Globalisation has brought with it the ability of dramatically greater numbers of people to move across international borders for better prospects. The paradox, however, is that many are making these journeys under duress, oftentimes because the place they called home has been taken away from them – be it due to wars that claim to usher in peace, or calculated pogroms that aim to rid a territory of people considered to be ‘contaminating’ a community’s cultural ‘purity’.
What accompanies this movement is a complete loss of that primary sense of belonging included as the bedrock of human-rights guarantees: citizenship. In the context of the Holocaust in Europe, Hannah Arendt, the Jewish political theorist, identified “membership in a human community” as the single most important qualification for any assessment of human rights. For her, the ‘stateless’ are those people who do not even possess the “right to have rights”. In post-World War II international legal formulations, however, the ‘refugee’ and the ‘stateless person’ cannot be conflated. Though uprooted, refugees still legally possess affiliation to a state, even while the citizenship guarantee is almost nonexistent because the very state that is expected to protect the individual as a citizen becomes the reason for that person’s persecution.
The loss of citizenship begins at the time when people are segregated within their own countries on the basis of various identities – class, caste, gender, sexuality, ethnicity, religion, location, language – in a way that impacts on their access to fundamental human-rights guarantees. This segregation does not remain a mere administrative device, but turns into a tool for structural exclusion, disenfranchisement and violence. That is the point at which the state suddenly turns into a particular form of nation state, the primary objective of which is to produce a population of people who think alike, speak the same language (of political ideology and culture), or belong to the same ethnic, religious or linguistic community.
Those who do not, or cannot, ‘fit in’ are either forced out or left to wither. The story of the Muslims in India, Hindus and Chakma in Bangladesh, Tamil in Sri Lanka, Ahmadi in Pakistan, Lhotshampa in Bhutan, Chin and Rohingya in Burma, Uighur and Buddhists in China-occupied Tibet, Tutsi in Rwanda and almost all non-whites in the Euro-Americas are the manifestation of the violence of nation-state formations that dominate or eliminate. What follows this ‘domestic’ loss of citizenship is an excruciating incidence of persecution: If you do not flee, you will die.
The refugee is devoid of formal citizenship rights, without access to the protective agency of a state. Although the status of the refugee is well established in today’s international law regime, most refugees who escape persecution by crossing international borders have virtually no human-rights guarantees, even when they reach their port of ‘safety’. Indeed, they qualify to graduate from mere ‘asylum seekers’ to ‘refugees’ only after going through sustained periods of incarceration in detention centres, and hard-lipped interrogation by adjudicating officers who automatically assume them to be lying.
Most get deported. As such, the difficulty in fleeing persecution by crossing international borders feeds directly into the challenge of qualifying for refugee status. The notion of ‘persecution’ in international refugee law, especially the 1951 UN Convention on the Status of Refugees, remains Eurocentric and limiting in many ways. The 1951 Convention applied only to cases of persecution in post-World War II Europe, until in 1967 a Protocol was added to expand its jurisdiction globally.
Even today, the mandated grounds for what constitutes persecution are race, religion, nationality, membership in a particular social group, or holding a particular political opinion. The limitation of these factors is the conspicuously absent ground of ‘gender’, especially when it is well documented that over 80 percent of the world’s refugees are women. Although ‘membership in a particular social group’ has been interpreted liberally by various courts and the United Nations High Commissioner for Refugees (UNHCR), it is still not an explicit framework. This omission also has a Eurocentric origin: it was the image of a male political refugee, in the WWII context, that informed the minds of the all-male drafting panel.
In Southasia, the threat to refugee protection is exacerbated because none of the countries in the region are party to either the 1951 Convention or its 1967 Protocol. Pakistan remains the country with the largest refugee population in the world, from Afghanistan, and India the second largest in Southasia. But in the absence of a formal protection regime, these refugees are at the mercy of ad hoc state decisions, and are forced to live under the constant threat of deportation. As such, the obvious places to which to flee for persecuted people from the region remain the industrialised countries of the West.
However, the increasing reluctance of Western governments to grant asylum in any significant number has led to a dramatic escalation in the number of people in ‘refugee-like’ situations, leading to populations who are either stuck outside their country of origin without formal refugee status, or inside their own countries as internally displaced persons. These individuals are being persecuted and denied basic citizenship and human rights, but are not able to cross their national borders because no one will have them. It is the recourse to refugee law that could effectively provide an international mechanism for ‘surrogate’ protection to forced migrants facing a well-founded fear of persecution.
