Introduction

Every day, people around the world make the difficult decision to leave their countries in search of safety
and better lives.

Why?
There are over 120 million men, women and children around the world who have been forced to flee their
homes. That number, which includes refugees, asylum seekers, and internally displaced persons (IDPs),
has doubled in just ten years. There are others who are looking for jobs or an education—they are usually
called migrants—and people who want to live permanently in another country—immigrants.

What is a refugee
Definition: Refugees are people fleeing armed conflicts or persecution. There were 19,5 million of them
worldwide at the end of 2014 according to UNHCR. Their situation is so perilous that they cross national
borders to seek safety in nearby countries and become recognised as refugees with access to assistance
from states and aid organisations. An important piece of this is that refugees are protected by international
law, specifically the 1951 Refugee Convention. But even the terms refugee and asylum seeker are often
confused.

What is an asylum seeker

Definition: An asylum seeker is someone who claims to be a refugee but whose claim hasn’t been
evaluated. This person would have applied for asylum on the grounds that returning to his or her country
would lead to persecution on account of race, religion, nationality or political beliefs. Someone is an
asylum seeker for so long as their application is pending. So not every asylum seeker will be recognised
as a refugee, but every refugee is initially an asylum seeker.
Asylum seekers must apply for protection in the country of destination—meaning they must arrive at or
cross a border in order to apply. Asylum-seekers numbered 6.9 million, with a 26% rise in those waiting
for asylum decisions by the end of 2023. The United States was the largest recipient of new individual
asylum applications, followed by Germany. Most new applications came from nationals of Venezuela,
Colombia, Syria, Sudan, and Afghanistan.

Then, they must be able to prove to authorities there that they meet the criteria to be covered by refugee
protections. Not every asylum seeker will be recognized as a refugee.

Becoming a refugee
A vital part of being recognised as a refugee is Refugee Status Determination (RSD), a legal process that
governments or UNHCR use to determine whether a person seeking international protection is considered
a refugee under international, national or regional law. The process can be lengthy, complicated and is
certainly imperfect. There is still no single uniting model for RSD. States do have the primary
responsibility for determining the status of asylum seekers but UNHCR will step in where states are
unable or unwilling.

What is a migrant
Definition: Migrants choose to move not because of a direct threat or persecution but mainly to improve
their lives:Finding work, Seeking better education,Reuniting with family Unlike refugees who cannot
safely return home, migrants can return home if they wish. This distinction is important for governments,
since countries handle migrants under their own immigration laws and processes.

Who is an immigrant?
An immigrant is someone who makes a conscious decision to leave his or her home and move to a foreign
country with the intention of settling there. Immigrants often go through a lengthy vetting process to
immigrate to a new country. Many become lawful permanent residents and eventually citizens.
Immigrants research their destinations, explore employment opportunities, and study the language of the
country where they plan to live. Most importantly, they are free to return home whenever they choose.

Not Every asylum Seeker will ultimately be recognised as a refugee but every recognized refugee Is
initially an asylum
seeker.
- Assisted Voluntary return of reintegration- It means and implodes administrative and
logistic and financial support as well. It also improves reintegration assistance.

- Best interest of a child - It includes 3 fold concept

-A)In terms of substantive right - The right of child to have his or her best interest assist
and taken as primary consideration, and also that this right will be implemented whenever a
decision is to be made concerning a child.
-B)Fundamental and interpretive right If a legal provision is open to more than one interpretation , the
interpretation which most effectively serves the best interest of a child, should be chosen .
-C)A rule of procedure whenever a decision is to be made , that will affect a child , the decision making
process must include an evaluation of the possible impact (positive or negative) of the decision on the
child or children concerned.

+ eg (Snowden and Assange)

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International refugee law

A number of international instruments establish and define basic standards for the treatment of refugees.
The most important are the 1951 United Nations Convention relating to the Status of Refugees, and its
1967 Protocol relating to the Status of Refugees.
1) The UN Refugee Convention
The UN Refugee Convention is an important document that defines refugees and related matters. India
has not yet signed the convention nor its 1967 protocol.

What is the UN Convention on Refugees?

The UN Convention on Refugees is an international convention that pertains to refugee protection
worldwide. It was adopted in 1951 and entered into force in 1954. There has been one amendment to the
convention in the form of the 1967 Protocol.

Background

● The process of assembling guidelines and laws pertaining to the protection of people who had
been displaced from their homes and become refugees began largely with the League of Nations
in the aftermath of the First World War.
● The problem of displaced persons and refugees amplified after the Second World War and in
1951, a diplomatic conference in Geneva adopted the Convention relating to the Status of
Refugees.
● The 1951 Convention was originally limited in scope to persons fleeing events occurring before 1
January 1951 and within Europe.
● The 1967 Protocol removed the geographical and temporal boundaries of the convention and
made it universally applicable.
● The Convention is also known as the Geneva Convention of 1951. It is a legally binding
document.

UN Refugee Convention

The Convention spells out clearly who a refugee is and what kind of assistance, rights and legal protection
a refugee is entitled to receive. It also lays down the obligations of refugees towards the host countries.
The Convention also specifies certain categories of people, such as war criminals, who do not qualify for
refugee status.

