Modules Notes for Ninth Annual Orientation Course on Forced Migration 2011



Module A /  Module B /  Module C /  Module D / 

Module A

Refugees, Internally Displaced Persons (IDPs): Definitions and New Issues in Protection

(Concept Note, and Suggested Readings)

 

Concept Note

 

Module A deals with the definitions of refugees, internally displaced persons (IDPs) and the emerging issues related to their protection. Article 1A, paragraph 1, of the 1951 Convention on the Status of Refugee applies the term “refugee”, first, to any person considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization. Article 1A, paragraph 2, read now together with the 1967 Protocol and offers a general definition of the refugee as including any person who is outside their country of origin and unable or unwilling to return there or to avail themselves of its protection, on account of a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular group, or political opinion. Stateless persons may also be refugees in this sense, where country of origin (citizenship) is understood as “country of former habitual residence”. Those who possess more than one nationality will only be considered as refugees within the Convention if such other nationality or nationalities are ineffective (that is, do not provide protection).

 

The refugee must be “outside” his or her country of origin, and the fact of having fled, of having crossed an international frontier, is an intrinsic part of the quality of refugee, understood in its ordinary sense. However, it is not necessary to have fled by reason of fear of persecution, or even actually to have been persecuted. The fear of persecution looks to the future, and can also emerge during an individual’s absence from their home country, for example, as a result of intervening political change.

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

 

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

 

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

 

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

 

We shall also discuss under this module the relation between refugee flow and immigration flow, and the way in which immigration is controlled today impacts on refugee protection also. The flow of (illegal) immigration has not only overwhelmed in some cases the flow of refugees, it has got mixed with it also to such an extent that we can say that aliens have appeared as a subject in the world today. Definition is of course available in municipal laws of who is an alien, and this is not surprising, because an alien is an alien to a State (but can there be an alien to all the states on earth?). But illegal immigrants who are aliens to a state have been in a state of double jeopardy - they do not have the good luck to get protection when they arrive, and they will not benefit from any moral responsibility owned by a state wherefrom they decided to exit, a state that evidently does not care much for the fleeing population. Allowing population to leave is part of its pursuit of a "nice exit" policy (except in case of migrant workers when foreign remittances to the economy would be going down). We have to remember that unlike the Civil and Political Covenant, the International Covenant on Economic, Social and Cultural Rights does not create obligations on the states to fulfil immediately on signing. Therefore, a state can get away by arguing that its allocation of resources is insufficient, but is non-discriminatory. An illegal migrant who is forced to move out from his country is seen as showing desire for "good life", and thus not eligible for his/her right to protection of the social, economic and cultural attributes necessary for his/her dignity. The mix of the two flows, of the refugees and illegal immigrants, now accentuates all the problems facing humanitarian politics today.

 

Finally it has to be remembered that refugee flows are direct consequences of political and social reasons, redrawing ofboundaries, Partition of states, xenophobic policies, minority persecution, civil wars, and foreign aggression. Without a proper understanding of these causes, we cannot think of durable solutions, burden sharing in refugee protection, and the interface of human rights origins and humanitarian dimensions of refugee protection.

 

Refugee Law is a relatively new branch of International Law. First major step towards developing an international regime of protection was 1951 convention in a Post World War Two situation, later modified in 1967. From then on 1951 convention has formed the core of all Human Rights Law and Humanitarian Law for the protection of refugees. However since its inception there have been objections to the provisions of the 1951 convention on the grounds of Euro centrism, and insensitivity towards the internecine racial, ethnic and religious conflicts in third world which has resulted in the creation of refugees in large numbers. The provisions of the convention have served well to the protection of refugees during the Cold War times but have failed to do so after that, when there has been an attempt at dealing with the refugee problems ‘at source’. This has led to the international interference in the internal matters of a sovereign nation creating further problems for states and for the displaced. This has been witnessed very recently in the Darfur region of Sudan and in past in former Yugoslavia, Somalia , and other African countries.

 

Another failure has been the inability of the convention to recognise the special needs of women, children, and aged people within the sections of refugees, though this has been addressed to some extent in the provisions of CEDAW convention but need to be reflected in 1951 convention as well. The provisions of 1951 convention further need revision due to increased complexities in the process of refugee generation, protection and also due to advances in the field of refugee studies. The increased focus on refugee studies has led to broadening of definitions of ‘refugee’, ‘protection’, ‘rights’, ‘justice’ etc.

 

A casualty of above mentioned problems has been that 1951 convention has not been ratified by all the nations of the world. India is one such nation which has stayed away, citing certain biases in the provisions of the convention. However, it has developed its own provisions to deal with the problems of refugees on a case-by-case basis in absence of a consistent national policy. This has its own problems, for example India has provided all possible help to Tibetan refugee due to its own political necessities but has not done so with the Bangladeshi and Bhutanese refugees. The provision of Indian state has also not progressed with the evolution of feminist critic of the protection regimes which needs attention and creation of a consistent policy accommodating the faults in current practices.

It is to be noted that the need to improve the humanitarian strategy is most visible in the international context where boundary transgressions appear as more pronounced. One can refer to in this context the recent move by the Office of the UNHCR (United Nations High Commissioner for Refugees) in the form of a “Ten Point Plan of Action for Refugee Protection and Mixed Migration”. The action plan towards protection of refugees in situations of mixed migration includes issues of cooperation among key partners, data collection and analysis, building protection-sensitive entry systems, reception arrangements, mechanisms for profiling and referral, differentiated processes and procedures, addressing secondary movements, return arrangements for non-refugees and alternative migration options, and finally an appropriate information strategy. 

 

In this module we shall focus on various aspects of refugee protection at an international level in general and on South Asian level in particular. To mention a few of them:

 

1.       What do we mean by Refugees, Asylum Protection etc in socio-politico and legal terms?

2.       What are the special provisions required for protection of women, children and other marginalised communities in the overall context of refugee protection and law?

3.       What’s the distinction between the Human Rights Law and Humanitarian Law with respect to refugee protection?

4.       What are the safeguards available for the protection of refugees in International Law?

5.       What is the responsibility of the state and society towards the refugees? Can they simply be seen as problems and responsibility of the host country alone?

6.       Is there a link between the refugee protection regime, international law and globalisation?

7.       What has been the record of Indian state vis-à-vis refugee protection since partition?

 

Contextualising Internal Displacement in South Asia

 

Besides being ‘potential refugees’ who might cross international borders, most of the IDPs living in the 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:

  • Movement to unhealthy or inhospitable environments
  • Destruction of community social fabric and social organizations
  • Seperation or disruption of family groups
  • Women may be forced to assume non-traditional roles or face particular vulnerabilities.
  • Internally displaced populace, and especially groups like children, the elderly, chronically ill, physically challenged or pregnant women, may experience profound psychosocial distress related to displacement.
  • Due to displacement livelihood may be badly affected which may add to physical and psychosocial vulnerability for displaced people.
  • School education for children and adolescents may be disrupted due to lack of restoration of schools or increase in distance in new location. Even sometimes children do not get adequate study space
  • Internal displacement to areas where local inhabitants are of different groups or inhospitable may increase risk to internally displaced communities; internally displaced persons may face language barriers during displacement.
  • Internally displaced persons may lack identity documents essential to receiving relief benefits or legal recognition. Such documents are either lost or misplaced during displacement.
  • Lack of basic amenities such as proper shelter, nutrition, water, sanitation, etc.  

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.

 

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).  For example Sri Lanka has 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.

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.

 

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. 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.

 

 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.

 

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.

 

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.  

 

Suggested Readings (CRG publications in bold)

 

1.       Etienne Balibar,  in Etienne Balibar and Immanuel Wallerstein, Race, Nation, Class – Ambiguous Identities (Verso, 1991)

2.       B.S. Chimni, International Refugee Law – A Reader (Sage Publications, 2003), section 5.

3.       Ranabir Samaddar (ed.), Peace Studies I (Sage Publications, 2004), chapters 7-8, 13-14.

4.       Ranabir Samaddar (ed.), Refugees and the State (Sage Publications, 2003), chapters 1-3, 6, 9.

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

6.       Ranabir Samaddar, The Marginal Nation (Sage Publications, 1999), chapters 1-4, 13.

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

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

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

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

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

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

13.   Putting IDPs on the Map: Achievements and Challenges, Forced Migration Review (FMR), Special Issue, December 2006.

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

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

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

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

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

19.   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

20.   S. Y. Surendra Kumar and Fathima Azmiya Badurdeenm,” Finding a Point of Return: Internally Displaced Persons in Sri Lanka”, Policies and Practices 41, 2011.

