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ABSTRACT

INTERNATIONAL REFUGEE LAW AND STATELESSNESS


*By: Nishant Doshi and Arihant Jain1

Refugee is a person who has fled from their own country due to human rights abuses they have
suffered and whose own government cannot or will not protect them. An asylum seeker is a
person who is looking to be recognized as a refugee, but has not yet received formal refugee
status. By receiving refugee status, individuals are guaranteed protection of their basic human
rights, and cannot be forced to return to a country where they fear prosecution.
This paper deals with Refugee law which is the branch of international law dealing with the
rights and protection of refugees. The United Nations High Commissioner on Refugees
(UNHCR) is the United Nations agency established to monitor the world refugee situation. The
paper will focus on major impact of 1951 Convention relating to the Status of Refugees and 1967
Protocol relating to the Status of Refugees. Also the paper is concerned with highlighting some
of the principal aspects of determination of refugee status.
The international legal definition of a stateless person is set out in Article 1 of the 1954
Convention relating to the Status of Stateless Persons, which defines a stateless person as "a
person who is not considered as a national by any State under the operation of its law". This
means that a stateless person is someone who does not have a nationality of any country.
Moreover, this paper iterates the issue of statelessness, its difference from Refugees and current
scenario of statelessness throughout the world.
The author will at the end considers the possible solutions to the hindrances and what the future
looks like in the area of Refugee protection in the world at large.

1
Name of Authors: Nishant Doshi and Arihant Jain
Contact Number: +919560578857, +919811799646
Email Address: nishantdoshi@live.com , arihant1992@hotmail.com
Address: C-5/8 RanaPratapBagh, Delhi- 110007
INTERNATIONAL REFUGEE LAW AND STATELESSNESS

INTRODUCTION
India has had an age old tradition of according humanitarian protection to refugees and asylum
seekers. India is surrounded by one of worlds most politically unstable and volatile countries
such as Afghanistan, Myanmar, Bhutan, Nepal, Pakistan and Sri Lanka, India has always
followed a very liberal refugee policy. The International convention dealing with the issue of
refugees is the 1951 Convention on Status of Refugees and the 1967 Protocol attached to it. The
term 'refugee' is defined as - a person 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 that protection of that country; or who, not having a nationality and being
outside a country of his former habitual residence as a result of such events, is unable or, owing
to such fear, unwilling to return to it.
As per 2009 statistics, India hosts around 420,400 refugees. India along with other South Asian
countries is not a party to the United Nations Convention Relating to the Status of Refugees 1951
and the Protocol Relating to the Status of Refugees 1967. Despite this India has always claimed
that it has been always welcoming towards refugees. The reason why India is not a party to the
Convention of 1951 is because it believes that the convention id Euro- centric and is not well
suited to the conditions of South Asia. The oppositions differ on this point maintaining that India
does not intend to accept the financial responsibility attached for undertaking this objective. The
World refugee protection survey 2009 rates countries on four parameters of protection of rights-
physical protection, freedom of illegal detention, freedom of movement and the right to earn
livelihood- has rated India C in the first two categories and D in latter which are all just
marginally better than the others yet not a very good position.2
Even though India is not a party to the 1951 Convention, asylum- seekers who are not offered
direct protection by the government of India, can seek protection from the United Nations High
Commissioner of Refugees (hereinafter, UNHCR) in the de facto system of refugee protection

2
World Refugee Survey 2009: India; Available at: http://www.refugees.org/resources/refugee-
warehousing/archived-world-refugee-surveys/2009-wrs-country-updates/india.html. Accessed on: 10th September,
2014.
in India. But in recent past, refugees under UNHCR protection have begun losing faith in a
system plagued by insensitivity and inefficiency.3

