Modules Notes for Winter Course 2009



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

Module A

States, Partitions, Forced Migration and Issues of Citizenship

1.  Cracking and splitting of empires and kingdoms in the pre-Partition era were not rare and were hardly associated with population movements. It is only with partition that population movement becomes an essential part of the process. On the one hand, such cracking and splitting would take place along a culturally continuous space. On the other hand, the state was regarded more as the custodian and upholder of social order than an agent of social change and transformation.


 

2.  Partition gives unto each state the nationalism unique to itself. Partitions create their own nationalisms and contribute to state formation. It is only with partition that territorial borders of a state are expected to coincide with the cultural borders.     

 

3.  While partition evidently upsets and shatters the preexisting ‘way of life’, it also gradually becomes ‘a way of life’ itself. People driven by the utopia of a new land tend to ‘select’ their nations and states ‘naturally’. Partition thus makes ‘natural selection’ of population possible. Partition narratives are also marked by an acute desire of reuniting with one’s own people in a new land. Many elderly people simply considered it ‘immoral’ to continue to remain in a land where they might have lived for generations but this, according to them, had already become an alien land by the act of partition.


 

4.  The utopia of a new land stands in a rather uneasy relationship to the nostalgic yearning for the past. The utopia and the nostalgia also point to two very different kinds of social relationships and the latter marks the arrival of the nation.    

       

5.  Partition also imposes on the people the obligation of making a choice from out of a menu of nations being partitioned or national alternatives. Non-national alternatives are clearly ruled out. One is obliged to belong to either of the two newly formed nations and cannot choose to remain stateless and without any nation in the wake of partition. 


 

6. One partition creates and hides many other partitions. At one level, it instead of mitigating the Hindu-Muslim divide, has sharpened and exacerbated it. At another, it turns us away from what is called the ‘denationalized peoples’ perspective’ – including the gender perspective on that epochal event. Insofar as contemporary feminist writings seek to recover women’s voices from the prevailing nationalist perspectives, the same event of partition offers an altogether different perspective. The line between the nationalized and the denationalized perspectives coincides with that between men and women and keeps them apart. 


 

7. Now that the ethnicities and nationalities within each nation-state have become relatively free from the control of nation-states – thanks to the forces and processes of globalization - their assertions too are couched in the demand for partition. The demand for partition reenacts the territoriality of the nation-state as much as the demand also subverts it. We define ‘sub-territoriality’ as a space situated within the territory of a state that has been for all practical purposes rendered ethnically homogeneous by a particular community or an organization claiming to represent it. Sub-territoriality also contests state territoriality.           

 

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 inSri 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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[1] For a scholarly account of gender in the politics of partition refer to Ritu Menon and Kamla Bhasin, Borders and Boundaries: Women in India’s Partition (Delhi: 1998) and Urvashi Bhutalia, The Other Side of Silence: Voices from the Partition of India (Delhi: 1998).

[2] Paula Banerjee, “Agonies and Ironies of War,” Refugee Watch, No. 2 (April, 1998) p. 21.

[3] See National Human Rights Commission vs. Union of India (1996: 1 SCC 295); Also Khudiram Chakma vs. Union of India (1994: Supplementary 1 SCC 614).

[4] Cassandra Balchin, “United Against the UN: The UN Gender Mission Attitude Towards Afghan Women Refugees Within its Own Rank is Glaringly Hypocritical,” Newsline (April, 1998) p. 95.

 

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Module C

International, Regional, and the National Legal Regimes of Protection, Sovereignty and the Principle of Resposibility

 

Module C deals with the national, regional and global regimes of protection of the refugees and other displaced persons, focusing on developing a critical understanding of the history and politics of the international protection regime, which includes questions of citizenship, state accountability, the transnational forced migrant subjectivity and representation, the changing concept of sovereignty attached to the idea of the responsibility to protect and asylum jurisprudence.  

 

Despite the well-established status of refugee protection in today’s international law regime, most refugees fleeing to safety, by crossing international borders, do not reach the state where they will seek asylum with a ready guarantee of access to enduring human rights. They enter as “asylum seekers” – a temporary and increasingly disenfranchised category of non-citizens – who need to establish their eligibility for refugee status before they can enjoy the prospect of long-term safety and non-discriminatory treatment (Bhaba 2002). 

 

While statistics collected by the United Nations High Commissioner for Refugees (UNHCR) show a decline in the number of ‘refugees’ who have crossed an international border and who fear persecution on return to their home states, the number of individuals in refugee-like situations (like the internally displaced or internally ‘stuck’) has grown considerably. ‘Refugees’ constitute only a small part of today’s estimated 50 million uprooted people, many of whom are forced to move on account of a variety of artificial disasters, including armed conflict, persecution, severe economic insecurity, environmental degradation, or other grave failures of governance.  

 

The reason for the inability to flee persecution by crossing international borders has to do with the difficulty faced in qualifying for refugee status as per international legal principles of refugee determination. Further, the notion of ‘persecution’ in international refugee law, especially the 1951 UN Convention on the Status of Refugees (Refugees Convention) and its 167 Protocol being atavistic in nature and the increasing reluctance of governments to grant asylum has led to the escalation in the number of people in refugee-like situations: who are facing persecution, have not been able to cross their national borders, and are yet being denied basic citizenship and human rights. However, it is primarily the recourse to refugee law that can provide an international and institutionalized mechanism for formal protection to forced migrants.   

 

The international refugee law regime’s fundamental standards of determination, protection and care are set out in the post-Cold War document of the 1951 Refugees Convention and its 1967 Protocol, which made the standards laid down in the convention universally applicable to refugees worldwide. Along with the Refugees Convention, the UNHCR was also set up in 1951. The purpose of the convention was to provide the definition of who was to be considered as a refugee and to define his/ her legal status. The UNHCR’s mandate is to provide international protection to refugees and seek durable solutions to their problems.

 

Since the application of the human rights standards in the Refugees Convention and the 1967 Protocol operate on the basis of ‘treaty obligations’ on countries that are parties to the convention, there have been hurdles to its universal applicability as many states from the Global South have refused to accede to the convention arguing that it is ‘Eurocentric’ and does not respond to the unique nature of refugee movements in their parts of the world. The ‘Eurocentric’ argument has also been used by many states (like India and all other South Asian countries) to evade the responsibility of protecting the rights of refugees in their own country and region in accordance with the standards set in the convention. However, in Africa and Latin America , the Organization of African Unity (OAU) and the Cartagena Declaration on Refugees respectively have built on the basic structures and legal provisions of the Refugees Convention to create a refugee protection regime suited to their geo-political conditions. Unfortunately, with no obligation to meet the refugee rights standards in the Refugees Convention and without any national or regional protection regime for South Asia , refugees in this part of the world are at the complete mercy of the political will of states to respond to their crises.  

 

Article 1A (2) of the Refugees Convention, as amended by the 1967 Protocol relating to the Status of Refugees, defines a ‘refugee’ as: “…any person who… owing to a fell-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/her nationality and is unable or, owing to such fear, is unwilling to avail himself/herself of the protection of that country; or who, not having a nationality and being outside the country of his/her formal residence, is unable or owing to such fear, is unwilling to return to it.” However, there exists no comprehensive definition of concepts of ‘persecution’ and ‘well-founded fear of persecution’ in international law. The drafters of the Refugees Convention framed an open-ended and flexible approach to the concept of persecution in the form of a universal framework. 

 

When it comes to establishing ‘fell-founded fear of persecution’ as a means to substantiate the ground for persecution, there is a challenge to the ‘subjective’ notion of ‘well-founded fear’ as espoused by the UNHCR. Hathaway understands the concept of ‘well-founded fear’ as inherently objective and opines that it was intended by the Refugees Convention to restrict the scope of protection to persons who can demonstrate a present or prospective risk of persecution, irrespective of the extent or nature of mistreatment or harm. He says: “Well-founded fear has nothing to do with the state of mind of the applicant for refugee status, except insofar as the claimant’s testimony may provide some evidence of the state of affairs in her home country” (Hathaway 1991). 

 

This understanding as pointed out by Hathaway subverts the processes of determination, care and protection of refugees within the international asylum and refugee protection regime. With states becoming increasingly restrictive and stringent with their refugee and immigration policies, the concept of ‘fell-founded’ fear which evolved from a relatively simple inquiry within which the refugee’s subjective feelings of terror were prominent, has now undergone a transformation informed by the politics of state sovereignty where concepts like ‘safe state’ have increasingly become the sole determinants of the issue of the well-founded fear (Tuitt 1996).  

