Tapan K. Bose

(Ed. note: This paper was presented at a session of the international conference to commemorate the Kwangju Uprising and to declare the ASIAN HUMAN RIGHTS CHARTER in Kwangju, south Korea, on 14-17 May 1998. Tapan K. Bose is the secretary general of the South Asia Forum for Human Rights.)

The international refugee regime has never been under such strain as in the 1990s. The rising number of forced repatriation in the 1990s carried out by powerful Western governments and the "imposed" repatriation of refugees by United Nations Higher Commissioner for Refugees (UNHCR) to areas where the safety of the returnees cannot be ensured raise several questions. Can the core protection provision of the international refugee regime endure? Should the UNHCR remain the guarantor of the international refugee regime or be an apologist of the Western powers who control its purse strings? Is the principle of global responsibility for refugees any longer valid? Has the time come for the reformulation of the international refugee regime on the basis of regional responsibility?

Game of Numbers - A Massive Influx

According to the UNHCR, between 1975 and 1995, the world refugee population increased from 2.4 million to about 27 million. Most of these refugees came from the Third World countries of Africa, Asia, and Latin America and from the countries in the former Soviet bloc. There is a consensus among a large section of Western scholars, policy analysts and practitioners that the massive escalation in the refugee flow since the mid-1970s is responsible for the hardening of attitude of the Western nations which have been re-conceptualised as the "North" after the end of the Cold War. It is claimed that this massive increase in refugee flow from the less industrialised countries in the "South" to the industrialised States in the "North" created an "asylum crisis." As a result of this crisis the States in the "North" comprising Western Europe and North America abandoned their relatively "liberal" asylum policies of the Cold War period and initiated steps to restrict entry of potential asylum seekers, first individually and then collectively.

In an attempt to justify this new policy of forced return and "safety zones," the States in the "North" began to talk of the "difference" between the European refugees of the earlier decade and the essentially non-European refugees of the current decade. Some of the European and North American scholars who subscribed to this "theory of difference" argued that while the European refugees between 1920 and 1960 satisfied the individualist criteria of the 1951 Convention of political persecution, the bulk of the Third World refugees did not. It was said that a majority of the non-European asylum seekers were thinly disguised economic migrants rather than political refugees. This "unprecedented explosion" in the arrival of non-European asylum seekers in the West in the eighties, which caused the "asylum crisis," was also attributed to the revolution in transport technology. Mr. Jean-Pierre Hocke, then High Commissioner for Refugees, in his lecture at the Oxford University in 1986 said, "Liberal asylum traditions (of the West) have been jolted by the new reality of asylum seekers who come straight from distant lands on the wings of a revolutionised air transport system."

Construction of ‘Non-entrée’ Regime

Having propounded the theory of "difference," the States in the "North" made it the basis for a new type of restrictive regulations intended to prevent or deter Third World refugees from seeking refuge in Western Europe and North America. The European Union took the lead, and a legal framework of Cupertino was created through the Dublin and Schengen Conventions. Some of the important features of these restrictive regulations that have come to be known as the "non-entrée" regime were:

1. visa restrictions on citizens of known refugee-producing countries;

2. carrier sanctions against airlines and ships which transported refugees or potential asylum-seekers without "proper papers;"

3. re-admission agreements with States of origin; and

4. application of the principles of "safe third country" and "safe country of origin" which allowed speedy expulsion of asylum seekers, often without even a hearing.

Under the Schengen Convention, the freedom of choice of asylum seekers was severely restricted. They were allowed to apply in only one of the participating countries, and that was in the "first country of arrival." The principle of "safe third country" empowered the receiving States to throw out asylum seekers without assessing their legal claims on the ground that the asylum seekers could have sought similar protection in some of the countries they passed through before reaching their ultimate destination. To facilitate arbitrary and summary removal of asylum seekers, "international zones" were demarcated in airports. In May 1996, German Federal Constitutional Court upheld the German "safe third country law." The use of the law has resulted in a chain of deportations for the refugees, often back to the country from which they originally fled. The "safe third country" law has been used extensively by Germany, the United Kingdom and Canada. According to an estimate by the UNHCR between 1991 and 1995, less than 20 percent of the refugees who arrived in Western Europe were granted some form of protection. The rest were rejected and returned.

