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FOCUS June 1996 Volume 4

Refugees in Asia: A Human Rights Understanding

Roque Raymundo

A Brief Overview

For most of the 1980's, Asia hosted the largest refugee population in the world. By the end of 1995, Asia was hosting a conservative estimate of just under 8,000,000 refugees, spread across the region. Today,

" [A] quick sweep across the map of Asia reveals both how widespread is forced displacement, and how varied are the causes and numbers and circumstances of the people affected. In the northwest, the people of Afghanistan continue to flee chronic civil war in the their country while millions wait in adjoining Pakistan and Iran for a lasting peace. Down in the southeast, indigenous peoples of Irian Jaya are displaced within the province or forced over the border into Niugini by the environmental damage of a giant mine, by violent repression of protests, and by the sponsored migration of outsiders from other parts of Indonesia. Up in tiny Hong Kong in the northeast, 18,000 Vietnamese asylum-seekers wait in detention until they are forced back home. Their grand dreams of a life in the west have now ended and their youth is wasted amid the boredom and brutality of long years in the camps. Down in the tear-drop island of Sri Lanka in the south west, probably a million of its 16 million people are forcibly displaced in the country or living as refugees in India as the civil war moves into a yet more violent phase, and civilians of all communities - Tamil, Sinhalese and Muslim - are targeted for deception and terror. Hardly one country is spared". (Dignam, 1996)

Refugees form but a part of the larger phenomenon of forced displacement, which in turn is a smaller component of contemporary mass migration. Problems in refugee policy and practice are inter-related and often better understood in conjunction with issues surrounding mass migration. This brief essay focuses on refugees, and will look briefly at their legal condition, and proceed to deal with the broad human rights aspects of the refugee problem - from the point of displacement from the country of origin, through the period of entry and stay in a temporary country of asylum, to the point of securing a lasting solution - and the challenges confronting the human rights community.

The Internally Displaced

Although technically not a "refugee" problem, one of the most disturbing aspects of forcible displacement in the region that needs brief mention is the plight of the internally displaced (IDP). In Afghanistan, Sri Lanka, and Burma, the problem is particularly acute: each of these countries has anywhere from 500,000 to 1,000,000 internally displaced. The problem is of concern not only because of the significant numbers involved, but also because of the absence of an officially mandated international structure to respond to their needs for assistance and protection. Another disturbing aspect of the plight of IDPs, is that many of them have experienced multiple displacement within the borders of their own country, some in the course of a year. In most cases, they flee for similar reasons as do refugees, except they do not or are not able to cross an international border.

The Legal Condition of Refugees

Asia is also a region where the majority of states have not acceded to the international instruments governing the protection of refugees - the Convention Relating to the Status of Refugees, 1951 (hereinafter the Convention), and the 1967 Protocol, which removed the temporal and geographical limitation of the Convention. And many of the few countries signatory to the Convention ( to date only the Philippines, China, Cambodia, Japan, Australia, New Zealand, and some Pacific and Middle East states) have so far failed to enact the necessary legislation or institute the necessary policy and mechanism to implement their obligations. Thus, in many cases, refugees and asylum seekers enjoy no legal protection and face the constant risk of harassment, extortion, arrest, detention, and deportation. Some states, including those who have not signed the Convention, do have policies allowing for temporary admission, but in most cases, it is of limited applicability (only for certain nationals) or allowed only on condition of resettlement to a third country. Such seemingly generous policy often turn sour, notably after national interests or some economic/political aim have been served, or when new national interests dictate a less obliging policy.

Existing Definitional Norm

The principal legal definition adopted and employed by the international community is found in the Convention, which states that a refugee is, "any person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it".

[Chapter I, Article 1 (2)]

The key phrase is "well-founded fear of persecution". This is interpreted to mean that fear must not only be subjective, but that it must have an objective basis, i.e. conditions in the country of origin. Only fear of persecution based on any of the five grounds will lead to recognition as refugee.

HUMAN RIGHTS PERSPECTIVES ON THE REFUGEE PROBLEM

Human rights violation as cause of forced displacement

In most refugee crises, one need only take a cursory look to realize that the violation of human rights is one of the principal causes of refugee flows. To cite two urgent situations: In Burma, ethnic minority groups continue to flee forced labor by the State Law and Order Restoration Council, or SLORC, which has ruled since 1988 after a violent crackdown on pro-democracy activists where some believe as many as 10,000 may have been killed. Ethnic Nepalis started leaving Bhutan in great numbers in late 1991 due to a "Bhutanisation policy" characterized by human rights abuses, including arbitrary detention, torture, and rape.

The recent document of the World Council of Churches, "A Moment to Choose", groups causes of flight under three headings:

a) "the multiple causes of forced displacement: war, civil conflict, human rights violations, colonial domination, and persecution for political, religious, ethnic, or social reasons..."

b) "severe breakdown of economic and social conditions that once

provided people with the means to survive in their traditional communities and in their own countries..."

c) "environmental degradation..."

