Refugees are aliens everywhere; therefore face discrimination, post World War II saw influx of refugees from various corners of the globe, the Nansen refugee, Armenian refugee, Spanish refugees, German refugees etc. Various treaties entered by the League of Nations on the matter of refugees and pertaining to persons outside the country of origin and without the protection of the country. The role of this organization was predominantly and fundamentally humanitarian although post world war II; it was characterized by political, social and economic characteristic.
The year 1946 witnessed the establishment of International refugee organization (IRO) to deal with millions displaced during World War II, the International Refugee Organization was replaced by United Nations High Commissions for Refugees on December 14th 1950. Under the auspice of UNHCR, a draft convention on the status of refugee was drafted with five main elements: a) Outside the country of his/her nationality, b) well founded fear of persecution, c) Persecuted on account of race, religion, nationality, member of particular social group or political opinion, d) Legitimate claim for protection. The definition under the convention shall not apply to persons who has committed a) crimes against humanity, b) Acts contrary to the purposes and principles of U.N and c) Serious non-political crimes.
Now, let’s examine each of the elements, firstly well-founded, which is founded on the premise of objective and fear, which is more into subjective element. The examiner should look into the psychological state of the applicant, and also the nature of the situation. The UNHCR handbook suggests the reference to Article 33 of the convention, which states it should threaten life or freedoms. The second element is race, which states as to having common descent, minority under Article 1 of the Convention on Elimination of Racial Discrimination (CERD) 1965. The third element Religion is borrowed from Article 18 of Universal Declaration of Human Rights (UDHR) i.e. on freedom of conscience and 1981 United Nations General Assembly Resolution (UNGA) declaration of elimination of intolerance and discrimination based on religion or belief 36/55. The nationality part basically means within the state or between the states. The final definitional part is social group, which is undefined under the UNHCR handbook, but leaves it ajar in having similar social habit and background.
One of the scathing criticisms against the definitional part is that. It fails to incorporate women, which was addressed in Islam v. Secretary of state, Home Department (1999). The final sticking point is political opinion, which means opinion contrary held by majority. Some of the criticisms against the 1951 conventions are: a) it doesn’t cover natural disasters, b) the definitional part indicates, it’s an offshoot of World War I and II, c) Ignores gender and there is lack of distinction, d) Determination is done on individual basis. By, the last part has been overcome, by incorporation in national legislation.
Coming to the numerous regional convention starting from the Organization of African Union, 1969 (OAU), the definition for the first time brought in its ambit Right to self-determination which was an offshoot of decolonization. Further, the definition was adopted in the context of political scenario in line with external aggression and occupation of foreign domination. The organization of American States (OAS) incorporated the Cartagena Declaration, 1984, which under Article 3 had a wide definition, which was inclusive of foreign aggression, international conflict, disturbance to public peace and violation of human rights. In the Asian context, the Bangkok Principles, 1966, adopted similar definition as to that of Cartagena declaration.
One of the core principles of the refugee convention is the principle of non-refoulement, which has attained the status of customary rules, under Article 33(1) which states: No refugee should be returned to any country, where he or she is likely to face prosecution or torture. The General Assembly in order to meet the problem of refugees and displaced persons has established several institutions like the United Nations Relief and Works agency for Palestine Refugees in near east. , the office of the U.N High Commission for the Refugee advances the objectives as stated under Article 14 of the Universal Declaration of Human Rights, which reads as “ Everyone has the right to seek and enjoy in other countries asylum from persecution.”
In India there is no explicit laws on refugee, they are dealt on an ad hoc basis, they are treated under the a) Foreigners Act, 1946, b) Registration of Foreigners Act, 1939 and Passport Act, 1920, together with certain provisions like Article 14, 21, 25 of the Constitution of India apply to the refugees by virtue of their being applicable to citizen and non-citizen. In the landmark case of National Human Rights Commission v. State of Arunachal Pradesh it was observed that Refugees come under the purview of Article 21 of the constitution. From, the point of view of International Humanitarian Law refugees is given special status under Article 44 of the Fourth Geneva Convention.