RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

PROJECT ON

RIGHTS OF REFUGEES: A HUMAN RIGHTS

APPROACH

DR. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY,

LUCKNOW

SUBMITTED

TO

DR. GULAB RAI

BY

SUBHANSHU SHUKLA

SEMESTER VII

1
 RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

TABLE OF CONTENTS

Certificate of Declaration02

List of Abbreviations...04

Table of Cases.04

Research Methodology..............................................05

Introduction06

1. International Rights of Refugees ........................................08

2. Rights of Refugees in India..12

3. Climate Change Affected Refugees.17

Conclusion...24

Bibliography& Webliography........25

2
 RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

LIST OF ABBREVIATIONS

UNHCR : Office of the United Nations High Commissioner for Refugees

U.N. : United Nations

i.e : that is

UDHR :Universal Declaration on Human Rights

NHRC : National Human Rights Commission

UNU-EHS : United Nations University's Institute for Environment and Human

Security

GHG : Greenhouse Gases

ICCPR : International Covenant on Civil and Political Rights

ICESCR : International Covenant on Economic, Social, and Cultural Rights

TABLE OF CASES

Louis De Raedt vs Union of India

State of Arunachal Pradesh vs KhudiramChakma

Maneka Gandhi vs Union of India

National Human Rights Commission vs State of Arunachal Pradesh

Dr Malvika Karlekar vs Union of India

U Myat Kayew and Nayzan vs State of Manipur

Nuang Maung Mye Nyant vs Government of India

Shar Aung vs Government of India

3
 RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

RESEARCH METHODOLOGY

This project work is non-empirical in nature. It follows a descriptive-cum-analytical in approach.

It is largely based on secondary & electronic sources of data. Books & other references as guided
by faculty of Legal Methods are primarily helpful for the completion of this project.

Its main objectives are:

To study international rights of refugees

To study rights of refugees in India

To understand and analyse the problem of climate change affected refugees

To find out ways to deal with the existing problems in the sphere of refugee rights
keeping in mind the human rights approach.

4
 RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

INTRODUCTION

Status of refugees all over the world is quite precarious in many ways. They are used to be
treated as un-welcome aliens in most of the countries. There are legal as well as socio-economic,
political and psychological reasons for such situation. From the lawyers point of view, status of
a person, deprived of national protection, is anomalous A stateless person and this applies
equally to refugees who can be compared to a vessel on the open sea, not sailing under any flag.
Absence of nationality or protection by a government or sovereign state of the refugees creates
legal difficulties. They often lack, proper documentation on their identity and credentials or are
unable to comply with the formalities which are required from them, being aliens, for the
enjoyment of certain rights in the country of their refuge. Their very position due to uncertainty
of their nationality status, financial & health status, ethnicity, religion, ideological orientation
mode of livelihood and even country of origin, are bound to create additional legal problems.
Intentional discrimination or unintentionaldiscrimination due to limitation of applicable laws in
the host country is frequently the consequence.
Social, political and psychological factors add to this situation. Refugees are often destitute; they
live in difficult financial and psychological conditions.They are open to typical
suspicions.Therefore intentional discrimination of the refugees is not infrequent.

The Convention relating to the Status of Refugees, adopted in Geneva on July 28, 1951, was
aimed at regulating the legal status of refugees in far greater detail than the previous instruments
and thus, established within the Contracting (signatory) states a uniform legal status for the
existing groups of "United Nations protected persons."

The Convention defined refugees in Article 1 as:

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.

The convention provides explicitly in Article 35:

1. The Contracting States undertake to co-operate with the Office of the United Nations
High Commissioner for Refugees (UNHCR), or any other agency of the United Nations which

5
 RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of
supervising the application of the provisions of this Convention.1

Thus, the exercise of a function entrusted to UNHCR by a resolution of the General Assembly of
United Nations is recognized by the contracting states in a legally binding form. The competence
of UNHCR extends to all refugees who are considered as being in need of international
protection.Although international agencies created for the protection of refugees, have no means
of enforcement at their disposal, their establishment marked a new method of international
supervision of the rights and interests of individuals.

