Millions of people leave their homes often taking risky journeys in search of a better future for themselves and their families. The reasons attributed to this movement can be complex. At the end of 2023, approximately 11.73 crore people globally were displaced due to persecution, conflict, human rights violations, and other types of violence.[1] As put forth by the international community, global displacement can be defined as the movement of people who have been forced to or obliged to leave their homes or habitual residence to avoid the effects of armed conflict, situations of generalised violence or violation of human rights which can be natural or man-made.[2]
LAPSES IN REFUGEE CONVENTION 1951
The 1951 refugee convention[3] forms the basis of the work done by the United Nations Human Rights Council[4]. The convention provides a universally accepted definition of ‘refugee’ and puts forth the legal protection, rights and assistance that a refugee is entitled to receive. India remains one of the few liberal democracies that has not signed the convention due to which, India is not obliged to protect refugees that are on their territories.
Though the convention was the first comprehensive effort towards streamlining the process of refugee protection, still it does not align with the modern world challenges and thus requires significant changes.
Nations who are the members of the convention are obliged to provide protection to refugees facing the threat of oppression. However, signatories have found ways to circumvent the same.
A lot of developed nations engage in push back of refugees[5].When pushing back asylum seekers, individuals are forced back over the borders almost immediately they cross the border without considering their individual backgrounds and circumstances. This practice directly violates the principle of non-refoulement[6] as refugees are forced to return to the country of persecution.
Other ways also include the custom of externalisation of refugees. Through this process countries bypass their own responsibility of refugee processing onto other less developed nations. Asylum seekers are prevented from entering through the borders of their nations and instead sent to third world countries. With this, refugees are at risk of returning to the country of persecution, hence breaching the principle of non-refoulement. These offshore detention techniques are also described as inhumane as the dearth of proper medical and mental health facilities exacerbates the suffering of already traumatised individuals.
Refugee migration is not a linear phenomenon but instead is a multifaceted one as the motivators behind migration can be varied. This mixed migration flow is not properly addressed by the 1951 convention. The convention puts forth a very narrow definition of ‘refugee’ and does not consider individuals fleeing due to instances of generalised violence like cases of civil unrest or non-traditional forms of persecution such as economic collapse due to conflict. The convention explicitly does not address atrocities meted on stateless people instead the applicability of provisions specifically designed for stateless people depends on the national legal frameworks of a nation.
Moreover, the treaty also lacks provisions for global displacement caused by the climate crisis, despite both being intertwined concepts[7]. As of December 2022, around 87 lakh people have been globally displaced due to environmental degradation in 88 countries[8]. Though for many cases of global displacement as a result of climate change the 1951 convention did not have any redressal mechanism. The convention only caters to persecution either due to religion, race, nationality, political opinion or membership in a particular group or any condition which exacerbates these grounds. With this one can conclude that persecution as a result of direct impact of climate degradation has no recourse. This further points to the fact that the convention would safeguard the interest of individuals only during conditions, like: –
- Persecution of individuals on one of the five grounds as a result of a conflict which erupted due to the dearth of resources, for instance a water or arable land crisis. For example, some people leaving their residence due to ethnic violence caused by scarce water supply.
- Certain groups or individuals targeted for their activism, whistleblowing and membership of a certain group advocating for environmental reforms.
ETHICAL DILEMMA OF CATEGORISATION OF REFUGEES
Categorisation of refugees can be defined as distinguishing between various classes of refugees based on their circumstances, legal definitions and the processes that they go through[9].
However, this categorisation of refugees presents a myriad of ethical challenges for authorities. These dilemmas reflect the complexity and difficulty in balancing legal definitions, humanitarian needs and practical considerations.
Categorisation of refugees reflects how they are perceived and treated by other society members. Their portrayal influences public and political discourse and often decides the course of policymaking for them. Positive portrayal can lead to calls for upholding rights and inclusion while negative representation can reduce public empathy and support and eventually denial of rights.
