Refugee Protection: A Case for Balance Between National Security & Humanitarian Concerns

4 February 2024, Rotary Club, Mumbai
Also available at: Areti Sianni, Chief of Mission at UNHCR India and the Maldives, on refugee protection: a case for balance between national security and humanitarian concerns – Rotary Club of Bombay

Ladies and gentlemen,

Distinguished guests,

A very good afternoon to one and all present here,

It is both an honour and a privilege to address the distinguished members of the Rotary Club of Mumbai today on the balance between security imperatives and the protection of refugees.

Let me start with some facts. In 2010, there were 41 million displaced persons in the world. By the end of 2022, this figure had increased to 108.5 million. At the end of 2023, displacement was at the scale of 114 million people who have had to leave everything behind and run for their lives.

Displacement due to conflict, violence or human rights violations was widespread throughout the 20^th century. It has become one of the defining features of the 21^st century. How has the international community responded?

UNHCR was set up in 1950 by the General Assembly to work in cooperation with States to ensure the protection of refugees and seek solutions to their plight. We were set up for an initial period of three years in the expectation that displacement will end in that period. Seventy-four years later, we are still around, and it looks like we will be staying here for a while longer.

Central to UNHCR’s mission has been the practical realization of the right to seek and enjoy asylum, originally enshrined in the Universal Declaration of Human Rights (Article 14) and given effect through the 1951 Convention Relating to the Status of Refugees and 1967 Protocol.  UNHCR has worked over the years in partnership with States and other stakeholders including civil society to protect and assist displaced individuals across the world increasingly intervening at times of   acute crises – in emergencies for example such as Ukraine, Sudan, Afghanistan, and the Democratic Republic of Congo. In Gaza, which is a situation that is perhaps most present in our minds, there is another UN agency, the UN Relief and Works Agency, that has a specific mandate for Palestinian refugees.

Working in 135 countries, UNHCR supports the development of asylum systems with the primary focus on preventing refoulement - the forcible return of people to places where their lives or liberty would be at risk. We also work to promote the rights of refugees such as the right to liberty and protection from arbitrary detention, the right to equality before the law and the right to non-discrimination. Where it’s needed, we provide humanitarian assistance so that the most vulnerable among refugees can be supported to live lives of dignity in safety, become self-reliant and contribute to the economy and the society of the country they live in. When the time is right, we work to ensure that refugees benefit from lasting solutions through return to their country of origin when conditions of safety and security are in place, resettlement to a third country or local settlement in the country of asylum.

In addition to the core mandate to protect refugees, UNHCR also works to uphold the human rights of other people for whom the General Assembly has entrusted us with legal responsibility including stateless persons - people who are not considered as nationals by any state - as well as internally displaced persons who have been forced to flee their homes but remain within their countries of origin.

In an interconnected world, where borders are increasingly porous and conflicts often transcend sovereign boundaries, States are faced with the challenge of how to balance their legitimate interests and sovereign rights to control their borders and manage irregular migration with the commitments they have made under international law for the respect of human rights including the right to non-refoulement  as well as  commitments to leave no one behind without any distinction in the pursuit of the sustainable development goals.

Let me first start by looking at the range of responses States have adopted across different regions before turning to the situation of refugees in India. With the number of displaced persons being on the rise at an unprecedented scale, three approaches are being pursued separately or in parallel by States:

• Many States have taken measures to close their borders in the expectation that those displaced would stop coming. Experience shows that this not only does not work but also that the human cost in terms of harm to individuals or loss of lives can be significant. You might have been following the situation at the border between Mexico and America or the Mediterranean. In the face of closed borders, many refugees rely on smuggling and trafficking networks to gain entry many being exploited or abused along the way or ending up dying. In 2023, in the Bay of Bengal/ Andaman, over 4,500 persons attempted to move by sea in search of safety with 569 deaths being reported as a result.
   