This project deals with the rights of refugees in the international sphere as well as in India. It also
studies ofthe emerging crisis of climate change affected refugees and their rights. It suggests
possible measures to improve the conditions of refugees.

1
U.N., Convention Relating to the Status of Refugees , Oct 10th,2013, http://www.unhcr.org/496365eb2.pdf
6
 RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

THE INTERNATIONAL RIGHTS OF REFUGEES

Admission and Expulsion

The first need of a refugee when he crosses the frontier of his country of origin is that he should
not be forcibly returned thither.After the Second WorldWar, when the movement of refugees
from the countries of Eastern Europe began, first asylum was not normally refused to persons
who appeared to be bona fide refugees; nor were persons forcibly repatriated to those countries
from which they have escaped, whether as forced laborers in Germany, or otherwise.

Special arrangements were made by the French Government to distinguish at their Pyrenean
frontier posts between Spaniards who are economic migrants, and Spaniards who have suffered
or who may suffer on political grounds at the hands of the Spanish Government; the latter are
permitted to join the 200,000 other Spanish refugees residing in France. These instances of the
grantingof preliminary asylum are examples only; but in spite of the commonness of practice,
many states have refused to admit such principle. Proposals to include a declaratory article
couched in the form of recommendations, rather than stipulating a duty of admission, in the
Convention Relating to the Status of Refugees, were rejected by the Ad Hoc Committee of the
Economic and Social Council which prepared the text of Convention on the Status of Refugees.
The Commission on Human Rights at its second session adopted a resolution "to examine at an
early opportunity the question of the inclusion of the right of asylum of refugees from
persecution in the International Bill of Human Rights, or in a special Convention for that
purpose," but has not yet acted on the resolution; and the language of Article 14 of the Universal
Declaration of Human Rights, which states that everyone has the right to seek and to enjoy in
other countries asylum from persecution" has been criticized as being apt to create impressions
which have no basis in the international law of today.2

The expulsion of aliens is equally a sovereign right of states; but in addition to being used
extremely sparingly towards refugees, it is a right which has been restricted in multilateral
treaties relating to them. Most bilateralagreements concluded between international agencies
charged with the protection of refugees and countries of admission for the resettlement of
refugees contain provisions relating to expulsion and deportation; some of the agreements
concluded by the International Refugee Organization provided for the interposition of that
organization in expulsion proceedings.

The Convention of July 28, 1951, Relating to the Status of Refugees provides in this connection:
Article 31
2
Paul Weiss, The International Protection of Refugees, Vol. 48, The American Journal of International Law, pg. 193-
221, ( 1954)
7
 RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

1. The Contracting States shall not impose penalties, on account of their illegal entry or
presence, on refugees who, coming directly from a territory where their life or freedom was
threatened in the sense of article 1, enter or are present in their territory without
authorization, provided they present themselves without delay to the authorities and show
good cause for their illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees restrictions other
than those which are necessary and such restrictions shall only be applied until their status
in the country is regularized or they obtain admission into another country. The Contracting
States shall allow such refugees a reasonable period and all the necessary facilities to obtain
admission into another country.
Article 32
1. The Contracting States shall not expel a refugee lawfully in their territory saves on grounds
of national security or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance
with due process of law. Except where compelling reasons of national security otherwise
require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to
and be represented for the purpose before competent authority or a person or persons
specially designated by the competent authority.
3. The Contracting States shall allow such a refugee a reasonable period within which to seek
legal admission into another country. The Contracting States reserve the right to apply
during that period such internal measures as they may deem necessary.