In the 1980s, the U.S. government adopted the policy of "interdiction" on the high seas to stop refugees from reaching the shores of North America. The U.S. navy interdicted boats carrying Haitian and Cuban refugees on the high seas. While some were returned to Haiti, others were held at the Guantanamo base in Cuba. In a serious setback to the principle of non-refoulement, the U.S. Supreme Court decided that the act of interdicting Haitian refugees on the high seas and returning them to their country of origin irrespective of their claims to having a well-founded fear of persecution was not a violation of Article 33 of the 1951 Convention (Sale v. Haitian Centres Council: 113 S. Ct. 2549-1993).

Similarly in the case of the Cuban refugees who were held in Guantanamo base, a U.S. Court of Appeals ruled that refugees held in "safe haven" camps outside the United States did not have constitutional rights to due process or equal protection and were not protected against forced return.

Real Direction of Refugee Flows

This number game - massive flow from the "South" to the "North" - has successfully diverted the attention from the fact that the real asylum crisis was never in the post-war West or the post-Cold War "North," but in the less industrialised countries of Africa, Asia, Latin America which constitute the "South." During the period of decolonisation in the 1960s and 1970s, the newly emerged post-colonial States of the Third World had to provide shelter to millions of people uprooted by liberation wars, revolutions, coups and counter-coups. It should be noted that during the last three decades the largest flow of refugees has been from one country in the "South" to another. These poor Third World countries provide refuge to about 74 percent of the world’s refugees.

In mid-1980s, when Western European States flashed the red alert about an impending asylum crisis and embarked in the process of constructing the "non-entrée" regime, the bulk of the world’s refugees was being housed and protected by the poor Third World countries. In 1995, out of a world’s total of 14.4 million refugees (recognised by the UNHCR under the 1951 Convention), only about three million were housed in Western Europe, Canada and the United States.

In the context of the 1994 judgement of the U.S. Appeal Court denying the refugees the rights to due process or equal protection, it should be noted that in 1996 the Indian Supreme Court intervened and stopped the expulsion of the Chakma refugees from India’s northeastern state of Arunachal Pradesh. The court held that "the state is bound to protect the life and liberty of every human being, be it a citizen or otherwise" (National Human Rights Commission of India v. State of Arunachal Pradesh, AIR 1996 SC 1234). India is not a signatory to the 1951 Convention relating to the Status of Refugees.

‘Root Cause’ Theory - Corollary of Security Perspective

The international refugee regime so far was concerned with the consequences rather than the "root cause" of the flight of refugees. The 1951 Convention does not contain any specific reference to the responsibilities of the country of origin. However, the so-called third refugee crisis of the twentieth century, which was heralded by the collapse of the Soviet State system and the consequent rise of ethnicity driven nationalist movements in the former socialist States, seemed to frighten the victors of the Cold War. The celebratory mood of the leaders of the neo-liberal world order was further soured by the rising waves of displaced populations from the Third World countries. The very introduction of open market mechanisms, the preferred engines of economic growth and the International Monetary Fund-dictated "structural adjustments" in the economies of these countries led to the collapse of food security, land security, water security and job security of vast numbers of already impoverished people. There is growing evidence of the critical link between the policies of economic globalisation and the "ethnic" conflicts. Recent studies have revealed that the genocide in former Yugoslavia and Rwanda were sparked by the "structural adjustments" introduced in economies of these countries on the recommendations of the international financial institutions. In the case of Rwanda, the crash in the global price of coffee was an added factor.

Unable or unwilling to deal with the core social, economic and political factors responsible for such massive displacement, Western States took refuge into the security perspective. Post-Cold War refugee flow was seen as constituting threats to international peace and security. This categorisation brought the refugee issue into the framework of Chapter VII of the United Nations Charter. During the 1990s, the U.N. Security Council adopted several resolutions empowering military intervention by the United States and other forces in northern Iraq (1991), former Yugoslavia (first in 1992 and then several in 1993), Somalia (1992) and Rwanda (1994). The objective of these resolutions was to create the so-called "safe havens" for the refugees in the countries of origin or within the area of conflict. It is true that the safe havens provided a limited amount of safety to many refugees. However, the shortcomings of this policy of protecting threatened people in their own State have also become clear.

