh and India. At the same time,the South Asian countries are the place of origin for at least 3 million refugees, withAfghanistan being the country of origin for nearly 2.5 million refugees. Evidently,there is a significant refugee population in the South Asian countries and consideringthe Rohingya refugee crisis, these numbers are set to increase. At the regional level,there is only the South Asia Declaration on Refugees which was adopted in 2004by the Eminent Persons Group but the States are under no obligation to adhere toprovisions of the declaration.None of the South Asian countries, except Afghanistan, are signatories to the 1951Convention Relating to the Status of Refugees. This stems from the fact that someStates do not view the convention to be appropriate or adequate for their region/country to handle refugee situations. One of the criticisms of the 1951 Convention isthat the provisions of the convention are euro-centric and are not in consonance withtheir regional requirements of South Asia. There is also an apprehension that theirpolicy-making autonomy will be threatened if they accede to the 1951 Convention.This fact helps us understand that the refugee framework needs to be tailoredaccording to the needs and requirements of the specific regions in order to overcomethe pertinent bureaucratic/political hurdles in adopting a refugee framework and alsoto lay down efficient ways of handling the refugee situation.Learning from the Convention Governing the Specific Aspects of the RefugeeProblem in Africa (OAU Convention, 1969)Consider the 1969 OAU Convention, which has 46 signatories in Africa. Throughthis Convention, the scope of the term ‘refugee’ was expanded to also includepersons fleeing due to external aggression, foreign domination, occupation or anyevent which seriously disturbed public order. Unlike the 1951 Refugee Convention,the OAU Convention does not provide for an exception of “national security” tothe principle of non-refoulement while explicitly expanding its applicability to the“frontiers”, thereby establishing asylum as a right. This regional convention wasthe first international instrument to formalize the concepts of responsibility sharing,temporary protection as well as voluntary repatriation.It is evident that the regional framework for the African countries proved to be muchmore advanced, effective, appropriate and acceptable than the 1951 RefugeeConvention as it is specifically developed by considering the needs of Africanrefugees and member States.- 1 -Protection of refugees in South AsiaThere are numerous reasons for the increasing refugee population in South Asia,be it the Rohingya exodus, the conflicts in Afghanistan, Iraq and Syria, the India-Pakistan partition, the Bangladesh war, the Sri Lankan war etc. The South AsianStates have been handling the refugee crisis and the refugee population basedon administrative decisions as none of the States have any domestic legislation tohandle the matters relating to refugees.• India Specifically, India is a host to Tibetan and Sri Lankan refugees and has evenrecognised them officially. The government provides financial and strategic supportto these refugees and has focused on providing them the basic amenities. At thesame time, India is also a host to a significant Rohingya population and they haveneither been recognised officially nor do they avail any benefits/services through thegovernment. The Rohingya refugees are completely handled by NGOs and INGOswhile the government is adamant on deporting them by referring to a fictitious threatto national security. The government’s response to the refugee crisis is politicallymotivated and until and unless there is a refugee framework for the region, thearbitrary decisions of the government will remain unstoppable.• Pakistan Pakistan has been a host to more than 2 million Afghan refugees and the Pakistaniprime minister has recently ignited talks about offering citizenship to the Afghanrefugees who were born in Pakistan. In contrast, Pakistan has earlier stated thatit cannot carry the burden of hosting Afghan refugees anymore and lakhs of thoserefugees have been forcibly repatriated in 2016 alone. The government authoritieshave been called out several times by human rights organisations for their crueltreatment of refugees which had led them to leave Pakistan unwillingly. Similarly,in January 2018, the Pakistan government gave only 30 days for millions of Afghanrefugees to return to their homeland despite the worsening security situation inAfghanistan.• Bangladesh Bangladesh is currently hosting more than a million refugees from Myanmar. Morethan 9 lakhs of these Rohingya refugees are residing in the settlement at Cox’sBazar, making it the world’s largest refugee settlement camp. Despite being awelcoming host and providing its support to the Rohingya refugees, the governmentof Bangladesh has stated that it won’t be accepting any more refugees fromMyanmar. The foreign secretary noted that Bangladesh is paying the price forshowing empathy towards a persecuted minority. The government of Bangladesh- 2 -had earlier tried to initiate repatriation of the Rohingya refugees to Myanmar but itcould not go through as Myanmar failed to provide any assurance in terms of safetyof the Rohingyas and their citizenship issues.The brief overview of the refugee situation in the above three countries which arehosting nearly 90 percent of the refugee population in the South Asia providesinsights into the arbitrariness of the host states, lack of safety for refugees in the hostcountries, the massive economic burden on the host countries which are hostinglakhs of such refugees, the rules of voluntary repatriation which are continuouslyflouted due to the absence of any mandatory obligation etc.In order to work towards providing better protection to the refugees in South Asiaalong with