 

Web-based References

 

A. Selected Articles from REFUGEE WATCH, a South Asian Journal Published by CRG

 

1.       “Refugee in South Asia: An Overview: Issue No. 1, January 1998, http://www.mcrg.ac.in/cata.htm

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

3.       Mohajirs : The Refugees By Choice, http://www.safhr.org/refugee_watch14_5.htm

4.       “Scrutinising the Land Settlement Scheme in Bhutan”, No. 9, March 2000.

5.       “Displacing the People the Nation Marches Ahead in Sri Lanka ”, No. 15, September 2001 

6.       “Crisis In International Refugee Protection”, Issue 5&6; June 1999

7.       “Afghan Refugees in Pakistan at Risk”, Issue: 16; December 2001

8.       “Development Induced Displacement in Pakistan”, Issue 15; September 2001

9.       “Internally Displaced Persons in Sri Lanka”, Issue: 15; September 2001

10.   “The International Refugee Law Regime and Recent Changes”, Issue: 4; December 1998

11.   “Tibetan Refugees In India: Survival In Exile”, Issue: 17; December 2002

12.   “ The Legal Scenario of Refugee Protection in South Asia”, Issue: 9; March 2000

13.   “Power, Fear, Ethics”, Issue: 14; June 2001

 

 To Acess and Download the above Articles Please Visit our Website www.mcrg.ac.in

 

B. Selected References from Policies and Practices (CRG publications)

 

1.       People on the Move: How Governments Manage Moving Populations (Policies and Practices 1) By Paula Banerjee, Samir Kumar Das and Madhuresh Kumar

2.       Women and Forced Migration: A Compilation of IDP and Refugees (Policies and

3.       Flags and Rights (Policies and Practices 11) By Ranabir Samaddar

4.       A Status Report on Displacement on Assam and Manipur (Policies and Practices 12) By Monirul Hussain and Pradip Phanjoubam

5.       The Draft National Rehabilitation Policy (2006) and The Communal Violence Bill (2005) By Walter Farnandes, Priyanca Mathur Velath, Madhuresh Kumar, Ishita Dey Sanam Roohi and Samir Kumar Das

6.       Limits of the Humanitarian: Studies in Situations of Forced Migration (Policies and Practices 17) By Shiva K. Dhungana, Priyanca Mathur Velath, Nanda Kishor and Eeva Puumala

 

To Acess and Download the above Articles Please Visit our Website www.mcrg.ac.in

 

C. Selected Reference from the Report Published by CRG

 

1.   “A dialogue on Protection Strategies for People in Situations of Forced Migration”, http://www.mcrg.ac.in/UNHCRconference/home.html

 

Additional References

 

1.       Convention and Protocol relating to the status of refugees, UNHCR, http://www.unhcr.org/3b66c2aa10.html

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

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

http://findarticles.com/p/articles/mi_7055/is_4_10/ai_n28244730/

4.       An Overview of Revisions to the World Bank Resettlement Policy/ Dana Clark, http://www.mcrg.ac.in/dana.htm

5.       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, 

http://www.asil.org/pdfs/stlp.pdf


 

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Module B

Gendered Nature of Camps

(Concept Note, and Suggested Readings)

 

Concept Note

Flood, an earthquake, an armed conflict between two states, a civil war, persecution – there are many reasons why people may be forced to flee their homes and leave their relatives and belongings behind. They find themselves homeless, often fearful and traumatized, and in a situation of displacement in which life changes radically and the future is uncertain. Refugees or internally displaced persons (IDPs) may have no other option than to seek protection and assistance in camps. Although camps are necessarily a choice of last resort, they often represent the only option for displaced persons in need of assistance, safety and security. In situations of conflict and natural disaster it seems initially that camps may be needed for only few months. Often the reality is that camps last for years and sometimes even for decades. Yet it is true that regardless of their life span, they can only offer temporary assistance and protection and do not represent a durable solution for displaced persons. Despite their temporary nature, therefore it becomes imperative that camps exist in order to ensure that the basic human right to life with dignity is upheld for the camp community. Once camps are established efficient and sensitive management is needed to ensure that they function effectively in what are often complex and challenging circumstances. Where humanitarian assistance and protection in a camp are not organized properly, coordinated, and monitored, the vulnerability and dependence of the camp population increases. Gaps in assistance, or duplication of humanitarian aid, can lead to partial and inequitable provision of services and inadequate protection.

Presently for various reasons, the size of the refugee population worldwide has increased. Most of the time, absence of protection was the main reason why refugees fled their homes, but in other cases they had other needs, which varied according to their identity and location. The immediate assistance required by refugees has always been food, water, shelter and medical aid. However, the most fundamental requirement is to be granted asylum.

According to the annual report of the UNHCR entitled "Global Trends" the number of people forcibly uprooted by conflict and persecution worldwide stood at 42 million at the end of 2009, out of which 16 million people are refugees and asylum seekers and 26 million internally displaced people uprooted within their own countries. More than eighty percent of the total 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 and again, a majority of these refugees are made up of women. Keeping these facts in mind this module tries to indicate 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 marginalization of women by the South Asian states. These states at best patronize women and at worse infantilize, disenfranchise and de-politicize them. It is in the person of a refugee that women’s marginality reaches its climactic height. 

The nation building projects in South Asia have led to the creation of a homogenized 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 marginalizing 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. Against this backdrop this module deals with the gendered nature of camps. The objective of this module is to analyse the refugee/IDP experience in camps from a gendered perspective, with particular reference to the situation of women keeping the fact under consideration that gender represents a useful category or methodology through which one can analyse the refugee experience and the phenomenon of dislocation. Refugees are not a homogenous or uniform category of people. They are divided along cultural, linguistic, ethnic, political and religious lines, with a few differentiating factors. Gender represents such a factor. The term "gender" will be used to refer to the construction of differences between men and women and ideas of "femininity" and "masculinity".

In our discussion the category of refugee women will include women who have crossed international borders and those who are internally displaced and are potential refugees. By analysing the lives, experiences, memories, processes and practices of refugees located in various camps this module intends to evaluate the practices of the state and analyse the production of identities and subjectivities of the refugees/IDPs and the ways they are institutionalized and differentiated from other subjects.

Women and Camps: Between Myth and Reality

History reveals that though refugees think camps as transitory safe spaces, where people seek protection till they return home, however, unfortunately refugee concerns for security in camps are rarely met. The experts working on the camps have regarded camps as ‘political islands’, which have the potential of generating conflict and straining local economic and other resources. The campmates are regarded as the ‘other’ even though in the case of refugees, who are part of the international refugee regime which might be recognized by the State. In the case of the internally displaced, the situation is further complicated as they are citizens with same rights and cannot be derecognized. Their status therefore depends on how the local population views their rights and ultimately the acceptance or closure of the camp depends to a large extent on these communities.

We still have insufficient detailed accounts of camp lives of women partition refugees. What we have is mostly stories and some autobiographical writings. After all we have to remember that 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. 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 patronized them verbally by portraying their “need” for protection it also infantilized them by giving decision making power to their guardians who were defined by the male pronoun “he”.  

Initially after independence, India laid down executive policies for resettlement of people moving in after Partition 1947. In this Indian regime, spaces for women were created. The largest population from the about 9 million who crossed borders first sought refuge in camps. The Indian example of camps is placed alongside the European experience even though Malikki places the refugee camp as a “standardized, generalizable technology of power...in the management of mass displacement" in post-World War II Europe. The camps in India existed from 1947, when run by private organizations, and later in 1948 by the government and so institutionalized. Camps in the West e.g. in Punjab, existed for a short time while in the Eastern part of India they remained for a longer time. In the east, different waves kept arriving and the camps kept springing up. Most, however, were for aged, disabled and widowed mothers. The widows were sent to Titagarh and Kartickpur camps in 24 Parganas and Ranaghat of Nadia in West Bengal. The latter became the largest rehabilitation centre for ‘distressed’ women. Later these women were provided huts as a resettlement measure. Grants were given for marriage of girls, remarriage of widows, for cremations and milk for children and pregnant women and health problems such as T.B.. There was an attempt to provide comprehensive needs but these spaces, though materially better than most camps of today, did not always provide protection from violence. As per official record, during partition four million people were killed and others faced forced conversion and abduction.