In Rwanda, despite the presence of an international force and the Security Council’s mandate to France to use "all necessary means to achieve the humanitarian objectives," the much-touted "Operation Turquoise" in western Rwanda was a dismal failure. Nearly a quarter of a million Rwandan refugees were butchered to death in eastern Zaire, now Democratic Republic of Congo. Similarly, in 1995 in former Yugoslavia, the United Nations Protection Force (UNPROFOR) failed completely to prevent both the Croat "ethnic cleansing" of Serb populations in the U.N. protected areas in Croatia and the Serb assaults on Srebrenica and Zepa in Bosnia.

The security perspective dictated refugee policy of "safe havens," "safety zones" and "return" was expanded into military action to eliminate the "root cause." This policy shift was influenced largely by the United States, the world’s only superpower. The extraordinary Security Council Resolution 940 of 31 July 1994, for the first time since its inception, empowered the toppling of the government of an existing U.N. member State, Haiti, and replacing it by another regime. The U.S.-led military intervention of September 1994 replaced the Haitian dictatorship with an elected government. Outflow of refugees from Haiti has stopped for the time being.

One wonders whether the Security Council would have taken a similar decision had the request for military action come from a smaller or a less powerful member State and whether this decision was solely guided by humanitarian concern for the Haitian refugees. The answer becomes obvious when we look at the wavering and indecision of the Security Council in dealing with similar situations in Bosnia and Herzegovina.

Security of the West vs Refugee Protection

Refugees are victims of grave human rights violations. These are people who have fled from life-threatening violence. States grant asylum to provide permanent protection to persons who have lost the protection of the governments of their own countries. However, even the 1951 "protection" was not conceived as "permanent." The principle of non-refoulement established that no State which is party to the 1951 Convention "shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened." It was expected that the refugees who were given protection by another country would return to their home States after the situations improved. The Western practice of granting asylum on a large scale was a product of the Cold War politics. The present policy of "temporary protection" in so-called "safe havens," which are not safe and summary, and arbitrary "return" without giving the refugees a chance to access the established refugee determination procedure constitutes a serious violation of the basic principle of protection.

I am not arguing that there are no differences between refugee flows in Europe and the Third World. The circumstances that force the refugees to flee vary from place to place. But to argue that the West has never faced such a massive flow of refugees in the past is false. World War II displaced nearly 40 million people, of which about 20 million were in Europe. Through an informal arrangement of sharing responsibility and costs, the United States, Australia, Israel, Canada, Britain, other Western European States and even a few Latin American countries absorbed almost all the refugees of the Great War. The International Refugee Organisation, which was set up for the resettlement of World War refugees, merely served as a facilitating agent and a clearing-house.

Politics of Cold War and Refugee Protection

Even the relatively large post-war influx of about 200,000 people from Hungary in 1956, about 80,000 from Czechoslovakia in 1968 and an estimated number of about 3.5 million East Germans before the erection of the Berlin Wall posed little problem. The East Germans did not enter the refugee market as they could claim German citizenship under the Constitution of the Federal Republic. Most of the Hungarians, Czechs and Slovaks who were granted refugee status by the UNHCR on the basis of "group determination" and housed in camps in Austria were granted asylum by the Western States including Australia. As the UNHCR in its 1993 report pointed out, there was hardly any scrutiny of the reasons of their flight. In the prevailing ideological climate of Cold War, every Western country was required to respond positively to persons fleeing from Communist States.

A European Convention

International conventions are products of history. It is the common experiences of States that bring them together to create such conventions. The 1951 Convention was a product of such a historical process. Emerging from the devastation of the World War II, Western European States wanted to resolve the problem of war refugees as quickly as possible. It explains why in the 1951 Convention only those who "fled persecution in Europe prior to 1951" were defined as refugees. The authors of the 1951 Convention were aware of the presence of a large number of refugees in the Middle East, China and the Indian subcontinent, but these non-European refugees were excluded from the purview of the 1951 Convention in order to avoid increasing the burden on the resettlement States.

The refugee issue was viewed essentially as a historical problem. The authors of the 1951 Convention did not expect the refugees to become an enduring feature of our times. In November 1957 the U.N. General Assembly even adopted a resolution aimed at winding down of a large part of the international refugee protection system. This optimism of the world leaders was completely belied by subsequent developments.

