JOIN USRefugees have only hope to survive
It is an intensely overwhelming despair that engulfs the mind of the refugee, spurring him to fearlessly traverse international waters on a flimsy rubber boat. Throwing caution to the wind, he recklessly gambles the lives of his wife and infant, risks it all to reach an unknown destination. The unknown and the uncertain hold more promise than his present desperation.
The provision of protection to the refugees by the international community originated with the League of Nations. Today, there are an estimated 60 million global migrants searching for a better or safer future. These desperate destination-less travellers – refugees, migrants, asylum seekers and stateless people – share a common agenda: to flee to safer environments.
They are running charged with the hope of a future. They stand at borders of nations, waiting endlessly, for they believe in humanity, they believe that their basic human rights will be restored. But sadly, the level of restoration of rights will be on the basis of their legal status.
Customary international law and human rights law provide for the protection of rights by the State to all people within its territory. Once a person enters a country, the host country is obliged to protect his/her basic human rights irrespective of race, nationality, legal or non-legal status. Ultimately, the State has the sovereign power to decide who to admit into its territory. But the principle of non-refoulement prohibits the State from sending the refugee back to the country of origin, if there is threat to his life or freedom. This protection is extended to illegal entrants as well.
International protection extends beyond physical safety. Refugees enjoy basic civil rights which include freedom of movement and freedom of thought and freedom from degrading treatment and torture.
The International Covenant on Economic and Social rights covers the refugees’ right to work, access to medical care and prohibits the deprivation of education to refugee children. Economic migrants are not recognised as refugees and are therefore not entitled to international protection.
For the last 60 years, the UNHCR has partnered with governments to protect refugees. Governments worldwide have spontaneously granted asylum until it was safe for the refugees to return to their own countries. When it was impossible for the refugees to return to their homeland, countries have offered permanent solutions, of citizenship, legal employment etc.
This was possible because the refugees were in manageable numbers, and they were from neighbouring countries with interracial affinities. The refugees were also welcome as they filled in the labour gap. But today, they arrive in mixed groups of migrants, refugees and asylum seekers, overburdening the systems processing their claims.
Recent years have shown a seismic shift in asylum policies. The escalating social and econo-mic cost of hosting an increasing multitude of refugees, the abuse of the asylum system manifested through people trafficking and smuggling, the ever increasing irregular migration and security concerns have played a dominant role in government reluctance to offer asylum.
Fear of persecution
The 1951 Convention defines refugee as someone who has a “well-founded fear of being persecuted for reasons of race, reli-gion, nationality, membership of a particular social group or political opinion, who is outside the country of his nationality and is unable owing to such fear, to avail himself of the protection of that country”. ‘Fear of persec-ution’ and ‘protection’ are the keywords. The definition has turned narrower just as the refugee causation factors have become dramatically complex.
General instability is insufficient to claim refugee status. If the host country interprets his presence as a threat to national security or a danger to the security of the host country, his asylum status can be refused. Some countries apply a principle similar to “res judicata”, they refuse refugee status based on a previous host country’s decision to decline refugee status.
Refugees are minutely sifted from the mixed group of migrants. People running away from unstable environments due to water shortage, climate change, natural disasters or famine do not qualify as refu-gees under the 1951 Convention.
There is an estimated 240 million migrants on the move. There is a contagion of insecurity permeating the masses, a fear that the invasion of refugees would increase competition for jobs and government benefits.
A fierce existential struggle of emotions – compassion versus fear. Xenophobia and nativism are sentiments gaining momentum. The terrorists from the recent Paris attack who slipped into Europe with the refugee group has again only magnified those fears.
The last 50 years has seen a profound growth of migrants, refugees or whatever classification they may qualify under, crossing borders for a better life or seeking protection of life. This situation has reached a crisis with the Syrian refugees.
This international migration is expected to be a continuing situation caused by economic, political, social and environmental factors. It is time for the global community to cooperate across borders and structure agreements and policies equal to the ongoing challenges of refugees and migrants.
(Mathias is a Legal Consultant and Jain is Associate Professor, School of Law, Christ University, Bengaluru)