Even today the refugee women do not represent themselves. Officials represent them. 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 the former Prime Minister of India, 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 Government of India’s (GOI) 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. In fact, when they get shelter in camps with other women as well as men, their private space get merged with the public space. Above all, 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.

Many displaced women who are unable to cross international border swell the ranks of the internally displaced. Even in IDP (Internally Displaced Person) camps women are responsible for holding together fragmented families. For example, 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.   

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.  The depolitization of women becomes marked in refugee and IDP camps, which are the epicenter of marginalization of groups that are considered as alien or unwanted. The women in the camps face a double bind.  They face a hostile world outside of the camps as they are marked as aliens and within the camps they are victimized by their own patriarchies. The physical structure of these camps emphasizes the total disregard of women’s concerns. The camps are often built in such a way that there is usually a complete lack of privacy of women. Quarters for each family are separated by flimsy sarees and in such quarters women are forced to live, eat, change, sleep, make love and procreate.  Often the camps are fitted with toilets and women are not forced to go to fields for effication but even that is a source of problem. The toilets are always at the back of the camps with dim lighting and so single women going there at night becomes a prey for the unsavory elements that these camps are teeming with. Women therefore avoid these camps at night often leading to health complications such as urinary tract infection and in extreme cases kidney infection.  When there are budget cuts in the camps the first casualty are girls schools which are considered as having a very low priority. Women heads of household face added problems in many camps.  Sometimes male camp leaders ask them for sexual favors, at other times they are last to get rations and at other times they are abused by the powers that be as was seen in UNHCR run camps in Jaffa. However, even though women face many abuses in the camps but everything pales in comparison to their voicelessness. Even in IDP camps women are unable to exercise their citizenship rights.  They completely lose their voice and right to represent themselves and becomes completely dependent to those who represent them such as lawyers or women NGO leaders. By losing their voice they lose their ability to access rights.  Their lack of mobility outside of the camps makes them isolated and completely robs them of their right to make free choices. 

Despite the excessive abuse and violence that women are exposed to, they are resilient and resourceful in camps. Sometimes they themselves manage adversities, while at other times the community rallies around them. Sometimes the local women’s organizations support women in camps in fighting gender-based violence. In Bangladesh, UNHCR renewed the camp layouts to improve their overview from different directions to diminish security risks, water is provided during the day and latrines on the outskirts have been moved (Personal information, UNHCR, 2002). In Sri Lankan camps in Tamil Nadu, women have established committees (Visit to camps in Chennai by author in 2004). These prove that camps can be islands of protection if different agencies and women’s groups assist women to take up the challenges.

By making women permanent refugee, living a savage life in camps, it is easy to homogenize them, ignore their identity, individuality and subjectivity. By reducing refugee women to the status of mere victims in our own narratives we accept the homogenization of women and their de-politicization. We legitimize a space where states can make certain groups of people political non-subjects.  With these facts under consideration this module tends to discuss the causes of such de-politicization that often results in displacements keeping the refugees, IDPs and stateless women in mind and considers policy alternatives that might help in their rehabilitation and care in South Asia.

In this context one can refer CRG’s study entitled Voices of Internally Displaced in South Asia. It was a pilot survey, which hints at certain trends and  features and suggests the need for deeper enquires into the fundamental issues of rights of the displaced, responsibilities of the states and the international community towards the victims of displacement, questions of representation, citizenship, democracy, and sovereignty.

Women Protection in Refuge/Displacement: National and International Legal Regimes

Women in camps have differential needs and are confronted with different protection issues. The need for analyzing camp situation arises as the ‘subaltern female’ is located in the risk zones of camps where her experience is gendered, involving her sexuality and her female body processes. As social actors women are vulnerable but forced to shoulder the burdens of refuge. Women’s status in camps is linked to the standards that nations apply. The Refugee Convention, like other Conventions and laws of the time, was Euro-centric in nature and the word gender/ women, was not included. The Convention does not operate in South Asia nor are there any refugee specific national laws, so dependence has to be on non-refugee International National Standards. These include certain initiatives such as recognition by the Executive Committee of the UNHCR in 1985 which, for the first time, recognized the importance of inclusion of women and three years later the first Consultation on Refugee Women was called. Consequently in 1991 the UNHCR issued Guidelines on the Protection of Refugee Women to address their needs and enhance their decision making power. This was followed by the 2003 Guidelines on sexual and gender-based violence to ensure protection a primary mandate of the UNHCR.

The Guiding Principles on Internal Displacement under principle 11 stipulate the prevention of “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 form of indecent assault” (United Nations, 1998). In 1995, the Beijing Declaration and Platform for Action was the major initiative to recognize discrimination against women and the specific problems faced by them and added protection strategies. The role of the international community increased as violence against women became increasingly visible due to writings on gender issues and media portrayals. One of the most important documents produced is the Rome Statute of the International Criminal Court (ICC) following the atrocities in Rwanda and former Yugoslavia. It defined violence as a war crime (United Nations, A/CONF.83). In 2000 the UN Security Council Resolution 1325 came into being (S/RES/1325 and UN. A/60/L.1.2005). This comprehensive document calls for protection of women living in conflict zones and mandates their involvement in peace processes. In 2005, Governments meeting at the United Nations (World Summit) reiterated the importance of the document (A/60/L.1.2005).

There are no specific national laws for treating refugee/IDP women but legal and implementation processes provide an insight into women’s status as refugees or IDPs in South Asia. It is pertinent to point out in this context that, 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. Yet all these orders are ad hoc 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.

The impact of these provisions is that in countries of South Asia, and we can take India as an instance, jail is often the place where many immigrant women finds themselves pushed into on arrival because of their “illegal” existence. Jail experiences of these women are no less significant than camp experiences. We do not have almost any study of the jailed immigrant women, which would again shed light on the gendered nature of forced migration.

Suggested Readings

 

Books: (CRG publications in bold)

1.       Paula Banerjee and Anasua Basu Ray Chaudhury, Women in Indian Borderlands, Sage Publications, New Delhi, 2011.

2.       Paula Banerjee, Sabyasachi Basu Ray Chaudhury and Samir Das, Internal Displacement in South Asia, Sage Publications, New Delhi, 2005. 

3.       B.S. Chimni, International Refugee Law – A Reader, Sage Publications, New Delhi, 2003.

4.       Ritu Menon and Kamla Bhasin, Borders and Boundaries: Women in India’s Partition, New Delhi, 1998.

5.       Urvashi Bhutalia, The Other Side of Silence: Voices from the Partition of India , Delhi : 1998. 

6.       Ritu Menon (ed.), No Women’s Land: Women from Pakistan, India and Bamgladesh write on the Partition of India, Women Unlimited, New Delhi , 2004. 

7.       Ranabir Samaddar (ed.), Refugees and the State, Sage Publications, New Delhi, 2003.

8.       Ranabir Samaddar, The Marginal Nation, Sage Publications, New Delhi , 1999.

9.       Jasodhara Bagchi and Subhoranjan Dasgupta, eds., The Trauma and the Triumph: Gender and Partition in Eastern India, Vol.1, Stree, Kolkata, 2003. 

10.   -------------------, The Trauma and the Triumph: Gender and Partition in Eastern India, Vol.11,   Stree, Kolkata, 2009.

Web-based References

A. Selected Articles from REFUGEE WATCH, a South Asian Journal Published by CRG

1.       Gladston Xavier  and Florina Benoit, “Security among the Refugees and Quality of Life - Case of the Sri Lanka Tamil Refugees Living in Camps in Tamil Nadu”, Refugee Watch, No.37, June 2011, pp.1-15.

2.       Anita Ghimire, “Rethinking Women in Forced Migration”, Refugee Watch, No.37, June 2011, pp.30-43.

3.       Paula Banerjee, “Agonies and Ironies of War,” Refugee Watch, No. 2, April, 1998.

4.       Paula Banerjee, “Women and Forced Migration”, Refugee Watch, No. 10, 2000

5.       Mekno Kaapanda and Sherene Fenn, “Dislocated Subjects: The Story of Refugee Women”, Refugee Watch, 10 & 11, 2000.