The removal of the reference to "those who fled persecution in Europe before 1951" from the 1951 Convention by a subsequent amendment in the 1967 Protocol to identify refugees by the causes of their flight did not change the basic Eurocentric character of the international refugee regime. While it certainly expanded the scope of the regime and provided the UNHCR a greater humanitarian mandate, I would like to argue that this expansion was dictated to a large extent by the Cold War strategic vision. The objective was to bring those who fled the communist system within the scope of the definition of the 1951 Convention. In the Cold War perspective human being did not possess an intrinsic value. Her value was determined by her political ideology. And those who fled the communist system were valuable to the West. It was not necessary to determine the causes of their flight; the very act of the flight was enough. In an oblique reference to the "non-entrée" regime, the UNHCR in 1993 said, "In the receiving countries of the West, anyone arriving from the Soviet Union or one of its allies was automatically granted asylum; no detailed scrutiny of their reasons for leaving was felt necessary."

Regional Refugee Conventions

The end of the Cold War changed the politics of international refugee regime. The refugees from the former socialist countries and the Third World are of little political value to the West. The achievements of the last four decades in the area of refugee law are many. The efforts of refugee law experts, non-governmental organisations and scholars led to substantial improvements in refugee determination procedure. The individual status determination methodology was modified and expanded to deal with situations of group or mass influx while a level of transparency was introduced in voluntary repatriation procedure. Through the "non-entrée" regime the Western States have blocked the refugees’ access to those very improved determination procedures. The UNHCR has already abandoned the practice of obtaining each individual refugee’s free consent prior to voluntary repatriation. The new policy is that of "imposed repatriation."

It is not my case that Western Europe and North America must accept all the refugees who arrive at their doorsteps. What I question is the abdication of the principle of global responsibility and the argument of the neo-liberal world powers that "today’s refugee problem is the creation of the post-colonial States of the Third World, and they should be held responsible for this crisis." This "internalist" argument is not acceptable. The external dimensions of the causes of refugee movement are well established. Refugees do not appear simply because they are persecuted by a certain government or because of the inability of weak governments to protect them from the brutal violence let lose by sectarian, communal and ethnic forces. Such governments and States exist within a necessary structure of international support. This "internalist argument" also exonerates imperialism. The world community should recognise the failure of the dominant neo-liberal system and take cognizance of the destructive impact of economic reforms. There is also a need to re-examine those principles in international law and political theory that have given nation-States the license to treat their own citizens and the citizens of other countries by vastly disparate standards.

As I have said, international conventions are a product of common historical experiences of States. As the Allied Powers were keen to resettle the refugees of World War II and had got together to do so, similarly, the common experience of the African nations during the days of anti-colonial struggles had created the Pan-African movement. Soon after obtaining their independence most African countries were faced with the problem of refugees who came from other countries which were yet to become independent. The newly independent African States created the Organisation of African Unity (OAU) Convention on refugees that enlarged the definition of refugees to accommodate the people who suffer the abuse of human rights by forces of foreign occupation. The argument that other Third World countries should emulate the model of the OAU Convention and create similar regional conventions ignores the fact that the prevailing conditions are hardly conducive for invoking such solidarity. Today’s population displacement is not simply a consequence of an occasional conflict, but an explicit objective of the warring parties and a continuous product of the present global order. Given the security perceptions of the Third World States, one can hardly expect them to come together to formulate regional instruments to resolve the refugee crisis in their regions. We should remember that like all identities, a regional identity is also a construct. While some regional arrangements of States have come into existence in East Asia, Africa and South Asia, these have been dictated essentially by certain economic needs of the ruling elite of these States. Human rights are hardly on the agenda of these regional associations of States.

Today’s human rights abuse is tomorrow’s refugee movement. Protection of human rights has to remain a global responsibility. The protection mechanism for refugees cannot be strengthened in the Third World through regional mechanisms when the richer nations in the "North" are abdicating their responsibilities. However, weak the 1951 Convention may be, it is the only global mechanism that we have. This weak international refugee regime needs to be strengthened. Human rights activists all over the world and particularly in the Third Word countries must campaign for ratification of this Convention by all States. Criticism from outside is not as effective as it is from within. The Office of the High Commissioner needs to be given greater powers to deal with the defaulting States like it has been done in the case of World Trade Organisation. But it will be possible only when the States participate in the Convention in a constructive manner.

The principle of sharing responsibility has to be broadened. And as the first step, Third World States, particularly the States in Asia, Africa and Latin America, need to enact national laws for the protection of refugees. These laws based on the principles enshrined in the Universal Declaration of Human Rights will serve as the first step towards effective protection of the refugee in our region.