Who is a refugee according to the convention?

The 1951 convention defines a refugee as a a“person who is outside his or her country of nationality or
habitual residence; has a well-founded fear of being persecuted because of his or her race, religion,
nationality, membership of a particular social group or political opinion; and is unable or unwilling to
avail him— or herself of the protection of that country, or to return there, for fear of persecution.”

● People who satisfy the above criteria are eligible to receive the rights and protection accorded
under the convention.
● The refugee status is not permanent and ceases to exist if the person repatriates to his/her own
home country because of a betterment in the situation there, or when he/she takes up citizenship
or permanent residence in the host country.
● Refugee status is also not given to people who are guilty of war crimes, crimes against humanity,
or a serious non-political crime outside their country of refuge. People guilty of acts contrary to
the purposes and principles of the United Nations are also not accorded refugee status.
● Under the Convention, all contracting States should appoint a central authority to assess
applications for refugee status, and ensure procedural safeguards are in place for the same. The
 United Nations High Commissioner for Refugees (UNHCR) helps countries to establish these
procedures. The UNHCR serves as the ‘guardian’ of the 1951 Convention and its 1967 Protocol.

What is the difference between a refugee and a migrant?

Refugees are people who are forced to leave or flee their own countries because of a threat of persecution
or threat to life or freedom. Migrants are however those individuals who leave their countries voluntarily
for the purpose of education, employment, etc. and not because of persecution.

A migrant continues to enjoy the protection of his or her own government, even when abroad.

Rights of Refugees under the 1951 Refugee Convention

The foundation of the 1951 Convention is the principle of non-refoulement. As per this principle, a
refugee should not be returned to a country where they face serious threats to life or freedom. Refugees
also are guaranteed other rights under the Convention such as:

● The right not to be expelled, except under certain, strictly defined conditions.
● The right not to be punished for illegal entry into the territory of a contracting State.
● The rights to work, housing, education, public relief and assistance, freedom of religion, access
courts, and freedom of movement within the territory.
● The right to be issued identity and travel documents.
● The right to be protected from refoulement apply to all refugees.

Refugees also have an obligation towards the country that provides them with asylum which is respecting
measures taken for maintaining public order.

Under the convention, contracting States cannot discriminate between refugees.

How many states have ratified the Refugee Convention?

149 countries are parties to either or both the 1951 Convention and the 1967 Protocol.

Has India signed the UN Refugee Convention?

No, India has not signed the 1951 Refugee Convention or its 1967 Protocol. India remains one of the few
liberal democracies not to have signed, supported or ratified the international convention. India does,
however, host a large number of refugees in its territory. In fact, it houses the largest refugee population in
South Asia. Refugees in India are chiefly Tibetans, Sri Lankan Tamils, Buddhist Chakmas from the
Chittagong Hill Tracts of Bangladesh, Muslim Rohinygas from Myanmar, Bhutanese from Nepal, and
small populations from Somalia, Sudan and other sub Saharan African countries.

Why won’t India sign the Convention or the Protocol?

● Although there is no official explanation for India not signing the convention, it is believed that
the chief reason is related to security issues. South Asian borders are porous and any conflict can
 cause a huge displacement of people. An influx of people during such times can put a lot of strain
on the resources of the local economy and also, it can cause an imbalance in the delicate
demography of the region.
● Another line of argument is that India already houses many refugees and in many cases, without
the support of the UN, so what is the need to sign this anyway?
● Signing the convention would have meant allowing international scrutiny of ‘India’s internal
security, political stability and international relations’.
● Also, during the Bangladeshi Liberation War in 1971, when millions of refugees came into India,
the government had to support a sick refugee population at a time when India’s own economy
was not in great shape. Calls for international support and financial aid were met with measly
dole outs. Even the UN was not helpful enough which made India sceptical about the impartiality
of the UN. The 1971 war had made India distrustful towards the UNHCR.
● Another reason why India has not signed the Convention is the narrow definition of refugee under
it. For instance, it does not include deprivation of economic rights as an eligibility criterion.

1967 Protocol relating to the Status of Refugees

The 1951 Convention could benefit only persons who had become refugees as a result of events occurring
prior to 1 January 1951. However, the years following 1951 showed that refugee movements were not
merely the temporary results of the Second World War and its aftermath.

Throughout the late 1950s and 1960s new refugee groups emerged, in particular in Africa. These refugees
were in need of protection which could not be granted to them under the limited time-frame of the 1951
Convention.

The 1967 Protocol extended the application of the Convention to the situation of "new refugees", i.e.
persons who, while meeting the Convention definition, had become refugees as a result of events that
took place after 1 January 1951.

As of 1April 1992, 111 States were party to the 1951 Convention and/or the 1967 Protocol.

