Modules Notes for Winter Course 2007

Module A /  Module B /  Module C /  Module D /  Module E /  Module F /  Module G / Module H  

Module A

Forced Migration, racism, immigration, and xenophobia

1. The first module (Module A) deals with linkages between the phenomenon of forced migration and those of racism, xenophobia, and immigration. We shall deal here with trans-border forced migration in the context of racism, xenophobia, and the immigration issues in the world today, though we have to remember that racism and xenophobia produce forced migration within the country also. Since in this course we have another module dealing with internal displacement, we have chosen here to concentrate on cross-border refugee flows and other forced population movements across the border.

While international law on protection of refugees deals with the condition, status, and the rights of persons who have already escaped the persecution and crossed the border to seek asylum, this module deals with what may be called the “root causes” of the flight. It is in this respect that we have to discuss the phenomena of racism and xenophobia, and the relation of the state controls on immigration with the issue of protection of refugees.  

2. Yet it must be understood that when we discuss the root causes of the refugee flow and the un-wanted and unprotected status of the refugees, we are not ignoring the historic patterns of migration on which population flows including forced population movements are often built. Some have termed this as “transplanted networks”. This historical perspective is essential as a perspective when we consider refugee flows. Also it must be borne in mind that whatever be the cause, refugees have a right to care, protection, and settlement, though it is true that if the root causes are not considered seriously, then there is a probability that we shall consider the refugee situation as a banal one, and neglect thereby the question of the rights of the refugees or the duty of the States and the international community to protect the escapees of violence. One example is around the concept of “well-founded fear” which is a test for grant of refugee status.

3. The “well-founded fear” concept has evolved from a relatively simple inquiry within which the refugee's subjective feelings of "terror" were prominent, to a much more complex and wide-ranging inquiry within which concepts such as the "safe state" have become increasingly the sole determinants of the issue of the well-founded fear. Thus, the refugee has become a fundamentally unreliable base point of inquiry such as to justify the shift to a generalized or group-based evaluation of a well-founded fear. Some one has asked rhetorically, but it makes lot of sense: What would happen if the refugee interviewed the government official? Would the official be able to comprehend that many of his or her deepest longings were the same as those of the refugees, but without the physical dislocation? Would they understand that their own doubts were the same as (those of) the refugees? Or take this case, on which a jurist had to comment, “Refugee determination procedure on individual basis and the unequal sharing of burden of care have now produced confused, traumatized, and nervous shelter-seekers who travel rarely with supportive documents, false or no papers, and land in alien systems which are frequently hostile or incredulous" hosts”. In this case involving a Sri Lanka Tamil who had fled persecution allegedly at the hands of the LTTE (R. SSHD ex parte Karunakaran 25 January 2000, unreported), the judge commented, “The civil standard of proof, which treats anything, which probably happened, is part of a pragmatic legal fiction. It has no logical bearing on the assessment of the likelihood of future events or (by parity of reasoning) the quality of past ones... The method of evaluation is itself not one of hard facts. But it requires knowledge not only of applicant's own tale, and what is accepted of it, but a whole range of other factual matters.”

Therefore the problem we are now confronting in studying root causes is the “exceptional” nature of the refugee situation. Is the refugee situation exceptional because the refugee is merely outside some state responsibility? Or, and this is what we are implying, is the refugee situation exceptional because of the inherent violence of the state, and the incapacity of all states to fulfil their human rights obligations consistently? The question is complicated, because it affects the political attitude and will of the States to grant asylum to a person on the ground of “well founded fear”.

4. In any case, the dual phenomena of racism and xenophobia have become almost universal phenomena. Racism has appeared in new forms, cultural differences are essentialised as biological differences on the supposed reality of which old racism arose and persisted. Conflicts drawn to its extreme level produces neo-racist differences, the sign of which is the increasing division of population groups along supposed physical lines, segregating groups thereby in an extreme manner. Such extreme differences become in time hereditary principles of discrimination. Xenophobia is a related phenomenon; aggressive attitude towards national differences produces neo-racist differences. It had been so earlier also. Partition of states produces the most concentrated violence, reshaping states reshape minds, and the formation of new states happens amidst mass murders, mass dislocations, and mass displacements. Partition refugees are a special category, for they lose the right to return even – a right granted at least nominally to other groups of refugees.

5. The right to return is a significant issue in this context.  Refugees enjoy very few rights but one of the most intrinsic rights for a refugee is the right to return.  Although much debated internationally the right to return is most clearly enshrined in the 1966 International Covenant on Civil and Political Rights (ICCPR) under its provisions on the right to freedom of movement (Article 12.4) which says that No one shall be arbitrarily deprived of the right to enter his own country.  But this right has often proved to be a chimera at least in South Asia.  A historian has shown that perhaps the first group of people, though not refugees, whose right to return was denied by a South Asian state were the Indian emigrants who travelled abroad in the eighteenth and nineteenth centuries to work as plantation labourers. All through the nationalist period the fate of these labourers in their country of domicile was a rallying point for Indian leaders to portray the dark side of foreign rule. There was constant reiteration that the state was responsible for all the people who were born in India. Yet during the legislative assembly debates in 1944 the leaders came to a consensus that these émigrés rightfully belonged to their country of domicile and not in India. Unlike nationalists during the colonial period, the leaders of the post-colonial State formation project no longer looked forward to the return of the emigrants who were slowly being considered as foreigners.  South Asian independence was accompanied by a blood bath.  The partition of India and Pakistan resulted in two million deaths and about 15 million people were displaced. Most of the refugees were lucky enough to get domicile and often citizenship in their country of domicile. Yet problem arose over the issue of return. In people’s memory their Desh (country) was where they were born. But once displaced they did not have the right to return even when they so desired.  South Asian states passed legislations whereby property of the displaced were confiscated by the State and treated as enemy property.  So the home that they wanted to go back to remained only in their own imagination. One often hears the argument that because partition refugees got an alternate citizenship they lost the right to return. In South Asia there are however, other groups of refugees who remain as stateless people; yet they are denied the right to return. We have the instances of two such groups of refugees: the Chakmas (Jumma people) and the Bhutanese. This module has to discuss in the context of these experiences as to how South Asia’s political history is predicated by aliens, half-citizens, exiles, refuge, temporary shelters where citizens pass away their lives, illegal immigrants, - in short, the non-state persons who are beyond the pale of citizenship rights, and who are not even the proper subjects of the international law on non-state persons? The focus in any discussion on the right to return of citizens expelled has to be thus on the need to move away from the classical theories of sovereignty, democracy, State, and citizenship, and take the exile, the alien, the displaced (both internally and trans-border), and the half-citizen as the central figure of the politics in South Asia, the figure who is with us like the eternally accompanying shadow, so normalised that we forget its existence which we have taken for granted. In this physical milieu of expulsion, de-enfranchisement, and nationalisation, the right to return is at once the most crucial question and the most hallucinatory claim. The illusory nature in many cases of the right to return shows the deep nature of the causes that force displacement in the first place. The apparent reasons may go away, while the root causes remain. Once the population groups leave, they are reduced to extreme marginality wherefrom it becomes extremely difficult for them to force back to their original position in their “national” societies. Instead of durable solutions we have durable vulnerabilities. The root causes spark off forced migration, but marginal and vulnerable positions have a way of accumulating so that even when causes are removed marginal positions or situations persist.