6.       Kate de Rivero, “War and Its Impact on Women in Sri Lanka”, Refugee Watch, 10 & 11, 2000.

7.       Arpita Basu Roy, “Afghan Women In Iran”, Refugee Watch, 10 & 11, 2000.

8.       Jagat Achariya,, “Refugee Women of Bhutan”,  Refugee Watch, 10 & 11, 2000.

9.       “Rohingya Women – Stateless and Oppressed in Burma”, Refugee Watch, 10 & 11, 2000.

10.   Manju Chattopadhyay, “Widows of Brindaban: Memories of Partition”, Refugee Watch, 10 & 11, 2000.

11.   Syed Sikander Mehdi, “Chronicles of Suffering – Refugee Women of South Asia”, Refugee Watch, 10 & 11, 2000.

12.   Paula banerjee, “Dislocating the Women and Making the Nation”, Refugee Watch 14, 2001.

13.   Soma Ghosal, “An Endless Journey: The Plight of Afghan Refugee Women”, Refugee Watch, 5& 6, 1999.

14.   Letters from a Palestinian Refugee Camp, Refugee Women”, Refugee Watch 19, 2003.

15.   Kaushikee, “Common and Specific Features of Displaced Women”, Refugee Watch 21, 2004.

16.   Oishik Sircar, “Women's Rights, Asylum Jurisprudence and the Crises of International Human Rights Interventions”, Refugee Watch 28, 2006.

17.   Asha Hans, “Gender, Camps and International Norms”, Refugee Watch 32, 2008.

18.   Elizabeth Snyder, “Build Back Better – Hurricane Katrina in Socio-Gender Context”, Refugee Watch, 31, 2008.

19.   Report of Rapid Assessment Survey on Displaced Bhutanese Refugees from the Camps, Discussion paper, Refugee Watch 31, 2008.

To Acess and Download the above Articles (Except First Two) Please Visit our Website www.mcrg.ac.in

B. Selected References from Policies and Practices (CRG publications)

1.       Anasua Basu Ray Chaudhury and Ishita Dey “Citizens, Non- citizens and the Camp Lives”, Policies and Practices 21, 2009.

2.       Nilanjan Dutta, Dulali Nag and Biswajit Roy, “Unequal Communication: Health and Disasters as issues of Public Sphere”, Policies and Practices 5, 2005.

To Acess and Download the above Articles Please Visit our Website www.mcrg.ac.in

C. Selected Report Published by CRG

1. A report on Voices of Internally Displaced Persons in South Asia, CRG, Kolkata, 2006, http://www.mcrg.ac.in/Voices.pdf.

D. Other Relevant Articles and Websites

1.      Anasua Basu Ray Chaudhury, “Violence, Victim hood and Minority Women: The Gujarat Violence of 2002”, Lipi Ghosh (ed.), Political Governance and Minority Rights: The South and Southeast Asian Scenario, Routledge, New Delhi, 2009, PP.44-64. 

2.      ______________, “Women after Partition: Remembering the Lost World in a Life without Future” in Navnita Chadha Behera (ed.), Gender, Conflict and Migration, Sage, New Delhi, 2006, pp. 155-174. 

3.      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.

4.      Denise Militzer, Disaster and Gender: The Indian Ocean Tsunami and the Sri Lankan Women, April 2008,

https://tspace.library.utoronto.ca/bitstream/1807/10364/1/Disaster%20and%20Gender.pdf

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

6.      Select UNICEF Policy Recommendation on the Gender Dimensions of Internal Displacement,

http://www.safhr.org/refugee_watch10&11_92.htm  

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

8.    http://www.unifemantitrafficking.org/main.html

 

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Module C

Environment, Resources and Displacement

(Concept Note, and Suggested Readings)

 

Concept Note

Environment challenges, resource crises and related displacements are some of the major concerns of 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 equity, participation and development. In this module it is particularly intended to examine to what extent the issues of environmental challenges, resource crisis, climate change and resultant displacement are impairing social equality on the one hand, and to what extent existing social inequality, particularly in the relationship between developed and developing countries are causing the problems of resource crisis and displacement on the other.

The basic objective of this module is to contemplate the impacts of environmental challenges, resource crisis, climate change and subsequent displacement on the development of society with three sub-themes providing a framework:

·          Development-induced displacement

·          Land, forest governance and displacement

·          Disaster, climate change-induced displacement

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. Climate change and a 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 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 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 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[i] argues that environmental pressures lead to fierce competition over land, encroachment on ecologically fragile areas and ultimately impoverishment. These events can then 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 end up in urban slums or in 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 in countries in Europe and America. While rich countries are shutting down their doors, neighbouring poor countries are facing tremendous pressure of such refugees. In the absence of proper arrangement for such large number of refugees, refugee camps and shantytowns are becoming breeding grounds of civil disorder, social upheaval and violence. Hence, it is necessary to officially recognise 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,[ii] reject such an apocalyptic vision and consider it a neo-Malthusian approach based on dubious assumptions. According to them, it constructs refugees and migrants as a threat to security. They also claim that there is no evidence that climate change and environmental degradation lead directly to mass refugee flows, especially flows to developed countries. They see 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 supply and others as very real. However, he finds little evidence of large-scale and permanent 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.

Basic Concepts

 

From an economic point of view, natural resources are usually referred to as land or raw materials, which occur naturally in environments without human intervention. A natural resource is often characterised by biodiversity existent in various ecosystems. Natural resources are derived from the environment. Many of them are essential for our survival while others are used for satisfying our wants. Natural resources may be further classified in different ways. On the basis of origin, resources may be divided into: (a) biotic resources that are obtained from the biosphere, such as forests and their products, animals, birds and their products, fish and other marine organisms. Mineral fuels such as coal and petroleum are also included in this category because they formed from decayed organic matter; and (b) abiotic resources include non-living things. Examples include land, water, air and minerals such as gold, iron, copper, silver, etc. Considering their stage of development, natural resources may be referred to in the following ways:

With respect to renewability, natural resources can be categorized as follows:

Natural Resource Management

 

Natural resource management is a discipline in the management of natural resources such as land, water, soil, plants and animals, with a particular focus on how management affects the quality of life for both present and future generations. Natural resource management is interrelated with the concept of sustainable development, a principle that forms the basis for land management and environmental governance throughout the world. There can be many examples to show that natural resources are by no means purely economic entities but also have political connotations, therefore, resource politics is an apt category. There is a strong interplay between economic and political issues vis-a-vis resources. Basic natural resources like water and fertile land are about survival of people, where as other natural resources like ore, oil, timber are about revenue; therefore political behaviour/structures are also important.

From an overall South Asia perspective, one can look at resource politics to see how and why resource scarcity and dependence can trigger or have detrimental effects on the processes and structures of democracy, peace, stability, socio-economic development and ethnic balance. At inter-state levels, for example, there have always been water-sharing problems between India and Pakistan or India and Bangladesh. Even taking an intra-state example, in Sri Lanka the ethnic conflict got perpetuated because of strife over social, cultural, economic and political spaces.

It is important to see how one industrial disaster can pollute the air, water and soil, or how natural disasters can affect natural resources, as in the case of tsunamis (agricultural land salination, mangrove) and cyclones (marine resources).

Climate Change

 

Climate change will inflict damage on every continent, but it will hit the world's poor disproportionately hard. Whatever hard-fought human development gains have been made may be impeded or reversed by climate change as new threats emerge to water and food security, agricultural production and access, and nutrition and public health.

“Climate Change and Global Poverty: A Billion Lives in the Balance?” draws on expertise from the climate change and development communities to ask how the public and private sectors can help the world's poor manage the global climate crisis. Increasingly, climate change and development are being seen as two sides of the same coin. Effective climate solutions must empower global development by improving livelihoods, health, and economic prospects, while poverty alleviation itself must become a central strategy for both mitigating emissions and reducing global vulnerability to adverse climate impacts.