Changes suggested by the 1967 Protocol relating to the status of refugees in the 1951 Convention

The 1967 Protocol relating to the Status of Refugees made several changes to the 1951 Convention, also
known as the Geneva Convention of 1951, to broaden its applicability and protect new refugee groups:

Time limits

The 1951 Convention was limited to people who became refugees due to events that happened in Europe
before January 1, 1951. The 1967 Protocol extended the convention's application to "new refugees" who
became refugees after that date.

Geographical limits

The 1951 Convention was limited to Europe, but the 1967 Protocol made it universally applicable.
Treatment of refugees

The 1967 Protocol requires that contracting states treat refugees with the same respect as their own
citizens in terms of elementary education. It also requires that contracting states treat refugees as
favourably as possible in other areas of education, including access to studies, recognition of foreign
school certificates, and scholarships. The 1967 Protocol also gave states that had ratified the 1951
Convention and chosen to use its European definition the option to keep that restriction. As of June 2024,
only four states had chosen to keep the restriction: Madagascar, Monaco, the Republic of the Congo, and
Turkey.

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United Nations High Commissioner for Refugees (UNHCR)

In its resolution 319 A (IV) of 3 December 1949, the General Assembly decided to establish the Office of
the United Nations High Commissioner for Refugees. The Office was set up as a subsidiary organ of the
General Assembly on 1January 1951, initially for a period of three years.

The mandate of UNHCR has since been routinely extended for successive periods of five years and the
current term ends on 31 December 1993. It now cares for over 17 million refugees around the world. The
Office is located at Geneva, Switzerland, and is represented in over 100 different countries. In 1991 it had
a staff of about 2,300 persons and an overall expenditure, under general and special programmes, of some
US$ 862.5 million.

According, to article 1of the Statute of the Office, the main task of the High Commissioner is to provide
international protection to refugees and to seek durable solutions for refugees by assisting Governments to
facilitate the voluntary repatriation of refugees, or their integration within new national communities. The
High Commissioner's function is qualified as "entirely non-political" and "humanitarian and social."

In fulfilling its protection function, the tasks of the High Commissioner as set out in the Statute, include:
(a) Promoting the conclusion and ratification of international conventions for the protection of refugees,
supervising their application and proposing amendments;
(b) Promoting measures to improve the situation of refugees and to reduce the number requiring
protection;
(c) Assisting efforts to promote voluntary repatriation or assimilation within new national communities;
(d) Promoting the admission of refugees to the territories of States;
(e) Facilitating the transfer of the assets of refugees; obtaining from Governments information concerning
the number and conditions of refugees in their territories, and the relevant laws and regulations;
(f) Keeping in close touch with Governments and intergovernmental organizations;
(g) Establishing contact with private organizations dealingwith refugee questions;
(i) Facilitating the coordination of private efforts.
Protection tasks have diversified even further over the years since the drafting of the Statute.

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The Universal Declaration of Human Rights (UDHR)

The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United
Nations General Assembly (UNGA). It establishes the rights and freedoms of all members of the human
race.

It was accepted by the UNGA as per Resolution 217 during the session on December 10, 1948. Among
the United Nations members at the time, 48 voted in favour, none against, 8 abstained and 2 did not vote.

The UDHR has played a significant role in the history of human rights.

Universal Declaration of Human Rights – Overview

● The UDHR consists of 30 articles detailing an individual’s “basic rights and fundamental
freedoms”. It is universally applicable for all human beings of varying race, religions and
nationality.
● It directly inspired the development of international human rights law, and was the first step in the
formulation of the International Bill of Human Rights, which was completed in 1966 and came
into force in 1976.
● Even though the Universal Human Rights Declaration is not legally binding, its contents has been
elaborated and incorporated into subsequent international treaties, regional human rights and
instruments and in the legal codes of various countries
● At least one of the 9 binding treaties of the UDHR has been ratified by all 193 member states of
the United Nations, with the majority ratifying four or more.

Article The basic concepts of dignity, liberty and equality are established.
s1–2

Article Details of individual rights, such as the right to life and prohibition of slavery are
s3–5 explained in detail.

Article Refers to the fundamental rights as well as the remedies for their violation.
s 6 – 11
 Article Set forth the rights of the individual towards the community, including freedom of
s 12 – movement and residence within each state, the right of property and the right to a
17 nationality.

Article These sets of articles refer to the rights of the individual towards the community,
s 18 – including freedom of movement, thought, opinion, expression, religion, peaceful
21 association and ideas through any media.

Article Sanctions an individual’s economic, social and cultural rights including healthcare. It
s 22 – also upholds the right to a better standard of living and makes a special mention of
27 care given to motherhood or childhood.

Article It establishes the general means of exercising these rights, the areas in which the rights
s 28 – of the individual cannot be applied.
30

Significance of the Universal Declaration of Human Rights

● The UDHR is widely regarded as a groundbreaking document that provides a comprehensive and
universal set of principles in a secular, apolitical document that is beyond cultural, religious and
political ideologies The Declaration was the first instrument of international law to use the phrase
“rule of law”, thereby establishing the principle that all members of all societies are equally
bound by the law regardless of the jurisdiction or political system.
● In International law, a declaration is different from a treaty in the sense that it generally states
aspiration or understanding among the parties, rather than binding obligations. For this reason, the
Universal Declaration of Human Rights is a fundamental constitutive document of the United
Nations and, by extension, all 193 parties of the UN Charter.