Article 33
1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever
to the frontiers of territories where his life or freedom would be threatened on account of his
race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there
are reasonable grounds for regarding as a danger to the security of the country in which he
is, or who, having been convicted by a final judgment of a particularly serious crime,
constitutes a danger to the community of that country.3

Thus it would seem that the principle that bona fide refugees should not be returned or expelled
to a country where their life or freedom would be threatened for political, religious or racial
reasons, is indeed widely, if not universally, recognized today. It applies equally to persons
whose residence in the territory has been authorized, and to illegal entrants. It seems justified to
deduce therefrom a duty of states to refrain from actionwhich may lead to the return of a refugee
to a country where he may become the victim of persecution; but it seems difficult to reconcile

3
U.N., Convention Relating to the Status of Refugees , Oct 10th,2013, http://www.unhcr.org/496365eb2.pdf
8
 RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

such a rule with the doctrine of the unlimited right of states to regulate the admission of aliens. It
is believed, however that this right states that countries should not refuse admission to a bona
fide refugee where such a refusal would expose him to persecution endangering his life or
freedom, i.e., primarily at the frontiers of his country of origin. This does not imply that the
admitting state should necessarily permit the continued residence of the refugee once admitted.
The admitting state may, subject to its treaty obligations, and sometimes does, expel him to
another country.4

The Legal Limits to Refugee Protection

The task of the United Nations High Commissioner for Refugees is to provide protection to
refugees and to seek permanent solutions, including voluntary repatriation, integration into the
host country, or third country resettlement.
Also some very significant countries like India and U.S.A. havent signed the convention relating
to the status of refugees.
Humanitarian and refugee law in practice provide extremely limited protection for the refugee.
Refugees do not have the "right" to enter other states, although governments which have ratified
the Convention are not permitted to send refugees back to their home countries if there is basis
for well- founded fear of persecution.

International law does not require states which host refugees to provide social, economic,
political and legal rights to the refugees which equal those of their own citizens, although Article
34 of the International Refugee Convention requires states to facilitate assimilation and
naturalization of refugees. While in law, the refugee is considered equal in most respects to all
other legal aliens, in fact, not being on good terms with his own countrys government, all he is
actually guaranteed is bare survival.

International Human Rights Law is embodied in the UN Charter itself, in the Universal
Declaration of Human Rights and in the two International Covenants, as well as in UN
resolutions, customs, judicial decisions and expert opinion. Refugees are never specifically
mentioned in this body of law, although there is the inclusion that all humanity, without
discrimination, is the beneficiary of international human rights protection.

Elaborate machinery exists for the protection of human rights with the United Nations
Organization. The United Nations Commission on Human Rights and its subsidiary bodies may
initiate studies and investigations as well as compile documentation and "communications" on
human rights violations. The UN Human Rights Covenant provides for a committee to receive
complaints as well. In this manner, a refugee acting as a citizen of his own country may
petition against the human rights violations in his home country.

4
Paul Weiss, The International Protection of Refugees, Vol. 48, The American Journal of International Law, pg. 193-
221, ( 1954)
9
 RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

In contrast, there is no mechanism for refugees to complain about their own treatment as
refugees in their country of asylum. Unfortunately for refugees, even the International Law
Commission, established by the UN in 1949, very early decided not to deal with refugees or
other aliens, and has never done so since that time.5

What needs to be done?

Since dealing with the root problems which cause persons to become refugees is more a matter
of politics than of law, progress, unhappily, has been discouragingly slight in the refugee area. A
foothold for the inclusion of refugees within the protection of International Human Rights norms
exists in the draft Declaration drawn up by the United Nations Sub-Commission on the
Prevention of Discrimination and Protection of Minorities in 1974, but to date, it is still not
finalized. The Elles draft Declaration on the human rights of non-citizens, if embraced by
governments and promoted by human rights activists, could greatly alter the perspective on the
rights of refugees, among other alien persons and groups. For example, the draft declaration
provides for protection of alien assets. And, although aliens would be required to respect the
customs and traditions of the host state, they would also retain the right to maintain their own
languages, cultures, and traditions a recognition that refugees and other aliens do not wish, in
most cases, to be simply assimilated into the host nation's culture. In addition to these rights,
refugees would have explicit access to all the existing International Human Rights laws and
norms.