Global Warming

Global warming and climate change are interrelated issues. Anthropogenic inputs, mainly through fossil fuel use, deforestation and industrial revolution, which release about six billion metric tons of carbon into the atmosphere each year, have resulted in warming up the earth and have become one of the greatest threats facing the planet. Global surface temperature over the 100 years ending in 2005 has increased by about 0.74 ± 0.18 °C. The atmospheric CO2 concentrations have increased from the pre-industrial level of 280 parts per million to 379 parts per million in 2005.[iv]

Global warming has effected a change in the quantum and patterns of precipitation. The changes in temperature and precipitation patterns have increased the frequency, duration and intensity of extreme weather events like floods, droughts, heat waves and cyclones. Other effects of global warming include higher or lower agricultural yields, further glacial retreat, reduced summer stream flows, species extinctions and disease outbreaks. Deforestation also affects regional carbon reuptake, which can result in increased concentrations of CO2, the dominant greenhouse gas (GHG). Land-clearing methods such as slash and burn compound these effects by burning bio matter, which directly releases greenhouse gases and particulate matter into the air.

The oceans play a vital role in the earth’s life support system through regulating climate and global biogeochemical cycles through their capacity to absorb atmospheric carbon dioxide (CO2). But, the additional input has resulted in the reduction of ocean pH, which will have a subsequent effect on carbonate chemistry through the reduction of carbonate ions, aragonite and calcite, used by many marine organisms to build their external skeletons and shells. Ocean acidification has already increased ocean acidity by 30% and could increase by 150% by 2100. The increase in global temperatures are causing a broad range of changes like sea-level rise due to thermal expansion of the ocean and melting of land ice, leading to inundation of coastal areas and displacement of substantial human populace. CO2 emissions belong to the most important causes of global warming. So, intervention is very essential with the participation of people so as to mitigate the effect of the global warming. Awareness is lacking among the public on the need to reduce dependence on fossil fuels, to follow energy-saving methods.

Environment and Kyoto Protocol

The Kyoto Protocol is a protocol to the United Nations Framework Convention on Climate Change (UNFCCC or FCCC), aimed at fighting global warming. The UNFCCC is an international environmental treaty with the goal of achieving "stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system".[v]

The Protocol was adopted on 11 December 1997 in Kyoto, Japan and entered into force on 16 February 2005. As of November 2009, 187 states had signed and ratified the protocol.[vi] Under the Protocol, 37 industrialised countries (called "Annex I countries") committed themselves to the reduction of four GHGs (carbon dioxide, methane, nitrous oxide, sulphur hexafluoride) and two groups of gases (hydrofluorocarbons and per fluorocarbons) produced by them, and all member countries gave general commitments. Annex I countries agreed to reduce their collective greenhouse gas emissions by 5.2% from the 1990 level. Emission limits do not include emissions by international aviation and shipping, but are in addition to the industrial gases, chlorofluorocarbons, or CFCs, which are dealt with under the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer.

The benchmark 1990 emission levels were accepted by the Conference of the Parties of UNFCCC (decision 2/CP.3) as the values of "global warming potential" calculated for the Intergovernmental Panel on Climate Change (IPCC) Second Assessment Report.[vii] These figures are used for converting the various greenhouse gas emissions into comparable CO2 equivalents (CO2-eq) when computing overall sources and sinks.

The objective is the "stabilization and reconstruction of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system". The objective of the Kyoto climate change conference was to establish a legally binding international agreement through which all the participating nations would commit themselves to tackling the issue of global warming and greenhouse gas emissions. The target agreed upon was an average reduction of 5.2% from 1990 levels by the year 2012. According to the treaty, in 2012, Annex I countries must have fulfilled their obligations of reduction of greenhouse gases emissions established for the first commitment period (2008–2012).[viii]

The five principal concepts of the Kyoto Protocol are:

Case Study I: Biodiversity, Katghora Forest Reserve, Chhattisgarh[ix]

Fifty-year-old Bhuvan Pal Singh can barely read or write but for thousands of inhabitants of the Katghora forest reserve in the central Indian state of Chhattisgarh he holds a revered position as a traditional healer.

Bhuvan treats his patients with medicinal plants free of charge. He believes he cannot charge for knowledge that has been passed down for generations and for something that is after all from nature. Many of his patients travel miles for treatment and his register reveals the diversity of ailments he diagnoses, everything from backaches to cancer. His wrinkly face lights up as he explains the medicinal treasures that the forests hide. “There are many things doctors can cure but so too can the forest,” he says. Home to 8,000 medicinal plants, India’s natural forests form the primary source of healthcare for 60-80% of the population and are often the only succour for the 320 million that live on less than Rs. 50 a day.

Changes in the last few years however have begun to worry him. “Five years ago it used to take me barely a day to find dhatu (an orchid commonly used to cure rheumatism), today it takes me double the time,” he worries. Bhuvan is not alone in his concern about his forest’s diminishing wealth. An estimated 10% of India’s flora and fauna are on the list of threatened species, and many more are on the verge of extinction. 

Rapid economic growth and limitations in integrating environmental concerns into development planning have put increasing pressure on biodiversity across India, which is one of the globally recognised mega diverse countries rich in biodiversity. With only 2.4% of the earth’s land area, India accounts for 7-8% of the world’s recorded species.

Home to 89,000 species of animals, 46,000 species of plants and nearly half the world’s aquatic plants, India’s management of its natural resources has regional and global significance. However, with half of country’s land already under cultivation, rising population and the threat of climate change, protection of diverse habitats poses a formidable challenge.

Recognising this, the United Nations Development Programme (UNDP) is supporting several initiatives to conserve the country’s rich and diverse ecosystems and demonstrate strategies to reduce poverty. The importance of such initiatives cannot be underscored too heavily in a country where 47.2 % of those living below the national poverty line are members of scheduled tribes, the overwhelming inhabitants of India’s forest areas. UNDP’s conservation activities cover several states, including Bhuvan’s state of Chhattisgarh where the project focuses on several key elements – conserving and enhancing floral and faunal diversity through the active involvement of joint forest management committees and sustainable livelihood support to communities. Here is hoping that the efforts are in time to save Bhuvan’s magical plants.

The links between the consequences of neoliberal globalisation and climate change, groups have come together to organise a Social and Climate Justice.

Case Study II: Sunderbans, West Bengal

Taking the Sunderbans, West Bengal, in to account, Independent experts like Dr.Dipankar Das Gupta have argued that it is one of the most vulnerable and threatened ecosystems in this country due to the impact of climate change, human intervention, and faulty developmental policies and priorities. Excerpts of Solution Exchange, UNDP based on the key findings are:

Firstly, it is an extremely fragile ecosystem affected by sea level rise @ 3.14 mm/year and in some places as much as 5.22 mm/year which is much higher than the global average. This has led to massive soil erosion and submergence of a few islands creating a few thousands of climate/environmental refugees;

Secondly, 86-90 sq. km of land has been lost in the last 30 years and scientific data and field observation shows that the rate of loss is increasing;

Thirdly, according to an article published by the Indian Meteorological Department in the journal Mausam, there has been a 26% increase in severe cyclones during the last 120 years in the Bay of Bengal and the Sunderbans, both in West Bengal and Bangladesh, which have experienced four supercyclones between 2006-09, including the Aila in 2009;

Fourthly, increasing salinity over the years has reduced crop productivity and fish catch, the main livelihoods of the people, as well as posing an increasing threat to biodiversity. In various scientific reports, loss of various flora, fauna and aquatic species has also been reported. There are also documented evidence that the Sunderbans is becoming increasing hostile for even migratory birds;

Fifthly, in the May 2009 Cyclone Aila in which more than 2.5 million persons and 194,000 families were affected, embankments were breached and the tidal surge made most of the cultivable land saline and destroyed most assets, all livelihoods equipment, fish and prawn farms, livestock, boats and most personal belongings. Most of the land continues to be unfit for agriculture, especially paddy. Even till this date, there are very few livelihoods options, except for some manual labour work being provided by the government, civil society organisations for reconstruction and recovery work and by contractors in the brick kilns;

Sixthly, even before Aila, the Sunderbans was becoming increasingly prone to indebtedness, migration, child labour, women and child trafficking, very poor nutritional status especially amongst children and women, high incidence of TB, malaria and other diseases as a result of poor nutrition and sanitary conditions. These problems have exacerbated manifold after Aila and have brought to the fore the increasing risks, vulnerability and poverty of the communities at risk;

And seventhly, most of the affected blocks were already selected under the UNDP-GoI and Government of West Bengal's Disaster Risk Reduction (DRR) Programme. However, no early warning, preparedness or organised response by the 'Task Forces' was reported by any stakeholder. Some agencies are still involved in recovery activities. Some have DRR components but a systematic approach to institutionalise DRR from family to community to local institutional levels is yet to be observed, except in rare instances. There are a few groups and the Forest Department who are working on forest protection and especially on mangrove plantation. It is seen that there is no agency which is trying to integrate DRR as well as development work with Climate Change Adaptation (CCA). Apart from adaptation, mitigation has also to be urgently incorporated, especially in threatened ecosystems like the Sunderbans.