Article 14: Right to Asylum

In 1950, two years after the UN General Assembly adopted the Universal Declaration of Human Rights
(UDHR), it created the United Nations High Commissioner for Refugees (UNHCR). The agency was to
have three years to help the millions of Europeans who had fled or lost their homes during the Second
World War, and then was to be disbanded.

Decades later, the UN Refugee Agency is still in business, and the number of displaced people in the
world is over 68 million. Of that total, 25 million are refugees – people fleeing conflict or persecution –
who have crossed an international border, while 40 million are displaced within their own country. The
remainder are asylum-seekers – people who may, or may not, ultimately be determined to be refugees.

Article 14 of the UDHR grants the right to seek and enjoy asylum from persecution. This right, in
addition to the right to leave one’s own country (Article 13), and the right to nationality (Article 15), can
be traced directly to events of the Holocaust. Many countries whose drafters worked on the UDHR were
acutely aware that they had turned away Jewish refugees, likely condemning them to death. In addition,
many Jews, Roma and others hunted by the Nazis had been unable to leave Germany to save their lives.

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Constitutional provision to refugees in india

Constitution of India are applicable to the refugees when they are in India. The most important Article is
Article 21 which deals with Right to Life and personal liberty, it applies to everyone irrespective of
whether they are a citizen of India. Many judgements have been given based on Article 21 on refugees.
Article 14 guarantees the person right to equality before the law. Article 5, 6, 7, 8, 9, 10,11,12, 20,
22,25-28, 32, 226 also available for non-citizens of India including Refugees.

The Fundamental Right Article 21 of the Indian Constitution, which protects everyone's right to life and
personal liberty, has been upheld by the Supreme Court of India on numerous occasions. Given that the
United Nations High Commissioner for Refugees (UNHCR) is crucial to the protection of refugees, the
various High Courts in India have embraced the principles of natural justice to refugee concerns. By
delaying the deportation orders, the Hon’ble High Court of Guwahati recognised the concerns of refugees
and allowed them to contact the UNHCR to ascertain their status.

Treatment given to the Asylum people were divided into three heads-

National Treatment
Treatment that is accorded to foreigners
Special Treatment

National Treatment:The national treatment to the asylum people is same as the citizens of India. There are
certain Articles in the Constitution of India, which takes care of the Fundamental Rights of all people in
India. The rights such as equal protection to law under article 14, religious freedom under article 25, the
right to life and personal liberty under article 21, right to social security and educational rights are
guaranteed in Part III of the Indian Constitution.

Treatment that is accorded to foreigners:– Under this head, there are rights which are related to the
housing problems, movements, etc. the rights which are provided under this treatment are: right to
employment or profession under article 17, freedom of residence and movement under article 26, right to
housing under article 21, right to form association under article 15 and right to property under article 13
of the 1951 Refugee Convention.
Special treatment: – This treatment includes the identity and travel document under article 28, exemption
from penalties under article 3(1) of the 1951 Refugee Convention.

In the case of Louis De Raedt vs. Union of India[3], the court held that the fundamental rights to life,
liberty, dignity are available to non-citizens of India. In the case of Visakha vs. State of Rajasthan[4], the
court has held that “International Conventions and norms are significant for the purpose of interpretation
of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of
the Constitution and the safeguards against sexual harassment implicit therein”.
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Human Rights and Fundamental Rights in Constitution of India

The Fundamental Rights of India is similar to the human rights mentioned in Covenant on Civil and
Political Rights, 1976 and Covenant on Economic, Social and Cultural Rights, 1976.

These rights are taken from many sources which include the English Bill of Rights, the American Bill of
Rights and French Declaration of the Rights of Man which also happens to be the source of UDHR.
Fundamental rights in India are the rights guaranteed under Part III (Articles 12-35) of the Constitution of
India. There are six fundamental rights recognised by the Indian constitution:

● Articles 14-18: Right to equality,

● Articles 19-22: Right to freedom,
● Articles 23-24: Right against exploitation,
● Articles 25-28: Right to freedom of religion,
● Articles 29-30: Cultural and educational rights and
● Article 32 and 226: Right to constitutional remedies.
The history of human rights can be traced thousand years ago from the various legal, cultural, religious
and society development the world have gone through. There is proof of human rights evolving in various
regimes. For example, during the time of Prophet Mohammed, he formulated Constitution of Medina in
622, and Magna Carta, 1215 which helped in the formation of various constitutional rights in UK, USA
and France.

Basis for Comparison Fundamental Rights Human Rights

 Meaning Fundamental Rights means the Human Rights are the basic rights
primary rights of the citizens which that all the human beings can enjoy,
are justifiable and written in the no matter where they live, what they
constitution. do, and how they behave, etc.

Includes Basic Rights Only Basic and Absolute Rights

Scope It is country specific. It is universal.