ensuring that none of the member countries are drained economicallyas a result of hosting refugee population, there is a dire need to develop a regionalframework which will be binding on the South Asian member states, in a mannersimilar to that of the 1969 OAU Convention.It is necessary to have a binding regional framework as ad hoc responses toall the refuge situations are not adequate and often fail to address the situationcomprehensively. Some scholars are in favour of having national legislation over aregional framework, however, a dialogue between the member States to develop aregional framework will facilitate the processes of national legislation as well. Theprinciple of responsibility sharing in terms of hosting refugees, providing economicand strategic support, facilitating peaceful cross-border movement when necessaryetc. cannot be achieved merely through national legislations.Developing such framework will ensure that the decisions related to the refugees arenot steered due to political motivations or whims and fancies of some politicians oradministrators. Thereby, providing a better support system for the refugees acrossthe 8 member States.The way forwardThe proposed regional framework for Refugees in South Asia should necessarilytake into account the following suggestions.• Responsibility sharingThis must definitely feature in the regional framework to ensure that no memberState is overburdened. A request for responsibility sharing should be such that itcan be initiated by a member State hosting refugees after putting forth the reasonsfor such a request and by clearly laying down the support that is sought from all themember States combined. It can be further divided into the following aspects –1. Hosting refugees – Every member State, must be open to receiving and hostingrefugees from other member States. The criteria of such sharing process canbe determined by considering various factors such as the habitable area ofeach member State, population and population density of each member State,- 3 -economic status of each member State, availability of external support fromINGOs, NGOs, donors and other key role players etc.2. Economic and Strategic Support – In addition to sharing the responsibility ofhosting refugees, the member States should also be able to provide necessaryeconomic and strategic support, if any need arises. The extent of such supportshall again be determined by numerous factors such as the economic conditionof member States, necessity of providing such support etc.• Voluntary repatriation and other durable solutionsThe member States must work together towards achieving one of the three durablesolutions, i.e. voluntary repatriation, local integration, resettlement in a third country.In order to work towards these solutions, the regional framework must necessarilyinclude practical mechanisms to realise these solutions, which all the memberStates can adopt and implement. Solutions in the form of voluntary repatriationand resettlement in a third country essentially require involvement of more thanone member State and hence cannot be effectively guided by national legislations.While such legislations can be adequate to oversee the specificities regardinglocal integration of refugees, a regional framework would be vital in setting outcommon standards and guidelines for all the member States, thereby ensuring betterprotection for the refugees.• ID cards for the RefugeesThe regional framework should provide a skeletal mechanism to issue a uniqueID card to the refugees residing in each member State. The responsibility to issuesuch cards must be on the respective member States and there should be certainguidelines for issuing such IDs. The refugees holding such IDs must be providedwith basic amenities in a manner similar to that provided to the citizens of therespective member States. It will not only ensure that the refugees can access basicamenities and services but will also assist the member States in keeping a recordof the refugees. The member States must be allowed to determine the process forissuing such IDs but such mechanisms should be in consonance with the standardslaid down by the regional framework.ConclusionIt is important to understand that each region has its own peculiarities in regardsto the refugee situation and as explained, South Asian States need to develop andadopt a regional refugee framework to ensure better protection for the refugees andalso to ensure that none of the member States are overburdened due to the refugeesituation.Moreover, initiating a dialogue about the regional refugee framework for the SouthAsia can in fact lead to positive developments among the member States in regardto developing a national legislation as well. Only when the member States candevelop and implement such a framework, the human rights of the refugees in SouthAsia can be better protected.- 4 - P. Avinash Reddy is currently pursuing a bachelor’s degree in law at NationalAcademy of Legal Studies And Research (NALSAR), India. He is the Co-founderof the charitable organisation DEVISE (Developing Inclusive Education) and is amember of the NALSAR Legal Aid Group (N-LAG).Sabavath Apoorva is currently pursuing a bachelor’s degree in law at NationalAcademy of Legal Studies And Research (NALSAR), India. She is currently workingas the Deputy Team Leader for IDIA, Hyderabad (Increasing Diversity by IncreasingAccess) and is a member of the NALSAR Legal Aid Group (N-LAG). Cite as: P. Avinash Reddy & Sabavath Apoorva,  “The necessity to developa Regional Refugee Framework for South Asia”, Völkerrechtsblog, 24 April2019.- 5 -

The necessity to develop a Regional Refugee Framework for South Asia

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The necessity to develop a Regional Refugee Framework for South Asia

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