Refugee Crisis
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This article is written by Rishi Khemani & Zeb Hasan, Fourth-year student of School of Law (SOL) University of Petroleum & Energy Studies, Dehradun.

Introduction

The principles of humanity require that all humans be treated humanely. It is our shared humanity that both inspires and requires us to help others. It is the primary responsibility of each and every state to protect its people. Human lives should be saved and their sufferings alleviated with dignity and respect.[1]  The principle of humanity requires its adherents ‘to prevent and alleviate human suffering wherever it may be found. Its purpose is to protect life and health and to ensure respect for humankind.[2] There are serious violations of human rights and this can be due to gross violation of human rights, civil war, internal strife, war with another state or country etc. Some of the times, the situation is so bad that people have to leave their homes along with the families and they have to move into another state in order to get proper survival.[3] This is the way they became refugees in that state.

The recent developments and the events taken place in Africa, the Middle East, the Balkans and the further challenges which they pose to the interpretation of the international law and the obligation of the states in order to protect the people leaving in their territory, which has given rise to large no. of concerns, For example, the international community of states and civil society organizations, and in particular the United Nations (UN), was severely criticized for inaction in the face of the atrocities that took place during the 1994 genocide in Rwanda[4]. In today’s era the problems of the Refugees is of international character as it involves the two or more states in a way that people flee from one country to another or one state to another. The purpose of this paper is to throw light upon working of these international agencies, the reasons of their current failure and possible solutions that can be looked into.

Statistics as per the Statistical Yearbook of UNHCR:

Forcibly displaced persons worldwide

65.5 million

Refugees

22.5 million (17.2 under UNHCR mandate; 5.3 million Palestinian refugees registered under UNRWA)

Stateless people

10 million

Refugee resettlement (2016)

189,300

 

UNHCR Convention1951

The UNHCR convention is the right as well as status based which is pinned by the no. of fundamental principles. The convention was drawn up in the parallel with the creation of the UNHCR. This convention lays down the basic minimum needs for the protection of the refugees. The rights include the primary education, access to the courts and other basic needs. The core principle of this convention is non-refoulement i.e. the refugees shall not return to the country where there is a serious threat to his/her life or he/she may expose to the persecution. It is encompassed in Article 21 of the Constitution, so long as the presence of the refugee is not prejudicial to the law and order and security of India. All member nations of the United Nation including our country are expected to respect for international treaties and conventions concerning Humanitarian law.[5] UNHCR serves as the ‘guardian’ of the 1951 convention and its 1967 Protocols.[6]    In spite of the high amount of refugees problem, India has not signed the UNHCR convention of 1951 and it’s 1967 protocol but ratified the Universal Declaration of the Human Rights 1948 i.e. Article 14. In Louis Deraedt v. Union of India[7] the Supreme Court of India held that even a foreigner has fundamental right but that is only confined to Article 21 for the life and liberty and does not include right to freely move throughout India and to reside and stay in any part of this country as mentioned in Article 19(1)(d) and (e) which is applicable only to the citizens of the country.         

UNHCR Protocol 1967    

The 1967 protocol of UNHCR provides the applicability of the 1951 convention. It is the type of the amendment as 1967 protocols removed the time limits and geographical limits which were the part of 1951 convention. In hand to hand refugees have also an obligation to abide by the laws of their respective country and the measures taken in order to maintain public order.

Current Situation

According to UNHCR, the Middle East and North Africa host a fifth of the world’s refugees, excluding the considerable and growing population of Palestinian refugees.[8] In the past era, Israel has recognized as asylum seekers and the group of refugees as the gesture of the goodwill. The Protection of the Refugees is the key concept and main focus of the UNHRC, safeguarding and protecting the rights of the people which is engrained in the 1951 Refugee Convention.

UNHRC Standard for Selected Indicator: Legal Protection[9]

Indicator

UNHRC Standard

Rationale

Percentage of Newborn issued birth certificate

100%

To confirm nationality and status; prevent statelessness; ensure legal status, rights, and obligations; safeguard the legal and physical protection of refugees and their access to services

Percentage of Refugees and asylum seekers registered individually

100%

Registration and ID are important tools of protection against refoulement, forcible recruitment; access to basic rights, family reunification; identification of those in need of special assistance. A tool to quantify and assess needs and to implement appropriate durable solutions

Percentage of adult refugees and asylum seekers issued individual identity documentation

100%

Registration and ID are important tools of protection against refoulement, forcible recruitment; access to basic rights, family reunification; identification of those in need of special assistance. A tool to quantify and assess needs and to implement appropriate durable solutions

 

In the year 2016, the number of people displaced has already surpassed sixty million- more than a number of people displaced by the end of World War II. Since the uprising movement in Syria in 2011, Syria has been the major reason for a spike in refugee. It has caused millions to flee their homes and settle in Europe.[10]

With the disturbances caused by millions of displaced people, the world leaders, humanitarian organizations are left clueless. These specialized humanitarian organizations in their constitution have envisaged provisions for the protection of displaced persons; however, there is no mechanism to enforce it.[11] However, the definition of protection here has been changed to just providing means of living; food, water, shelter etc. With the increasing number of displaced persons every day, the asylum systems are strained and states are tightening their borders.