Besides there is need for expansion of the Universal Declaration of Human Rights to include the
Rights of Refugees. Also there is need to make a more comprehensive and binding framework
for protection of refugees which would be agreed by most countries.6

5
Roxanne Dunbar-Oritz and Barbara E. Harrell-Bond, Africa Rights Monitor: Who Protects the Human Rights of
Refugees?, Oct11th,2013, http://www.jstor.org/stable/4186411

6
Roxanne Dunbar-Oritz and Barbara E. Harrell-Bond, Africa Rights Monitor: Who Protects the Human Rights of
Refugees?, Oct 11th,2013, http://www.jstor.org/stable/4186411
10
 RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

RIGHTS OF REFUGEES IN INDIA

India has not signed the 1951 Convention relating to the Status of Refugees.However it must be
noted that India's refusal to join the Refugee Convention of 1951 does not absolve it from basic
commitment to humanitarian protection of refugees. The right of refugees to non-refoulement
has been recognized, even if with some reservations, as a part of customary international law.
Thus, respect for this right is incumbent on the Indian government as the Constitution of India
mentions, as one of the directive principles of state policy that the state [India] shall endeavor to
foster respect for international law and treaty obligations in the dealings of organized peoples
with one another.7 It is pertinent to note that it is now well-established that the phrase,
"international law" represents customary international law.
In addition, India has signed numerous human rights instruments that articulate a commitment to
protection of refugees. India is party to the Universal Declaration on Human Rights (UDHR)
1948. Article 14 of the UDHR states: "Everyone has the right to seek and enjoy in other
countries asylum from persecution".8

Also the Indian Constitution guarantees certain fundamental freedoms to all persons and not just
to Indian citizens. Hence, persons who flee their country of origin and seek asylum in India have
the protection of those fundamental rights, independent of the need for any recognition by the
government of India or by any other international body like the UNHCR.9

The fundamental rights that all persons, including asylum-seekers and refugees enjoy under the
Constitution include:10

Right to Equality before Law (Article 14)11

The state shall not deny to any person equality before the law or the equal protection of the laws
within the territory of India. This right entails that there shall not be any discrimination between
people or classes of people without reasonable classification by the legislature between different
classes thus discriminated.

7
People of India, Article 51 (c),Constitution of India, Oct 11th,2013, http://lawmin.nic.in/olwing/coi/coi-
english/Const.Pock%202Pg.Rom8Fsss%288%29.pdf
8
United National General Assembly, The Universal Declaration of Human Rights, Oct 11 th ,2013,
http://www.un.org/en/documents/udhr/
9
SaurabhBhattacharjee, India Needs a Refugee, Vol. 43, No. 9 (Mar. 1 - 7, 2008), Economic and Political Weekly, pg.
71-75
10
SaiAbhipsaGochhayat, Protection of Refugees in India, Oct 12th ,2013,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1957146
11
People of India, Constitution of India, Oct 12th ,2013, http://lawmin.nic.in/olwing/coi/coi-english/coi-
indexenglish.htm
11
 RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

Protection of Life and Liberty (Article 21)

No person shall be deprived of his life or personal liberty except according to due procedure
established by law. In Louis De Raedt vs Union of India12 and State of Arunachal Pradesh vs
Khudiram Chakma13 case, the Supreme Court has held that foreigners are also entitled to the
protection of article 21 of the Constitution. While till 1978, article 21 was construed narrowly as
a mere guarantee against executive action unsupported by law, it is now well established by a
series of decisions starting from Maneka Gandhi vs Union of India it imposes a limitation upon
law insofar as that the procedure stipulated therein must be just, fair and reasonable. Therefore in
the specific context of refugee protection, it means that while earlier, the courts merely had to
consider whether the decision to deport complied with the procedure laid down in the Foreigners
Act, it had now to consider whether the procedure was fair, just and reasonable.