6. The last point that we shall discuss under this module is the relation between refugee flow and immigration flow, and the way in which immigration is controlled today impacts on refugee protection also. The flow of (illegal) immigration has not only overwhelmed in some cases the flow of refugees, it has got mixed with it also to such an extent that we can say that aliens have appeared as a subject in the world today. Definition is of course available in municipal laws of who is an alien, and this is not surprising, because an alien is an alien to a State (but can there be an alien to all the states on earth?). But illegal immigrants who are aliens to a state have been in a state of double jeopardy - they do not have the good luck to get protection when they arrive, and they will not benefit from any moral responsibility owned by a state wherefrom they decided to exit, a state that evidently does not care much for the fleeing population. Allowing population to leave is part of its pursuit of a "nice exit" policy (except in case of migrant workers when foreign remittances to the economy would be going down). We have to remember that unlike the Civil and Political Covenant, the International Covenant on Economic, Social and Cultural Rights does not create obligations on the states to fulfil immediately on signing. Therefore, a state can get away by arguing that its allocation of resources is insufficient, but is non-discriminatory. An illegal migrant who is forced to move out from his country is seen as showing desire for "good life", and thus not eligible for his/her right to protection of the social, economic and cultural attributes necessary for his/her dignity. The mix of the two flows, of the refugees and illegal immigrants, now accentuates all the problems facing humanitarian politics today. Here is an instance of what is happening therefore round the world, marking in a very condensed form the non-dialogic segment inhabited by the aliens who suffocate, perish, and die in the most silent way, without any chance to talk to the world of the international that they wanted to enter:

Last month fourteen men and women left their coffee farms in Veracruz, and began the journey north. Within days, their bodies were found on the hardpan of the Sonora desert. On first look, they died of agonizing dehydration, like hundreds more over the last few years, trying to cross the same forbidding border.

But their deaths were caused by more than lack of water. These farmers left their beautiful Veracruz mountains because free-market reforms - no rural credit, no crop subsidies and others - drove them off their lands. And having made the hard decision to look for jobs and a better life in the north, U.S. immigration policy made their deaths practically inevitable.

No visas were available for them - the waiting line for green cards at the embassy in Mexico City goes back to 1976. A draconian border policy has closed the safer routes across, pushing migrants further and further into the desert and mountains, making the great migrant stream less visible, along with its human cost.

And if they had arrived safely, what life would these farmers have found?

They would have become part of a migrant workforce with conditions and wages at the bottom, denied the most basic rights - no unemployment insurance, no medical care, no social benefits of any kind. Because of employer sanctions, the very act of working would have been a crime. Ironically, they might easily have been employed by the same corporations relocating jobs to Mexico, attracted by the very free-market conditions, which force migrants to leave.

But perhaps the worst thing about their deaths is the way they'll be used, not to advocate for humane changes in U.S. immigration policy, but to justify a new bracero program making border-crossers like them a permanent, second-class workforce for the profit of U.S. business.

President George Bush and his fellow free-market advocate, Mexican President Vicente Fox, are both under pressure to reduce border deaths. Vastly expanding guest worker programs, they argue, would open the doors of legal immigration to those now forced to cross in secret.

While guaranteed labor rights on paper, however, guest workers depend on the continuation of a job to remain in the country. Employers therefore not only have the power to fire workers who organize or protest bad conditions, but in effect to deport them as well.

Beneath a humanitarian cover, business gets what it wants - workers at lower wages with fewer rights...

Twenty years ago, most unions wrote off immigrant workers. In 1986, the AFL-CIO supported employer sanctions. But today unions are rethinking that attitude and as a result, the political alliances that limited the possibility for immigration reform have changed. Amnesty for the country's 9-11 million undocumented immigrants, which was off the radar screen in Washington just a few years ago, is now a realistic goal.

"Most unions today are at least trying to organize," explains Hotel Employees Union President John Wilhelm. "And no matter the industry, they run into immigrant workers. That's what brought home the failure of the AFL-CIO's old immigration policy."

Last year, the percentage of U.S. workers belonging to unions dropped from 13.5 percent to 13.3 percent, and fell to 9 percent in the private sector. For the overall percentage to stay constant, unions have to organize 400,000 workers a year; to increase by 1 percent, they have to organize twice that number, a rate not achieved since the 1940s.

Over the last decade, immigrant workers have proven key to labor's resurgence. "Every period of significant growth in the labor movement was fueled by organizing activity among immigrant workers," Wilhelm says. "We're a labor movement of immigrants and we always have been."

Reflecting this new attitude, unions are proposing an alternative to a new bracero program. "We're putting forward a comprehensive agenda, including legalization, repeal of employer sanctions, and workplace protections regardless of legal status," says Service Employees Union Vice-president Eliseo Medina. The new president of the Laborers Union, Terence O'Sullivan calls for opposition to contract labor, and for increasing the ability of immigrants to reunite their families in the U.S.

Illinois Congressman Luis Gutierrez has introduced a bill taking the first step - expanding legalization opportunities for immigrants who arrived before this year.

From the opposite end of Congress, Senator Phil Gramm, a recent convert (like Jesse Helms) to the bracero cause, is introducing a bill to permit recruiting guest workers for a year's labor, so long as they have no right to stay. At the same time, he proposes increased enforcement of employer sanctions to force workers into the program, making the undocumented even more vulnerable, their labor cheaper and their conditions worse...