 

During the recent Copenhagen Climate Change Summit, the voices of marginalised like Tuvalu’s delegate, Ian Fry, calling for a binding agreement, not the mere “political agreement” that was widely and asking for a new protocol that would limit climate change to 1.5 degrees Celsius, not 2, the target of most negotiators, was never heard outside. Mr. Fry’s speech got an unusually hearty round of applause, including from NGO delegates, but governments including India and China’s did not take it seriously, or neglected it. This was ironical, when developing countries trying to represent the smaller countries were not able to get their views heard.

Disaster Management

Disaster is defined as “the impact of an event or phenomenon which is caused by nature or human induced, which result in number of deaths and destruction of property where by affecting normalcy of life, causing damage to society, economy and environment, which by and large is beyond the coping mechanism of the community or society concerned”[x]. In recent years there has been a series of disasters globally. Notably, in India the Orissa supercyclone in 1999, Gujarat (Bhuj) earthquake in 2001, Indian Ocean Tsunami of 2004, etc., have brought about a shift in government policies. Based on the experiences gathered on the impact of disasters, the Government of India has evolved a holistic and integrated approach to disaster management. There are some positive developments at the national level in the disaster management context such as the enactment of the Disaster Management Act of 2005, and creation of other institutional structures such as the National Disaster Management Authority (NDMA), State Disaster Management Authorities (SDMAs), District Disaster Management Authorities (DDMAs) down to the panchayati raj level. The national policy framework has been prepared after due deliberations and keeping in view the national vision “to build a safe and disaster-resilient India by developing a holistic, proactive, multi-disaster and technology-driven strategy for disaster management. This will be achieved through a culture of prevention, mitigation and preparedness to generate a prompt and efficient response at the time of disasters. The entire process will centre-stage the community and will be provided momentum and sustenance through the collective efforts of all government agencies and Non-Governmental Organisations.”[xi] This policy framework is also in conformity with the International Strategy for Disaster Reduction, the Rio Declaration, the Millennium Development Goals and the Hyogo Framework 2005-2015. NDMA’s objectives, guidelines and policy formulations have evolved to include efficient response and relief with proper preparedness and mitigation and a caring and humane approach towards the vulnerable sections of the society.

In India, while the institutional mechanism is geared up at the national level, many States are yet to create disaster-management structures. It is yet to be seen whether the paradigm shift from reactive responses to proactive preparedness and mitigation is going to be a reality. There is a long way to go. Particularly there is a need to strengthen community resilience through community-based disaster management.

Now linking climate change adaptation with disaster risk reduction is another major challenge because it needs a fundamental change in the government’s approach which has been using only the GDP prism to appraise development. It needs to make community participatory and locally specific approaches to succeed in tackling the issues of climate change, environmental degradation, disaster and displacements.

There are several interrelated issues like coastal zone management, special economic zones formation, rehabilitation policy, etc., which affect weak and marginalised sections. It is important to see the interrelationship between resource politics, environmental degradation, global warming, climate change, and natural disasters.  Now we need to see the link between DRR and CCA. India had agreed to adopt regional DRR measures under the Delhi Declaration (August 2006) and incorporate DRR into national development schemes under the 10th Five-Year Plan (2002-07). Moreover, in June 2008, the Prime Minister of India released the “National Action Plan on Climate Change” (NAPCC), which laid out principles to protect the poor through inclusive sustainable development and stressed inclusion of civil society.

Similarly, we need to look at the linkage between environmental challenges, climate change and natural disasters with a holistic and integrated approach all over South Asia.

To conclude: Mahatma Gandhi’s talisman is very useful to be contextualised here: “Earth has the natural resources to meet the needs of human race but not its greed.”

End Notes

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

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

[iii] Wikipedia on Natural resources, www.wikopedia.org

[iv] Inter-Governmental Panel on Climate Change Report (IPCC), 2007.

[v] United Nations Framework Convention on Climate Change, November, 2005.

[vi] Kyoto Protocol Status of Ratification as per UNFCCC.

[vii] Methodological issues relating Kyoto Protocol, UNFCC 1998.

[viii] see Annex B of the Protocol

[ix] UNDP’s Good Practices Report on Biodiversity, www.undp.org.in

[x] As per Indian National Disaster Management Act, 2005

[xi] NDMA Policy note, www.ndma.gov.in

Suggested Readings (CRG publications in bold)

 

1.  Lael Brainard, Abigail Jones and Nigel Purvis, eds., Climate Change and Global Poverty A Billion Lives in the Balance? In Global Poverty, Climate Change, Development, Developing Countries, Foreign Aid, Brookings Institution Press, 2009.

2. “Uprooted Twice: Refugees from the Chittagong Hill Tracts”, Sabyasachi Basu Ray Chaudhury, in Ranabir Samaddar (ed.), Refugee and The State, Sage: New Delhi, 2003.

3. “Pakistan : Development and Disaster”, Atta ur Rehman Sheikh, in Paula Banerjee, Sabyasachi Basu Ray Chaudhury and Samir Das (ed.), Internal Displacement in South Asia, Sage : New Delhi, 2004.

4. “Bangladesh : Displaced and Dispossessed”, Meghna Guhathakurta and Suraiya Begum, Paula Banerjee, Sabyasachi Basu Ray Chaudhury and Samir Das (ed.), Internal Displacement in South Asia, Sage : New Delhi, 2004.

5. Ranabir Samaddar, “Agrarian Impasse and the Making of an Immigrant Niche” in The Marginal Nation: Transborder Migration from Bangladesh to West Bengal, Sage Publications, New Delhi, 1999.

6. Report of Workshop on Engendering Resettlement and Rehabilitation Policies and Programmes in India, Mohammed Asif, Lyla Mehta and Harsh Mander, November 2002.

7.       Inter-Governmental Panel on Climate Change Reports, 2007.

8.       Indian National Disaster Management Act, 2005.

9.       National Action Plan on Climate Change (NAPCC) 2008.

10.   K.M. Parivelan, Community Based Disaster Management Approaches, TNTRC, 2008

Web-based References 

 

A.      Selected Articles from REFUGEE WATCH, a South Asian journal Published by CRG

 

1.  “Development Induced Displacement in Pakistan” / Atta ur Rehman Sheikh, in Refugee Watch, No. 15, 2001.

2.   “Tsunami: Gendered Nature of the Problem and Responses
Gender, Media and the Tsunami”, Ammu Joseph, Refugee Watch, 24.25.26. 2005.

3.  “The Tsunami Situation in Tamilnadu”, Bimla Chandrasekar, Refugee Watch, 24.25.26. 2005.

4.  “The Tsunami and the UN Role in India”, K. M. ParivelanI, Refugee Watch, 24.25.26. 2005.

5.  “Scrutinizing the Land Resettlement Scheme in Bhutan”, Jagat Acharya, Refugee Watch, No. 9, March 2000.

6.  “The Proposal of Strengthening Embankment in Sundarban: Myth and Reality” - Discussion Paper I, Refugee Watch 35, 2010.

7.  “A Billion Indians in a Changing Climate by”, Alina Pathan, ,Refugee Watch 34, 2009.

8.  Arun G. Mukhopadhyay, “Critical Climatic, Migration and Biopolitics: The Mexico-US Border and Beyond”, Refugee Watch 33, 2009.

9.  “Making Sense of Climate Change, Natural Disasters, and Displacement: A Work in Progress”, Elizabeth Ferris, Refugee Watch 30, 2008.

To Acess and Download the above Articles Please Visit our Website www.mcrg.ac.in

B. Selected References from Policies and Practices (CRG publications)

 

1. Amitesh Mukhopadhyay, Cyclone Aila and the Sundarbans : An Enquiry into the Disaster, Policies of Aid and Relief , Policies and Practices 26, http://www.mcrg.ac.in/pp26.pdf

2. Sutirtha Bedajna, “Between Ecology and Economy :  Environmental Governance in India”, Policies and practices 37, 2010.