Right to Fair Trial

It has been recognized by the Supreme Court as a component of the right to protection of life and
liberty. This also entails the right to be produced before a magistrate within 24-hours of arrest.
These rights put a refugee and a citizen of India on the same pedestal as far as liberty is
concerned.

Judicial Expansion of Rights

The judiciary has played a very important role in protecting refugees. Court orders have filled
legislative gaps and in many cases have provided humanitarian protection to refugees. Moreover,
Indian courts have allowed refugees and intervening NGOs to file cases before them.
Furthermore, the courts have interpreted provisions of the Constitution, existing laws and, in the
absence of municipal law, provisions of international law to offer protection to refugees and
asylum seekers.

Indian courts have decided in a number of cases that the constitutional protection of life and
liberty must be provided to refugees.

In the case of National Human Rights Commission vs State of Arunachal Pradesh the SC
restrained the forcible expulsion of Chakma refugees from the state.It directed the State
Government to ensure that the Chakmas situated in its territory are not ousted by any coercive
action not in accordance with the law. The court directed the state government to ensure that the
life and personal liberty of each and every Chakma residing within the state should be
protected.14

12
1991 AIR 1886
13
1993 SCR (3) 401
14
SaurabhBhattacharjee, India Needs a Refugee , Vol. 43, No. 9 (Mar. 1 - 7, 2008), Economic and Political Weekly,
pg. 71-75
12
 RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

In a number of cases, Indian courts have protected the rights of refugees to non- refoulement and
have protected them where there are substantial grounds to believe that their life would be in
danger, by allowing them to be granted refugee status by the UNHCR. In Dr Malvika Karlekar
vs Union of India, the Supreme Court held that authorities should consider whether refugee
status should be granted; and until this decision was made, the petitioner should not be
deported.15

Gauhati High Court issued a landmark ruling in the case of U Myat Kayew and Nayzan vs State
of Manipur. It involved eight Burmese, aged 12 to 58, who had voluntarily surrendered to the
Indian authorities &were detained in Manipur Central Jail in Imphal for illegal entry. They were
charged under section 14 of the Foreigners Act for illegal entry into India. They filed a petition
for their release and to enable them to seek refugeestatus with UNHCR in New Delhi. Gauhati
High Court, under article 21, ruled that asylum seekers, who enter India, even if illegally, should
be permitted to approach the office of the UNHCR to seek refugee status.

The judiciary has also upheld a refugee's right to leave the country. In Nuang Maung Mye Nyant
vs Government of India and Shar Aung vs Government of India, the courts ruled that even those
refugees against whom cases were pending for illegal entry should be provided exit permits to
enable them to leave the country for third country resettlement. 16

Thus, it follows from the aforesaid discussion that the legal framework for protection of refugees
in India has been characterized by an eclectic interplay of administrative ad-hocism and judicial
assertion of constitutional rights.

Limitations
In spite of the emergent notion of refugee rights in India, legal protection has remained a
chimera for most of the refugee communities residing in India with their very survival being at
stake. Along with the tentative and imperfect judicial response, the other major cause for this
distressing repudiation of judicial and constitutional mandate is the conspicuous absence of any
defined statutory framework or even a policy on refugees. Thus there have been no defined
standards for implementing the judicial and constitutional directives on refugee protection. India
has chosen to deal with refugees at political and administrative levels. It has therefore only ad
hoc mechanisms in place to deal with their status and problems and there is no separate law
defining refugees and their entitlements. The legal status of the refugees is thus no different from
those ordinary aliens whose presence is regulated essentially by the Foreigners Act of 1946.17