Usage of terms like ‘migrants’, ‘economic migrants’ or ‘illegal migrants’ put refugees in a negative light. Due to their negative image projection society members think of them as less deserving than the ones labelled as ‘refugees’.
Further, categorisation of asylum seekers as ‘bogus’ or ‘genuine’ by nations cast a doubt on the legitimacy of all other asylum seekers. The usage of the term ‘bogus’ projects that individuals are misguiding authorities with their false claims regarding acts of cruelty committed against them by their country of residence. As a result of which the rights and claims of genuine asylum seekers are undermined. Also, it is often observed that nations use this loophole and portray many asylum seekers as ‘bogus. With this move their responsibility as asylum providers is lost as well as their rationale behind restrictive policies is justified. Nonetheless, this tactic eventually leads to denial of rights that asylum seekers deserve under international law.
The usage of the word ‘refugee’ invokes a moral responsibility to provide protection and support to these individuals as it is felt that these individuals are under constant threat of persecution. On the other hand, words like ‘migrants’ or ‘economic migrants’ or ‘illegal migrants’ imply deservingness and exploitation of assistance which can ultimately bolster the use of restrictive policies.
IS PROTECTION OF REFUGEES A LEGAL OR MORAL RESPONSIBILITY FOR NATIONS?
Various frameworks including the 1951 Refugee Convention lays legal responsibilities on states to protect the rights of refugees entering through the borders of their country. As per the convention everyone has the right to seek asylum from persecution in their country of residence but it does not legally bind any state to provide asylum. However, nations are bound by the mandate that they have to follow the principle of non- refoulement in case of all refugees, even the ones who have not been formally recognised. Still countries globally are struggling or have refused to implement these guidelines for protection of refugees. For instance, the United States had refused to provide asylum to refugees entering from its southern border.[10] Additionally, nations also send asylum seekers to other third world countries often jeopardising their safety just as in the case of the UK which has brought in a legislation in force which would send any refugee entering illegally into their territory to Rwanda[11]. Even states that allow refugees to enter, do not ensure the standard of living as prescribed by UDHR and 1951 convention.
In addition to legal mandates, states often have a moral and ethical responsibility towards refugees which stem from various legal frameworks. The Universal Declaration of Human Rights propounds for respect and dignity of every human. Ethical and moral responsibilities of states to protect the rights of people beyond the borders of their nation align with this idea of UDHR. It is integral for the international community to uphold the rights of refugees and protect people beyond their borders as they receive no support for their nation of residence.
CONDITIONS FOR MORAL RESPONSIBILITY
- Imperative Need– Refugees face an urgent and severe threat to their rights and lives. For instance, refugees in Syria and South Sudan live in life threatening conditions[12].
- Proximity to the Need– Nations closer to the place of crisis whether geographically or through awareness have a greater understanding of the catastrophe. This nuanced comprehension puts a greater moral responsibility on them to respond. Far off nations also bear a moral responsibility towards these refugees as a result of proximity created due to awareness. For example, countries like the USA or Norway should involve themselves in aiding the refugees of Syria due to their increased proximity developed through awareness[13].
- Capability to Respond– The amount of resources one nation has and the amount of resources which it can put to use to assist refugees depends upon a lot of factors. This difference in resources develops different capabilities of nations to respond to the subsisting crisis. Nations like Lebanon, Jordan and Turkey have for years provided shelter to Syrian refugees and in the present times have run out of capacity to help more refugees. However, European nations and Gulf countries have more capability to support the Syrian refugees[14].
- Last Resort– When no other assistance is available, the duty to help falls on potential responders like wealthy nations often become potential responders as they have the economic resources to aid refugees.
- Help Without Disproportionate Harm– providing assistance should harm the helper in return. For instance, nations should not jeopardise their own stability and security for the sake of helping refugees.