The choice is not over what will or will not stop people from coming across the border, but over their status in the U.S. It's the age-old American dilemma: bondage whether as slaves, indentured servants or braceros) or freedom (even if that still leaves workers with the need to organize and fight to improve conditions).

Behind the debate lies a fundamental question: Is the purpose of immigration law to supply labor to industry on terms it finds acceptable, or is its purpose to protect the rights and welfare of immigrants themselves?

There is another framework for dealing with migration, other than contract labor and death on the border. The UN's International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families supports the right of family reunification, establishes equality of treatment with citizens of the host country, and prohibits collective deportation. Both sending and receiving countries are responsible for protecting migrants, and retain the right to determine who is admitted to their territories, and who has the right to work.

The Convention recognizes the global scale and permanence of migration, and starts by protecting the rights of migrants themselves. That's where an immigration policy based on human rights begins.

This is more than a refugee situation that is legally defined and assumed.  The new mix of forced and unwanted population flows and the inadequate appreciation of the new phenomenon in refugee studies raises the problem of method. While forced population movements have been hitherto studied from economic and demographic angles, its link with the politics of citizenship is still inadequately appreciated. Similarly, the notion of forced is so narrowly defined, that the structural violence continuously producing aliens escapes our attention, though violence and coercion are considered as benchmarks in determination of refugees.

7.Module A is the beginning. But the module should offer enough glimpses of the problems in the issue of refugee protection today, so that the following modules in this course can be appreciated better. And, one must not forget that in all instances and phenomena cited above gender stays as the most deeply inscribed category of discrimination and difference, if discrimination and difference are taken as the key opening words. A good beginning means an anticipation of the problems that will arise at the end.  

References

Etienne Balibar,  in Etienne Balibar and Immanuel Wallerstein, Race, Nation, Class – Ambiguous Identities (Verso, 1991)
B.S. Chimni, International Refugee Law – A Reader (Sage Publications, 2003), section 5
Ranabir Samaddar (ed.), Peace Studies I (Sage Publications, 2004), chapters 7-8, 13-14
Ranabir Samaddar (ed.), Refugees and the State (Sage Publications, 2003), chapters 1-3, 6, 9
Ranabir Samaddar, The Marginal Nation (Sage Publications, 1999), chapters 1-4, 13
REFUGEE WATCH, “Scrutinising the Land Settlement Scheme in Bhutan”, No. 9, March 2000
REFUGEE WATCH, “Displacing the People the Nation Marches Ahead in Sri Lanka”, No. 15, September 2001 

Web-based

1. RW.: Displacing the People the Nation Marches Ahead in Sri Lanka
   http://www.safhr.org/refugee_watch15_7.htm

2. RW.: Mohajirs : The Refugees By Choice
   http://www.safhr.org/refugee_watch14_5.htm

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Module B

Gender dimensions of forced migration, vulnerabilities, and justice

Over one percent of the total world populations today consist of refugees.  More than eighty percent of that number is made up of women and their dependent children.  An overwhelming majority of these women come from the developing world.  South Asia is the fourth largest refugee-producing region in the world.  Again, a majority of these refugees are made up of women. The sheer number of women among the refugee population portrays that it is a gendered issue. This module is meant to portray that undoubtedly both displacement and asylum is a gendered experience. At least in the context of South Asia it results from and is related to the marginalisation of women by the South Asian states.  These states at best patronise women and at worse infantilise, disenfranchise and de-politicise them. It is in the person of a refugee that women’s marginality reaches its climactic height.  

The nation building projects in South Asia has led to the creation of a homogenised identity of citizenship.  State machineries seek to create a “unified” and “national” citizenry that accepts the central role of the existing elite. This is done through privileging majoritarian, male and monolithic cultural values that deny the space to difference.  Such a denial has often led to the segregation of minorities, on the basis of caste, religion and gender from the collective we.  One way of marginalising women from body politic is done by targeting them and displacing them in times of state verses community conflict.  As a refugee a woman loses her individuality, subjectivity, citizenship and her ability to make political choices.  As political non-subjects refugee women emerge as the symbol of difference between us/citizens and its other/refugees/non-citizens. By taking some select examples from South Asia in this module we will addresses such theoretical assumptions.  Here the category of refugee women will include women who have crossed international borders and those who are internally displaced and are potential refugees.

The partition of the Indian subcontinent in 1947 witnessed probably the largest refugee movement in modern history.  About 8 million Hindus and Sikhs left Pakistan to resettle in India while about 6-7 million Muslims went to Pakistan.  Such transfer of population was accompanied by horrific violence.  Some 50,000 Muslim women in India and 33,000 non-Muslim women in Pakistan were abducted, abandoned or separated from their families.[1] Women’s experiences of migration, abduction and destitution during partition and State’s responses to it is a pointer to the relationship between women’s position as marginal participants in state politics and gender subordination as perpetrated by the State.  In this context the experiences of abducted women and their often forcible repatriation by the State assumes enormous importance today when thousands of South Asian women are either refugees, migrants or stateless within the subcontinent. Abducted women were not considered as legal entities with political and constitutional rights.  All choices were denied to them and while the state patronised them verbally by portraying their “need” for protection it also infantilised them by giving decision making power to their guardians who were defined by the male pronoun “he”.  By insisting that the abducted women could not represent themselves and had to be represented, the State marginalised them from the decision making process and made them non-participants.  Even today the refugee women do not represent themselves.  Officials represent them.  For the abducted women it was their sexuality that threatened their security and the honour of the nation.  Thus, their vulnerability was focused on their body.  This made all women susceptible to such threats and so had to be protected/controlled.  By denying agency to the abducted women the State made it conceivable to deny agency to all women. Readings taken from Ritu Menon and Kamla Bhasin’s Borders and Boundaries portray the trauma faced by these women who could never be considered as full citizens.