15
SaiAbhipsaGochhayat, Protection of Refugees in India, Oct 12th ,2013,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1957146
16
SaurabhBhattacharjee, India Needs a Refugee , Vol. 43, No. 9 (Mar. 1 - 7, 2008), Economic and Political Weekly,
pg. 71-75
17
SaurabhBhattacharjee, India Needs a Refugee , Vol. 43, No. 9 (Mar. 1 - 7, 2008), Economic and Political Weekly,
pg. 71-75
13
 RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

Hence, the distinction between refugees and asylum seekers, on one hand and migrants and other
aliens, on the other have been conflated. Refugees and asylum seekers are externally displaced
persons forced out or forced to leave their countries and who cannot return because they have a
well- founded fear of persecution. But, they are distinct from migrants who come to India
voluntarily seeking a better life.

The Foreigners Act, 1946 deals with the matters of entry of foreigners in India, their presence
therein and their departure therefrom. It stipulates a general obligation that no foreigner should
enter India without the authorization of the authority having jurisdiction over such entry points.
It is mainly intended to deal with illegal entrants and infiltrators. Incase of persons who do not
fulfill certain conditions of entry, the order authorizes the civil authority to refuse the leave to
enter India. The main condition is that unless exempted, every foreigner should be in possession
of a valid passport or visa to enter India. If refugees contravene any of these provisions they are
liable to prosecution and thereby to the deportation proceedings just like any other foreigner.18

Thus, there is no clearly defined category of refugees under Indian law. Foreigners generally are
a classified category which can be further sub-divided as per the Foreigners Act regime, but no
such sub-classification has been made for refugees. As such, refugees, like other foreigners, are
generally subject to deportation with minimal due process.

Therefore, the status of refugees is presently determined by the extent of protection they receive
from the government of India which in turn has been influenced more by political equations than
by humanitarian or legal obligations. There are certain refugee communities like Tamil refugees
from Sri Lanka, Jumma & Chakma refugees from fro former East Pakistan or present
Bangladesh and Tibetan refugees who have received full protection according to the standards
set by the government of India.They are accorded legal stay indefinitely through executive
discretion exercised under the Foreigners Act.

There are few other communities like the Burmese, Afghan, Iranian, Somalian, Sudanese and
Iraqi refugees whose presence in India is acknowledged only by the UNHCR and there is no
protection from the government of India except those under the principle of non-refoulement.
The home office has created a flexible procedure to enable resettlement. It has entered into an
arrangement with the UNHCR under which the UNHCR determines the status of a refugee and
gives a certificate to that effect. But such certification is only persuasive and provides no
protection. They remain as foreigners and on the basis of UNHCR refugee certificates are issued
temporary residence-permits under the Foreigners Act pending durable solutions. However, the
condition of such communities is precarious. They do not even have work permits.

There are other refugees like the Chin refugees in Mizoram who have entered India and have
assimilated into local communities but have not been recognized by the UNHCR. Neither the

18
SaurabhBhattacharjee, India Needs a Refugee , Vol. 43, No. 9 (Mar. 1 - 7, 2008), Economic and Political Weekly,
pg. 71-75
14
 RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

Indian government nor the UNHCR acknowledges their presence. The government has also
denied UNHCR access to the seven states of the north-east including Mizoram where the vast
majority of Burmese refugees are sheltered. Thus, these refugees receive no official
acknowledgement whatsoever. Thus, they have been consistently subjected to harassment and
periodic eviction drives by sections of civil society in Mizoram and other parts of the north-east.

Conclusions
It can be said that the absence of a special law on the protection, rights and entitlements of
refugees has resulted in the denial of basic protection to a large number of refugees and runs
against the spirit of India's human rights commitment under the international law and its own
Constitution.

