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http://www.thehindu.com/opinion/columns/dire-need-for-a-global-consensus-onrefugees/article7418005.

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Dire need for a global consensus on refugees


With several recent instances of migrants being left in the lurch, the international community must
arrive at a consensus to protect refugees.
Over the past few months, the headlines have been dominated by the plight of people fleeing their
countries and seeking refuge elsewhere.
Thousands of Rohingyas, an ethnic Muslim minority indigenous to the Myanmarese state of
Rakhine, fled Myanmar to escape widespread murder, rape, torture and forced labour at the hands
of the junta. It triggered a regional crisis, when boatloads of migrants were abandoned at sea, off the
coast of Thailand and Malaysia, with no country willing to take them in. The immediate crisis was
relieved only after sustained international pressure and a multinational conference, when the
migrants were granted temporary refuge in Indonesia, Malaysia and Thailand.
Jay Sanklecha Last week, amid widespread criticism, Thailand forcibly deported over a hundred
ethnic Uighurs, a Muslim minority indigenous to Chinas far-western Xinjiang region, back to
China. Over the years, the Uighurs have become the primary targets in Chinas crackdown (strike
hard campaign) on domestic separatist movements, leading to wanton persecution of this
community, as China tries to assimilate the Uighurs into the broader Han Chinese identity. While
the Thai government spokesperson maintained that the government had received assurances from
Chinese authorities on the safety of the deported Uighurs, the Chinese sang a different tune. In the
wake of the deportation, the Foreign Ministry spokesperson said that China would take action
against those breaking the law.
Events such as these have underscored the importance of international law and its ability to deal
with the refugee crises. This is by no means a recent predicament. Traditionally, under international
law, states were recognised as having a sovereign right over their territory, including the unqualified
right to decide whether to admit or expel aliens. This sweeping power was often exercised by the
states in a rather indiscriminate manner, which resulted in several innocent deaths, particularly
during the World War II. The atrocities brought home to the international community the need for
international rules for restricting the deportation of aliens who faced the possibility of postdeportation mistreatment, a rule now embodied in the principle of non-refoulement articulated in a
number of international law instruments, most famously Article 33 (1) of the Refugee Convention,
1950. Under the principle, states are prohibited from expelling or returning refugees who have a
well-founded fear of persecution to a country where their life or freedom would be under threat.
However, this prohibition is not absolute. At the insistence of the British and French delegates, a
national security exception was carved out, allowing states to expel refugees whose presence was
regarded as a security threat.
However, states have, both then and now, fiercely resisted adopting any absolute duty to grant a safe
haven to threatened aliens.
Accordingly, the Refugee Convention and other subsequent international law instruments fall short
of recognising a specific right to asylum from persecution. The treaty framework does not even
explicitly recognise the right for persecuted persons to be admitted within the states territory a
right critical for the majority of todays refugees a harsh truth that rang true in the case of the

stranded Rohingyas.
This is not to say that there has been no progress in the international law framework to deal with
refugees. The principle of non-refoulement has increasingly come to be recognised as a pre-emptory
norm of customary international law.
Perhaps of greater significance to the majority of todays refugees is the emerging customary norm
of temporary refuge, which prohibits a state from expelling foreign nationals who have fled armed
conflict and civil strife. Such persons are not the targets of persecution but are innocent civilians
whose own government cannot guarantee their safety. The situation in Syria perhaps represents the
need for such a norm.
Nevertheless, the events over the past several months have brought into sharp focus the limitations
of the existing regime and the need for greater consensus building at the international level to put in
place new norms to deal with the evolving migrant situation. India, with its long history of
providing shelter to the persecuted, from the Zoroastrians to, more recently, the Tibetans, is perhaps
uniquely positioned, particularly in the Asian subcontinent, to take the lead in any international
consensus building on the subject.
(Jay Sanklecha is a graduate of the West Bengal National University of Juridical Sciences, Kolkata,
and is working with a law firm in Mumbai. The views expressed are personal.)

TheRohingyacrisiswasrelievedonlyaftersustainedinternationalpressureandamultinationalconference,whenthe
migrantsweregrantedtemporaryrefugeinIndonesia,MalaysiaandThailand.

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