One of the largest refugee populations in the world remains in the South Asia region. For decades, the South Asian States have been dealing with the refugees and internally displaced persons (IDPs) in their territories. Sri Lanka has been dealing with the IDPs ever since a civil war erupted in 1990s, Pakistan dealing with the Afghan refugees, Bangladesh dealing with the Rohingyas from Myanmar, Nepal managing a number of Bhutanese refugees and India dealing with the Chakmas (Bangladesh), Rohingyas (Myanmar), Tibetan and Afghan refugees for so long. However, most of the South Asian States have not ratified the 1951 Convention relating to the Status of Refugees (hereinafter 1951 Refugee Convention) and its 1967 Protocol, except Afghanistan which became the 146th State in ratifying the Convention in 2005.
The book Towards National Refugee Laws in South Asia was an outcome of the ongoing campaign for the enactment of national laws for refugees in South Asia by the Refugee and Migratory Movements Research Unit (RMMRU). The contributions to this book, published in October 2000, were first discussed and presented during the adoption of the Model National Law for Refugees at the Fourth Consultative Meeting of Eminent Persons Groups (EPG) of South Asia which was organized by the UNHCR in Dhaka (November 1997) and in Nepal (1998), and the Consultation on ‘the Need for a National Law on Refugees’ which was held in Dhaka (August 1999). The book is a compilation of four articles, a collection of opinions on the need for refugee laws in South Asia, and one summarized version of a national consultation on the need for a refugee law in Bangladesh. The Model National Law for Refugees in South Asia can be found in the last section of the book.
The first section titled ‘The Model National Law on Refugees: Comparative Perspectives’ comprises of two articles: one by S S Wijeratne (former Senior UNHCR Official) and the other by Wei Meng Lim Kabaa (former Senior Legal Advisor, Regional Bureau of Asia Pacific, UNHCR). With the title ‘International Refugee Law and the Proposed Model National Law on Refugees for Countries in South Asia’, Wijeratne claims that none of the South Asian countries were involved in the drafting and adoption of the 1951 Refugee Convention. India and Pakistan viewed such enactment as of European origin and not feasible in this region. This perception, as the author mentions, ‘..had continued to influence the policy makers not only of India and Pakistan but also in rest of the South Asian countries’. On the other hand, promoting this Model Law would, as the author and policy makers of South Asian states realize, ‘recognizes the importance of translating the traditional practices of asylum in the region into tangible national laws based on a common model’. This proposed Model Law is the most suitable one for South Asian context as it incorporates the major provisions of the 1951 Refugee Convention and its 1967 Protocol, along with other essential elements discussed in other regional refugee law instruments such as 1966 Bangkok Declarations, 1969 OAU Convention and the 1984 Cartagena Declaration.
Wijeratne’s paper has made a detailed comparison between the 1951 Refugee Convention and the then proposed Model Law for refugees in South Asia. This comparison comprises five concepts: definition of a refugee, exclusion clauses, non-refoulement, voluntary repatriation, standard of treatment of the refugees, and the role of the UNHCR. The Model Law has included the same definition of a refugee from the 1951 Convention, however, expanded the grounds of ‘fear of persecution’ of a refugee to ‘ethnic identity and sex based persecution’ as well as persecution based on the gross violations of human rights. Model National Law is also consistent with the Principle of Non-refoulement enumerated in the 1951 Convention. By mentioning the 1971 war and the Bengali refugees fleeing in India and thereafter voluntarily returning to newly independent Bangladesh, the author foresees voluntary repatriation as a durable solution in the national refugee laws in South Asian countries. He also argues that the 1951 Refugee Convention is limited in promoting refugee obligations towards the host country and not giving special emphasis in treating the women and children. The Model National Law in that case provides a significant consideration by incorporating them in detailed manner (Para 14 and 14 (iv) respectively).
The second article in this section titled as ¨the Model National Law on Refugees: A Comparative Review of the 1951 Convention Relating to the Status of Refugees, the OAU Convention and the AALCC Principles¨, is written by Wei Meng Lim-Kabaa. Wei Meng mentions a brief introduction to the Model Law (18 paragraphs and 9 broad substantive concepts) and its Working Group, and claims that the Model National Law is much wider than that of the 1951 Refugee Convention and any other existing convention or principle to which the South Asian states are associated with (eg the Convention of the Organization of African Unity (OAU Convention, 1969), Asian African Legal Consultative Committee Principles (AALCC), 1966 Bangkok Principles etc).