In the case of those who have succeeded in escaping persecution and are seeking asylum in another country, there are three protection mechanisms that the international refugee regime can offer. First, the person can be allowed to locally integrate in the host country (which becomes easier if the ethnic origin of the asylum seeker is similar to that of the host community, as in the case of Sri Lankan Tamil refugees in Tamil Nadu). Second, there are schemes for voluntary repatriation of refugees in cases in which the threat of persecution in their homeland has abated. Third, if the host state is unwilling to grant asylum, then a mechanism to ensure resettlement to another country can be initiated.
Because the application of the human-rights standards in the 1951 Convention and the 1967 Protocol operate on the basis of treaty obligations on countries that are parties to the Convention, there have been hurdles to its universal applicability. All Southasian states have refused to accede to the Convention, arguing that it is Eurocentric and does not respond to the unique nature of refugee movements in their parts of the world –where, because of striking ethnic similarities between certain populations, and highly porous borders, moving across frontiers through clandestine means is a regular affair.
Refugees also sometimes blend in with local populations, because they cannot be ethnically distinguished. On being identified, however, they often face the threat of pushback from local communities. For instance, the Burmese Chin refugees, who have a sizeable population in Mizoram, face resistance from the Young Mizo Association, which strongly opposes their unrestricted migration – fearing, among others things, that they will take away jobs from the locals. It is these local realities, India contends, that the Refugees Convention does not address. The international framework has also been criticised of Eurocentrism by many states – including all of the countries of Southasia, most notably India.
But suspicion of the Convention does not necessarily need to mean utter lack of legal protection, as has taken place in Southasia. In Africa and Latin America, for instance, the Organisation of African Unity and the Cartagena Declaration on Refugees, respectively, have built on the basic legal provisions of the Convention to create a refugee-protection framework that effectively responds to protecting people from persecution in their regions. Unfortunately, with no obligation to meet the standards of the Convention, and without any national or regional protection system for Southasia, refugees in this part of the world are at the complete mercy of the political will of the individual state establishments.
Notion of nation
Though fleeing from their own governments, when persecuted people from developing countries attempt to gain asylum in the West they are generally seen as security threats. There exists a contradictory nexus between refugees and national-security concerns, given that the most disenfranchised and insecure people are being labelled as potential threats to both Western culture and nation. Particularly following the attacks of 11 September 2001 in the US and of 7 July 2005 in the UK, many Western nation states are obsessively engaging sovereign control over their borders through stringent immigration policies. Many of those communities being found particularly worrisome, of course, now comprise the brown, bearded and Muslim – symbols and identities that have become emblematic of what constitutes a ‘terrorist’.
International refugee law regulates nation states from arbitrarily rejecting the admission of foreign nationals into their territory who are fleeing persecution. But at the same time, controlling international borders has today become one of the major markers of state sovereignty. This also serves as a symbol for perpetuating the forcibly imagined communities of homogenised nationhood, and is the reason why control of territorial integrity through the policing of migrant populations – refugees or otherwise – is one of the last remaining means of retaining the notion of ‘nation’.
In a climate in which rising concerns about terrorism and state security oftentimes intensify exclusionary and racist impulses, the challenge of establishing accountability to protect refugees is not an easy task. But increasingly, one is able to identify reasons that go deeper than mere legalities, ultimately contributing to the factors that help determine refugee status. One such element, which often overpowers most others, is culture.
On the one hand, the existence of formal refugee-protection regimes in developed countries does indeed allow the persecuted to seek asylum. At the same time, however, that very guarantee of protection often gets diluted through the ‘demonisation’ of the asylum seeker’s country of origin. In this regard, refugee law operates on the basis of establishing ‘barbarity’ as the qualification for gaining asylum. As such, asylum seekers from developing countries are generally either rejected on the basis of their potential threat to national security, or accepted on the basis of the ‘denigrated’ culture from which they are fleeing.
