Asylum seekers, refugees and the role of NHRIs

The Working Group 4 on “Migration in the context of the conflict and terrorism” of the 7^th International Conference of the National Human Rights Institutions to be held in Seoul from 14-17 September 2004 reflects the escapism concerning different categories of persons – refugees, asylum seekers, migrants and undocumented migrants - who are outside their country of nationality. The use of the term “migration” fails to capture the complexity of the plight of these persons who are discussed under agenda item titled “mass exodus” at the United Nations Commission on Human Rights and as “non-nationals” by the Sub-Commission on Promotion and Protection of Human Rights. The use of the term “migration” also does not denote the rights accorded to the refugees, asylum seekers and the migrant workers.

Most Asian countries are governed by archaic principle of “non-interference in internal affairs”. Consequently, the rights of the refugees, who are forced to escape owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, which are defined as “internal”, are seldom accorded. Most Asian governments have not ratified the 1951 Convention Relating to the Status of Refugees and its 1966 Optional Protocol. They also do not have national laws dealing with refugees.

After the collapse of the Berlin Wall, the protection of the refugee rights has also collapsed across the world. Continued consideration of the refugee rights within the four walls of the Headquarters of the United Nations High Commissioner for Refugees (UNHCR) during its annual Executive Committee meeting and lack of public debate generally found in the functional Commissions of the Economic and Social Council have not helped to promote the rights of the refugees and asylum seekers. Within the United Nations Commission on Human Rights, there has been little discussion on the rights of refugees. The debate on the agenda item on mass exoduses has been reduced to the situation of internally displaced persons – a phenomenon of the post Berlin wall period to confine the fleeing people into the socalled safe zones. At the 60^th session, the Commission on Human Rights considered only the reports  (E/CN.4/2004/77 and Add.1-4) of the Representative of the Secretary-General on internally displaced persons.

In the post-September 11^th, the refugees has become more vulnerable. The European Union, which promoted the rule of law including the rights of the refugees, has been adopting anti-refugee laws. Many European governments which were hitherto considered as champions of human rights have started questioning the absolute nature of the prohibition against torture and principles of non-refoulement. The “balance” between legitimate security concerns and the protection of individual civil liberties has tipped decidedly in favor of security.

In the wake of counter terrorism measures, automatic detention of the asylum seekers by the recipient country has become a common practice. Freedom from arbitrary detention is a fundamental human right recognized under International Covenant on Civil and Political Rights and most national laws and therefore, the use of detention is contrary to the norms and principles of international law. The UNHCR’s Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers adopted in February 1999 is instructive as to under what circumstances “Detention of asylum-seekers may exceptionally be resorted to for the clearly defined reasons as long as this is clearly prescribed by a national law which is in conformity with general norms and principles of international human rights law”. In addition, governments are obligated to inform detainees of their right to counsel or, where possible, to receive free legal assistance. In addition, the refugees are entitled to independent and automatic review of the necessity of their detention, the right to contact and be contacted by UNHCR, and to communicate privately and have the means to do so made available. The National Human Rights Institutions have a crucial role to play in determining due process of law against detention of the asylum seekers and determination of their refugee status in accordance with international standards on the rights of refugees.

Non-refoulement is a customary rule of international law binding on all States.  The refoulement of Acehnese refugees by the authorities in Malaysia, refoulement of the Tibetan refugees by the authorities in Nepal, the refoulement of Burmese refugees from Mizoram and the handing over of alleged Maoists by the government of India without any judicial scrutiny requires interventions from the NHRIs from the respective countries.

Many of the deported refugees such as the deported Acehnese refugees and Sri Lankan Tamil refugees face arbitrary arrest, incommunicado detention on their deportation. The National Human Rights Institutions such as KOMNAS HAM or Sri Lanka’s National Human Rights Commission have a critical role to play to ensure that those who are deported back are not subjected to human rights violations including arbitrary, illegal and incommunicado detention, torture, rape and other custodial violence.

The NHRIs must also intervene to provide equal access to humanitarian assistance without discrimination based on religion, colour, national or ethnic origin. After the pro-democracy movement in Myanmar, about 80,000 Burmese refugees, mainly ethnic Chins, sought asylum in India. They were given shelter in makeshift camps in Saiha area of Mizoram State of India. However, the refugee camps were dismantled in 1995.  Since then Myanmarese refugees have regularly been subjected to refoulement.

What is worse, the Burmese refugees receive no assistance from the government of India. According to the 2002-2003 Annual Report of the Ministry of Home Affairs of the government of India the Sri Lankan Tamil refugees are “provided facilities that include shelter in camps, cash doles, clothing, subsidized ration, utensils and medical care. Each Sri Lankan refugee family gets an assistance of Rs.922/-  (approx.) every month. This excludes free accommodation, medical and educational assistance. The entire expenditure on relief to Sri Lankan refugees incurred by the State Government is reimbursed by the Central Government”.

Although, UNHCR looks after about 900 Burmese refugees in New Delhi, the treatment of the refugees by the UNHCR has been deplorable. Since 1994, UNHCR has been providing subsistence allowance of Rs. 1,400 (about 15 dollars) per month to the dependent persons.  Although, the prices of essential commodities have increased manifold in the last one decade, UNHCR has not increased the subsistence allowance. Rather, UNHCR has been cutting the number of people who can obtain subsistence allowance as it seeks to promote disastrous “self-reliance” policy by encouraging participation in vocational training courses with a view to obtain jobs.  In the absence of the right to work, the UNHCR’s self reliance policy is nothing but promotion of illegal work.

The educational facilities are inadequate. On medical care, UNHCR has a policy of reimbursing refugees for expenses related to medical care and treatment provided that it is obtained at a government hospital. The policy is implemented on the presumption that the refugees have the necessary money first to spend at government hospital and then follow bureaucratic procedures of the UNHCR and claim reimbursement later. Since UNHCR provides Rs 1400 per month to the head of the family out of which the refugees are expected to cover rent, food, travel etc, is it fair and reasonable to expect that the refugees have the money in advance to take care of the medical expenses? The NHRIs have a critical role to play for protection of the refugees living within its geographical jurisdiction irrespective of whether they are under the care of the UNHCR or the government.