In contrast to the 1951 Refugee Convention and what Wijeratne has claimed, Wei Meng highlights that the Model Law has a wider explanation in terms of non-refoulement by including the territorial identity (after a refugee has been expelled or returned to) as ‘place’, instead of mentioning ‘frontiers of territories’ or ‘State’ or ‘country’. Also, the provision of non-refoulement in the Model National Law has widened the scope of even a mere possibility of grounds by including ‘where there are reasons to believe his or her life or freedom would be threatened’ which is not found in any of the existing legal framework for refugees. Issues like ensuring basic human entitlements of the refugees, the stages of mass influx and voluntary repatriation, which are absent in the 1951 Convention and other refugee related instruments, have been incorporated in the Model National Law and opened scopes in dealing with the contemporary refugee and migratory movements in South Asia.
The second section “Perspective from the Region” consists of a thorough text of interviews with eminent South Asian experts on refugee and migration. The queries of the interviews include – whether the South Asian countries need a law on refugees, the major hindrances to the enactment of a law for refugees and how to overcome such challenges. This interview was conducted by RMMRU and the interviewees include Prof M Shah Alam & Dr Shamsul Bari (Bangladesh), Tapan Bose (Nepal), Dr Saba Gul Khattak (Pakistan), Dr Mahendra Lama and Prof V Vijaykumar (India), Dr Deepika Udagama & Bradman Weerakoon (Sri Lanka). Most of the discussants reflected on the same treatment of refugees as host countries in this region and emphasized a need for a refugee law in their own countries. The missing issue in this discussion was the role of South Asian Association for Regional Cooperation (SAARC) as a regional organization in promoting the Model National Law on Refugees in South Asia.
Section three of this book is specifically based on the necessity of a national law on refugees in Bangladesh. The first article ‘State, Refugees and the Need for A Legal Procedure’ written by Dr Chowdhury Rafiqul Abrar (Professor of International Relations and Executive Director, RMMRU) narrates the history of refugee movements in Bangladesh over 30 years after its independence. He considers ‘a national law…would equip the state with proper procedures to distinguish between a genuine asylum seeker and those who have crossed the border for other reasons […] and […] would help bring about administrative efficiency […] and […] help in conducting Bangladesh’s foreign relations with other states’.
‘The Proceedings of the Consultation on the Need for a National Law on Refugees in Bangladesh’, (held in August 1999 in Dhaka, organized by RMMRU) is placed in the third section of the book. Moderated by Dr Chowdhury Rafiqul Abrar and chaired by Justice K M Subhan, the attendees of this consultation include Dr Kamal Hossain (Senior Advocate), Barrister Syed Ishtiaq Ahmed (Senior Advocate), Wilbert Van Hovell (Representative, UNHCR Bangladesh), Dr Shah Alam (former Member, Law Commission), and Barrister M Amir-Ul Islam (the then Vice Chairman, Bangladesh Bar Council). It is interesting to note that in this particular meeting, most of the attendees supported the idea of adopting a national law on refugees, while two or three indirectly rejected the idea due to Bangladesh’s unstable economic and political conditions and the way the persecuted Rohingya refugees from Myanmar are frequently entering into the border.
Through the last piece titled ‘Where Should the Bird Fly After the Last Sky’ (quoted from Mahmoud Darwish’s poem), Shahdeen Malik throws an open letter to those opponents of a Model National Law on Refugees. He asks that how a country – which has suffered so much in a war, and whose population was once persecuted and sought refuge in the neighboring countries – can think of rejecting persecuted people from other countries, who want help and temporary shelter in Bangladesh? Foreseeing future influx of refugees into Bangladesh, the author urges to initiate collective reactions and to prepare ourselves to deal with the sufferings of refugees in a systematic manner.
Even after more than 20 years of publication, this book still remains appropriate in settling refugee issues in South Asia, especially in Bangladesh. Although the overall discussion was confined within the enactment of National Model Law, the refugee settlement initiatives like relocation, resettlement and repatriation could have expanded this conversation into a more feasible visualization on the future of refugees in South Asia.
However, this publication is commendable as it was so far the first and only initiative by the civil society to bring in the discussion of refugee protection in state practice and domestic legal systems. After that, no significant event was seen to bring forth actions against the discussions that were made back then. The reason behind such long silence needs to be analyzed as well.
The refugee situation in South Asia remains same (or in some countries even worse) after so many years. In such a scenario, the factors that drive the South Asian states not to become signatories to the Refugee Convention and to go for a national law on refugees should be revisited in a detailed way. For this, the present book can be considered as a perfect starter.