 

In the process of determining asylum claims questions of human rights abuse arise, generally, in three circumstances: persecution in the state of origin (the basis of the claim to asylum); rights violations in the course of migration (which may impinge on the substance of the claim); and abusive host state practices at the point of reception (which may relate to procedural questions about where a claim should be lodged or whether the applicant is credible).  

 

In one of her seminal essays titled “Internationalist Gatekeepers?: The Tension Between Asylum Advocacy and Human Rights”, Jacqueline Bhaba points out that refugee movements today are increasingly becoming more torturous and facilitated by commercial intermediaries and false documents. According to her in a situation like this the bona fide of the asylum seeker raises some critical questions: What is the nationality of the applicant? Which state should be responsible for providing protection in cases where the applicant’s flight itinerary has involved various safe ‘third’ states en route to the state where asylum is being sought? Why did the applicant not present her asylum claim at the first opportunity? (Bhaba 2002). 

 

In a climate where escalating concerns about terrorism, economic recession, and state security heighten exclusionary and xenophobic impulses in developed states considering asylum applications, the challenge of establishing a particular host state’s obligation to protect is particularly great (ibid.).  

 

A critique of the international asylum adjudication system is therefore necessary to do a reality check with regard to what it can exactly offer when it comes to drawing the fundamentals of refugee rights guarantees from the basic principles of international human rights law. While human rights guarantees are understood to be universal and inherent across the world, when it comes to the determination of an asylum seeker as a refugee, to establish ‘well-founded fear’ in an objective fashion, asylum adjudicating officers tend to “generate simplistic, even derogatory characteristics of asylum seekers’ countries of origin, as areas of barbarism or lack of civility in order to present a clear cut picture of persecution” (ibid). The central guiding principle of this kind a construction of the asylum seeker as the ‘native’, who needs to be ‘civilised’ and rescued out of the clutches of a ‘barbaric’ state might be best described as “the worse the better” – the more oppressive the home state, the greater the chances of gaining asylum (ibid.). 

 

The need for Southern countries, especially those in South Asia, to develop a refugee protection regime, over and above a human rights protection system, should ideally be premised on countering such ‘primitive’ constructions by the Northern countries that can extend asylum only when ‘barbarity’ marks the state in the asylum seekers country of origin. 

 

In the context of the above issues, this module will use documentary films, interdisciplinary readings, international/ regional/ national legislations and human rights instruments, and some contemporary landmark case laws to discuss the potential and perils of the present refugee protection regime globally, and in South Asia particularly. The module will also draw out the distinctions between the categories of refugee, internally displaced persons, and stateless people in the light of the contested debates around persecution, well-founded fear and asylum adjudication systems. 

 

Suggested Readings:

 

Akram, Susan M.. 2000. “Orientalism Revisited in Asylum and Refugee Claims”, International Journal of Refugee Law, Vol 12, No 1, p. 7   

Bhaba, J. 2002. “Internationalist Gatekeepers? The Tension between Asylum Advocacy and Human Rights.” 15 Harvard Human Rights Journal:  

______ 2005, “Embodied Rights: Gender Persecution, State Sovereignty and Refugees”, in Nira Yuval-Davis and Pnina Werbner (Eds.), Women, Citizenship and Difference, New Delhi : Zubaan 

Boswell, Christina, 2003. “The ‘External Dimension' of EU Immigration and Asylum Policy”, International Affairs, Vol. 79, No. 3, May, pp. 619-638 

Castro-Magluff, J.M. 2001. "The Inadequacies of International Regime for the Protection of Refugees." in Sanjay K. Roy, ed., Refugees and Human Rights: Social and Political Dynamics of Refugee Problem in Eastern and North-Eastern India, New Delhi : Rawat. 

Chimni, B.S. 2003. "Status of Refugees in India: Strategic Ambiguity." In R. Samaddar, ed., Refugees and the State, New Delhi : Sage  

Kibreab, Gaim , 2003. “Citizenship Rights and Repatriation of Refugees”, International Migration Review, Vol. 37, No. 1, Spring, pp. 24-73 

Kristen Hill Maher. 2002. “Who has a Right to Rights? Citizenship’s Exclusions in an Age of Migration”, in Alison Brysk (ed.), Globalization and Human Rights, University of California Press 

Rahman, Mahbubar and Willem van Schendel, 2003. “I Am Not a Refugee': Rethinking Partition Migration”,  Modern Asian Studies, Vol. 37, No. 3, July, pp. 551-584 

Visweswaran, Kamala. 2004. “Gendered States: Rethinking Culture as a Site of South Asian Human Rights Work”, Human Rights Quarterly - Volume 26, Number 2

 

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Module D

Internal Displacement with Special Reference to 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 due to disasters 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. 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.

 

Contextualising Internal Displacement in South Asia:

 

South Asia is cultural mosaic diverse cultures, languages, customs, norms and other social practices which often over lap providing continuities and idscontinuities in the region. The socio-cultural notion of nation-state formation is not congruous with the politico-territorial formations in the post-colonial period. So there is obvious scope for ethnic and religious tensions in the intra-state level and inter state level. The South Asian situation on ethnicity and religious tension resolution for future is inevitably somewhat nebulous and shrouded in uncertainty. “It is also evident that religion and language as components of ethnic identity are important in dividing as well as unifying groups in South Asia. For example, in Sri Lanka, language is a basis for intra-group unity amidst an internal cleavage along religious lines, whereas ethnic groups in Pakistan are divided along linguistic lines even though they share a common religion. In Bhutan, Buddhism tends to unify the linguistically divided Bhutanese against the Nepalese speaking Hindu migrants from Nepal. As regards India, language is a major unifying force for many groups in conflict, while religion remains the main source of conflict in a few cases—notably in Punjab and Kashmir. It is only in Bangladesh that both religion and language provide the basis for inter-group division and intra-group unity”[ii]. This is the most significant complexity in which ethnic (language) and religious identity is intertwined in such a way to add more complexity to the region.

 

The structural framework of the region—incorporating features such as close geographical proximity, socio-cultural linkages and inter-dependent politico-strategic relations of states—creates internal pressures for regionalization of ethnic conflict as an inevitable part of political life.[iii]

 

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.

 

Besides, conflict as source of displacement, naturural disasters are recurrent in South Asia, which at times are trans boorder impact oriented as well.  It is witnessed as in the case of Indian ocean tsunamis of  2004 hitting Sri Lanka, India and Maldives, Kashmir earthquake of 2005 affected both Indian and Pakistan side of Kashmir, Aila cyclone in May 2009 affected India and Bangladesh, etc. Now the only few South Asian countries are in the process of setting up the legal-institutional framework to tackle disasters. India has taken the lead to constitute a national disaster management authority (NDMA) based on national disaster management act (2005). This is supposed to provide the national policies and guidelines not only to tackle post-disaster relief and response but also to promote proactive  preparedness and mitigation measures. Other countries are also taking their own measures in the lines of Hyogo framework for action (2005).

 

Why IDPs are more Vulnerable:

 

Although all persons affected by conflict and/or human rights violations suffer, displacement and likely to increase the need for protection. Following are broad reasons why IDPs are considered more vulnerable due to:

In south Asian context the situation of IDPs seems particularly more vulnerable when one considers that there are hardly any legal mechanisms that guide their rehabilitation, care and protection.  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.’ The Principles consolidate into one document the legal standards relevant to the internally displaced drawn from international human rights law, humanitarian law and refugee law by analogy. In addition to restating existing norms, they address gray areas and gaps identified in the law. As a result, there is now for the first time an authoritative statement of the rights of internally displaced persons and the obligations of governments and other controlling authorities toward these populations.[iv]

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.  Although the Guiding Principles do not constitute a binding instrument like a treaty, they do reflect and are consistent with existing international law. They address all displacement—providing protection against arbitrary displacement, offering a basis for protection and assistance during displacement, and setting forth guarantees for safe return, resettlement and reintegration.[v]

 

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.”[vi] The definition provided by the Guiding Principles on Internal Displacement highlights two elements: (i) The coercive or otherwise involuntary character of movement; the definition mentions some of the most common causes of involuntary movements, such as armed conflict, violence, human rights violations and disasters. These causes have in common that they give no choice to people but to leave their homes and deprive them of the most essential protection mechanisms, such as community networks, access to services, livelihoods. Displacement severely affects the physical, socio-economic and legal safety of people and should be systematically regarded as an indicator of potential vulnerability. And (ii) The fact that such movement takes place within national borders. Unlike refugees, who have been deprived of the protection of their state of origin, IDPs remain legally under the protection of national authorities of their country of habitual residence. IDPs should therefore enjoy the same rights as the rest of the population. The Guiding Principles on Internal Displacement remind national authorities and other relevant actors of their responsibility to ensure that IDPs’ rights are respected and fulfilled, despite the vulnerability generated by their displacement.