3. Nirmal Kumar Mahato, “Environment and Migration, Purulia, West Bengal”, Policies and Practices 30, 2010.

4. Nirekha De Silva, “Protecting the Rights of the Tsunami Victims:The Sri Lanka Experience”, Policies and Practices 28, 2010.
 

To Acess and Download the above Articles Please Visit our Website www.mcrg.ac.in

 

C.   Selected Reference from the Distinguised Lecture series published by CRG

 

1.  Walter kaelin, “Climate Change Induced Displacement: A Challenge for International Law”, Distinguised Lecture series, CRG, 2011.

 

Additional References

 

1.   “Globalization, Class and Gender Relations : The Shrimp Industry In South-western Bangladesh” / Meghna Guhathakurta, (unpublished), http://www.mcrg.ac.in/gl.asp

2.   Report of Workshop on Engendering Resettlement and Rehabilitation Policies and Programmes in India, Mohammed Asif, Lyla Mehta and Harsh Mander, November 2002, http://www.mcrg.ac.in/en.asp

3.   “Ethnic Politics and Land Use : Genesis of Conflicts in India’s North-East” / Sanjay Barbora in Economic and Political Weekly, March 30,

2002, http://www.mcrg.ac.in/rd10.asp#e1

4.   Environmental Change and Forced Migration: Making Sense of the Debate (Working Paper No. 70),

http://www.mcrg.ac.in/AddReading/2008/E_Environmental.pdf

5.   New Issues in Refugee Research: Climate Change and Forced Migration (Research Paper No. 153),

http://www.mcrg.ac.in/AddReading/2008/E_Climate_change.pdf    

6.   Climate Change and the State Debate, http://www.mcrg.ac.in/AddReading/2008/E_debate.pdf

7.   Climate Change and Forced Migration: Observations, Projections and Implications ,

http://www.mcrg.ac.in/AddReading/2008/E_Environmental.pdf

8.   Future flood of Refugees : A Comment of Climatic Change, Conflit and Forced Migration,

http://www.mcrg.ac.in/AddReading/2009/future_floods.pdf

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Module D

Statelessness in South Asia

(Concept Note, and Suggested Readings)

 

  

Concept Note

 

Statelessness is the quality of being, in some way, without a state. In fact it means without a nationality, or at least without the protection that nationality should offer. Nationality is the legal bond between a state and an individual. It is a bond of membership that is acquired or lost according to rules set by the state. Once held, nationality or membership of a state – brings with it both rights and responsibilities for the state and for the individual. As the world has been divided into state systems not to be a member of any one of them is a serious concern. While membership of a state is the norm statelessness continues to be widespread and has not escaped the interest of the international community. Within the realm of public international law, rules have evolved in response to the problem of statelessness.

 

According to the International Law Commission, the definition of stateless persons contained in Article 1 (1) of the 1954 Convention relating to the Status of Stateless Persons now forms part of customary international law. The Article defines ‘stateless persons’ as those who are not recognized as nationals by any state under the operation of its law. They therefore have no nationality or citizenship and are unprotected by national legislation and left in the arc of vulnerability. The International Law Commission has observed that the definition of a stateless person contained in Article 1(1) is now part of customary international law. 1954 Convention relating to the status of Stateless Persons and 1961 Convention on the Reduction of Statelessness exclusively deal with the issue of statelessness. These two legal instruments explain statelessness mainly in two ways de jure and de facto. A stateless person as defined by the 1954 convention is generally equated with the term de jure statelessness. Besides, the Convention also refers to the category of de facto stateless persons - who remain outside the country of their nationality and hence are unable, or, for valid reasons, unwilling to avail themselves of the protection of that country. ‘Protection’ in this context refers to the right to diplomatic protection exercisable by a State of nationality in order to remedy an internationally wrongful act against one of its nationals, as well as diplomatic and consular protection and assistance, generally including her return to the State of nationality. Again, Article 15 of the Universal Declaration of Human Rights lays down: “Everyone has a nationality. No One shall be arbitrarily deprived of his nationality or the right to change his nationality”. It implies first of all that one cannot have the option of remaining stateless and secondly, deprivation of nationality or denial of the right to nationality is possible provided it is not ‘arbitrary’. International Law empowers the state to determine by the operation of law who are its citizens. The operation of law must be in accordance with the principles established by International Law. The stateless are those who do not have any nationality and not having nationality may be the outcome of the way a state determines its nationality. One acquires one’s nationality insofar as a ‘genuine and effective link’ is established through any combination of birth, descent and residency within the state.

 

In this context, it is to be kept in mind that nationality and citizenship are two words most commonly used to describe the same phenomenon – the legal bond of membership between an individual and a State. Nationality can only be conferred or confirmed by states and states are responsible for protecting the fundamental rights of everybody on their territory including those of stateless persons. It makes one thing clear that for all activities relating to statelessness, the states are indispensable actors.

 

Statelessness most commonly affects refugees although not all refugees are stateless, and not all stateless men, women and children may be able to qualify as refugees. Refugee status entails the extra requirements that the refugee be outside his or her country of nationality (or country of habitual domicile if stateless), and is deserving of asylum based upon a well-founded fear of persecution for categorized reasons which make it unwilling or unable to avail itself of the protection of that country. According to the 1951 Convention relating to the Status of Refugees or the extended definitions in relevant regional instruments and under UNHCR’s international protection mandate refugees may also, and frequently do, fall within Article 1(1) of 1954 convention. If a stateless person is simultaneously a refugee, he or she should be protected according to the higher standard which in most circumstances will be international refugee law, not least due to the protection from refoulement in Article 33 of the 1951 Convention.

 

Statelessness can have a severe impact on the lives of the individuals concerned as well as on the internal – and international – affairs of States. This is in part due to the role that nationality, as membership, plays in the formation of people’s identities and the connection that they feel to the place where they live and the people around them. To be rejected by every State is to be enveloped by a debilitating “sense of worthlessness”. The possible consequences of statelessness are profound and touch on all aspects of life. It may not be possible for them to work legally, to purchase property or to open a bank account. Stateless people may be easy prey for exploitation as cheap labour. They are often not permitted to attend school or university, may be prohibited from getting married with a persons from other communities and may not be able to register births and deaths. Stateless people can neither vote nor access the national justice system.

 

What Causes Statelessness?

 

The experts argue that there is one common root cause for statelessness that is ‘discrimination’. The UNHCR has observed the following things to analyze the causes of statelessness in general:

 

·          It influences the way problems of statelessness are identified. Understanding that discrimination against a certain group often underlies a statelessness situation facilitates the identification of categories of people that are often exposed to a heightened risk of statelessness. Frequent grounds for discrimination are gender, ethnicity, religion or language.

 

·          It influences the way prevention and reduction of statelessness and protection of stateless persons is addressed. To effectively tackle the causes of statelessness (i.e. to develop prevention or reduction strategies), not only must the “sovereign, political, legal, technical or administrative directives or oversights” be dealt with, but also the underlying discrimination, because the latter feeds the former. Similarly, addressing protection issues also requires overcoming discriminatory attitudes towards the group as a precondition of a truly successful and durable solution.

 

·          It demonstrates the fundamental importance of addressing statelessness. The discrimination that has culminated in statelessness may also fuel (further) persecution, displacement, insecurity and conflict, as will be discussed in the section on the consequences of statelessness. Statelessness can thus be a useful indicator of a broader issue that needs our attention. (UNHCR Expert Meeting on The Concept of Stateless Persons under International Law, 2010, http://www.unhcr.org/4cb2fe326.html)

 

Causes and Context of Statelessness in South Asia

 

Normally statelessness emerges from succession of states or territorial reorganizations. But it also emerges from persecution of minorities and state’s majoritarian bias, which lead the states at time to expel citizens or inhabitants. This condition reinforced by the protracted refusal of the involved states to take them back creates a condition, which may lead at times to loss of their nationality and citizenship. Also, states of South Asia being what in academic circles are called ‘kin states’ represent social and ethnic continuities across the borders and the cases selected here illustrate both these albeit overlapping sources of statelessness in contemporary South Asia. The experts have identified three salient facts while analyzing the causes of statelessness in South Asia.