Refugee women from other parts of South Asia reflect trauma faced by women belonging to communities considered as disorderly by the state. Ethnic tensions between the Tamil minority and Sinhala majority leading to armed conflict since 1980s have led to several waves of refugees from Sri Lanka.  They are victims of a failed nationalizing project.  By 1989 there were about 160,000 refugees from Sri Lanka to India, again largely Tamil women with their dependents.  Initially the State Government provided these refugees with shelter and rations, but still many of them preferred to live outside the camps.  They were registered and issued with refugee certificates.  In terms of education and health both registered and unregistered refugees enjoy the same rights as the nationals.  Nevertheless in absence of specific legislation their legal status remained ambiguous. The precarious nature of their status became clearer in the aftermath of Rajiv Gandhi’s assassination.  All sympathy for these women disappeared after Gandhi’s assassination and in the Indian state perception they were tarnished by a collective guilt and so became expendable. 

After Rajiv Gandhi’s assassination the politicians began to shun the refugees.  As most of these were women they were initially considered harmless but with the number of female suicide bombers swelling there was a marked change in GOI’s attitude to women refugees.  Soon the government turned a blind eye when touts came to recruit young women from the refugee camps in Tamil Nadu to work as “maids” in countries of Middle East.  Most of these women were then smuggled out of India and sent to the Gulf countries.  Often they were badly abused. By April 1993 refugee camps were reduced from 237 to 132 in Tamil Nadu and 1 in Orissa. In Indian camps refugee families are given a dole of Rs.150 a month, which is often stopped arbitrarily.  Women are discouraged from taking up employment outside the camps.  During multiple displacements women who have never coped with such situations before are often at a loss for necessary papers.  When separated from male members of their family they are vulnerable to sexual abuse.  The camps are not conducive for the personal safety of women, as they enjoy no privacy.  But what is more worrying is that without any institutional support women become particularly vulnerable to human traffickers. These people aided by network of criminals force women into prostitution.  Millions of rupees change hands in this trade and more lives get wrecked every day. Asha Han’s paper in Refugees and the State portrays the predicaments faced by refugee women in South Asia.

Many displaced women who are unable to cross international border swell the ranks of the internally displaced.  Paula Banerjee’s paper in Internal Displacement in South Asia portrays the trauma faced by IDP women. Even in IDP camps women are responsible for holding together fragmented families.  Today roughly one-third of all households in Sri Lanka are headed by women and the numbers increase many fold in the camps for internally displaced.  Although 89 percent women in Sri Lanka are literate, due to two decades of armed conflict women from North and East have lower levels of education with one in every four being illiterate.   A report based on a research carried out at Mannar district portray that among 190,000 IDPs women often find it impossible to generate enough income for buying food for the whole family.  In Illupakkadavai, all 36 heads of female headed households stated that they rely on dry rations for approximately 90 percent for their nutritional needs and that the children of women headed households are most vulnerable to exploitation.  In Sri Lanka suicide rates for women have doubled in the last two decades.[2]  

None of the South Asian states are signatories to the 1951 Convention relating to the Status of Refugees or the 1967 Protocol.  As India is the largest South Asian state it should be interesting to see how women refugees are dealt with here.  In India Articles 14, 21 and 25 under Fundamental Rights guarantee the Right to Equality, Right to Life and Liberty and Freedom of Religion of citizens and aliens alike.  Like the other South Asian states India had ratified the 1979 Convention on the Elimination of all Forms of Discrimination Against Women in 1993.  Although there is no incorporation of international treaty obligations in the Municipal laws still rights accruing to the refugees in India under Articles 14, 21 and 25 can be enforced in the Supreme Court under Article 32 and in the High Court under Article 226.  The other guiding principles for refugees are the executive orders that have been passed under the Foreigners Act of 1946 and the Passport Act of 1967.  The National Human Rights Commission has also taken up questions regarding the protection of refugees.  It approached the Supreme Court under Article 32 of the Constitution and stopped the Expulsion of Chakma refugees from Northeast India.[3]  Yet all these orders are adhoc in nature and the legal position remains nebulous.  This is true not just of India but all of South Asia. 

Pakistan also operated under the 1946 Foreigners Act.  According to the provisions of this Act no foreigner could enter Pakistan without a valid passport or visa.  Such an act can be detrimental for all persons fleeing for their lives and especially for women who are unused to handling documentation proving citizenship.  When six to seven million persons entered Pakistan after partition this Act proved useless and had to be supplemented by the Registration of Claims Act of 1956 and the Displaced Persons (Compensation and Rehabilitation) Act 1958.  Such Acts did not establish a legal regime for refugees in Pakistan, only the claims of a group of refugees.  The ad hoc nature of Pakistani refugee regime continued. As for Sri Lanka, it is not a refugee receiving country but a refugee generating country.  There are two Acts, which are especially detested by displaced people, the Prevention of Terrorism Act, and Emergency Regulations.  Sri Lanka does not have any special acts that help or privilege internally displaced women who are vulnerable to abuse because of their gender.  As for other state laws in South Asia, Nepal has an Immigration Act of 1992, which provide that no foreigner is allowed to enter or stay in Nepal without a visa.  His Majesty’s Government has full authority to expel any foreigner committing immigration offences.  Most South Asian states have punitive measures for immigration offences but hardly any measures for helping displaced people. Further, none of these States have made any special stipulations for women refugees although a majority of all South Asian refugees are women.

As for international actors UNHCR is acquiring some importance in the region for their efforts regarding refugees and internally displaced.   There are around 20,000 refugees who are protected by UNHCR in India, of whom a majority are Afghans.  The UNHCR has a guideline for the protection of women refugees but it is left to the discretion of countries to follow these recommendations. In patriarchal states where policies are weighted against women, if these guidelines are left to the discretion of the government then it does not succeed in its purpose.  Further, the programmes of these institutions such as UNHCR are built on certain practices.  Similar to state practices the practices of international organisations such as the UNHCR also delegate woman to the status of victim, which is a disenfranchising phenomenon.  The women have little or no say on policies that govern their lives and bodies even in camps run by the UNHCR. Albeit the UNHCR concern itself with the protection of these women but they do not work towards their agency.  This is not to suspect intention of UNHCR but many of their policies such as the policy of repatriation can work against women who have acquired agency over their own person.  Decisions regarding their relocation also assume that refugees/women cannot have any say in it.  Even international agencies such as the UN Gender Mission can contribute to depoliticising women.  A case in point is Angela King’s mission to Peshawar and Islamabad.  When Afghan women requested the UN through Ms. King that they should try to mobilise educated Afghan women in peace-making, Ms. King reportedly asked them to apply for UN jobs instead.  After the meeting the women felt “confused, insulted, hurt, angry and substantially ignored.”  But they noted bitterly “this is not an unusual situation – neither within our societies, nor within the UN agencies”.[4]  Thus the gender bias found in state policies regarding women’s dislocation might also be reflected in the attitude taken by international agencies. 

