The global refugee protection regime is broken. Here’s how to fix it

Written by Isha Singh

With the Supreme Court refusing to interfere in the deportation of the Rohingya and the Centre ordering the sealing of Indian borders to prevent a refugee influx from Myanmar, India’s refugee policy has undergone a significant shift in orientation. Despite not being a contracting party to the 1951 Refugee Convention, India has historically had a rich tradition of welcoming, resettling and according rights to refugees, from those displaced in Partition to Tamils, Tibetans and those part of the 1971 exodus from Bangladesh.

However, India now finds itself grappling with compassion fatigue due to the economic burden, ecological degradation and ethnic strife that has ensued from hosting millions of refugees over the years. Unrestrained refugee intake has neither adequately served the refugees, many of whom live in abject conditions, nor citizens, who often deal with the erosion of their electoral, land and employment rights inter alia. The current discontent in the Northeast is a case in point.

While the problems faced by India in this regard are severe, they are not unique. According to Amnesty International, more than half of the world’s 21 million refugees in 2016 were housed in just 10 countries, all of which were from the global south and struggle with high rates of poverty. Therefore, a select few countries, particularly those bordering volatile regions, are disproportionately bearing the burden of refugees today.

The 1951 Refugee Convention was signed with the sole intent of accommodating refugees from the two World Wars and thus, had a cutoff date of January 1, 1951. The 1967 Protocol sought to broaden the scope of the convention by doing away with the cutoff date and making it applicable to all refugee situations. The 1951 Convention was a landmark, as states acknowledged for the first time that the plight of refugees was a matter of concern for the entire international community.

Article 33 of the convention encapsulates the principle of non-refoulment, which the United Nations High Commissioner for Refugees (UNHCR) considers the “cornerstone of asylum and international refugee law”. It prohibits contracting parties from expelling refugees present in their territory, to a territory where their lives may be put in danger.

However, the optimism that accompanied the convention has faded over time. Rather than the non-refoulment principle providing refugees with a safe haven, it has given a good reason to states to spend billions of dollars in non-entrée practices such as border control and penalising transport companies that enable refugee movement. For instance, during the Syrian refugee crisis, countries from the European Union resorted to destroying the rescue boats that were being operated to bring refugees into the EU.

States rarely live up to their obligations to provide refugees with the prescribed range of entitlements, which include non-discrimination, naturalisation, providing identification and travel documents, elementary education, housing, wage-level employment and social security.

While it is tempting to entirely fault states for their lapses, due consideration must also be given to the architecture of the 1951 Convention which fails to account for the costs incurred by states. First, it has been unable to counter illegal economic migration, wherein migrants don the garb of refugees in order to gain entry into states. Second, it ignores the inequitable manner in which states bear the burden of refugees. Refugees are expected to settle down in the first country they find safety in, which places most of the onus on the neighbouring states. Additionally, there are serious issues of funding. Due to the overwhelming financial costs, states tend to undergo compassion fatigue. In 1990, the OECD spent $ 5 billion in processing refugee applications, which was ten times the budget of the UNHCR. Moreover, the UNHCR estimates that over 80 per cent of the world’s refugees are in developing countries but refugee law scholar James Hathaway points out that the majority of the UNHCR’s funds are spent in developed countries.

Third, the convention lacks a strong implementation policy which has given rise to ad-hocism and warehousing of refugees, where they remain in makeshift camps and are denied proper integration. The temporary protection offered by countries is often coupled with restrictive economic policies that make it arduous for refugees to support themselves.

Fourth, the convention has been unable to orchestrate a uniform scheme to deal with refugees because it ignores the different socio-economic contexts. Developed countries tend to accord permanent residence to refugees once they gain entry, which contributes to their reluctance to allow them entry in the first place. On the other hand, developing countries prefer their repatriation, even if dangerous situations persist, due to the resource crunch and the larger numbers of refugees they host. India itself repatriated millions of Bangladeshi refugees in the aftermath of the 1971 war, despite the unwillingness of many to return.

Finally, sometimes refugees also pose a threat to law and order due to cultural differences.

A cost-benefit analysis from the perspective of states can go a long way in making refugee law more efficient. The costs incurred by the host states in housing refugees is largely ignored by the convention’s framework, which is perhaps why not a single SAARC country is a signatory to it. However, states also extract tangible benefits from hosting refugees. Refugees provide cheap labour and entrepreneurship, such as Syrian refugees in Germany, which help countries gain a considerable economic advantage. Funds from the UNHCR and voluntary donations from across the world serve as an investment for infrastructure, which is also beneficial to the local population.

Further, humanitarian actions by states strengthen the goodwill and soft power of a state not just internationally but also domestically, helping the government gain political advantages, as witnessed in Mizoram’s recent display of support for Myanmar’s refugees. However, such domestic approval extends only to the extent the state can provide for refugees without incurring too many burdens. Thus, there exists an optimum level of refugee intake for every state, and the refugee law framework must account for this.

By introducing a burden-sharing regime, which capitalises on the interests of the states, rather than their sheer benevolence, the rights under the refugee protection regime can be made more meaningful. As suggested by Yale Law School professor Peter Schuck, perhaps states could come together internationally or regionally, and establish a quota system, whereby each state undertakes to host a number of refugees proportionate to its capacity to do so. He also proposes that states have the option to trade their quotas, similar to the carbon trading system. By proportionately redistributing refugees, the burden on individual states will reduce and the kind of assistance provided by them is likely to improve.

Such a system will require a coordinating body to oversee refugee movement and allocation, and the powers of the UNHCR may be enlarged for this purpose. For the system to be sustainable, a greater focus must be placed on voluntary repatriation over permanent residence, as this will prevent states from exhausting their hosting capacities.

The inability of international refugee law to reconcile itself with the practical realities that constrain states has culminated in its failure to provide asylum to persecuted persons. The UN High Commissioner for Refugees reported at least 4.2 million stateless people in 2020.

Many countries have been quick to condemn Bangladesh for resettling a million-plus of the Rohingya on an island, but how many of them have come forward to accommodate them? If states are truly desirous of creating a more humanitarian world, they must acknowledge their own role to play in refugee resettlement. Each state must take responsibility for hosting refugees during their darkest hours by devising a burden-sharing system. This is going to be far from easy, but if backed by strong political will, it’s possible.

(The writer is an advocate practising at Bombay High Court)