Basic Principle Right of freedom Right of life with dignity

Guarantee Constitutionally guaranteed Internationally guaranteed

Enforcement Enforceable by the court of law. Enforceable by United Nation

Organization.

Origin Originated from the views of Originated from the ideas of civilized
democratic society. nations.

Key Differences Between Fundamental Rights and Human Rights

The points given below explain the difference between fundamental rights and human rights:

1. The elemental rights of the citizens of a country, which are mentioned in the constitution and
enforceable under the law is known as fundamental rights. On the other extreme, human rights are
the rights that a human being needs to survive with respect and freedom.
2. Fundamental rights includes only those rights which are basic to a normal life. On the contrary,
human rights include those rights which are basic to a real life and are absolute, i.e. it cannot be
taken away.
 3. While fundamental rights are country specific, i.e. these rights may vary from country to country,
human rights have a global acceptance, meaning that all the human beings enjoy these rights.
4. The fundamental rights rely on the basic principle of the right of freedom. As against, the human
rights are based on the right of life with dignity.
5. Fundamental rights are guaranteed under the constitution of the country, whereas the human
rights are recognised at international level.
6. Both fundamental and human rights are enforceable in nature, but the former is enforced by the
law court, and the latter is enforced by the United Nation Organization.
7. Fundamental rights are derived from the views of a democratic society. Conversely, human rights
emerge from the ideas of civilised nations.

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Migration and Forced migration (displacement)

Introduction
Migration is defined as the movement of persons away from their place of usual residence, either across
an international border or within a state. It can be viewed both with positive connotations (e.g. moving to
start a new job, seeking better living conditions) or with negative connotations (e.g. escaping political
oppression, conflict, violence, disaster or human rights violations). It is generally accompanied by a
significant change in the cultural set up of both the migrants and the host community.According to the
Migration Data Portal, at the end of 2020 there were 280.6 million migrants globally. Migration may
begin internally but often crosses international boundaries, just as international migration may one day
cycle back home.
Types of Migration
Internal Migration
"The movement of people within a State involving the establishment of a new temporary or permanent
residence. [...] Internal migration movements can be temporary or permanent and include those who have
been displaced from their habitual place of residence such as internally displaced persons, as well as
persons who decide to move to a new place, such as in the case of rural–urban migration. The term also
covers both nationals and non‐nationals moving within a State, provided that they move away from their
place of habitual residence.
International Migration
"The movement of persons away from their place of usual residence and across an international border to
a country of which they are not nationals." As for internal migration, this can be temporary or permanent
and includes those who have been displaced from their "habitual place of residence", and people who
have chosen to move to a new country. It excludes movements that are due to “recreation, holiday, visits
to friends and relatives, business, medical treatment or religious pilgrimages”.
Reasons for Migration
Climate Migration
"The movement of a person or groups of persons who, predominantly for reasons of sudden or
progressive change in the environment due to climate change, are obliged to leave their habitual place of
residence, or choose to do so, either temporarily or permanently, within a State or across an international
border. "
Labour Migration
"Movement of persons from one State to another, or within their own country of residence, for the
purpose of employment."[3] This includes migrants moving within the country and across international
borders.
Irregular Migration
"Movement of persons that takes place outside the laws, regulations, or international agreements
governing the entry into or exit from the State of origin, transit or destination."[3] It is generally used to
"identify persons moving outside regular migration channels." These migrants may have had no other
option but to use these irregular migration channels. It may include: asylum seekers, victims of
trafficking, or unaccompanied migrant children.

Forced Migration or Displacement

Forced migration or displacement refers to the "movement of persons who have been forced or obliged to
flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid
the effects of armed conflict, situations of generalized violence, violations of human rights or natural or
human-made disasters. This migration can be either within their own country or between countries after
being displaced from their home country. There are some differences between the different types of
displaced persons which we will explore below.
"The movement of persons who have been forced or obliged to flee or leave their homes or places of
habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, generalized
violence, violations of human rights or natural or human-made disasters."

The responsibility of the State

The State and its institutions have a responsibility to respect and ensure respect for their
human rights obligations at all times. In times of conflict, the parties to the conflict are similarly
obliged to respect and ensure respect for the principles of international humanitarian law. The
most effective way to minimize the risk of arbitrary displacement is to avoid conditions that
might compel people to leave their homes against their will. In most cases, forced
displacement could be avoided or greatly reduced if the rules of international law were
respected. More specifically, national authorities should:
1. Take all possible measures to prevent and avoid conditions that might cause or contribute to
forced displacement. This could for instance include ensuring respect for the rule of law,
combating impunity and otherwise creating an environment conducive to the realization of rights.
2. Refrain from forcing individuals and communities to leave their homes or places of habitual
residence and protect them from being arbitrarily displaced by others. The authorities should seek
all possible alternatives before resorting to displacement.
3. When displacement is necessary and justifiable, the authorities must take action to minimize the
scale of displacement and mitigate its adverse effects. In particular, the authorities should ensure
to the greatest possible extent, that it takes place in satisfactory conditions of safety, shelter,
nutrition, health and hygiene, and that members of the same family are not separated.
4. Ensure that displacement lasts no longer than required by the circumstances and that a durable
solution is found for all those affected. The authorities should aim to create conditions for and
 facilitate voluntary return and reintegration and/or settlement elsewhere in the country. Displaced
persons should not be discriminated against as a result of having been displaced and should be
entitled to restitution and/or compensation for property they may have been arbitrarily deprived
of.
5. Make special efforts to ensure the full participation of internally displaced persons at all stages of
the displacement cycle, including in the search for durable solutions.
6. Provide protection and assistance to internally displaced persons. Where the national authorities
are unable or unwilling to do so, they should ensure rapid and unimpeded access by humanitarian
actors to populations in need and facilitate the free passage of humanitarian assistance.