RESPONSIBILITY OF WEALTHY NATIONS
Developed and wealthy nations have a greater moral responsibility when it comes to catering to the needs of the refugees [15].Wealthy nations have the potential and capacity to hold more refugees than their present intake. This can involve granting asylum to more people as well as developing better resettlement facilities for the needy. For instance, nations like Lebanon, Jordan and Turkey have run out of their resources put to use to help Syrian refugees. So, European nations which house an abundance of resources should join the league to protect the rights of Syrian refugees.
Wealthy nations should work in the direction of increasing their increasing financial aid to the countries that border crisis regions as these are commonly burdened with most refugee populations. This funding may include monetary assistance for developing more refugee camps, educational facilities, health faculties and other important services.
It is observed that wealthy nations have more influence in the international arena. This influential power can be used to resolve the conflict which is resulting in global displacement. Organisation like the IGAD Plus align with this principle. Nations like the USA, UK and Norway have joined this organisation to create a favourable environment for the protection of South Sudanese refugees[16].
Wealthy nations should join hands with one another to use their resources and influence to improve legal frameworks for the protection of rights of the refugees.
ROLE OF INTERNATIONAL ORGANISATIONS IN PROTECTION OF REFUGEES
- UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES
The UNHCR was created by UNGA in 1949 and thus reports annually to UNGA since 1951. Its major goal is the implementation of the 1951 Refugee Convention and for that it collaborates with states to find solutions to the persisting refugee crisis.
However, various issues plague the working of UNHCR[17]:
- The UNHCR’s work and funding relies on agreements that it has concluded with various states. In the present times these agreements have become highly restrictive so that nations can deter refugees from entering their territories. As a consequence, the working net of UNHCR reduces automatically.
- Only a state has power to grant refugee status to any individual. As far as UNHCR is concerned it can only monitor and participate in proceedings limiting its scope for the protection of refugees.
- UNHCR has the responsibility to check whether nations follow the principle of non-refoulement. However, it often involves several intricacies making it complex to follow the mandate.
- The funding received by UNHCR is based on voluntary contributions made by member states which can be insufficient as well as unpredictable. This financial instability further reduces the independence of UNHCR making it difficult to realise its goal.
B) INTERNATIONAL ORGANISATION FOR MIGRATION
The IOM[18] is a UN related organisation working in the field of migration. The organisation provides operational assistance programs for migrants.
In spite of its role in protection of migrants and refugees, the organisation is embroiled in several contentions[19]:
- The organisation does not contain a formal mandate to check on human rights abuses or protection of migrants despite its significant work in this field. Absence of a formal mandate causes it to lack a robust accountability standard. This causes a majority of human right concerns of refugees to go unaddressed. This has resulted in undermining trust in IOM’s operations.
- In the past the IOM has enabled the return of refugees to Afghanistan and Iraq without ensuring whether these returns were voluntary or not. Also, the return took place without proper analysis of the safety conditions in these nations. These added to the risk of sending back refugees and migrants to the countries where they face persecution, hence, breaching the principle of non-refoulement.
- The anti-trafficking programs of the IOM have found to be insufficient as they lack provisions to adequately protect human trafficking victims. These programs lack proper security measures during reparations, gender blind vocational training and comprehensive policies to deal with minors. Due to this IOM often deviates from its original goal of human rights protection.
- IOM maintains a lack of transparency in the detention centres managed by itself. For instance, its detention centres Nauru and Manus islands managed by IOM in consonance with Australia’s Pacific Solution Policy are closed to the outside world which raises concerns pertaining to the conditions and treatment of detainees.
C) INTERNATIONAL RESCUE COMMITTEE
IRC[20] is a global humanitarian aid, relief, and development non-governmental organisation. It was founded in 1933 at the request of Albert Einstein. The IRC provides emergency aid and long term support to refugees. Despite its work in the field, several irregularities have surfaced in the recent past.