The overwhelming presence of women among the refugee populations is not an accident of history. It is a way by which states have made women political non-subjects.  By making women permanent refugee, living a savage life in camps, it is easy to homogenise them, ignore their identity, individuality and subjectivity.  By reducing refugee women to the status of mere victims in our own narratives we accept the homogenisation of women and their depoliticisation.  We legitimise a space where states can make certain groups of people political non-subjects.  In this module we intend to discuss the causes of such depoliticisation that often results in displacements.  We will also discuss the situation of displaced women in South Asia and consider policy alternatives that might help in their rehabilitation and care.

References

Paula Banerjee, Sabyasachi Basu Ray Chaudhury and Samir Das, Internal Displacement in South Asia, chapter 9.

B.S. Chimni, International Refugee Law – A Reader (Sage Publications, 2003), section 1

Ritu Menon and Kamla Bhasin, Borders and Boundaries, chapter 3.

Joshva Raja, Refugees and their Right to Communicate, chapter 8.

Ranabir Samaddar (ed.), Refugees and the State (Sage Publications, 2003), chapter 9.

Ranabir Samaddar, The Marginal Nation (Sage Publications, 1999), chapter 12.

Refugee Watch, Nos. 10-11

Web-based

1. UNHCR Policy on Refugee Women 
   http://www.safhr.org/refugee_watch10&11_92.htm

2. Select UNICEF Policy Recommendation on the Gender Dimensions of Internal Displacement http://www.safhr.org/refugee_watch10&11_92.htm

3. CEDAW : http://www.un.org/womenwatch/daw/cedaw/econvention.htm

4. RW.: Dislocated Subjects : The Story of Refugee Women 
   http://www.safhr.org/refugee_watch10&11_8.htm

5. RW.: War and Its Impact on Women in Sri Lanka
   http://www.safhr.org/refugee_watch10&11_4.htm

6. RW : Afghan Women In Iran 
   http://www.safhr.org/refugee_watch10&11_6.htm

7. RW.: Refugee Women of Bhutan
   http://www.safhr.org/refugee_watch10&11_5.htm

8. RW.: Rohingya Women – Stateless and Oppressed in Burma
   http://www.safhr.org/refugee_watch10&11_5.htm

9. RW.: Dislocating the Women and Making the Nation
   http://www.safhr.org/refugee_watch17_1.htm
   http://www.unifemantitrafficking.org/main.html

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Module C

International, regional, and the national regimes of protection, sovereignty and the principle of resposibility

Module C deals with the international and national legal regimes of protection of the victims of forced displacement and their rights.

Refugee Law is a relatively new branch of International Law. The first major step towards developing an international regime of protection was the 1951 Convention that was later modified by the 1967 Protocol. From then on the 1951 convention has formed the core of all Human Rights Law and Humanitarian Law for the protection of refugees. The 1951 Convention defines a refugee as a person:

Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

However since its inception there have been many objections to the provisions of the 1951 convention. It is said that the Convention mandates protection for those whose civil and political rights are violated, without protecting persons whose socio-economic rights are at risk. Also it has been criticised on the grounds of its Euro centrism, and insensitivity towards the internecine racial, ethnic and religious conflicts in third world, which has resulted in the creation of refugees in large numbers. The provisions of the convention have served well for the protection of refugees during the Cold War times but have failed to do so after that.  Today the first world often attempts at dealing with the refugee problems ‘at source’. This has led to the international interference in the internal matters of a sovereign nation creating further problems for states and for the displaced. This has been witnessed very recently in the Darfur region of Sudan and in past in former Yugoslavia, Somalia, and other African countries.

Another failure of the Convention has been the inability to recognise the special needs of women, children, and aged people within the sections of refugees, though this has been addressed to some extent in the provisions of CEDAW convention.  In 1985, the UNHCR Executive Committee adopted Conclusion No. 39 that recognised that refugee women and girls formed a majority among the world refugee population.  The Conclusion also recognised that states were free to consider women facing inhuman treatment as belonging to a particular social group within the 1951 convention. In October 1993 the UNHCR adopted Conclusion No. 73 that stated that all those who have suffered sexual violence should be treated with particular sensitivity. However, there is little in UNHCR guidelines that can make women victims of sexual violence as special claimants for refugee protection. 

Today provisions of the 1951 Convention seems dated and in need for further revision due to increased complexities in the process of refugee generation, protection and also due to advances in the field of refugee studies. The increased focus on refugee studies has led to broadening of definitions of ‘refugee’, ‘protection’, ‘rights’, ‘justice’ etc. As a result of all these reasons the 1951 Convention has not been ratified by many nations of the world. Many regions have developed its own regimes for protection of people facing forced displacement. The OAU Convention expanded the definition of refugee contained in the 1951 Convention. The OAU Convention defines the term “refugee” to include persons fleeing their country of origin due to external aggression, occupation, foreign domination, or events seriously disturbing public order in either a part or the whole of the country of origin or nationality. This implies that “well-founded fear” is a subjective category and anyone facing civil and political disturbances and war need not prove their well-founded fear for life.  The Cartagena Declaration recommends a definition similar to that contained in the OAU Convention. In so far as Asia is concerned mention may be made of the Asian African Legal Consultative Committee (AALCC) in 1966. But this has not had the impact of either the OAU Convention or the Cartagena Declaration.  South Asia has not been able to develop a legal regime for refugees or IDPs.     

None of the South Asian states are a signatory to the 51 Convention or the 67 Protocol. India has also stayed away from these mechanisms, citing certain biases in the provisions of the convention. However, it has developed its own provisions to deal with the problems of refugees on a case-by-case basis in absence of a consistent national policy. This has its own problems, for example India has provided all possible help to Tibetan refugee due to its own political necessities but has not done so with the Bangladeshi and Bhutanese refugees. The provisions of Indian state has also not progressed with the evolution of feminist critic of the protection regimes which needs attention and creation of a consistent policy accommodating the faults in current practices.