Key actors
Efforts to prevent, minimize and mitigate the effects of forced displacement require a coordinated effort
by a range of actors:

1. At the national level, key actors include displaced individuals and communities; all levels of
government, in particular ministries of the interior, defence, housing and social welfare, the
judiciary, law enforcement authorities, and the armed forces; national human rights institutions or
commissions; civil society and local NGOs.
2. At the regional level, key actors include regional organizations, such as the African Union,
regional human rights courts, commissions, and special rapporteurs, regional peace-keeping
forces, where present, and influential donor or neighbouring States.
3. At the international level, key actors include various political developmental, human rights and
humanitarian actors, as well as peace-keeping forces where resent. Relevant actors include, for
example, the Humanitarian/Resident Coordinator, OCHA, UNDP, OHCHR, UNHCR, UNICEF,
UNIFEM, UNFPA, IOM, ICRC, and NGO partners.

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Development of International Refugee Law-

The evolution of international refugee law is a result of the conflict between the two contrasting doctrine,
the general commitment of states to pursue their own immigration policy in furtherance of their national
interest to protection of humanitarian interests of the people in situations of humanitarian crisis when
facing coercion or persecution.
However, in the latest global trend,through the increased mandate of UNHCR, states have somehow
abandoned the strict protectionist approach to addressing the realities of mass exodusresulted from
various reasons. Thus, as Professor Hathaway puts it, the practice of sheltering those compelled to flight
should not perceived as aburden, but rather as a necessary incident of power, and a source of communal
enrichment. Furthermore, as we have come to a time where the discourseon humane treatment of refugees
has entered into international public opinion,
the basis of such protection should be about meeting the needs of thevulnerable population while taking
into account the legitimate interests andwillingness to undertake such obligations.

History
The revocation of the Edict of Nantes in 1685 led to over 400,000 Protestant Huguenots fleeing France
for England, giving rise to the term "refugee." While seeking refuge is an ancient practice, formal
legislation for asylum developed only in the 20th century, primarily influenced by European political
culture. Understanding the history of refugee movements is crucial to grasp the evolution of international
refugee law. This paper offers a concise overview of how international refugee protection standards have
developed.

In medieval times, states were welcoming to foreigners and offered sanctuary based on the universalist
political philosophy prevalent then. This openness continued into the era of liberalism, which valued
individual freedoms and saw asylum seekers as beneficial contributors to society. However, the 20th
century's rise of nationalism shifted this perspective, emphasizing national sovereignty and state
responsibility toward its own population. Influenced by the American and French revolutions, and ideas
like Karl Von Savigny's Volkgeist, states began to adopt restrictive immigration policies to protect
national unity and territorial integrity.

Development of Refugee Law Before 1938

International efforts to protect refugees began with the League of Nations appointing Dr. Fridtjof Nansen
as the first High Commissioner for Russian Refugees in 1921. This initiative followed a conference
organized by the International Committee of the Red Cross and the League of Red Cross Societies, which
recommended appointing a High Commissioner to define refugee status, facilitate repatriation or
employment, and coordinate aid. As a result, the Arrangement Regarding the Issue of Certificates of
Identity to Russian Refugees was adopted on July 5, 1922, providing Russian refugees with identification
certificates for entry into states.

International Refugee Law Today

When the United Nations was formed, the refugee issue was a top priority. In February 1946, the UN
General Assembly highlighted three key principles: refugees are an international concern, forced returns
of refugees with valid objections should be avoided, and repatriation should be encouraged and facilitated
where possible.

The Universal Declaration of Human Rights in 1948 marked a significant shift, emphasizing individual
rights and making refugee protection an international legal matter. The International Refugee
Organization (IRO), established in December 1946, aimed to address the needs of those displaced by
World War II and ongoing political turmoil. However, practical cooperation remained limited.

Today, the intersection of refugee protection with broader migration issues presents challenges. Refugees
often face similar travel and entry barriers as irregular migrants, and measures against smuggling and
trafficking affect refugee protection. Effective solutions require clear distinctions between refugees and
other migrants and careful management of international protection obligations alongside the movement of
people between states.
International Refugee Law Tomorrow

International refugee law faces challenges and opportunities in a world of growing migration and global
interdependence. While sovereign states will continue to play a key role, their self-interests and historical
practices will shape their policies and willingness to cooperate on refugee issues.