 

Some 25 million people worldwide currently live in situations of internal displacement as a result of conflicts or human rights violations. Although internally displaced people now outnumber refugees by two to one, their plight receives far less international attention.[vii] 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.  It is pertinent to make such rights accessible to vulnerable people of South Asia who are already displaced or live in fear of displacement. This module overall attempts to nurture the dialogue and discussion on issues concerning internal displacement.

 Many IDPs remain exposed to violence and other human rights violations during their displacement. Often they have no or only very limited access to food, employment, education and health care. Large numbers of IDPs are caught in desperate situations amidst fighting or in remote and inaccessible areas cut-off from international assistance. Others have been forced to live away from their homes for many years, or even decades, because the conflicts that caused their displacement remained unresolved.

While refugees are eligible to receive international protection and help under the 1951 Refugee Convention and the 1967 Protocol, the international community is not under the same legal obligation to protect and assist internally displaced people. National governments have the primary responsibility for the security and well-being of all displaced people on their territory, but often they are unable or unwilling to live up to this obligation.

 

Salient Features of Guiding Principles:


The Principles identify the rights and guarantees which, when fully observed and respected, can prevent arbitrary displacement and address the needs of internally displaced persons in terms of protection, assistance and solutions. In keeping with its focus on needs, the Principles are structured around the phases of internal displacement: They address protection against displacement (Principles 5 – 9); protection during displacement (Principles 10 –23); the framework for humanitarian assistance Principles 24 – 27); and protection during return, local integration in the locations where persons have been displaced, and resettlement in another part of the country (Principles 28 – 30).[viii]  It is important to understand the context it is relevant and applicable as stated by Walter Kalin in his interpretative notes on Guiding Principles-Annotations: “The protection of internally displaced persons is complicated by the fact that internal displacement can occur in three different situations: (1) during peace, e.g., as a result of natural or man-made disasters or tensions and disturbances that fall short of internal armed conflict where human rights law applies; (2) during non-international armed conflict governed by some of the most important principles of humanitarian law and by many human rights guarantees; and (3) during interstate armed conflict where the detailed provisions of international humanitarian law become operative, and at the same time, many important human rights guarantees remain applicable.” The Guiding Principles cover all three situations and attempt to facilitate the invocation and application of relevant legal norms, as it is often difficult in practice to determine which norms apply to each of these situations. The Principles identify those guarantees that have to be observed in all situations.[ix]

 

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 module 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 module 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 module hopefully will fill that awesome and disturbing vacuum. The module 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 module 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.  

 

References

 

1.Paula Banerjee, Sabyasachi Basu Ray Chaudhury and Samir Das, Internal Displacement in South Asia, sage, New Delhi, 2005

2. Addressing Internal Displacement: A Framework for National Responsibility Guiding Principles on Internal Displacement

3. Erin Mooney, “The Concept of Internal Displacement and the Case for Internally Displaced Persons as a Category of Concern",  in Refugee Survey Quarterly, Volume 24, Issue 3, 2005.

4. Report on ‘Protecting and Promoting Rights in Natural disasters in South Asia: Prevention and Response’, Brookings Institute-University of Bern, Project on Internal Displacement,  2009

Web-based E-Materials:

 

1.   Protection of Internally Displaced Persons: Inter-Agency Standing Committee Policy Paper

2.  Sovereignty as Responsibility: The Guiding Principles on Internal Displacement/ Roberta Cohen

3.  An Overview of Revisions to the World Bank Resettlement Policy

4. Walter Kälin, “Guiding Principles on Internal Displacement – Annotations”,  Studies in Transnational Legal Policy, No. 32, published by The American Society of International Law and The Brookings Institution Project on Internal Displacement, 2000.

 

Additional Reading List:

 

1.       Sibaji Pratim Basu, (ed.) The fleeing People of South Asia, Selections from Refugee Watch, Anthem South Asian studies, 2009

2.       Larry Maybee, Benarji hakka, (eds.) Custom as a Source of International Humanitarian Law,  ICRC, AALCO, 2006

3.       P.R. Chari, Mallika Joseph, Suba Chandran, (eds.) Missing Boundaries: Refugees, Migrants, Stateless and Internally Displaced Persons in South Asia, Manohar, New Delhi, 2003.

4.       Anuradha M. Chenoy, Militarism and Women in South Asia, Kali for women, New Delhi, 2002

5.       United Nations Commission on Human Rights, Analytical Report of the Secretary-General on Internally Displaced Persons, UN Doc. E/CN.4/1992/23

6.       Roberta Cohen, ‘The Guiding Principles on Internal Displacement: An Innovation in International Standard Setting,’ Global Governance, Vol. 10 (2004)

7.       Putting IDPs on the Map: Achievements and Challenges, Forced Migration Review, Special Issue, December 2006.

8.       Michael Barutciski , Tension Between the refuge and concept and IDP debate,  FMR, December 1998.

9.       Jon Bennett,  Forced Migration within National Borders: The IDP Agenda,  FMR, Jan-April, 1998.

10.   Indian National Disaster Management Act, 2005, www.nidm.in

11.   Draft Document on Sri Lankan National Framework for Relief, Rehabilitation and Reconciliation,  2008.

 

 

End Notes:


[i] Pradip Prabhu, “Tribals Face Genocide,” Combat Law: The Human Rights Magazine, Vol. 1, Issue 4 (October-November 2002) p. 73

[ii] P. Sahadevan, “Ethnic Conflicts and Militarism in South Asia” International Studies, 39,2 (2002) p.103.

[iii] Ibid. p.104

[iv] Walter Kalin, “Guiding Principles on Internal Displacement – Annotations”, 2000. p.xi

[v] Ibid. Francis M. Deng in his Preface note, p.xiii

[vi] Guiding Principles on Internal Displacement, Para. 2

[vii] Internal Displacement Monitoring Centre, Norwegian Refugee Council

[viii] Walter Kalin, P.3

[ix] Ibid. p.7

 

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Module E

Resource Politics, Climate Change, Environmental Degradation, and Displacement

Objective of this module is to contemplate the impacts of resource crisis, climate change and subsequent forced migration on development of the society. Resource crisis, climate change and forced migration are one of the major concerns of the contemporary development discourse. Forced migration due to resource crisis caused by climate change and environmental degradation is a serious impediment to attaining the basic normative goal of development i.e. a relatively equal society along with capable social actors by the virtue of favourable structural facilities and opportunities. In this module it is particularly intended to examine to what extent the issues of resource crisis, climate change and resultant forced migration are impairing the social equality on the one hand, and to what extent the existing social inequality, particularly in the relationship between the countries of the North and the South, causing the problems of climate change, resource crisis, and forced migration on the other.

It is already accepted that one of the major sources of climate change, environmental degradation, and subsequent resource crisis is our present mode of production and consumption. Global warming and sea level rise caused by anthropogenic climate change are susceptible to displacing millions of people. Given the present pattern of our lifestyle, significant amount of green house gases have concentrated in the atmosphere by increasing the global temperature. Global warming causes the sea level to rise because of primarily thermal expansion and to a lesser degree, the melting of the polar ice caps and mountain glaciers. The rise of the sea level will seriously affect the living conditions of the coastlines, on which over two-thirds of the world’s population resides. Sea level rise will increase the salinity of ground water and soil and cause complete submersion of low-lying islands. While we know that the industrialized countries have been and still remain to be the largest contributors of greenhouse gases, the sufferers of the global warming will be basically the developing countries of the South. The most vulnerable areas to sea level rise are the tropics, most of which are in the developing world. Therefore, the nations and populations that will be most adversely affected seem to have most limited coping capacity because of gross inadequacies in their social security systems, infrastructure and economic resources.