 

·         Very few contiguous South Asian states have entirely normalized relations with each other, usually on account of disputes concerning borders and cross-border movements, or histories of unwelcome intervention in each others’ affairs. The inherent and massive heterogeneity of South Asian states has frequently given rise to militant resistance – often with a secessionist agenda – to the exercise of central power and the project of national consolidation. These resistances have usually obtained support and legitimacy from the governments or societies of neighbouring states. As threats to the project of national consolidation have accumulated over the past decades – because of interstate conflict, border and territorial disputes, insurgencies, illegal migration, increasing competition for resources and unfavourable demographic drift – the resistance has intensified, and so has the tension of regional relations. It would not be incorrect to say that an atmosphere of suspicion lies over South Asia. Suspicion has driven South Asian states to progressively tighten the strings on who may claim membership goods, thus creating growing pockets of statelessness at their cultural and geographical margins. Examining the changes that have been introduced to citizenship laws of South Asian states provides a clear narrative of how this tightening of strings has proceeded: largely by restricting the acquisition of citizenship by right in favour of granting citizenship at the government’s discretion.

 

·         The second salient aspect of South Asian statelessness is its production as a result of political turmoil. In almost every case, such turmoil has manifested post-colonial South Asia’s attempt to mould itself into culturally unique nation-states by favouring dominant national claims to cast out a minority; or, the attempt of a disgruntled minority to secede from the dominant majority to create their own uniform homeland. The two largest cleavages in independent South Asia occurred for precisely these reasons – the Partition of India in 1947 and the secession of Bangladesh in 1971. It follows, then, that these nation-building experiments created the ideal conditions for inducing statelessness.

 

·         The third aspect of statelessness in South Asia is as a product of economic migration between states. Borders in South Asia, in the pre-colonial, colonial and post-colonial periods, have been unregulated or unsuccessfully regulated, engendering traditions of seasonal migration but also permanent minority settlements. Migrant populations are of all different vintage: Nepali migrants from as early as the seventeenth century in Bhutan, Tamil labourers from the nineteenth century in Sri Lanka, and continuing flows of Bangladeshi Muslims in India. Since the advent of independent nation-states, however, majority leaders have argued for the disenfranchisement of such groups, which appear to have closer ties to the national identity of a neighbouring state than to the identity of the state of their residence. The political centres have demanded the migrants’ ‘repatriation,’ which has been refused by the neighbour state on account of resources constraints and political concerns of its own, leaving the group stateless. (Protecting the Forgotten and Excluded Statelessness in South Asia, Raghu Amay Karnad, Rajeev Dhavan, Bhairav Acharya,

http://y4e.in/pdf/wc/Refugees%20and%20Displacement/Statelessness%20in%20South%20Asia.pdf)

 

Against this backdrop this module seeks to find answers of the following questions in the light of our experience in South Asia. Participants are requested to make their presentations touching on any of these questions or any of their combination with reference to various cases of statelessness in the region. :

 

·          How certain groups and communities are rendered stateless? While successor states in South Asia remain far from being ethnically homogeneous, are minorities living within them more vulnerable to statelessness than others?

·          Does protracted refugeehood eventually result in statelessness? Is the distinction between refugeehood and statelessness increasingly wearing thin?

·          Is it possible to put in place an early warning system for addressing and if possible pre-empting the problem of statelessness?

·          Is the existing legal regime adequate in dealing with the problem of statelessness? What has been the experience with case laws in different countries of South Asia?

·          Can judicial activism as evident in some of the countries particularly in recent years serve as an effective guarantee?

·          Does the varied nature of our experience in South Asia call for changes in the existing municipal and international laws? Does this underline the necessity of framing a regional law relating to the stateless in South Asia?

·          Do policymakers need to think beyond legal terms? Why does mere judicial activism prove ineffective?

·          Does all this call for activating and strengthening the civil society institutions? But how does one make the first move towards melting the ice of xenophobia against the outsiders who remain in the host country as the stateless? 

 

Some Relevant Cases of Statelessness in South Asia

 

·          Chakmas living in Arunachal Pradesh, India

·          The inhabitants of the Chhitmahals (Indian enclaves in Bangladesh/ Bangladeshi enclaves in India)

·          Lhotshampas in Bhutan

·          The displaced Hindus from Pakistan living in India

·          Tamils in Sri Lanka and Sri Lankan Tamils in India

·          Biharis in Bangladesh

·          Rohingyas in Myanmar

 

 

Suggested Readings (CRG publications in bold)

         

1.       Deepak K. Singh, Stateless in South Asia: The Chakmas Between Bangladesh and India, Sage Publications, New Delhi, 2011.

2.      “Uprooted Twice: Refugees from the Chittagong Hill Tracts”, Sabyasachi Basu Ray Chaudhury, in Ranabir Samaddar (ed.), Refugee & The State, Sage: New Delhi, 2003.

3.      Subir Bhaumik, Meghna Guhathakurta, and Sabyasachi Basu Ray Chaudhury, Living on the Edge – Essays on the Chittagong Hill Tracts, Manohar publications, New Delhi, 1997.

 

Web-based References

 

A. Selected Articles from REFUGEE WATCH, A South Asian Journal Published by CRG

 

1.       Muhammad Tajuddin, Biharis in Bangladesh Cessation, Liberation and the Problem of Statelessness, Refugee Watch Issue No. 4, December 1998.

2.      Protection of Refugees, Migrants, Internally and Stateless Persons

 

[Below we reproduce the recomendations of the Kathmandu Consultation (November 21 -22, 1996) on a regional protocol for the protection of refugees, migrants, internally displaced and stateless persons - Ed.], Refugee Watch Issue No. 1, January 1998

 

3.      Paula Banerjee, “Women, Trafficking and Statelessness in South Asia” , Refugee Watch, 27, June 2006.

4.      Anuradha Bhasin Jamwal , “Homeless and Divided in Jammu & Kashmir”, Refugee Watch, Issue No. 23, December , 2004.

5.      Aung Phyro and Tapan Bose, “Refugee Receiving Countries in South Asia: An Overview”, Refugee Wathc, Issue No. 2, April 1998.

6.       “Sri Lankan Tamil Refugees in India” - A Correspondent,  Issue No. 2, April 1998.

 

To Acess and Download the above Articles Please Visit our Website www.mcrg.ac.in

 

B. Selected References from Policies and Practices (CRG publications)

 

1.       Pascale McLean, Incomplete Citizenship, Statelessness and Human Trafficking : A Preliminary Analysis of the Current Situation in West Bengal, India, Policies and Practices 38. 2011.

 

To Acess and Download the above Articles Please Visit our Website www.mcrg.ac.in

 

C. Selected Reference from the Research Report by CRG

 

1.       Executive summary of the project entitled State of Being stateless: A  Case Study of Chakmas in Arunachal Pradesh,

 

Additional References

 

2.       Raghu Amay Karnad, Rajeev Dhavan, Bhairav Acharya,,”Protecting the Forgotten and Excluded Statelessness in South Asia”,

http://y4e.in/pdf/wc/Refugees%20and%20Displacement/Statelessness%20in%20South%20Asia.pdf)

3.       UNHCR Expert Meeting on The Concept of Stateless Persons under International Law, 2010, http://www.unhcr.org/4cb2fe326.html)

4.       Christer Lænkholm, Resettlement for Bhutanese refugees, Forced Migration Review, 28.

5.       Michael Hutt, The Bhutanese Refugees: Between Verification, Repatriation and Royal Realpolitik, Peace and Democracy in South Asia, Volume 1, Number 1, January 2005.

6.       Willem van Schendel, “Stateless in South Asia: The Making of the India-Bangladesh Enclaves”, The Journal of Asian Studies, Vol. 61, No. 1 (Feb., 2002), pp. 115-147.

7.      Special Protocol Concerning Statelessness, The American Journal of International Law, Vol. 24, No. 3, Supplement: Official Documents (Jul., 1930), pp. 211-21.

8.      CAROL A. BATCHELOR, “Statelessness and the Problem of Resolving Nationality Status”, International Journal of Refugee Law Vol. 10 No. ½, 1998.

9.       1954 Convention Relating to the status of Stateless Persons, http://www.unhcr.org/3bbb25729.html

 

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