• Secondly, States have attempted to restrict the rights of people who have made it to their territory as a means of dissuading them to stay or persuading them to return. Measures have primarily focused on restricting the right to work or access education or subjecting people to arrest and detention at times without recourse to the rule of law. Experience also shows that these measures are rarely effective. Without access to work, refugees end up being subject to exploitation and abuse by criminal networks or unscrupulous employers, resort to negative copying mechanisms such as child labour or early marriage or end up living a life of dependency on humanitarian assistance and waste of human capabilities without the means to become self-reliant and contribute to the society they live in. As for return, in 2022, 1% of all refugees returned to their country of origin with the majority – the figures in 2022 being of 23.3 million people being displaced for more than five years with no opportunity for return to their country of origin or access to another solution.
   
• There is a third way, and this is the way that where it is increasingly tried, it has worked, whereby states and the societies that receive refugees embrace the potential that refugees have, providing them with the legal right to work until a solution to their plight can be found harnessing their knowledge, expertise and networks for development and economic growth. They not only do it on humanitarian grounds. Evidence suggests that there is a good business case to be made in including refugees into the economy and society. After all, many refugees of yesterday are today’s doctors, lawyers, and engineers in their countries of origin after return or in the countries where they end up settling- our world would have been poorer for sure without their contributions if doors they knocked on when seeking protection were left shut.
   
• You would be asking yourself, what is the approach adopted closer to home/here in India.  India has had an honourable tradition of extending hospitality to refugees – starting with the Parsis in the eighth century in Gujarat and more recently with the arrival of Tibetan and Sri Lankan refugees. There are moreover around 46,500 asylum seekers and refugees presently registered with UNHCR primarily from neighbouring countries - Myanmar, Afghanistan, Yemen, Sudan, and a number of African countries. Good practices exist but challenges also persist making relevant to continue striving to strike the right balance between the Government of India’s priorities from a national security perspective and India’s humanitarian traditions, strong rights-based culture that the Constitution reflects and propagates and commitments to leave no one behind that India has signed up under the UNSDCF.

Throughout the years, questions have been raised as to the relevance of the 1951 Refugee Convention and its 1967 Protocol remain today as when they were adopted. After all, the Convention was drafted to deal with the challenges of displacement caused by persecution and rights violations on a massive scale during World War Two, In India, the question I have often been asked– including yesterday when speaking to students at the Maharashtra National Law University  -  has been rather more specific linking the relevance of the Convention to the time of massive displacement in the Indian sub-continent during partition. The question – and here I am paraphrasing – is where was the Refugee Convention when it was needed the most in this region?

It would not be surprising coming from someone working from UNHCR to hear them asserting the relevance of the Convention for the 21^st century. Beyond personal views though let us look at some of the facts.

The 1951 Refugee Convention and its 1967 Protocol are among the most widely ratified international treaties, with 149 Contracting States party to one or both. They are the modern embodiment of the age-old institution of asylum and a milestone of humanity, embodying fundamental humanitarian values of refugee protection on which there is broad global consensus.

 Across all geographical regions, the 1951 Convention has provided, and continues to provide, the practical tools to States to respond  to a vast range of situations of displacement, to separate combatant elements from civilians fleeing at the border, to identify those who  do not deserve refugee protection because of their association or commission of crimes such as serious non-political crimes, war crimes, crimes against humanity or peace; to deal with individuals who pose a threat to national security including through terrorist acts, to care for refugees in a fair and predictable way until solutions can be found to their plight.  

In 2016, UN Member States adopted the New York Declaration for Refugees and Migrants, which asserted that rather than being outmoded or outdated, the 1951 Convention remains highly relevant to today’s geopolitical realities and a “cornerstone” of the international protection regime. Two years later, in 2018, the Global Compact on Refugees, affirmed by the vast majority of states in the General Assembly provided a framework to ensure more effective respect for and implementation in practice of the Convention’s provisions.

In 2023, the Global Refugee Forum, held in Geneva provided an opportunity for states and other stakeholders to commit to strengthening refugee protection worldwide, including through greater support to the countries hosting the largest refugee populations, often for protracted periods while refugees wait for durable solutions.