The judiciary and allied institutions like the NHRC have tried to respond to the refugee question
with innovative judicial interpretation to establish several procedural rights and in many cases,
have prevented forced deportation. However, such interventions have been limited to specific
cases and the judicial pronouncements have not been implemented across a wide spectrum. This
has been occasioned due to the absence of a definite refugee law. This absence has certainly
meant that arbitrary executive action and acts of discrimination are not easily remedied. This
further means that the decision to treat a person or a group of persons as refugees or not is taken
on the merits and circumstances of the cases coming before it as they are overshadowed by
political considerations.Thus, the refugees are left to the mercy of the state and have no recourse
against systemic violations of its legal obligations by the state. Therefore, a just,fair and humane
response to the question of refugees in India, in conformity with India's international and
constitutional obligations requires, as an immediate imperative, adoption of a definite statutory
regime that clearly defines refugees as a distinct class of persons, spells out a fair procedure for
determination of the status of refugees and outlines a due process for refugee protection.

15
 RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

CONCLUSION

There is need for expansion of the Universal Declaration of Human Rights to include the Rights
of Refugees. Also there is need to make a more comprehensive and binding framework for
protection of refugees which would be agreed by most countries.
India on its part needs to make a new law to effectively deal with the refugee problem in the
country.
Sadly, the International Law as it currently stands is not adequate to protect climate change
affected refugees.As the globecontinues to warm, predictions show millions more climate
changerefugees will soon be fleeing their homes looking for asylum as a last resort. The needs of
those countries, coupled with the humanrights argument, demand a renegotiation of the
RefugeeConvention that considers environmental concerns. Currentclimate change refugees can
andshould insist, based on theirviolated human rights, on being included within the
refugeframework. While critics staunchly defend the strict reading of theRefugee Convention
definition, theretooling of this internationaldefinition may not be as difficult as it sounds. In fact,
somescholars have already advocated for such an expansion as nomore than an easy extension
of human rights policy.For example, Cooper argues that since the 1951 refugee definition
isheavily imbued with human rights notions, and environmental refugees are no less entitled to
their basic rights and needs thantheir traditional counterparts, using human rights concepts
toexpand the refugee definition has natural appeal.

There is support even within the current regime itself for amore expansive approach to defining
who qualifies as a refugee.The framers of the Refugee Convention recognized that
certainindividuals not explicitly fallingwithin the treatys provisionswould have legitimate and
compelling claims for internationalprotection.

Thus there is need for international cooperation and decision making to bring about a new and
effective refugee convention which would not only be acceptable to the important stake holders
but also inclusive of the modern concerns of refugees including those affected by climate
change.

16
 RIGHTS OF REFUGEES; A HUMAN RIGHTS APPROACH

BIBLIOGRAPHY & WEBLIOGRAPHY

Tiffany T.V. Duong, When Islands Drown: The Plight of Climate Change Refugees
and Recourse to International Human Rights Law
The Universal Declaration of Human Rights
United Nations High Commissioner for Human Rights
International Covenant on Civil and Political Rights
International Covenant on Civil and Political Rights
Constitution of India
Convention Relating to the Status of Refugees
All India Reporter
Petra urkov, Anna Gromilova, Barbara Kiss &Megi Plaku , Climate refugees in the
21st century
DrCamilloBoano, Professor Roger Zetter&Dr Tim Morris, Refugee Studies Centre
Environmentally displaced people, Understanding the linkages between environmental
change, livelihoods and forced migration
The Nansen Conference, Climate Change and Displacement in the 21st Century
Economic and Political Weekly
Sai Abhipsa Gochhayat, Protection of Refugees in India
Roxanne Dunbar-Oritz and Barbara E. Harrell-Bond, Africa Rights Monitor: Who
Protects the Human Rights of Refugees?
Mara-Teresa Gil-Bazo, Refugee status, subsidiary protection and the right to be granted
asylum under EC law
Liisa H. Malkki, Refugees and Exile: From "Refugee Studies" to the National Order of
Things
Gaim Kibreab, Citizenship Rights and Repatriation of Refugees
Jstor- www.jstor.org
Scribd-www.scribd.com
SSRN- www.ssrn.com
Lawcite.org

17