UNITED NATIONS HIGH COMMISSIONER ON REFUGEES & ITS ROLE


The Office of the United Nations High Commissioner for Refugees (UNHCR), also known as
the UN Refugee Agency was established on 14 December 1950.4 It is a humanitarian and non-
political organization, UNHCR is mandated by the United Nations to protect refugees and help
them find solutions to their plight. As the problem of displacement has grown in complexity over
the past half century, UNHCR has also grown to meet the challenge. At the international level
UNHCR promotes international refugee agreements and monitors government compliance with
international refugee law. At the field level, UNHCR staff work to protect refugees through a
wide variety of activities, including responding to emergencies, relocating refugee camps away
from border areas to improve safety; ensuring that refugee women have a say in food distribution
and social services; documenting a refugees need for resettlement to a second country of asylum
and giving advice to governments on draft refugee laws, policies and practices.5 UNHCR seeks
long-term solutions to the plight of refugees by helping refugees repatriate to their home country,
if conditions are conducive to return, integrate into their countries of asylum, or resettle in
second countries of asylum. The Refugee Convention and Protocol provide States Parties with a
legal foundation for refugee protection. For its part, UNHCR has been given a mandate to
provide international protection to refugees and seek permanent solutions to their problems
through its Statute, adopted by the UN General Assembly in December 1950. UNHCRs
mandate is now, therefore, significantly more extensive than the responsibilities assumed by
States Parties to the Refugee Convention and Protocol. One of the challenges facing refugees and
countries of asylum today consists of bridging the protection gap which exists in situations
where UNHCR seeks to protect persons with respect to whom concerned States do not recognise
that they have a responsibility under any of the refugee instruments.6

3
Ipsita Sengupta, UNHCRs Role in Refugee Protection in India (July 2008), Available at:
http://infochangeindia.org/agenda/migration-a-displacement/unhcrs-role-in-refugee-protection-in-india.html
Accessed on 29th December, 2014
4
Undg.org. Retrieved on 2014-07-12.
5
Refugee Protection, A Guide to International Refugee Law.
6
Refugee Protection, A Guide to International Refugee Law. Available at:
http://www.ipu.org/pdf/publications/refugee_en.pdf Accessed on 9th February, 2015.
DETERMINATION OF REFUGEE STATUS
The Government of India allows UNHCR mandate refugees to apply for long- term visas and
work permits. Refugees and asylum-seekers have access to basic government services such as
health care and education. In addition, they have access to the law enforcement and justice
systems. UNHCR and its partners work to facilitate this by providing information and
interpretation services. The UNHCR Office in India works closely with the Government of India,
non-governmental organizations and members of civil society in ensuring that asylum seekers
and refugees in India are not involuntarily returned to their countries of origin, or of former
residence and have access to international protection.
UNHCR together with its partners and civil society provides a range of services to support
refugees and asylum-seekers in health, education, legal counseling, vocational skills and
livelihoods.
The UNHCR carries out a Refugee Status Determination (RSD) procedure, which starts with
registration as asylum seekers. Legal aid is given and they are represented. Following the
registration, UNHCR then conducts interviews with each individual asylum seeker accompanied
by a qualified interpreter. This process provides a reasoned decision on whether refugee status is
granted or not, and gives the individual an opportunity to appeal a decision if the claim is
rejected.7 Cancellation should only be undertaken as an exceptional measure and only under two
restrictively defined situations8:
i. When it becomes known that the individual had intentionally misrepresented or concealed
material facts in order to obtain refugee status
ii. When new evidence emerges revealing that the individual ought not to have qualified as a
refugee
However, refugees complain that the UNHCR refugee determination process is arbitrary,
complicated and full of delays.9 Despite of this, the UNHCR system is a popular choice as it is
one of the few options available of authentic character.