All of the above clearly relate to the infringement or brutal disregard for human rights. The same conclusion is inevitable, if we look at individual motives for flight.

"Reasons for flight vary across a scale from alarming to urgent. Consider the following reasons given for leaving home:

* To find schooling for my children. All the schools at home were closed because of the war.

* To find a home for my family. Ours was destroyed in the fighting.

* To find work. My shop was burned "or my fields were mined" or my cattle looted by the soldiers.

* To find a safe place near friends. Where I was living, anyone who looked like me or shared my beliefs risked arrest.

* To go to a safe place. Around us the violence never ceased." (Raper, 1995)

But what does it mean for refugee advocates to realize that massive human rights violations cause displacement? Many have already pointed to the answer, or one of the problems: the inapplicability of the existing definitional norm under the Convention and the inadequacy of the Convention itself to most refugee situations today. The persecution standard under the Convention is based on the Cold War and its specific ideological conflict, and under existing interpretation accorded to it by the UNHCR and contracting states, persecution pertains generally to any threat to life or liberty and requires individual targeting. Such narrow interpretation results in a situation where human rights abuse not involving threat to life or liberty, or human rights violations directed not to any particular individual but to the general population or occurring "at random", is not considered persecution.

Many among refugee advocates and human rights groups, as well as legal and policy experts, have already taken the initiative to propose measures to bridge the gap between human rights and the "persecution" standard under the Convention and to augment the inadequacies of the Convention. Conflicting perspectives have led to debate, and an objective and courageous examination of the issues should be the concern of both refugee and human rights groups, governments and UNHCR.

Human rights as source of protection

As earlier noted, the protection afforded by international instruments have limited applicability to today's refugee crises. Human rights, as a body of aspiration and as a set of legal principles, offer a broader source of protection to people who are forcibly displaced.

Unfortunately, deprivation of human rights of refugees and asylum seekers is a reality in many refugee-receiving countries, where refugees are also considered in most cases as illegal aliens. In a region noted for decrying human rights as a Western imposition, respect for human rights is hardly ever assured for nationals, let alone for refugees. What therefore confronts the human rights community is a broader challenge to improve the level of human rights protection, for both refugee and non-refugee populations. In responding to this immense challenge, the specific rights of refugees, e.g. admission, protection, and the right against refoulement, should be given priority concern. Several issues also need to be considered: the particular vulnerability of refugees as outsiders; the legitimate national interests of host states; the sometimes competing claims of refugees and host communities, to name a few. An understanding of these issues will help achieve a balance of interests that could ensure optimum human rights protection for refugees.

Human rights as key to a lasting solution

Where human rights violation lies at the heart of a refugee problem, a lasting solution clearly requires efforts on the part of the international community, both intergovernmental and non- governmental, to put pressure on concerned governments and other parties to ensure respect for human rights. Such efforts need to relate to all three modes of durable solutions - voluntary return, local integration, and third country resettlement.

Obviously, efforts to secure respect for human rights in the country of origin would, if fruitful, encourage voluntary return and facilitate reintegration. In the country of temporary asylum, deprivation of human rights often occurs within a harsh physical and socio-psychological environment for refugees, and for periods that extend from five to fifteen years, or more in many cases. Under such conditions, every effort must be made to secure basic minimum rights from the very start.

On third country resettlement, what is of concern is the increasingly scant attention paid to the right to seek and enjoy asylum, and the correspondingly ample concern for the so-called "right to remain".

"Northern governments have recently extended their prophylactic program by championing the refugees `right to remain' in his or her own state. The `right to remain' is superficially attractive. After all, the best solution to the refugee problem is obviously to eradicate the harms that produce the need to escape... In reality however, no international commitment exists to deliver dependable intervention to attack the root causes of refugee flows, clearly a condition precedent to the exercise of any genuine right to remain..." (Hathaway, 1996)

UNHCR, particularly in the last few years, have been actively promoting the right to remain. This is a laudable objective that warrants a cautionary note. The right to remain, like the related concept of "safe zones", is liable to distortion/manipulation by governments keen to dispense with their obligation to grant asylum. Moreover, over-emphasis on the right to remain may lead to a further weakening of the instrument of asylum, an important tool both for protection and durable solution.

Conclusion

Signs are that forced displacement will continue, at a rate faster than solutions can be found. The direct human suffering alone engendered by forcible dislocation should continue to demand the sustained attention and response of the broad human rights community. The human rights concerns in the distinct stages of forced displacement represents broad challenges, the effective response to which will help bridge the gap between human rights and the protection of those who are forcibly displaced.

(References omitted due to space limitation.)


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