The Forum provided an opportunity for States and stakeholders to announce concrete pledges and contributions, highlight progress made, share good practices, and take stock of the challenges and opportunities ahead to make a difference in the lives of today’s over 36 million refugees and the communities that so generously host them. Over 1,600 pledges were made, of which approximately 1,300 are financial, material, technical, policy, and other support, contributing to one or more of the 43 multistakeholder pledges co-led by governments and other stakeholders. In the spirit of burden and responsibility sharing over USD 2.2 billion in financial commitments were pledged over the coming years, in addition to both replenished and new dedicated bilateral and multilateral development funding instruments for refugee hosting countries. It was most pleasing to see that the Government of India was represented and contributed to the discussions.

Much more must be done to protect and build a future for the world’s refugees, to find durable solutions, and to support countries hosting the largest numbers of refugees  through international cooperation, solidarity, and more equitable burden and responsibility sharing by the whole international community.

In this context and looking forward, what are the priorities for India and for this honorable audience?

Forced displacement is the consequence of failure to uphold peace and security and the human rights of all human beings. It is also failure to deal with inequality and discrimination, take care of the environment and fight against the climate crisis. A first priority for the international community and each UN Member State is to contribute to common efforts address the root causes of displacement. There has never been a greater need for peace building and reconciliation, for engagement at community level on peaceful coexistence and on action for development that match the scale of the climate crisis. Here India as an aspiring leader globally and in the Global South can play an important role.

Second priority has to do with how we treat refugees when they are found in the midst of the societies we live in, Across the world, what many cultures have in common is the understanding that how we treat our neighbours - especially those fleeing from persecution, conflict, and war - is an expression of our shared humanity. In different countries, the golden rule is, shared by many philosophical cultural and religious traditions- to do unto others as you would have them do unto you-    In today’s turbulent times, this principle could never be more relevant. It starts at home and what each and every one of us does by welcoming families who have escaped war in our midst, by helping anyone in need without any distinction and speaking on behalf of refugees to influence attitudes, beliefs, and behaviours in support of solidarity, peaceful reconciliation and coexistence with each other. This is needed now more than ever to help counter the impact of xenophobia, malicious or false narratives that we are seeing spreading through social media often causing real-world harm.  

Going beyond the personal, at policy level, India has a long and honourable tradition in upholding the rule of law and a strong reputation as a responsible state. India actively participated in the drafting of the UDHR including Article 14 of the UDHR on “the right to seek and to enjoy in other countries asylum from persecution”. It is signatory to several human rights’ instruments and has incorporated human rights’ protection in its Constitution and national legislation. It is also a member of UNHCR’s Executive Committee. The Hon’ble Supreme Court of India has interpreted Art. 21 of the Indian Constitution on “the right to life and personal liberty” as being applicable to foreigners.[1] Various High Courts of India have since interpreted Art.21 of the Constitution of India to include the principle of non-refoulement.  So far, responses to refugee arrivals have been ad hoc and rather specific to distinct refugee groups. It is time in my view, for India to undertake to develop a national refugee framework that could provide the basis for giving legal effect to the “right to life and personal liberty” of refugees through the granting of access to specific rights and public services. Such framework would reflect and incorporate good practices and approaches that have already been tested and proven effective through the implementation of administrative procedures for specific groups. It would be India-led and India-owned that would be applicable to all refugees on Indian territory and could serve to defend India’s domestic choices on refugee protection while also positioning the country as a constructive party in the resolution of refugee crises at global or regional level.

Third priority is to work towards solutions. For those who cannot go back home, that would involve working towards inclusion and acceptance in the societies where they live. Although this is on a temporary basis, the reality is that most of today’s refugees are displaced over many decades. For those who want or can return to support them to do so including through assistance to settle back to the places of origin development interventions in areas of return. For some vulnerable people who cannot return nor remain in the country of asylum, support with third country solutions, resettlement, family reunification or labour or educational mobility.

Ladies and Gentlemen, allow me to conclude by recalling the words of Mahatma Gandhi, "You must be the change you want to see in the world.". During the turbulent times that we live in, there has never been a greater need to imagine and act for a world where no one is forced to flee their home, where refugees have the chance to go back home and while they live in our midst, they are offered a helping hand and a welcome; a world where the values of compassion and justice prevail.