Climate change and resultant resource crisis as direct cause of forced migration is an issue on which there are different views. On the one hand, there is a view that argues that climate change and environmental degradation are increasingly becoming a significant cause of forced migration, and therefore, one should give proper attention to the environmental factors of forced migration by officially recognising these migrated peoples as environmental refugees. On the other hand, there is a view that argues that while environmental degradation and climate change do play a part in forced migration, they are at the same time closely linked to a range of other political and economic factors. Therefore, focusing on the environmental factors in isolation from political and economic factors cannot help to adequately understand the issue of forced migration. On the contrary, identifying these people as merely environmental refugee might divert attention from the complex nature of the relationship between climate change, resource crisis and displacement of the population.

Proponents of the former view, for example Norman Myers[1] argues that environmental pressures lead to fierce competition over land, encroachment on ecologically fragile areas and ultimate impoverishment. These events then can cause political and ethnic conflicts which may eventually become violent. As a result, the sufferers of such resource crisis caused by climate change and other environmental degradation ended up in the urban slums or in the camps for internally displaced people within their own country. Millions of such peoples, however, leave their own country and take refuge in the neighbouring countries, where they may cause further environmental harm and conflicts. Many of them also try to get asylum from countries in Europe and America. While rich countries are shutting down their doors, the neighbouring poor countries are facing tremendous pressure of such refugees. In the absence of proper arrangement for such number of refugees, the refugee camps and shantytowns are becoming breeding grounds of civil disorder, social upheaval and violence. Hence, it is necessary to officially recognize the climatic and environmental causes of displacement of the people and device proper institutional setup to tackle with the problem.

Proponents of the later view, for example, Richard Black[2] rejects such apocalyptic vision and considers it a neo-Malthusian approach based on dubious assumptions. According to him, it constructs refugees and migrants as a threat to security. He also claims that there is no evidence that climate change and environmental degradation lead directly to mass refugee flows, especially flows to developed countries. He sees the emphasis on environmental refugees as a distraction from central issues of development and conflict resolution, which are at the core of the refugee problem in the developing countries. Black does see the problems of rising sea levels, declining water supplies and others as very real. However, he finds little evidence of actual permanent large-scale displacements caused by these factors. He argues that rather than looking at global forecasts it is important to examine the strategies adopted by communities and governments in specific cases. He argues that the key problem is perhaps not climate and environmental change itself but the ability of different communities and countries to cope with it which is closely related with the problems of underdevelopment.

There is no doubt that there is an urgent need to protect and help the people who are forced to migrate due to climate change and environmental degradation. For this purpose one may, however need a comprehensive and multi-dimensional approach. Such an approach should include, but should not be limited to, actors such as the UNHCR and other United Nations agencies, governmental organizations, non-governmental organizations and local community members. Strong co-ordination should be practiced between international, national, regional and local actors to mitigate the problem of forced migration causing by climate change and resource crisis. While through co-ordination and co-operation between different actors the problem of forced migration can be managed to a certain extent, it is however, difficult to resolve the problem without adequately addressing the root causes of climate change and resource crisis.

Root causes of forced migration caused by climate change and resource scarcity are located at different levels: at local level, at national level, at regional level, and at global level. Hence, it is important to device relevant policies for relevant levels. However, it is important to remember that the rich countries of the North are still responsible for the causes of climate and environmental changes that induce population displacement in the poor countries of the South. Hence the policies merely concerning the local or national level cannot arrest the problem of global warming and rise of the sea level. It requires relevant policies that can adequately address also the global structural causes of climate change, environmental degradation and resource crisis. The very first objective of such policy could be to stop Northern practices that make things worse in the poor countries of the South. The second policy objective could be a reform of global rules directed towards sincerely achieving clean development mechanism. Finally, a third set of policy objectives could be to devise a package of aid measures that facilitate environmentally sustainable development in the developing countries, alleviate environmental pressure on the developing countries and made specific initiatives to help developing countries to confront the threats caused by climate change and environmental degradation.

[1] Myers, Norman: ”Environmental Refugees” Population and Environment: A Journal of Interdisciplinary Studies. Volume 19, Number 2, November 1997.

[2] Black, Richard: ”Environmental Refugees: Myth or Reality?” New Issues in Refugee Research Working Paper No. 34, March 2001.

 

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Module F

Research Methodology in Forced Migration Studies 

Caveat 

Much of research depends on wit, particularly if the enquiry is sensitive in the eyes of the people enquired into. And there is no training in wit.  

 

This lecture is more in the nature of sensitizing ourselves about possibilities rather than developing a blueprint, which is likely to become a straitjacket leading to foreclosure. One should be open, and of course capable, of breaking the grammar.  

 

Possibilities 

 

 1.In the social sciences methodology is taken to be a discipline, bordering on philosophy, whose function is to recommend and examine the methods, which should be used to produce valid knowledge. Methodology lays down procedures to be used in generation of valid knowledge and these procedures are justified or criticized by means of philosophical arguments. It is clear that methodology’s claim to prescribe correct procedures to social sciences presupposes a form of knowledge that is thought to be provided by philosophy.  In this sense methodology presupposes a particular kind of relationship between philosophy and the social sciences where judgment and validation of the claim to knowledge is possible. Different philosophies may conceive of that relationship in different terms, and to that extent each discourse describes a different ‘regime of truth’, that is, the operation of criteria, norms and procedures for identifying or arguing about ‘true’ propositions in any given case.   

 

2. For any researcher on any problematic, the first thing to ponder over is the choice of appropriate epistemology. The choice is a function of the nature of the issue to be enquired into and of a researcher’s non-academic intent, even his or her sympathy. This is assuming that the researcher is aware of his right to choose. A well-written text book on methods of research, an articulate teacher and a path-breaking text can produce closed minds, and thus stand in the way of development of such awareness.  

3. ‘Forced migration’ as a problematic demands a critical epistemology. It believes in value-determined nature of enquiry, unlike positivism and post-positivism interested in explanation only. Further, it wants enquiry to critique with an intention to transform social, political, economic, and ethnic and gender structures, which constrain and exploit woman and man. The inquirer becomes an instigator, a ‘transformative intellectual’ confronting ignorance and misconceptions. 

 

4. Constructivism is another appropriate epistemological position, which envisages multiple realities. Constructivism enquires into people’s constructions about reality in order to understand these. The investigator is a ‘passionate participant’, engaged in enabling multivoice construction of his/her own as well as of other participants’ perceptions. 

 

5. Both Critical epistemology and Constructivism want value-driven enquiry and its outcome ensuring empowerment of the marginal people. The forced migrants become marginal at the places of their arrival. In case they were already marginal in their original social location, they become doubly marginalised. 

 

6. These two epistemological positions direct a researcher to qualitative approach to the problem. This is also perceived as a ‘humanist’ approach, because it keeps woman at the centre of enquiry. 

 

7.Theoretical critique of positivism has encouraged in recent times a shift to qualitative methodology in social research. The basic assumptions central to this critique can be briefly stated as: (i) commonsense knowledge of social structures cannot be discounted in favor of the misplaced hope of achieving an objective knowledge; in an inter-subjective world both observer and observed use the same resources to identify ‘meanings’, (ii)Statistical logic and experimental methods are not always appropriate for the study of this inter-subjective world, (iii) In an inter-subjective world, policy interventions based on a stimulus-response model of change can neither analytically nor politically acceptable. 

 

8. ‘Qualitative’ denotes an attention to processes and meanings that are not subjected to measurement in terms of quantity, amount, intensity or frequency.  Qualitative analysis is best understood in terms of what it intends to do: bring out the distinctive attribute of a social phenomenon or relationship between phenomena which can not be represented by a quantitative indicator entirely or at all. The synonymous expressions for qualitative approach also imply its character. These are: ‘naturalistic’, ‘inquiry from inside’, and ‘interpretative’. Along with such labeling, there is a critical attribution that it is a paradigm meaning that it is a set of beliefs and imperatives concerning what should be studied and how. Qualitative research is multimethod in focus, involving an interpretative, naturalistic approach to its subject matter. This means that qualitative researchers study things in their natural settings, attempting to make sense of, or interpret, phenomena in terms of the meanings people bring to them. Qualitative research involves use and collection of a variety of empirical material - case study, personal experience, introspective, life story, interview, observational, historical, interactional, and visual texts----that describe routine and problematic moments and meanings in individuals’ lives. Qualitative research is bricolage and researcher is a bricoleur, a ‘jack of all trades’ ready to use any strategy, method or data. There is no prior commitment to any. A context sets a research question, which in turn suggests a research practice. Qualitative research is a call for openness for the sake of better understanding.   