 

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Statistics

Going by the statistical yearbook of United Nations High Commissioner for Refugees it is facing the highest levels of displacements on record. About 65.5 million people have been forced out of their home countries, amongst them are 22.5 million refugees, and half of them are below 18 years of age.[12] Also, about 10 million people are stateless and have been denied nationality; such people have been deprived of basic human rights, such as Right to education, employment and healthcare.[13] If the goal of humanitarian law is to provide for the need of people who are suffering due to natural calamities or manmade hardships then currently it is failing in achieving the ends of its goals.

Currently, the UN humanitarian agencies are on the verge of becoming bankrupt and are facing a hard time in meeting the basic needs of millions of people, due to the size of refugee crisis.

Where They Fail

The major and only job of humanitarian organizations is to provide for lifesaving assistance. Providing for life-saving assistance means providing for the basic needs of humans. But the pertinent question is how reasonable is it to expect one organization to do everything from providing means of lifesaving assistance to looking for asylums in different countries when the number of humans displaced/ finding refuge is a whopping 60 million? There is a huge gap between demand and resources. The international humanitarian system is overstretched and hence unable to respond adequately. The gap between this demand and its resources is complex in nature; it is a consequence of more conflicts, extremism, disaster and displacement. The traditional function of humanitarian aids is to provide lifesaving assistance- which means to reach the area of the problem, fix the immediate problem and leave. This is not to discourage the humanitarian organizations, but there is a need for making boundaries. They must not be judged for something they were not designed to do. 

REASONS FOR SUCH FAILURE

  1. Protracted crisis
  2. The humanitarian and development gap
  3. Nations lack a separate emergency reserve fund 

Protracted Crisis

Protracted crisis are the current driver of humanitarian needs in the present era. It is very evident in the scale of time and resources spent in these situations as the proportion of ICRC’s global operations. Approximately two-thirds of ICRC’s fund has been spent in these protracted conflicts. Protracted crisis is a situation, in which a certain portion of the population is at risk of death, disease or livelihood breakdown. In 2013, 66% of the fund raised by humanitarian organizations went to the countries that had been under conflict for more than 8 years.[14]

Protracted crisis has become a new norm of the new world with more than 40% ongoing food crisis it becomes excruciatingly hard for humanitarians and developing organizations to cope. As these crises persist, countries and communities need more effective and sustainable strategies to build their capacity against shocks and stressors.  Building resilience against shock requires innovative policies, a better understanding of structural causes, and efforts to reduce exposure to shock.  

The Humanitarian and Development Organisation Gap

The humanitarian organizations and development organizations have always been worked separately and evolved separately.[15] Humanitarian organizations came into being as a result of emergency situations-human based or natural disasters; whereas the development world came into being due to colonialism, Pre-World War II and later changed according to the modern world. Their focus was technical assistance, health, education; the major focus was livelihood and assisting people to get out of poverty.

Conceived to address different situations, they also draw their funds from different resources. The main argument is that humanitarian organizations are not well designed for doing more than keeping people alive.[16] This will not serve the purpose of bringing peace in the long run. We need to institutionalize the interface between the humanitarian and development sector. Partnership between the two organizations at field level and funding practice is crucial. The humanitarian sector needs to be included in development discussions in structured manner. A senior-level interaction of the humanitarian-development interface needs to be systematically put forward as appropriate at all levels. This can be achieved by inviting the United Nations Emergency Relief Coordinator to the World Bank’s Development Committee.

Nations Lack a Separate Emergency Reserve Fund

It is important for nations to realize the current need for investment in an emergency fund. Every nation needs to keep a reserve for disaster risk reduction. This way the risk will be reduced and the capacity to withstand disaster shock would improve.[17] The Sendai Framework for disaster risk reduction 2015-2030 which was adopted at the United Nations World

Conference on Disaster Risk Reduction (DRR) re-affirmed the importance of resilience building and risk management. Implementation of the same would have direct benefits for reducing the humanitarian associated costs and needs: about 20 per cent of humanitarian financing requirements go into responding to recurring and sudden-onset natural disasters.