Refugees are to be distinguished from IDPs and the Stateless Persons.  While the 1951 Convention addresses the problem of refugees alone the UN Guiding Principles deal with the IDPs and the international legal rights of stateless persons are addressed in the Convention Relating to the Status of Stateless Persons, 1954, which came into force in 1960.  It defines stateless person as a “person who is not considered as national by any State under the operation of its law”. The 1954 Convention was followed by the adoption of the Convention on the Reduction of Statelessness, 1961, which came into force in 1975. 

Not everyone who applies for refugee status can get protection.  In 1951 Convention there are a list of “exclusion clauses” containing categories of persons who do not deserve international protection. It excludes all those who have committed crimes against peace and security, serious common law criminals and individuals who have acted in contravention of the principles and purposes of the United Nations.    

In this module we have focussed on the various aspects of refugee protection at an international level in general and on South Asian level in particular (Module D discusses in details the legal principles of protection of IDPs). To mention a few of them: 

1. What do we mean by Refugees, Asylum, and Protection etc in socio-politico and legal terms?
2. What are the special provisions required for protection of women, children and other marginalised communities in the overall context of refugee protection and law?
3. What’s the distinction between the Human Rights Law and Humanitarian Law with respect to refugee protection?
4. What are the safeguards available for the protection of refugees in International Law?
5. What is the responsibility of the state and society towards the refugees? Can they simply be seen as problems and responsibility of the host country alone?
6. Is there a link between the refugee protection regime, international law and globalisation?
7. What has been the record of Indian state vis-à-vis refugee protection since partition?
8. And other related issues.

 References

Paula Banerjee, Sabyasachi Basu Ray Chaudhury and Samir Das, Internal Displacement in South Asia, Epilogue
B.S. Chimni, International Refugee Law – A Reader (Sage Publications, 2003)
Who is a Refugee?, Pgs. 1-81; Asylum, Pgs. 82-160; Rights and Duties of a Refugee, Pgs. 161-209
Ranabir Samaddar (ed.), Refugees and the State (Sage Publications, 2003), chapters 10-11.
Refugee Watch No.4 (December 1998) articles by Sarbani Sen and Brian Gorlick.

Web-based 

1. F-e-material 1 – International Humanitarian Law and Human Rights Law
   Document printed from the website of the ICRC.
   URL: http://www.icrc.org/web/eng/siteeng0.nsf/html/57JMRT 
   International Committee of the Red Cross
2. F-e-material 2 –“A Patchwork Protection Regime; Internal Displacement in International Law and Institutional Practice” / David Fisher
3. Convention Against Torture 
   CAT: http://www.un.org/documents/ga/res/39/a39r046.htm  
4. REFUGEE WATCH

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Module D

Internal displacement - causes, linkages, and responses

“The look of pure terror on the face of the little Korku tribal girl child said it all as the elephant razed her house in the pouring rain.  Her parents pleaded with the Forest officials saying that they were living and cultivating the lands there for the past three decades.  However, the officials said they had no alternative, since they had been instructed to evict all encroachers as ordered by the Supreme Court.”[i]

The eviction of indigenous people from their land is a recurrent theme in South Asia.  Be it Ranigaon, Golai, Motakeda, Somthana, Ahmedabad, Bandarban, or Trincomalee, thousands of families are being evicted from their homes either in the name of conflict or in the name of modernization. They are being forced to stay in the open, in pouring rain with a number of them suffering from malnutrition and starvation and they are fearful for their lives at most times. The last two decades have witnessed an enormous increase in the number of internally displaced people in South Asia.  Their situation is particularly vulnerable because unlike the refugees they are unable to move away from the site of conflict and have to remain within a state in which they were displaced in the first place. These unfortunate people who have been displaced once are often displaced multiple times by the hands of the powers that be.  Yet as displaced they do not have the capacity to cross international borders but seek rehabilitation from the powers that are responsible for their displacement in the first place.

Besides being ‘potential refugees’ who might cross international borders, most of the IDPs living in these countries share ethnic continuities with the people of the neighbouring countries. The Pashtuns of northwest Pakistan for example, seem to harbour an active interest in the affairs of their ethnic cousins living in Afghanistan and vice versa. Similarly, much of what happens inside today’s Myanmar has its implications for the minorities of northeastern India and Bangladesh. Massive displacement and the resulting plight of the predominantly tribal populations such as, the Nagas of Myanmar continue to be one of the key running themes of the Naga rebel discourse across the borders and the ethnic cousins of Myanmar are described by it as, ‘the Eastern Nagas’. Insofar as the creation of national borders could not make many of these pre-existing ethnic spaces completely obsolescent, South Asia’s living linkages with West or South East Asia can hardly be exaggerated. Also national specificities notwithstanding South Asian IDPs are connected by their ethnicities, minority status and situations of extreme marginalisation.  This portrays the reality that in so far as in South Asia IDPs cannot be regarded as a national category.  It is essential to think of them as regional categories.

The situation of IDPs seems particularly vulnerable when one considers that there are hardly any legal mechanisms that guide their rehabilitation and care in South Asia.  Since the early 1990s the need for a separate legal mechanism for IDPs in South Asia has increasingly been felt.  This is not only to compile new laws but also to bring together the existing laws within a single legal instrument and to plug the loopholes detected in them over the years. Only recently the international community has developed such a mechanism that is popularly known as the UN Guiding Principles on internal displacement. This has given us a framework within which rehabilitation and care of internally displaced people in South Asia can be organised. Keeping that in mind it becomes imperative for scholars working on issues of forced migration in South Asia to consider whether South Asian states have taken the Guiding Principles into account while organising programmes for rehabilitation and care for the internally displaced persons (IDPs). 

The Guiding Principles on Internally Displaced Persons set out the rights of internally displaced persons relevant to the needs they encounter in different stages of displacement. The Guiding Principles provide a handy schematic of how to design a national policy or law on internal displacement that is focused on the individuals concerned and responsive to the requirements of international law.  Similarly, governments (and particularly national human rights institutions where they exist), advocates, and displaced persons can use the Guiding Principles as a means to measure the compliance of existing laws and policies with international standards.  Finally, their simplicity allows the Guiding Principles to effectively inform the internally displaced themselves of their rights. The Guiding Principles are thus part of a growing number of “soft law” instruments that have come to characterize norm-making in the human rights field as well as other areas of international law, in particular environmental, labor and finance.  