 

9. The attributes of qualitative research establish how it seeks to locate distinctiveness of phenomena. These are: an explicit commitment to examining events, activities, experiences and their underlying normative framework ‘through the eyes of’ a people being studied; a detailed descriptive attention to aspects of everyday life process likely to reveal specific contexts of behavior; locating wider historical and social as well as immediate and particular context; and an examination of inter-locking processes.  

 

10. An enquiry is good if knowledge possesses: according to critical epistemology if it has the property of historical situatedness (care taken about social, political, economic, cultural, ethnic and gender specificities of the studied situation); according to constructivism, trustworthiness, criteria of credibility, transferability, dependability and confirmability, and authenticity criteria of fairness, ontological authenticity (enlarging personal constructions), educative authenticity (leading to improved understanding of others’ constructions), catalytic authenticity  (stimulating action) and tactical authenticity (empowering action). These are set against proof of internal validity (isomorphism of findings with reality), external validity (generalizabilty), reliability (stability) and objectivity (distanced and neutral observer) for positivism and postpositivism.  

 

11. The philosophy underlying the qualitative approach is best represented in the unobtrusive measures. These are so-called because these do not intrude into social settings, groups and individuals who are objects of investigation. Unlike interviews and observation these are ‘non-reactive’ since these do not involve interaction between the investigator and the people being studied.  

 

12. Unobtrusive methods take a variety of forms: Textual analysis, Content Analysis, Discourse Analysis, and Analysis of visuals, Semiotics, Translation, and Analysis of existing statistics. 

 

13. Because more than one method can be necessary, the need for triangulation arises. The expression ‘triangulation’ is a metaphor drawn on trigonometry, a branch of mathematics. It means originally a method of surveying in which an area is divided in to triangles, one side (the base) and all the angles of which are measured and the lengths of the other lines calculated trigonometrically. Social scientists are seldom conversant about trigonometry. Hence we may be excused trying to make sense more of the suggestions thrown up by the specialist definition. These are: ‘area’, ‘angle’ which implies sides---three, that is, more than one, ‘survey’ and ‘calculation’. Central to this exercise is dividing in triangles and then relating them for a survey. For the social scientists, the area is the phenomenal world or a part thereof, which is sliced up, comprehended and then ‘sewn up’, again for comprehension. If the slices are different in nature, their comprehension involves use of different methods. In social sciences, triangulation means employment of a number of different methods in the belief that the variety facilitates achievement of validity of an observation. This is according to the positivist position. In post-modernist eyes, triangulation or use of multiple methods is useful for ensuring ‘rigor, breadth, and depth to any investigation’. Triangulation refers to the use of more than one approach to the investigation of a research question in order to enhance confidence in the ensuing findings. Since much social research is founded on the use of a single research method and as such may suffer from limitations associated with that method or from the specific application of it, triangulation offers the prospect of enhanced confidence.

 

12. Triangulation can take five forms: 

 

(i). Data triangulation, which entails gathering data through several sampling strategies, so that slices of data at different times and social situations, as well as on a variety of people, are gathered.                                                               

 

(ii).  Investigator triangulation, which refers to the use of more than one researcher  in the field to gather and interpret data. 

 

(iii). Theoretical triangulation, which refers to the use of more than one theoretical position in interpreting data. 

 

(iv). Methodological triangulation, which refers to the use of more than one method for gathering data.                         

 

(v) Interdisciplinary triangulation, which refers to triangulation of different disciplines. 

 

A distinction is also possible between within-method and between-method triangulation. The former involves the use of varieties of the same method to investigate a research issue; for example, a self-completion questionnaire might contain two contrasting scales to measure emotional labor. Between-method triangulation, involved contrasting research methods, such as a questionnaire and observation. Sometimes this meaning of triangulation is taken to include the combined use of quantitative research and qualitative research to determine how far they arrive at convergent findings.  

 

Suggested Readings  

 

Hesse-Biber, Sharlene Nagy and Leavy, Patricia. (2004). Approaches to Qualitative Research: A Reader on Theory and Practice, Oxford University Press

Bryman, Alan (1992) Quantity and Quality in Social Research, Routledge.

Giles, Judy and Middleton, Tim (1999): Studying Culture: a practical introduction. Blackwell Publishers.

Kripendorff, Klaus (2003) Content Analysis: an introduction to its methodology, Sage Publications

Denzin, Norman K and Lincoln Yvonna S(eds.)(1998-a): Strategies of Qualitative Enquiry.

Denzin, Norman K and Lincoln Yvonna S(eds.) (1998-b): Collecting and Interpreting Qualitative Materials. 

Denzin, Norman K and Lincoln Yvonna S(eds.)(1998-c): The Landscape of Qualitative Research.

Thwaites, Tony, Davis, Lloyd and Mules, Warwick (2002): Introducing Cultural and Media Studies.

Hall, Stuart (2002): Representation: Cultural Representations and Signifying Practices.

Hammersley, Martyn and Atkinson, Paul (1995): Ethnography: Principles and Practice.

Chaplin, Elizabath. (1994): Sociology and Visual Representation. 

 

Paradigms of Qualitative Approach  

                              

Hesse-Biber, Sharlene Nagy and Leavy, Patricia. Approaches to Qualitative Research: A Reader on Theory and Practice (2004).pp 1-14,15-38, 62-78.

Bryman (1988) Quantity and Quality in Social Research, pp 45-71, pp95-97, 112-113.

Denzin, Norman K and Lincoln Yvonna S(eds.)(1998-a): Strategies of Qualitative Enquiry. pp 1-34.

Denzin, Norman K and Lincoln Yvonna S(eds.)(1998-c): The Landscape of Qualitative Research.pp 185-220. 

 

Analysing Representation    

                              

Giles, Judy and Middleton, Tim (1999): Studying Culture: a practical introduction. pp 56-80.

Hall (2002) Representation: Cultural Representations and Signifying Practices pp 1-74.

Thwaites, Tony, Davis, Lloyd and Mules, Warwick (2002): Introducing Cultural and Media Studies.

Hesse- Biber and Leavy (2004) Approaches to Qualitative Research: A Reader on Theory and Practice pp 79-129,142-146, 303-315, 334-365.

Denzin, Norman K and Lincoln Yvonna S(eds.) (1998-b): Collecting and Interpreting Qualitative Materials. pp 130-149.

Hall S (2002): Representation: Cultural Representations and Signifying Practices. pp 75-150.  

 

Ethnography  

 

Denzin, and Lincoln (eds.)(1998-a) Strategies of Qualitative Enquiry. pp 110-136.

Hammersley, Martyn and Atkinson, Paul (1995) Ethnography: Principles and Practice. 

 

Case Study  

 

Denzin and Lincoln (eds.)(1998-a) Strategies of Qualitative Enquiry. pp 86-109. 

 

Visuals

 

Chaplin, Elizabath. (1994): Sociology and Visual Representation. 

 

Use of computers 

 

Hesse-Biber and Leavy (2004) Approaches to Qualitative Research: A Reader on Theory and Practice (pp 535-545). 

 

Triangulation  

            

 Bryman, (1988) Quantity and Quality in Social Research pp 27-156.

 

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Module G

Ethics of Care and Protection

 

The history of refugee care and protection has been also one of “refugee manipulation”. Studiess have shown how in countries such as Pakistan, Zaire, Cambodia, or erstwhile Yugoslavia the principle of refugee protection has been manipulated in considerations of power. Refugees have been used and abused in the interests of the states. Institutions have been either willing accomplices or have been ignored in these policies and acts of manipulation. On the other hand, in recent years there is increasing interest in the ethical dimension of the principles and practices of care and protection of the uprooted and the displaced. There is now interest on how war, politics, and human suffering have produced a mix of particular interests and humanitarian strategies of protection (Stedman, 2003)   

 

In this context of growing interest in the normative aspects, legal professionals too are engaged with developing normative frameworks for the protection of the refugees and the Internally Displaced Persons (Bagshaw, 2005). At one stage it was thought that the path of human rights treaty making would ensure compliance to an un-stated normative framework, possibly because human rights by themselves would ensure the normative aspects. But the human rights treaty making path had its rise and has now gone into decline in view of its limited effectiveness. Alternative law making techniques are being discussed today.  