7
UNHCR: Available at:
http://Www.Unhcr.Org.In/Index.Php?Option=Com_Content&View=Article&Id=8&Itemid=106, Last Accessed On
15th September, 2014.
8
Refugee Law: The Indian Perspective. Available at: http://www.lawteacher.net/international-law/essays/refugee-
law-the-indian-perspective-law-essay.php accessed on 17th September, 2014
9
Ipsita Sengupta, UNHCRs Role in Refugee Protection in India (July 2008), Available at:
http://infochangeindia.org/agenda/migration-a-displacement/unhcrs-role-in-refugee-protection-in-india.html
Accessed on 29th January, 2014
CURRENT REFUGEE PROTECTION REGIME IN INDIA

Refugees are categorized in three parts in India: Category I refugees receive full protection from the
government of India (for example, Tamil refugees from Sri Lanka); Category II refugees are those who
are granted refugee status by the United Nations High Commissioner of Refugees and are protected under
the principle of non-refoulement (for example, Burmese and Afghan refugees); and Category III
refugees who are neither recognised by the Indian government nor the UNHCR but have entered India
and assimilated into the local community (for example, Chinese refugees from Burma living in the state
of Mizoram).10

Despite the fact that India plays host to thousands of refugees, it has no specific legislation dedicated to
their protection and rights. But even in absence of a specific law, India has addressed the needs of
refugees who have fled from their home country into its territory. Since there has been no domestic
legislation passed on the subject of refugees an individual refugee is protected essentially under the
Constitution of India. India has a federal set up and is described as a Union of States. This union is
considered as a State in international law. The Union legislature, i.e., the Parliament alone is given the
right to deal with the subject of citizenship, naturalization and aliens. India has not passed a refugee
specific legislation which regulates the entry and status of refugees.

The Government of India determines the legal status of Refugees. Political and administrative decision
rather than any codified model of conduct governs the status of Refugees in India. Refugees in India are
registered under the 1939 Registration act, which applicable to all foreigners entering to India. Under the
1946 Foreigner Acts, the Government is empowered to regulate the entry, presence, and departure aliens
in India.11 India has handled the refugees under political and administrative levels.

The Fundamental Rights in Part III of Indian Constitution is applied to refugees especially that of Article
14, Article 21, and Article 25.12 The Supreme Court has taken recourse to Article 21 of the Constitution in
the absence of legislation to regulate and justify the stay of refugees in India in various cases.13

Also now the provisions of international treaties have now acquired the status of customary international
law and regarded as incorporated into the domestic law to the extent of their consistency with the existing

10
SAHRDC, 'Refugee Protection in India', (October 1997) Available at:
http://www.hrdc.net/sahrdc/resources/refugee_protection.htm]http://www.hrdc.net/sahrdc/resources/refugee_protecti
on.htm. Accessed on 29th August, 2014
11
Mr. Tapan K. Bose, India Policies and Law towards Refugees. Chin Human Right Organization Available at:
http://www.chro.ca/resources/refugee-issues/294-india-policies-and-laws-toward.html. Accessed on 01st September,
2014.
12
Dr. Durga Das Basu, Introduction to the Constitution of India (20th Edition reprinted in 2010, Nagpur:
LexisNexis Butterworths Wadhwa, 2010) Pp. 117-120. See also Fundamental Rights in www.consitution.org.
13
National Human Rights Commission v. State of Arunachal Pradesh, AIR 1996 SC 1234.
municipal laws and also when there is a void in the municipal laws. Article 51(c) of the Constitution of
India advocates fostering respect for international law.14