The staff of IRC has often reported that the organisation practices ‘white race supremacy’[21]. On the outside public statements were made by the organisation in support of the ‘Black Lives Matter” movement however, the leadership on the inside dismissed the employees advocating for anti-racist changes. Critics have also pointed to the lack of diversity in the organisation. This lack of effort towards formulating inclusive policies added to the anger and frustration of employees from non-white communities.
HOW TO EASE REFUGEE CRISIS?
Given the current global scenario when nations are at war with one another in addition to internal conflicts, crises pertaining to refugees seem inevitable. However, nations and organisations should come forward to put up a coordinated response to ensure a more humane retaliation to the subsisting refugee crisis.
Long term solutions should be given precedence over short term fixes. So, to align with that the root cause of the issue of displacement must be identified and studied[22].
Trafficking gangs involved in the peddling of migrants and refugees must be dealt with stringent legislations and other measures.
Wealthy and developed nations should take the lead and work in collaboration by providing assistance as they have ample resources. Many developed nations have put restrictive policies in force that keep under control the number of refugees that can enter their country. For instance, in the last 10 years Japan has taken in only 1107 refugees[23]. Wealthy nations can help in providing financial assistance to nations close to the conflict area as most refugees migrate to nearby states to find a safe shelter. Secondly, developed nations can invest enough into refugee resettlement schemes which is a vital solution for the most vulnerable groups of refugees[24].
Technological aids and solutions can be used to ease the crisis. Online platforms can be used to provide necessary education in refugee camps as done in Kenya and Jordan[25]. Medical services apps can be used to detect the ailment and treatment for refugees residing in camps. With the use of technology, emergency relief systems can become more accessible and efficient which would help in better social and economic integration into host countries.
States should be sensitised so that they protect refugees and asylum seekers by not returning them to the countries where they face persecution. In the past Denmark breached the principle of non- refoulement by sending Syrian back to Damascus, the capital of Syria claiming it was “Safe”[26].
States should integrate refugees in the economy by providing them with employment opportunities as was done in Uganda. Plots of land to farm were given to refugees so that they could earn a living for themselves while also contributing to the growth of the economy[27].
International financial organisations should support the cause by providing loans and aid to nations which host a large number of refugee populations.
Finally, organisations working for the cause of refugees like UNHCR or IOM should undergo a complete overhaul so as to do away with the incompetencies plaguing them as they reduce the efficiency of these organisations.
The refugee crisis afflicting nations globally is inevitable. To tackle this catastrophe various legal frameworks such as the 1951 Refugee Convention and its 1967 protocol have been put in place. Also, many organisations have taken the lead in recent times to tackle this crisis. However, these organisations have their own shortcomings which can only be catered through global coordinated efforts. Containing the refugee crisis is not just a legal responsibility upon nations but also forms a part of their ethical and moral commitment. In the present era it becomes imperative to tackle this crisis by using various methodologies like using technology or increasing funding by wealthy nations so as to move forward by incorporating a more humane approach towards handling the refugee crisis.
[1] United Nations High Commissioner for Refugees, Global Trends: Forced Displacement in 2022,UN Doc, https://www.unhcr.org/in/global-trends
[2] European Migration Network, Glossary: Displacement, European Commission, https://home-affairs.ec.europa.eu/networks/european-migration-network-emn/emn-asylum-and-migration-glossary/glossary/displacement_en#:~:text=In%20the%20global%20context%2C%20the,or%20natural%20or%20human%2Dmade
[3] Relating to the status of Refugees, UNHCR https://www.unhcr.org/media/convention-and-protocol-relating-status-refugees
[4] About Us, UNHCR, https://www.unhcr.org/about-unhcr
[5] Report on push back and Collective Expulsion, UNHCR, chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/pushback/CoESubmission.pdf
[6] The Principle of Non-Refoulement under International Human Rights Law, UNHCR, chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf
[7] Climate Change and Displacement, UNHCR, https://www.unhcr.org/what-we-do/build-better-futures/climate-change-and-displacement
[8]Displacement,Disaster and Climate Change, Internal Displacement Monitoring centre, https://www.internal-displacement.org/focus-areas/Displacement-disasters-and-climate-change/
[9] The evolving Recategorisation of Refugees throughout the Refugee and Migrant Crisis, Coventry University, chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://pureportal.coventry.ac.uk/files/7649192/The_evolving_recategorisations_of_refugees_throughout_the_Refugee_Migrant_crisis_Revision.pdf
[10] 10 Things to Know About the Asylum System and Migration at the US-Mexico Border, Women’s Refugee Commission, https://www.womensrefugeecommission.org/blog/10-things-to-know-about-the-asylum-system-and-migration-at-the-us-mexico-border/#:~:text=And%20for%20more%20than%20three,the%20world%20in%20refugee%20resettlement.