 

Why should we care for and protect the victims of forced displacement? The “we” here refers to those who have not had experienced displacement themselves, yet harbour some form of an ethical commitment to the victims of forced displacement. The ethical language therefore is expected to establish some form of a connection between them and us – between those who are not forcibly displaced and those who are. Ethics in other words cannot but be dialogical. Its language in no way denies agency to the victims. CRG’s studies on the partition ‘refugees’ in the east, for example, underline a plethora of self-help initiatives undertaken by them. Ethical language therefore is a language of universality that cuts across the given boundaries of the victims’ groups and communities. One can therefore say that while ethical language has to be universal, the phenomenon of forced displacement is not. It is true that the incidence of forced displacement has been alarmingly on the rise – thanks to the forces and processes of globalization. However their number is still considerably smaller than that of the world’s settled population. Much of what the settled population groups do for the displaced population in the framework of various linkages is not be construed as ethical practice. Ethics is considered essentially about the self, which cares for and holds itself responsible to the other. Caring for the other is regarded as the means to care for the self. 

 

Since the issue on which ethical judgement is called for may vary, the ethical connection is contingent on the specificity of the dialogic situation. There is a great diversity of situations, issues, and principles of contention in the field of forced displacement. While this plurality is helpful in building the much-needed ‘consensus’ around the principles in question, rigour and coherence in arguments and reasoning may more often than not turn out to be a liability for those who feel committed to the care and protection of the displaced persons. That is the reason why scholars like Peter Penz (2004) argue for more self-consciously uncertain and middle-level theories of ethics. 

 

We think not unnaturally that the importance of ‘moral reasoning’ in initiating organized responses is great. But we must keep in mind that the organised and unorganised responses take on two rather distinct ethical trajectories. Most of the empirical studies on unorganised, altruistic responses in general seem to indicate their un-self-conscious character. That is to say, those who care for and protect are not bothered usually about the fact that they are actually involved in any ‘extraordinary’ act that otherwise begs ‘moral reasoning’ (Monroe 1996: 197-215). On the other hand, responses get organized, ordered and orchestrated precisely through a self-conscious act. It is by way of consciously entering into some form of argumentation and reasoning with others that we evolve the principles of care that will be “binding” on us. Pradip Bose’s review essay included in the reference list reveals the way ethical deficit is produced in the process of organised responses supposedly based on consensus on ethical principles.  

 

Therefore, organized responses will face perpetual challenge in form of an ethics of care and protection, and our understanding of the issues in question will have to take into account this paradox. The challenge is perpetual because humanitarianism as a body of practices and ideology is always insufficient, and can meet the demands of reality only partially notwithstanding the best endeavours. We have an essay here on the ethical practices of the World Bank demonstrating the dilemma. There is no denying that what we do in the name of care and protection is structured in the power relations prevailing in the society. The question of care and protection in that sense can never be disentangled from that of power. Michel Foucault showed how in human history an ethics of care has involved some form of self-empowerment and subjectivity (Foucault in Rabinow ed. 1994:269-80). Samaddar for example, points out how our humanitarian responses geared to the objective of protecting life are scripted in and thereby reproduce, the imperial ‘power of death’ (Samaddar 2002). But the irony is that we as ethical agents always refuse to conflate what we do in the name of care and protection with what we ought to do and seldom confer moral recognition on the former. The ethics of care and protection imposes on us the painful obligation of denying the existence of power in the public sphere while at the same time this ethics is being shaped and structured by it. The attempted erasure of power from ethical considerations is a precondition of the functioning of public ethics or to put in other words, ethics as an issue in public sphere.  

 

We can witness the presence of a wide variety of argumentation and reasoning in justification of the advocacies for care and protection of the displaced. First of all, there is the rights-based argument. Care and protection according to this argument, will be construed as our ‘duty’ insofar as the ‘well being’ of the displaced persons becomes ‘a sufficient reason for holding us to be under this duty’ (Raz 1986: 166-8). The problem recognized by almost all the exponents of this argument is that the right against displacement is not an end in itself and cannot per se be regarded as the ‘sufficient reason’ for holding us under this duty. Sufficiency of reason does not reflect itself in the same way as in the two advocacies for the right against displacement and say, the right to life. If one’s displacement becomes a necessary condition for another’s enjoyment of the right to life – often understood as decent life, we can say that the former is derogable and the latter is not. Thus, the right against eviction that is routinely carried out in the metropolitan cities of South Asia – whether in Dhaka, Kolkata or Islamabad or elsewhere, has to contend with the argument for development and decent life defined everywhere as a ‘collective goal of the community as a whole’ (Dworkin 1977:82-5). The successful assertion of the right against displacement therefore entails some form of abrogation of ‘the collective goal’. Many of those who were evicted from the banks of the Beliaghata circular canal of north Kolkata had been living there for more than one generation. Yet all of them were the illegal occupants of land. In the absence of any legal title, they are unlikely to sustain their claim to land in the first place, in any court of law. The UN Guiding Principles (1998) too conceptualise the right as only a limited right against arbitrary displacement. While we cannot compromise with the ‘collective goal’ we can certainly reduce the sufferings of the displaced through compensation, relief and rehabilitation. Conversely and by the same logic, we should be prepared to accept that the importance of the same right will vary if it ever becomes a necessary condition for the enjoyment of one’s non-derogable rights including that to life. What if it becomes impossible to carry out displacement without simultaneously violating ‘the rights to life and freedom from cruel, inhuman or degrading treatment’? What if displacement involves violation of the victims’ right to life and livelihood? Displacement in that case is bound to be illegal for it leads to derogation of an otherwise non-derogable right enshrined in the Constitution or law. By basing on the rights-based argument, the ethics of care and protection remains beholden to the contingent nature of the relationship between the right against displacement on one hand and any of the non-derogable rights recognized by the court of law on the other. An argument is often made to locate the rights of the displaced persons within ‘a radical democratic perspective’, redefine the lines of derogability and non-derogability and thereby extend the sphere of their rights beyond the given limits of law by constantly waging and organizing political struggles (Jayal 1998). This in fact turns the rights-based argument by its head by basing rights on ethics and ethical reasoning and not vice versa. 

 

Yet what this rigmarole ignores is the fact that ethical reasoning inexorably emerges as judicial reasoning, and therefore to be interpretable calls for a public power in as much judicial reasoning invokes a distinct type of public power. Who decides which way the issue of derogable or non-derogable nature of claim will be decided? Who will decide on issues of practical application of agreed ethical principles? Or, who will frame the structure of rights and duties whereby we can say that it is the duty of the public power to offer such and such responses to certain claims against displacement, or conversely it is the duty of the affected person/group to move out for greater public good?

 

This takes us to the second argument. According to it, care and protection follow not the logic of public authority, but that of the established lines of community and kinship. However, the community-based argument also has its limits: in course of organizing the responses, it not only reinforces the traditional lines of rivalry, but re-enacts the inequities and asymmetries otherwise internal to these bodies. Various reports emphasize how life in camps, allocation and utilization of aid and assistance for the displaced persons reinforce the kinship and community lineages and become the fertile ground for future tensions and ethnic strife. For a select study of the reproduction of inequalities through humanitarian efforts, post-Tsunami care is a significant case (Calcutta Research Group report, 2005). 

 

Some think that the humanitarian argument addresses the limits of the community-based argument. A somewhat old-fashioned version of the argument looks upon care and protection as a form of ‘moral exercise’ that we require for making our individual selves ‘pure and perfect’. Helping others according to this version is a form of self-help, of achieving one’s higher moral self. The objective of self-help does not however rule out the necessity of organized responses. Learning to work with others is also a means of helping oneself and the proponents of this argument recognize the importance of institutions and organizations in accomplishing this objective. Today however, the humanitarian ethics seldom turns on one’s own self. It instead considers others as equal ethical agents in the sense that they are as much entitled to ‘purity and perfection’ as we are. Viewed in this light, our care and protection are a tribute to their ethical entitlements, of which they are otherwise deprived. In this connection Itty Abraham’s argument (2005) is worth listening to. 

 

In the particular context of South Asia, we can find two major ethical presuppositions: First, displacement in South Asia cannot be fathomed without the understanding that home is not simply where we live or to which all of us are entitled like we are to many other sites of our social existence, but that it is often the fountainhead of several of our ethical entitlements. Any involuntary displacement is a disjuncture between home and home, between what we are and what we want to become, between our senses of lack and fulfilment. Second, should a conflict arise between our and their moral entitlement, humanitarian ethics settles for a minimal path. It means practically, that those of us who have the commitment to and power of taking care and protecting the displaced persons will do so minimally, that is, in a way that does not sacrifice anything of comparable moral importance, that is to say, our own right to life and livelihood Possibly both these understandings are valid beyond South Asia too. (Singer in Markie ed. 1998:800).   