One of the most important contributions of the Guiding Principles is to develop an acceptable definition/description of those who can fit within the category of internally displaced persons.  They are defined as “persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized state border.” The Guiding Principles also reflect on the rights of displaced people, the obligations of their states’ towards them and also the obligations of international community towards these people.  This booklet is an effort to make such rights accessible to vulnerable people of South Asia who are already displaced or live in fear of displacement.

What Types of Displacement are Prohibited by the Guiding Principles?   

Principle 6 affirms that “[e]very human being shall have the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence.”  Support for this proposition can be found in humanitarian law and also in the right to movement, guaranteed by a number of human rights instruments, which can be reasonably expected to have as its corollary the “right not to move.”  

It is important to note that the Guiding Principles do not claim that displacement is always prohibited.  In both humanitarian and human rights law, exceptions to the general rule are available.  Rather it is arbitrary displacement” that must be avoided and Principle 7 provides a sort of roadmap for avoiding arbitrariness.  First, all feasible alternatives to displacement must be explored.  In situations of armed conflict, this means that a determination must be made either that the security of the population or “imperative military reasons” require displacement before it can be carried out.  

Where displacement is to occur outside the context of armed conflict, Principle 7 provides a list of procedural protections that must be guaranteed, including decision- making and enforcement by appropriate authorities, involvement of and consultation with those to be affected and the provision of an effective remedy for those wishing to challenge their displacement.  These provisions are, of course, of particular interest to those facing displacement for development projects.

Moreover, in either context, “all measures” must be taken to minimize the effects and duration of the displacement and the responsible authorities are required to ensure “to the greatest practicable extent” that the basic needs of those displaced (e.g., shelter, safety, nutrition, health, and hygiene) are met. It should also be noted that Principal 9 articulates a “special obligation” to protection against displacement of a number of groups whose special attachment to territory has been recognized in international law, including indigenous persons, minorities, peasants, and pastoralists.

What Rights do Persons have once Displaced?

Displaced persons enjoy the full range of rights enjoyed by civilians in humanitarian law and by every human being in human rights law.  These include the rights to life, integrity and dignity of the person (e.g., freedom from rape and torture), non-discrimination, recognition as a person before the law, freedom from arbitrary detention, liberty of movement, respect for family life, an adequate standard of living (including to access to basic humanitarian needs), medical care, access to legal remedies, possession of property, freedom of expression, freedom of religion, participation in public life, and education, as set out in Principles 10-23.  

In several instances, the Guiding Principles specify how generally expressed rights apply in situations of displacement.  These should be of particular interest to those designing and assessing domestic policies on internal displacement.  For example, Principle 12 provides that, to give effect to the right of liberty from arbitrary detention, internally displaced persons “shall not be interned in or confined in a camp” absent “exceptional circumstances” and that they shall not be subject to discriminatory arrest “as a result of their displacement.”  Likewise Principle 20 provides that the right to “recognition everywhere as a person before the law” should be given effect for displaced persons by authorities facilitating the issuance of “all documents necessary for the enjoyment and exercise of their legal rights, such as passports, personal identification documents, birth certificates and marriage certificates.” 

The Guiding Principles provide for special consideration of the needs of women and children (including “positive discrimination” or affirmative activities on behalf of governments to model assistance and protection to their particular needs, consultation and involvement in decisions regarding their displacement and return or resettlement, protection against recruitment of minors and free and compulsory education), as well as for other especially vulnerable groups, such as the elderly and disabled. 

What Rights and Obligations do Humanitarian Organizations Have?

The Guiding Principles also lay out a number of rights and obligations of humanitarian organizations in Principles 24-27.  This section again stresses the point that “[t]he primary duty and responsibility for providing humanitarian assistance to internally displaced persons lies with national authorities” (Principle 25(1)).  In carrying out this duty, national authorities must not “arbitrarily withhold” consent to international humanitarian organizations’ offer of services to the internally displaced, and must “grant and facilitate” their free passage to areas where assistance is needed.  Humanitarian personnel, materiel, and supplies are not to be attacked or diverted for other purposes.  For their part, humanitarian organizations must carry out their operations “in accordance with the principles of humanity and impartiality and without discrimination” and should “give due regard to the protection needs and human rights of internally displaced persons” and not just their needs for assistance. 

What Help Should Displaced Persons Expect with Return, Reintegration and Resettlement?

In their final section, the Guiding Principles provide that competent authorities have “the primary duty and responsibility” to assist displaced persons by providing the means as well as by establishing conditions for return to their places of origin, or for resettlement in another part of the country (Principle 28).  Any return or resettlement must be voluntary and carried out in conditions of safety and dignity for those involved. 

As a corollary to the right to free movement, therefore, displaced persons have the right to return to their homes.   Although the right to return or resettle is not expressly stated in any particular human rights instrument, this interpretation of the right of free movement is strongly supported by resolutions of the Security Council, decisions of treaty monitoring bodies, and other sources of authority.

Moreover, although the displaced have the right to return, Principle 28 carefully specifies that they must not be forced to do so, particularly (but not only) when their safety would be imperiled.  The issue of the voluntariness of return or resettlement is recurrent in protracted displacement situations around the world.  In many places, governments and insurgent groups have ceded to the temptation to use the return or resettlement of displaced persons as a political tool. 

Principle 29 provides that authorities also have “the duty and responsibility” to assist displaced persons to recover “to the extent possible” their property and possessions, and where restitution is not possible to provide or assist the displaced persons to obtain appropriate compensation.   Like the preceding principle, this one relies on general precepts of the right to property, the right to remedy for violations of international law, as well as a growing adherence in Security Council resolutions, treaties, national law and other sources of authority.

Are their any special provisions for women?

In the guiding principles a concerted attempt was made to prioritise gender issues.  For example, while discussing groups that needed special attention in Principle 4 it was stated that expectant mothers, mothers with young children and female heads of households, among others, are people who may need special attention. In Principle 7 it was stated that when displacement occurred due to reasons other than armed conflict authorities should involve women who are affected, in the planning and management of their relocation.  Principle 9 upheld that IDPs should be protected in particular against “Rape, mutilation, torture, cruel, inhuman or degrading treatment or punishment, and other outrages upon personal dignity, such as acts of gender-specific violence, forced prostitution and any other form of indecent assault.” Special protection was also sought against sexual exploitation.  Principle 18 stated that special efforts should be made to include women in planning and distribution of supplies. Principle19 stated that attention should be given to the health needs of women and Principle 20 stated that both men and women had equal rights to obtain government documents in their own names. 