[11] The UK’s Policy to Send Asylum Seekers to Rwanda, The Migration Observatory, https://migrationobservatory.ox.ac.uk/resources/commentaries/qa-the-uks-policy-to-send-asylum-seekers-to-rwanda/#:~:text=The%20Safety%20of%20Rwanda%20(Asylum%20and%20Immigration)%20Act%202024,-On%207%20December&text=The%20bill%20declares%20Rwanda%20a,to%20Rwanda%20in%20UK%20courts.
[12] Syria- Events of 2023, Human Rights Watch, https://www.hrw.org/world-report/2024/country-chapters/syria
[13] From Aid to Inclusion: A Better Way to Help Syrian Refugees in Turkey, Lebanon and Jordan, European Council on Foreign Relations, https://ecfr.eu/publication/from-aid-to-inclusion-a-better-way-to-help-syrian-refugees-in-turkey-lebanon-and-jordan/
[14] ibid
[15] Why Wealthy Nations Need to Preserve the Rights of Refugees, Forbes, https://www.forbes.com/sites/michaelposner/2024/01/09/why-wealthy-nations-need-to-preserve-the-rights-of-refugees/
[16] Are there Moral and Ethical Duties towards Refugees?- Considerations in Legal Ethics, Paul Tiedemann, Laws, https://doi.org/10.3390/laws10010004
[17] UNHCR and the Erosion of refugee Protection, Forced Migration Review, https://www.fmreview.org/loescher/
[18] International Organisation of Migration, https://www.iom.int/iom-history
[19] The IOM and Human Rights Protection in the Field: Current Concerns, Human Rights Watch,https://www.hrw.org/legacy/backgrounder/migrants/iom-submission-1103.htm
[20] The IRC’s Impact at a Glance, IRC, https://www.rescue.org/page/ircs-impact-glance
[21] David Miliband Charity pushes ‘White Supremacy Culture’, Workers Allege, The Guardian, https://www.theguardian.com/global-development/2021/jun/19/david-miliband-charity-international-rescue-committee-white-supremacy-allegations
[22] 8 Ways to Solve The World Refugee Crisis, Amnesty International,https://www.amnesty.org/en/latest/campaigns/2015/10/eight-solutions-world-refugee-crisis/
[23] Four Steps Towards Ending the Refugee Crisis, NRC, https://www.nrc.no/perspectives/2021/three-steps-towards-ending-the-refugee-crisis/#:~:text=Most%20countries%20%E2%80%93%20including%20some%20of,all%20countries%20should%20share%20responsibility.
[24] Ibid
[25] Ibid
[26] Denmark’s Immigrants Forced Out By Governmental Policies, Chatham House,https://www.chathamhouse.org/2021/06/denmarks-immigrants-forced-out-government-policies
[27] Contribution of Agriculture in the Enhancement of Refugees’ Livelihood in Nakivale Settlement, Scientific Research, https://www.scirp.org/journal/paperinformation?paperid=119945#:~:text=One%20of%20the%20key%20tenets,on%20subsistence%20agriculture%20%5B3%5D.
Author: Manshwi Anand
Juris Centre 