While human-rights guarantees are understood to be universal and inherent throughout the world, a disturbing subjectivity crops up during the determination of an asylum seeker as a refugee. In order to establish ‘well-founded fear’ in an objective fashion, asylum officers construct essentialist and derogatory characteristics of asylum seekers’ home countries – as barbaric and backward cultures – in order to create a case for persecution that meets their qualifying standards. The guiding principle of this is the construction of the asylum seeker as a ‘native’ who needs to be ‘civilised’ and rescued. As such, the state from which they come might be best described, in the words of Jaqueline Bhaba, professor of human rights at Harvard Law School, as “the worse the better” – the more oppressive the home state, the greater the chances of gaining asylum.
For instance, if a pro-democracy activist from Burma is fleeing to the US because she is under threat of being persecuted for her political opinions, her asylum application might well fail simply because she is a woman – one who cannot be imagined to be a political activist. If, however, she presents her application on the grounds of having faced culturally sanctioned gender-based persecution, her chances for qualifying will increase manifold. Interestingly, as a Burmese refugee in the US, it will never be recognised that, for instance, while she is pro-democracy, she is also anti-imperialist. Her refugee status will be a marker of the US’s benevolence towards supporting its global ‘democracy-making’ project, as well as her embracing of the culture of American democracy, and her rejection of Burmese bigotry.
The result of the operation of the ‘worse the better’ category is that the entry of people from developing countries into the West is determined not so much on the basis of their real threat of persecution, but rather on the basis of how the countries they are fleeing can be reduced to a set of anecdotal cultural phenomena. Anthropologist Kamala Visweswaran observes that, as a consequence of this, the people and governments of these countries come to be seen as, for instance, bride-burners and honour killers, rather than as democracies or dictatorships. In effect, the asylum seeker’s success is based on how well he or she may be able to assimilate into the host country, and how ready they are to denounce their own cultures. This operates at a time when the countries of the West that are strongly advocating for the free movement of capital across state borders, while simultaneously obsessively guarding their own borders to halt the entry of those who they feels will threaten their manufactured multiculturalism.
It remains a paradox as to why India, Bangladesh and Pakistan, despite being current members of the Executive Committee of the UNHCR, are still not parties to the 1951 Convention and the 1967 Protocol, while also having made no substantive attempts to develop a regional or national refugee-protection regime in Southasia. The first attempt at formulating a draft regional law on this issue was undertaken in 1966, when the African-Asian Legal Consultative Committee adopted the Bangkok Principles on the Status and Treatment of Refugees. But these principles were then kept in cold storage until the text was finalised at a meeting in New Delhi as late as 2001. In November 1997, a group put together by UNHCR approved a model national law for Southasian countries, but this has likewise remained in the realm of legal fiction, without any initiative by states to turn the law into reality.
In the process of developing a regional refugee-protection regime, the Refugees Convention can indeed be utilised effectively as a source. Southasian states need to recognise that they cannot continue to turn a blind eye to the persecutions for which they are responsible, certainly not in the name of sovereignty or ‘Eurocentrism’ of the Refugee Convention. Responding to this latter charge, J M Castro-Magluff, a senior official with UNHCR, has contended that developing countries must play an active role in the international system for the protection of refugees, specifically so that their interests will feature in future approaches in the international protection regime.
Under the current set-up, the case of 34 Burmese freedom fighters, under arbitrary detention in a Calcutta jail for the past decade, is an example of what can happen to refugees in India fleeing persecution from other Southasian countries. Even in this case, their reason for incarceration was that they were alleged to be terrorists. Such a state of affairs continues due to the non-existence of a formal refugee-protection law in India, and in spite of the 1995 Supreme Court judgment that categorically states that all ‘refugees’ within Indian territory are guaranteed rights to life and personal liberty, as enshrined in the country’s Constitution.
A regime of legal protection would also ensure that persecuted people do not use highly dangerous clandestine routes to cross borders. A refugee flees to escape fear, but the non-existence of a protection regime in the country of asylum only ends up making the asylum-seeker confront new fears of deportation, instead of the guarantee to assistance and care. This clearly contradicts Article 14 of the Universal Declaration of Human Rights, which guarantees rights to asylum from persecution and not to be forcefully deported back to their home country.
There is much to be done. While one cannot rule out the possibility of a legal regime’s in-built processes of exclusion, the need for an asylum regime in Southasia cannot be overemphasised. It is necessary not only for advancing asylum jurisprudence in the region, but also to challenge the existing constructs of the Eastern-native-disempowered-subject, which at best victimises and at worst infantilises refugees from the region.