STATELESSNESS & ITS DIFFERENCE FROM REFUGEE


Article 1 of the 1954 Convention relating to the Status of Stateless Persons defines that a
stateless person is someone who is not recognized as a national by any state under the operation
of its law.15 They have no nationality or citizenship and are unprotected by national legislation
and left in the arc of vulnerability. Whether or not a person is stateless can be determined on the
basis of an assessment of relevant nationality laws and how these laws are implemented by the
state.
Stateless persons have historically been divided into two categories: those who have no legal
nationality the De Jure stateless, and those who have no effective nationality the de facto
stateless. This categorization is the result of an early position which broadly equated the de facto
stateless with refugees, while viewing the De Jure stateless as a distinct group.16 This is why the
1954 Convention was initially intended as a Protocol to the Refugee Convention: it was felt that
the Refugee Convention offered protection to the de facto stateless, and that a separate additional
instrument was necessary for the protection of the De Jure stateless. How-ever, the reality is
more complex. While all refugees are either de facto or De Jure stateless persons, all de facto
stateless persons are not refugees. According to the UNHCR, most stateless persons who require
their assistance do not qualify to be refugees. Consequently, the narrow construction of De Jure
and de facto statelessness has left many persons without the protection they deserve.
Stateless Refugee: a person who is not considered as a national by any state under the
operation of its law and meets the definition of a refugee in Article 1 of the 1951 Refugee
Convention. They fall under UNHCRs refugee mandate and enjoys protection of the 1951
Refugee Convention. When ceasing to be a refugee, may still be stateless and need assistance to
acquire a nationality.

14
Refugee Law: The Indian Perspective. Available at: http://www.lawteacher.net/international-law/essays/refugee-
law-the-indian-perspective-law-essay.php accessed on 17th September, 2014
15
UN High Commissioner for Refugees (UNHCR), Expert Meeting - The Concept of Stateless Persons under
International Law ("Prato Conclusions"), May 2010, available at: http://www.refworld.org/docid/4ca1ae002.html
[accessed 10 February 2015]
16
Id
Stateless persons and refugees are both in need of international protection. They find themselves
in a precarious situation because the link with the State has been broken. Both, therefore, enjoy a
special yet separately defined status under international law. A key element of the definition of a
refugee is that he or she has a well-founded fear of persecution. Being stateless does not
necessarily signify persecution. As well, to be a refugee, a stateless person must also be outside
of his or her country of habitual residence. Yet most stateless persons have never left the country
where they were born.
However, statelessness is often a root cause of forced displacement. When stateless persons are
also refugees they are covered by the 1951 Convention relating to the Status of Refugees and
international refugee law.
A number of explicit provisions in the Citizenship Act of India, 1955 provide legal means by
which a person in possession of Indian citizenship may lose that legal bond.
First, renunciation (under section 8) entitles Indian citizens to renounce their citizenship even if
by doing so, they would become de jure stateless and can deprive children of their Indian
citizenship on the basis of their fathers actions in such a way that may leave them stateless until
they reach the mandated age to resume their Indian citizenship by declaration.
Second, termination (under section 9) leaves open the possibility that those whose citizenship is
terminated end up de facto statelessness, because there is no guarantee that the non-Indian
citizenship that has been voluntary acquired is an effective one.
Finally, deprivation (under section 10), in no uncertain terms, provides for creates statelessness
by prescribing it as punishment for certain action and inaction.

CONCLUSION
The 2011 UNHCR country operation, India clearly showed that the raise in the number of
asylum seekers as well as refugees has resulted in the non- availability of resources and most of
them suffer from poverty, violence, exploitation and are deprived of the legal right to work. 17 In
the advent of this and the above- mentioned shortcomings there is a dire need for change in the
current regime regarding refugees. There is no doubt in saying that there is a need for a dedicated
legislation for refugees and asylum seekers in India.

17
UNHCR. Available at: www.unhcr.org, Accessed on 03rd January, 2015.
The advantage of the dedicated legislation would be that it will enable the creation of a
framework for the determination of refugee status based on agreed standards of determination,
protection and treatment as present in international conventions and laws.
Refugee problem in India today is not just a domestic issue but also a global one. India ranks
amongst top countries with major influx of refugees and asylum seekers in the world. A
successful stream of humanitarian crisis has highlighted the plight of victims as well as the threat
of forceful repatriation to starvation and found them in a hopeless situation and on the edge of
clawing for mere survival. A myriad of specialized and regional human rights instruments have
sprung from the foundation of International bill of human rights. UNHCR should work with the
host Government, U.N. country teams, and civil society to find out comprehensive solutions for
refugees in years to come and ultimately, every citizen should work together to make refugees
and asylum seekers feel at home.