 

The variations in the tenor and accent of our ‘moral reasoning’ can hardly escape our attention. The way in which the rival realities of community, nation, state, and immigration are entangled in a matrix of power is evident in the article by Catherine de Wenden (2001) reproduced in this collection. It is these interrelations and the inter-conflicts that make ethical judgements so complicated and predicated on many a factor beside the moral. Of course they need not be blown out of proportions either. The rights-based argument may well be linked with the humanitarian argument or for that matter, the community-based argument. In many ways, the arguments cut across each other and are not mutually exclusive. While in our ‘moral reasoning’, we face the challenge of extricating ethics from power, most of the studies in this respect point out how the practices of care and protection continue to be governed by power and security considerations. The camps and shelters built for the displaced persons represent sites where war is continued ‘by other means’. The budgetary allocation is paltry and irregular. The camp-dwellers are deprived of the non-derogable freedoms the Guiding Principles propose to secure. Search for any durable solution in such condition ironically makes us confront power and negotiate its terms. 

 

This module will discuss the related issues at length, and will engage with the central question, namely, as asylum, protection, rehabilitation, and resettlement become highly charged political issues across the globe, raising a host of difficult ethical and political questions, what responsibilities will nations, states, communities, and individuals have towards the displaced, immigrants arriving at the borders, and other victims of forced migration including the trafficked human beings? How shall we place the issue of responsibility along with rights, belonging, etc. in the map of our guides to actions? And can we say that these will have no constraint of power on them? What bearings will these have on our idea of democracy? (Gibney, 2004) Once we focus on this central question, we shall then understand that our attempts at disentangling ethics from power too are a power game. And, possibly such attempt as disentanglement is partially possible when ethics is not seen as sentiment or even as moral reasoning, but as considerations towards practical steps for caring for the selves. If we judge in this way, we shall have the space in our actions for our own desire to cling to what we hold to be true. In this tension-filled relation between ethics and truth there is scope for negotiation, partial disentanglement of ethics and power, and the scope of truth procedures to guide our actions. In this context it is important to note the call by the philosopher Alan Badiou (2001) for understanding ethics in relation to our understanding of evil and the production of truth procedures. Morality would have little place in these appreciations and considerations.

 

References 

 

Abraham, Itty (2005): “Refugees and Humanitarianism”, Refugees Watch, No. 24-26, October, www.mcrg.ac.in/rw%20files/RW24.doc

Badiou, Alan ((2001): Ethics. London: Verso

Bagshaw, Simon (2005): Developing a Normative Framework for the Protection of Internally Displaced Persons. New York: Transnational Publishers.

Calcutta Research Group report (2005): http://www.mcrg.ac.in/tsunami.htm

Dworkin, Ronald (1977): Taking Rights Seriously. Cambridge, Mass.: Harvard University Press.

Foucault, Michel (1994): Ethics: Essential Works of Foucault 1954 – 1984, Vol. 1, ed. Paul Rabinow. London: Penguin.

Gibney, Matthew J. (2004): The Ethics and Politics of Asylum. Cambridge: Cambridge University Press

Jayal, Niraja Gopal (1998): ‘Displaced persons and discourse of rights’ in Economic and Political weekly, XXX (5), 31 January.

Monroe, Kristen Renwick (1996): The Heart of Altruism: Perceptions of a Common Humanity. Princeton: Princeton University Press.

Penz, Peter (2004): ‘Development, displacement and International Ethics’ in Omprakash Mishra (ed.), Forced Migration in South Asia – Displacement, Human Rights, and Conflict Resolution New Delhi: Manak Publications.

Raz, Joseph (1986): The Morality of Freedom. Oxford: Clarendon

Samaddar, Ranabir (2002): ‘Caring for the refugees: Issues of power, fear and ethics’ in Three Essays on Law, Responsibility and Justice, SAFHR Paper 12. Kathmandu: South Asia Forum for Human Rights.

Samaddar, Ranabir (2003): “In life, In Death: Power and Rights” – Seminar, Annual Number 2003; http://www.india-

seminar.com/2004/533/533%20ranabir%20samaddar.htm

Singer, Peter (1998): ‘Famine, affluence, and morality’ in Stephen Cahn & Peter Markie (eds.), Ethics: History, Theory and Contemporary Issues. New York: OUP.

Stedman, Stephen John and Fred Tanner, Eds. (2003): Refugee Manipulation. Washington DC: Brookings Institution.

Wenden Catherine de, “How Can One be Muslim in France?”, Refugee Watch, 13, March 2001

 

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Module H

Media and Forced Migration

 

Stories that Seldom Make the Front Page

 

In January 2007, about 900 people who lived in a makeshift camp in Solabila, in Bongaigaon district in western Assam, were woken up at night and asked to pack their meagre belongings and board several buses that would take them to a resettlement camp a little further away in Barpeta district. The residents of Solabila were then herded into the buses that refused to move. Children, pregnant women and elderly people were cramped into privately owned buses in the cold January night. By dawn, many wanted to relieve themselves, some wanted to get out of the bus and stretch their limbs and the younger ones just wanted to get back into the decrepit shacks they used to call home. However, policemen armed with rifles and batons barred them all from getting off the bus. The reason for the delay -- they were told -- was because local people of the proposed resettlement camp were annoyed that they had not been consulted about this move and in protest, decided to destroy a few key bridges that led to the area. 

 

The residents of Solabila were no strangers to displacement. All of them were Bengali-speaking cultivators, whose ancestors had farmed the inhospitable chars along the Brahmaputra for decades. Over time, some had begun to acquire permanent leases, or land titles to cultivate along the wet-rice growing areas of western Assam. They had somehow escaped being victimised as foreigners during the Assam agitation in the early 1980s. However, with the beginnings of a radical political mobilisation of the Boro people of western Assam, the Bengali-speaking Muslim peasant was soon to become the first adversary in a political process marked by violence. In 1992, some radical Boro armed groups burned down hamlets and villages occupied by Bengali-speaking Muslims, all along the banks of the Brahmaputra in the current district of Bongaigaon. People from different villages escaped northwards to the hills of Bhutan. That was the only direction they could head for. To the south was the river Brahmaputra. To the east were inhospitable lands cultivated by Assamese peasants, many of whom had just participated in an anti-foreigner movement. To the west were what they perceived to be more bands of armed Boro militia. So they headed north, to a place none of them had ever been to before. A few days later, the Bhutanese police and local people pushed them back into Assam. After living furtively along the Bhutan-Assam border for months, many decided to settle in Solabila, near the Bongaigaon-Barpeta border. They settled along the Gai river and lived along a highway, breaking stones, making roads, sifting sand from the river-bed, working as agricultural labourers and even moving away to other states in search of work. 

 

Between 1993 and 1999, many of the residents of the camps tried to reclaim the land that they had lost during the conflict. They did not manage to get very far as political manoeuvrings in the course of the Boro movement had made it difficult for many non-Boro people to feel secure about claiming land in place that was seriously contentious. Hence, they lived along fringes of forests and along highways that took them to distant places in search of work. Incidentally, they highways also claimed the lives of many children, who in the absence of regular schools and madrassas, played along a road where traffic was fairly dense. Their parents left the camp in search of work. Yet, the moment there was even a faint rumour about the possibility of the administration forcing a resettlement of the camp, its residents would make the arduous journey back from places as far away as Lucknow, just so they could stake their claims as displaced citizens of a state within the Indian union.  

 

Their political power is extremely limited, given the fact that they are unable to claim any property rights over land and other resources within Bongaigaon district. The local politicians in the area are more often than not against the presence of Bengali-speaking Muslims in an area where other ethnic groups have contending claims to resources and rights. A combination of factors ranging from their inability to claim recourse to instruments of law; their ethnicity; and so on, people from Solabila are rendered invisible in the public sphere. Even though Assam has a vibrant local media, stories of displaced persons do not find their rightful place in discussion forums and policy-making circles. The irony of the situation is brought home when one realises that the only time they can lay claim to being part of a citizenship regime, is when they are forced back to the camps for displaced people to make sure that their names are not deleted from the voters’ list. 

