International law and refugees

HUMAN RIGHTS AND REFUGEES - Problems, Laws and Practices: Manik Chakrabarty; Deep & Deep Publications, F159, (No. 3 G.F.), Sawhney Apartments, Rajouri Garden, New Delhi-110027. Rs. 500.

LIFE IS dear and home is sweet and motherland is ever mother. One is loathe to leave one's native land even when distress is one's kismet. But when life is in grave peril, one is forced to flee one's motherland, and one flees in despair, when the alternative is death because of political and allied fumes of violence, to seek refuge in alien country is necessitous, as the earth, ultimately, belongs to all as the only home known to humanity. Thus when macabre wars and massive barbarities drive macro- migration as the only way to survive the horror and terror of death and allied lethal agonies, victimised human masses, in grim locomotion under intolerable circumstances, search for some habitation in foreign territories hoping for bare hospitality from neighbours, since world brotherhood is a moral and spiritual value. Such is the sublime humanitarian foundation of global refugee jurisprudence.

Compassion and humanism are the well-springs of refugee law and a wealth of jural-moral instruments and conventions have been mankind's heritage. Human solidarity is basic to this branch of public law, sans which global barbarity will wipe out weaker groups and communities and savagery will vanquish human law and human justice. Man's inhumanity to man often assumes huge proportions, motivated by political, religious, linguistic and other impulses, and their obnoxious outbreak makes for vast victim exoduses. If law is to rescue life, refugee status must, of necessity, receive legal recognition and the refugee process come under legal regulations.

We live in perilous times when floods of refugees have become frequent phenomena and world conscience cannot slumber when armed slaughter and consequent flights of large numbers occur. So we have the raison d'etre of international conventions and instruments, imperfect though, coming into force as an expression of human justice and humanitarian jurisprudence and agencies to implement these projects. Law lags behind life and the existing provisions leave much to be desired. The comprehensive treatment of this subject, its development and deficiencies have been dealt with in the book under review.

The refugee problem, of people being driven out and seeking shelter, is as old as history and even pre-history, tribal conflicts, medieval massacres, class frictions, religious and royal conflicts being the lethal trigger. But the bloodiest war which soaked the world in blood and tears, created the United Nations to protect human safety and dignity and abolish the scourge of war. Nevertheless, even thereafter, mini-wars have claimed great losses in life and masses seeking asylum in other lands. The international community, particularly in the Third World, victimised by savage violence and deadly weaponry realised the need for protection by the United Nations. During the decolonisation era and the Partition there was exasperating aggravation of intimidated people having to quit their homeland.

The World War II period saw some of the largest refugee avalanches in world history. It was during this period that the international community began to realise that the system of individual protection and assistance was not sufficient enough to deal with such large numbers. As a result, the jural concept of temporary asylum gained wider recognition during this period. As for durable solution, voluntary repatriation became the only option available to the overwhelming majority of the refugees of this time. Millions of refugees were assisted to return to their homeland through international assistance.

The author has, even in his prefatory pages, told the reader about the important international aspects of refugee problems. Who is a refugee, not in the lay sense but in the definitional contours of the U.N. instruments? Indeed, ``refugees'' have been defined even in international instruments of 1920 vintage but what we are concerned with currently is the meaning of that expression under the mandate of the U.N.H.C.R., and the 1951 Refugee Convention. When there are large-scale influx situations, the determination of the status of refugees assumes serious significance on account of the burden cast on the receiving state. Of course, there are obligations under municipal laws, in some countries, for protection of refugees on a humanitarian basis and asylum for them.

However, the two strong U.N. pillars of refugee jurisprudence are the 1951 convention and the 1967 protocol. These principles are, in several countries, incorporated into the domestic laws, as in Denmark, France, Germany, Norway and Sweden. The U.S. and the U.K. have partially included these principles in their immigration laws. India, the reviewer blushes to add, has not ratified the convention. However, the problem of asylum has created heavy burdens when refugees in large numbers seek entry. To some extent the ideologies of the countries from which the refugees flee condition their reception. The reviewer does not propose to go into the criteria for the determination of refugee status in this review. But he does feel unhappy that India, boasting of ``Vasudaiva Kutumbakam'' culture, has not as yet ratified the 1951 convention.

Humanitarian assistance for refugees in India is not a new problem. Asylum for Tibetans, education for Tibetan refugee children and their rehabilitation, and the influx of refugees from East Pakistan in 1971 and from Sri Lanka later on, are a few aspects of the political, economic and legal dimensions of the assistance programme. Afghan, Iranian, Burmese and Chakma refugees from Bangladesh are issues of no negligible volume for poor Bharat. Why have we not recognised and received Bhutanese refugees although they have a case for it?

The role of the United Nations High Commissioner for Refugees, the material assistance that can be extended to refugees, the cooperation among the various bodies dealing with refugees are matters which deserve careful study and compassionate action. The courts in India also have had occasion to deal with refugee issues and the author has taken care to enumerate them in an annexure without indicating the ratio decidendi.

On the whole, the refugee in international law cannot be dismissed as of no consequence, especially because millions of humans are involved and more inflows are swelling their numbers. These innocent human beings, displaced from their hearths and homes, have a humanitarian claim, including asylum, if we are to take note of the principle that the world is one family, that compassion is a conspicuous component of humanitarian jurisprudence and that the implementation of comprehensive response to the mounting refugee problem demands strategy of a constructive nature.

Indeed, human rights and humanitarian justice are part of the primary objectives of the United Nations. If international peace and global harmony are not phrases of hypocrisy there is no doubt that India and the other countries which remain non-signatories to the 1951 convention should hasten to stand by humanity. It is useful to remember that the cause of human justice cannot be a casualty when the victims are confronted by violations of human rights, sometimes by the Big Powers.

In the words of I. R. Gunning: ``The mission is compelling because the cause of human rights often involves individuals or groups facing death, torture or oppression. The mission is also difficult because the human rights cause generally supports individual standing in opposition to their governments, whereas international law has traditionally focussed on the rights of those same nations in relation to each other, to the almost total exclusion of domestic or internal matters.''

The reviewer would conclude by saying that the author has been thorough and wide-ranging in dealing with the problem of refugees which is an international responsibility and is an aspect of human solidarity. His scholarship, expressed in this book, must find its luminous presence in law libraries, shelves of political scientists and in reading clubs where intellectuals with concern frequent.

V. R. KRISHNA IYER

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