Even after the adoption of the aforementioned Framework by the UN, the investment into risk reduction is very low. For every US 100 dollar spent on development aid projects, only 40 per cent has gone into protecting the countries from succumbing to natural disasters. The statistics for the countries with the least capacity demonstrate the wasted opportunities: twelve out of a group of twenty-three low-income countries received less than 10 million dollars for DRR over twenty years while receiving 5.6 billion dollars in disaster response. This needs to change.[18]

It has been proved In the 2011 triple disaster in Japan—which is the world’s most disaster prepared country— that nobody is immune from natural disasters and that even global leaders need to gear themselves up for receiving international assistance. It is a global responsibility to invest more in disaster risk reduction and to also manage risks before they become crises. Over time this will decrease the cost of disasters both in regard to human suffering and in responding to them.[19]

The Government’s first responsibility is to take care of their own citizens when they fall prey to any disasters or other emergencies occurring in their countries. All governments need to have an emergency reserve fund and dedicate a Disaster Risk Reduction budget line for risk-reduction activities and to receive assistance when disasters hit.[20] Humanitarian financing requirements would definitely shrink if more States took the responsibility to put in place a sustainable budget structure to fund the risk-reduction and preparedness activities, and a framework to enable and build the capacity of national responders.[21]

Conclusion: Solution to Refugee Crisis

In his speech to United Nation General Assembly Ban Ki-Moon said – “The true measure of the success for the United Nations is not how much we promise but how much we deliver for those who need us most.”[22] In the current scenario, where conflicts have been going on for more than a decade, it is impossible for the UN humanitarians to keep up with the promise. We are aware that certain actions depend on other global aspects as well, such as global will for transformation.[23] It is not solely on the Humanitarian organizations to deliver the said object. Not under the current circumstances.[24]

International organizations, government, civil sector, private society and individuals all have a role to play in this process via working together, to prepare and reduce human vulnerability to any natural or man-made disasters.[25] Success will depend on a consensus of support for a cultural shift away from reactiveness and competition towards anticipation, research, transparency and collaboration. The depth of experience, the vision and skills are all available.

We need a collaboration of trust which is built upon a belief in our abilities and faith in a common mission to save lives and restore human dignity. More than anything we need the ‘political will’ to make this happen. World Humanitarian Summit provides for a once-in-a-generation opportunity to make investment to ensure that we have humanitarian aid systems that measure up to the challenges which this century will continue creating.

Endnotes

[1] 1 MIRIAM BRADLEY, PROTECTION OF CIVILIANS IN WAR, 40-41 (1st ed. 2016)

[2] FUNDAMENTAL PRINCIPLES OF RED CROSS

[3] V.K. Ahuja, Public International Law, p.335

[4] http://www.unhcr.org/afr/487b619b0.pdf

[5] Bharat B. Das, A Refugee Problem – Humanitarian Approach, 199 (1st ed., 2005).

[6] http://www.unhcr.org/1951-refugee-convention.html

[7] Louis Deraedt v. Union of India AIR 1991 SC 1886

[8] Article 1D of the 1951 Convention exclude persons who receive assistance from other UN bodies. It intentionally excludes the Palestinians who were displaced as a result of the 1948 war, and were under the auspices of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), an agency which was established prior to UNHCR. Palestinian refugees and their descendants are now estimated at 4.7 million (UNRWA 2009). Refugee Survey Quarterly has recently published a special issue which provides a detailed historical account of this multifaceted issue (RSQ 2009).

[9] http://hdr.undp.org/sites/default/files/hdrp_2009_25.pdf

[10] Figures at a glance, UNHRC, available at http://www.unhcr.org/figures-at-a-glance.html

[11] Figures at a glance, UNHRC, available at http://www.unhcr.org/figures-at-a-glance.html

[12] Figures at a glance, UNHRC, available at http://www.unhcr.org/figures-at-a-glance.html

[13]Figures at a glance, UNHRC, available at http://www.unhcr.org/figures-at-a-glance.html

[14] Global Humanitarian Assistance Rep. 2015, Devel. Initiatives, Bristol, 2015, p. 97

[15] The humanitarian-development gap, International Committee of the Red Cross, available at https://www.icrc.org/eng/resources/documents/article/other/57jpt2.htm

[16] http://www.unhcr.org/1951-refugee-convention.html

[17] http://www.unhcr.org/excom/standcom/3ae68cf324/audit-follow-up-financial-management-programme-management.html

[18] http://spanish.careemergencytoolkit.org/Assets/Files/cae7a393-d68f-46c6-bc08-cad16ba8dc61.pdf

[19] http://reporting.unhcr.org/resources

[20] http://www.unhcr.org/4e60a7339.pdf

[21] http://www.unhcr.org/4e60a7339.pdf

[22] http://spanish.careemergencytoolkit.org/Assets/Files/cae7a393-d68f-46c6-bc08-cad16ba8dc61.pdf

[23]https://reliefweb.int/sites/reliefweb.int/files/resources/%5BHLP%20Report%5D%20Too%20important%20to%20fail%E2%80%94addressing%20the%20humanitarian%20financing%20gap.pdf

[24] http://www.unhcr.org/55f2c7099.pdf

[25] http://www.bundesheer.at/pdf_pool/publikationen/10_wg12_psm_130.pdf


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