As states seek solutions, there may be increasing calls to reassess aspects of sovereignty that hinder
humanitarian action, including exploring the full potential of the "responsibility to protect." International
refugee law must adapt to a highly globalized and securitized context, where distinguishing between
refugees and economic migrants becomes increasingly complex.

To address these challenges, there is an urgent need for a comprehensive international legal framework
that governs migration and protects the rights of all migrants, regardless of their status. This approach
should build on the 1946 recognition that refugee issues are international and require collective
responsibility, fostering cooperation among origin, transit, and destination states based on principles of
equality and equity.
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PERSECUTION – MEANING AND NATURE

The verb “to persecute” originates from the Latin “perse Qui” which means “to follow, pursue,
or hunt down. Persecution is classified in the Nuremberg Principles (1946) as a crime against
humanity, alongside murder, torture, enslavement, and forced disappearance. The Rome Statute
of the International Criminal Court (ICC) of 1998 also defines persecution as a crime against
humanity. The ICC Statute defines persecution as “the intentional and severe deprivation of
fundamental rights contrary to international law by reason of the identity of the group or
collectively. The Geneva Convention on the Status of Refugees of 1951 places the concept of
persecution at the heart of entitlement to asylum.

Beginning with this focus on ordinary language, interpretations of the meaning of persecution
have broadly coalesced around several features. First, persecution must be inflicted by a human
persecutor, though it need not be inflicted by the State. De facto state authorities can commit
persecution, for instance, a militia or paramilitary group. However, purely natural disasters do
not count as persecution, though weaponized environmental harms or victims being refused
assistance could. Second, persecution picks out individuals for harm based on some
characteristic; The Refugee Convention states that persecution must be inflicted because of
someone's race, religion, nationality, or membership of a particular social group. Third,
persecution must be “cruel” or “serious.” Most jurisdictions therefore agree that persecution is
distinct from “mere” discrimination or harassment.

So, defining persecution by relying on its ordinary meaning generally results in an

understanding of persecution as a severe harm (whether aggregated or episodic) targeted at a
person for a particular (discriminatory) reason.
DIFFERENT WAYS ADOPTED BY NATIONS FOR PERSECUTION
1) Confiscation or destruction of property
2) Incitement of hatred
3) Arrests
4) Imprisonment
5) Beating
6) Torture
7) Murder and execution

Grounds

Both persecution in refugee law and criminal law require the human rights violation to be committed for
discriminatory reasons. The crime of persecution must be committed on “political, racial, national, ethnic,
religious, gender [...] or other grounds that are universally recognized as impermissi-ble under
international law”.
a) Political Grounds
“Political grounds” and “political opinion” refer to matters related to governmental issues or public
affairs. This concept doesn't require affiliation with a specific party or support for a particular ideology.
Instead, it encompasses any acts or views that diverge from official opinions on public issues. In refugee
law, political opinions in the country of origin that might not be significant in the country of refuge can
still be considered political. However, simply holding a secret political opinion is insufficient; it must be
strong enough to eventually be expressed.

b) Racial Grounds

The term “racial grounds” or “race” is complex due to outdated definitions. It should be understood
broadly, including aspects like ethnicity. The definition from the 1965 International Convention on the
Elimination of All Forms of Racial Discrimination (ICERD) is useful: it defines “racial discrimination” as
any distinction or exclusion based on race, color, descent, or national or ethnic origin. Thus, “racial”
grounds encompass more than just biological differences, including cultural and heritage factors, as
supported by Art. 10 (1) (a) QD11, which includes color, descent, and ethnic group membership.
c) Ethnic Grounds

“Ethnic” grounds in persecution cases are closely related to “racial” grounds and are often preferred in
international law due to the controversial nature of racial definitions. Despite “ethnic” grounds not being
explicitly mentioned in the refugee definition, the scope of application remains similar due to their
overlap in criminal law contexts.

d) Cultural Grounds

“Cultural” grounds, although included in persecution crimes, are not explicitly defined in refugee law.
The concept of culture includes customs, arts, social institutions, and other aspects such as art, science,
and history. Discrimination based on cultural background may overlap with ethnic, religious, or social
group discrimination. It is unlikely that cultural persecution would not be considered under refugee law,
given its broad scope.

e) National Grounds

In criminal law, “national” grounds extend beyond formal citizenship to include groups that identify as a
nation even if dispersed across different states. In refugee law, “nationality” is generally interpreted as
citizenship but should be understood broadly to include ethnic, religious, cultural, and linguistic group
membership. This interpretation aligns with both refugee and criminal law, acknowledging broader forms
of national identity.

f) Religious Grounds

In both criminal and refugee law contexts, “religious” grounds include persecution based not only on
one's religious beliefs but also on the absence of religion or non-conformity to religious rules. Religion
encompasses all forms of belief, including theistic, non-theistic, and atheistic perspectives. According to
the UNHCR and the 2011 EU Qualification Directive, religion includes participation in or abstention
from religious practices, and personal or communal conduct based on religious beliefs. For refugee
claims, it is essential that religious persecution involves disadvantageous consequences; mere
membership in a religious community without such consequences typically does not suffice.

g) Gender Grounds

“Gender” as a ground for persecution refers to the discrimination based on sex—male or female—within
societal contexts. The definition in Article 7(3) of the ICC Statute encompasses both biological and
sociological aspects of gender, making it a particularly complex and contentious issue.