 

Visibility and the Public Sphere 

 

The story narrated above has several issues that have a special bearing on what one considers as the public sphere. Some of these issues deal with citizenship, sovereignty, power/powerlessness, ethnicity and most of all, visibility/invisibility in everyday political discourse. Where do these issues figure most centrally? Who shapes their contours? How can one alter the trajectories of these stories? These are questions that frequently come into play when one thinks about the reason why forced migration (especially internal) does not receive its due in local and national politics. This can be partially answered in the manner in which we construct the national in South Asia, especially along its least visible spaces such as Northeast India.  

 

The nation-state as a modern construct draws upon older forms of associations. In Asia, the modern nation-state was grafted over older structures that developed indigenously (Winichakul 1996: 67-91). The present-day Indian state, for example, was a complex political creation that involved the transition from colonial empire to inclusion of older regional geo-social formations (Chapman 2000: 77-86). Historically, the region forms a zone that can be seen as the north-eastern frontier of South Asia, as well as the north-western frontier of Southeast Asia. Willem van Schendel includes it in his reconstruction of a physical space concealed from dominant discourses on geographical realignment of area studies (in Asia) and political decision-making following the period of decolonisation of large parts of South and Southeast Asia (van Schendel 2002: 647-668). The region’s pre-colonial political and social landscape was a reflection of the multi-dimensional migrations into its hills and valleys. It comprised old kingdoms and chiefdoms as well as wide swathes of land where authority of the kings and chiefs were negligible. Commercial interests, coupled with a keen eye on geopolitical balance of power led the British to “draw lines between hills and plains, to put barriers on trade between Bhutan and Assam and to treat Myanmar as a strategic frontier- British India’s buffer against French Indochina and China” (Baruah 2004:5). During the course of the anti-colonial struggle in the twentieth century, notions about the region being a frontier were not challenged. In the emerging historiography of the region there was an attempt to restructure the relationship between the region and the national hinterland with an overriding emphasis on establishing a place in the national space of the emerging idea of India.  

 

The development of social and political structures in the Northeastern region of India has been characterised by extreme levels of violence for the last two decades. This violence has articulated itself in myriad forms. It has appeared as an outright conflict of interests between ethnic groups and the state; within ethnic groups and at times for or against notions of development. Resources and identity remain the first, and often last explanatory comment on the expressions of violence. On one hand, armed groups professing allegiance to certain ethnic groups in the state have been involved in militant political activities, directed mainly towards the preservation of their resources and identity. In some cases, this struggle has involved alliances across ethnic boundaries, subverting officially sanctioned definitions of the problems as one of migrants versus locals. On the other hand, the response of the state apparatus has been to restrain, regulate and repress these demands at various points of time. This has led to the institutionalisation of authoritarian practices that, though localised, are rather jarring (Baruah 2005:3).            

 

In the construction of a political society, in such instances, need further interrogation given Habermas’ criteria for identifying what constitutes a civil society. The idea of the ‘public sphere’ in Habermas’s sense is a conceptual resource (which) designates a theatre in modern societies in which political participation is enacted through the medium of talk (Fraser: 1993. 110-111). The public sphere in its classical/liberal bourgeois guise was partial and narrowly based in that sense, and was constituted from a field of conflict, contested meanings and exclusion. Thus the meaning of ‘civil society’ here is constituted through the ‘original’ separation and opposition between the modern, public-civil-world and the modern, private or conjugal and familial sphere: that is, in the new social world created through contract, everything that lies beyond the domestic (private) sphere is public, or ‘civil’, society (Pateman: 1989. 31-32). A conception of civil society, in the liberal western construct, is inconsistent with realities in less-developed capitalist societies. If (one) takes civil society in its characteristically modern meaning – as a way of interfering to the terrain of voluntary associations that exist between economy and state – there are two reasons why politics in frontiers contradict this. For one, societies in the frontiers are typically shaped by a legal order that is autocratic and militarised (Baruah ibid.) Secondly, such societies are less individually oriented than dominant societies, as being part of peripheries where the lure of the nation-state and citizenship is weak, they rely more on people-hood constituted by genealogical and kinship ties (Murray 1997: 11). It is apparent therefore that societies in peripheral, militarised regions have to be judged by different criteria from the ones that Habermas comes up with. It is therefore instructive to remember that contentious and conflict-ridden regions may produce a bewildering diversity of voices in the public domain. Even a small town of twenty thousand people in Manipur has as many seven daily papers in different dialects. These papers are part of a larger repertoire of political disarticulation of citizenship regimes that forget the margins and its inhabitants. Such regions and societies are rendered invisible in larger (national) spheres. 

 

Reflecting on the Public Sphere and Growth of Media in South Asia 

 

How does one read the role of the media in such regions? Is it enough to say that the media works in different ways in different places? Recent developments in the South Asian media landscape is worth delving into if one is to understand the kind of transformation that society, state and media have undergone in the region. In India, the last two decades has seen a massive growth of regional and national media, in both print and electronic forms. Newspaper circulations have increased all over India since the 1990s (Ninan 2007: 27). The number of satellite television channels in the national and regional levels has increased in the last decade. In countries like Nepal, community radio stations have revolutionised local politics. In Kathmandu alone, there are 17 privately owned radio stations (as of December 2007). Pakistan has recently allowed broadcasts from private radio stations. Moreover the growth of newspapers in countries like Bangladesh and Pakistan are also phenomenal. All these changes would lead one to assume that the average citizen has greater access to information now, than in the past. 

 

This is not true across the board. It is true that print and television media have multiplied over the last few years. However, this has not automatically lead to a plurality of voices in the public domain. With the notable exception of Nepal, the media has followed a predictable path of widening its reach, while reducing the width of concerns that actually find a place in the public domain. Therefore, stories of forced displacement, refugees, civil rights violations and so on, are placed along a same continuum of concerns that compete with advertising space, pageants and hostile business takeovers. Obviously, the scope for a plurality of voices diminishes in such a milieu, where a particular political and economic class increasingly owns media houses. 

 

In the past the state’s legislative, executive and judiciary were seen as the purveyors of a country’s sovereignty. The media was supposed to occupy either an autonomous, or subservient place within this constellation. In theocratic monarchies (like Bhutan), the media was the sole transmitter of government policy. Today, with the executive, legislative and judiciary losing much of their authority to trans-national financial institutions and corporations, the media has emerged as another site for establishing legitimacy. This is somewhat of a mixed opportunity in every sense of the word. For those who are able – and this definitely includes those who wish to secede from the problems of poverty – can create another reality, where conflicts, displacement and the poor are no longer visible. Those who cannot seem to be doomed to a life outside rule of law and outside remembered norms of political discourse. In order to engage with a public domain that has changed tremendously in the past few decades, one has to unlearn the established notions of what constitutes the public sphere.  

 

Selected and Suggested Readings 

 

Anderson, Benedict. 1991. Imagined Communities (Revised edition). London: Verso Books.

Baruah, Sanjib. 2005. Durable Disorder: Understanding the Politics of Northeast India. New Delhi: Oxford University Press.

Calhoun, Craig. 1993. ‘Introduction’ in Craig Calhoun (Ed). Habermas and the Public Sphere. Cambridge, MA: MIT Press.

Chapman, Graham P. 2000. The Geopolitics of South Asia: From early empires to India, Pakistan and Bangladesh. Aldershot: Ashgate Publishing.

Fraser, Nancy. 1993. ‘Rethinking the Public Sphere: A Critique of Actually Existing Democracy’ in Craig Calhoun (Ed). Habermas and the Public Sphere. Cambridge, MA: MIT Press.

McLuhan, Marshall. 2003. Understanding Media. Corte Madera, CA: Gingko Press.

Murray, Stuart. (Ed) 1997. Not On Any Map: Essays on Postcoloniality and Cultural Nationalism, Exeter: University of Exeter Press.

Ninan, Sevanthi. 2007. Headlines from the Heartland: Reinventing the Hindi Public Sphere. New Delhi: Sage Publications.

Pateman, Carol. 1989. The Disorder of Women: Democracy, Feminism and Political Theory, Stanford: Stanford University Press, California.

van Schendel, Willem. 2002. Geographies of knowing, geographies of ignorance: jumping scale in Southeast Asia. Environment and Planning D: Society and Space 20:647- 668.

Winichakul, Thongchai. 1996. Maps and the Formation of the Geo-Body of Siam,  in Stein TØnnesson and Hans Antov (Eds), Asian Forms of the Nation. Surrey: Curzon Press. Pp. 67-91 

 

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