Apart from the Guiding Principles there are other international mechanisms that displaced women can access.  They include the 1979 Convention on the Elimination of All Forms of Discrimination against Women (hereafter CEDAW) and the 1999 Optional Protocol sets out specific steps for states to become proactive in their efforts to eliminate discrimination against displaced women.  Article 2 of CEDAW clearly states that public authorities, individuals, organisations and enterprises should refrain from discrimination against women.  Article 3 reiterated women’s right to get protection from sexual violence.  Article 6 spoke against trafficking and sexual exploitation of women.  Since most displaced women are particularly vulnerable to traffickers this article is of some importance to them.  It must be noted that all the countries of South Asia are signatories to CEDAW with some reservations but not of the proportion that it negates the overarching principles and therefore the onus of being gender sensitive in their attitude and programmes is on them. Apart from these there are other international provisions that protect women’s human rights.  Article 3 of the Geneva Conventions of 12 August 1949 calls for the halt of weapons against the civilian population and to protect all civilians, including children, women and persons belonging to ethnic and religious minorities from violations of humanitarian law.   Article 29 of ILO 1930 Convention concerning forced or compulsory labour also impacts the situation of women.  It calls for the end of violations of the human rights of women, in particular forced labour, abuse and torture of labourers including women.

Are the Guiding Principles legally binding?

Although the UN Guiding Principles on Internal Displacement is not a legally binding treaty it is formed of principles that are based on established legal mechanisms for aiding the human rights of the displaced people. Many of these Principles may gradually attain the status of customary international law. But as Francis Deng reminds us, “for the time being they serve as a morally binding statement.”[ii] A statement of this nature that promises to be ‘morally binding’ on a wide spectrum of primarily national governments and secondarily, other relevant international and non-governmental agencies must cut across the well-known divisions of the prevailing ethical and moral systems and elaborate itself in a way that it does not remain captive to any particular modality of moral reasoning. Plurality of such systems and modalities is helpful in building the much-needed ‘moral consensus’ around these principles.

While the Guiding Principles have already gained an impressive degree of recognition at the international, regional, and national level, more remains to be done to foster their use, particularly in South Asia, where many states with large displacement problems lack comprehensive policies or effective remedies for those.  It is to be hoped that this booklet will itself encourage that process.  South Asia has seen millions of people displaced both across borders and within borders – again both by conflict and by developmental projects, and in some cases by natural calamities.  This booklet is intended to make a survey of how far the Guiding Principles on IDPs is relevant to each state of the region and how far they have been implemented and what remains to be done.

Whose responsibility is it anyway?

If the state-centric nationalistic approach has meant the exclusion of minorities and has produced large number of refugees in the post-colonial states in Asia and Africa, state-centric national security perspective and development paradigm have not done any better. The people displaced against this backdrop may have got some relief if they have been able to cross international boundaries. Crossing the international boundary may entitle them to “refugee” status, thus providing them at least a fig leaf of relief and rehabilitation in an alien land. But wretched are those who remain internally displaced. They remain at the mercy of the same state and administration whose policy might have sent them on the run. According to all estimates, the number of Internally Displaced Persons (IDPs) is rising compared to the refugees seeking shelter in another country. South Asia is no exception to this. But, so far, no systematic and comprehensive study was carried out. Only a few brief, and sometimes sketchy, reports and articles are available on the plight of the IDPs in South Asia. This booklet hopefully will fill that awesome and disturbing vacuum. The booklet is meant to explore the nature and the extent of displacement in respective countries of South Asia and provide recommendations to minimize the insecurity of the displaced by discussing mechanisms for rehabilitation and care. As for who takes responsibility for the displaced?  The answer is primarily the state, although there are attempts on its part to abdicate its responsibility in this regard. None of the states of South Asia recognizes right against forced displacement as a non-negotiable right. We have to note that it is the policies of the state and the model of development and nation building that it has pursued since its birth that have caused and continue to cause displacement in largest numbers. It is primarily a failure of the state system. The booklet is meant to explore how far South Asian states are sensitive to the needs of the IDPs, how they can be made sensitive to these needs and whether the UN Guiding Principle are being adhered to, to any extent.  

What is the way ahead?

In their few years of existence, the Guiding Principles have in fact obtained a high level of recognition.  When they were first presented in 1998, the Commission on Human Rights merely “noted” them and the intention of the Representative to use them in his dialogue with states.   Over time, however, the language of regular resolutions in the Commission, the Economic and Social Council (ECOSOC) and the General Assembly has grown increasingly warmer.  In 2003, for instance, both the Commission and the General Assembly “welcome[d] the fact that an increasing number of States, United Nations agencies and regional and non-governmental organizations are applying them as a standard, and encourages all relevant actors to make use of the Guiding Principles when dealing with situations of internal displacement[.]”   They have also been acknowledged at the level of the Security Council, at international conferences,  and adopted by the U.N. and wider humanitarian community as their standard.

The Guiding Principles have been well received by multi-lateral organizations at the regional level.  They have been welcomed in resolutions, declarations and statements by organs of the Organization of African Unity (OAU) (now known as the African Union), Economic Community of West African States (ECOWAS), Inter-Governmental Authority on Development (IGAD), Organization of American States (OAS), Organization for Security and Cooperation in Europe (OSCE), the Parliamentary Assembly of the Council of Europe (CoE) and the Commonwealth.   

Among states in South Asia, Sri Lanka has similarly relied upon the Guiding Principles in the formulation of its National Framework for Relief, Rehabilitation and Reconciliation.   Likewise, civil society institutions have made increasing use of the Guiding Principles to assess domestic policy and practice concerning displaced persons.  It is hoped that in the near future more states in South Asia will accept, adopt and adhere to the Guiding Principles regarding the internally displaced. To understand the relevance of the Guiding Principles a close study of the mechanism is imperative.  This booklet is meant to be such a study.  Its primary objective is to publicize the mechanisms available for the rehabilitation and care of IDPs in South Asia so that they can access rights and justice that are due to them

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Module E

Appropriate research methodology