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Does India Need a Refugee and Asylum Law?

Context and Current Situation:

1. Generosity Without Formal Framework:

○ India has been a generous host to various persecuted communities, such as the Tibetan
refugees, the Chakmas, and the Rohingyas. Despite this, India is not a signatory to the
1951 UN Refugee Convention nor its 1967 Protocol, and lacks a dedicated domestic
asylum framework.
○ The absence of a formal refugee and asylum law leaves refugees vulnerable, as their
status and rights are handled through an assortment of existing laws (e.g., the Foreigners
Act, 1946; the Citizenship Act, 1955) that do not specifically address refugee issues.
2. Existing Laws and Their Limitations:
○ Foreigners Act, 1946: Provides the government with broad powers to regulate the entry
and presence of foreigners but does not differentiate between asylum seekers and other
foreigners.
 ○ Registration of Foreigners Act, 1939; Passports Act (1967); Extradition Act, 1962:
These laws generally cover foreign individuals without a specific focus on refugees.
○ Citizenship Act, 1955: Includes provisions for citizenship but does not offer a
comprehensive asylum framework.
○ Foreigners Order, 1948: Covers aspects related to foreign nationals but lacks specific
provisions for refugee protection.
3. Judicial Interventions and Their Impact:
○ NHRC vs. State of Arunachal Pradesh (1996): The Supreme Court ruled that the state
must protect all individuals within its territory, regardless of nationality, citing Articles 14
(equality before law), 20 (protection against arbitrary arrest), and 21 (right to life and
personal liberty). This case established a precedent for the protection of asylum seekers,
indicating that asylum applications must be processed and no individual should be
forcibly evicted without due process.
○ Rohingya Case (2021): The Supreme Court upheld the government's decision to deport
Rohingya refugees, emphasizing national security concerns and the lack of a binding
non-refoulement principle due to India's non-signature of the 1951 Refugee Convention.

Need for a Refugee and Asylum Law:

1. Unified Legal Framework:

○ Current Situation: The lack of a comprehensive legal framework leads to ad hoc and
inconsistent handling of refugee issues. Refugees face uncertainty and potential
deportation under laws that do not specifically address their unique needs and rights.
○ Proposed Solution: A dedicated refugee and asylum law would provide clear guidelines
on refugee status determination, rights, and protection. It would align India's domestic
laws with international standards and provide a more stable and predictable environment
for refugees.
2. Protection and Rights:
○ Basic Services and Livelihood: Refugees often lack access to basic public services and
opportunities for legal employment. A formal framework would ensure that refugees
have access to essential services, reducing their vulnerability to exploitation and
trafficking.
○ Legal Status and Security: Proper legislation would offer legal protection and rights to
refugees, preventing arbitrary detention or deportation. It would also institutionalize the
principle of non-refoulement, ensuring that refugees cannot be returned to a place where
they face harm.
3. International Obligations and Reputation:
○ Global Standards: While India has historically shown generosity, formalizing its
commitment to refugee protection through domestic legislation would enhance its role as
a responsible global actor. It would align with international human rights standards and
demonstrate India's dedication to global solidarity and human rights.
○ Judicial Precedents: Existing judicial rulings indicate a progressive approach towards
refugee rights, but legislative clarity would ensure consistency and reduce reliance on
individual judicial decisions.
Conclusion:

India would benefit from enacting a comprehensive refugee and asylum law. Such a law would provide a
clear, consistent, and humane approach to managing refugees, align with international standards, and
enhance India’s standing as a responsible member of the international community. While the judiciary has
made significant strides in protecting refugee rights, a formal legislative framework would provide the
necessary structure to uphold these rights more effectively and ensure a uniform approach to refugee and
asylum issues.

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Case Studies -

1. Mohammad Salimullah and Anr. v Union of India and Ors.

Facts: In the case of Mohammad Salimullah v. Union of India, a writ petition was filed before the
Supreme Court of India challenging the Indian government's decision to deport Rohingya refugees. The
petitioners, including Mohammad Salimullah, argued that the deportation of Rohingyas—who are
registered with the United Nations High Commissioner for Refugees (UNHCR) and face severe
persecution in Myanmar—violates their rights. The Rohingyas are a minority from Myanmar's Rakhine
state, fleeing violent persecution by the Myanmar government, military, and Buddhist nationalists. The
Indian government, citing security concerns, planned to deport these refugees, labeling them as illegal
immigrants. The petitioners sought to prevent this deportation and secure the release of those detained in a
sub-jail in Jammu, repurposed as a holding center.

Issues Raised:

1. Equality (Article 14): Does the deportation of Rohingya Muslims violate the right to equality,
considering that similarly placed immigrants are not being deported?
2. Right to Life (Article 21): Does the proposed deportation violate the Rohingyas' right to life,
given the existential threat they face in Myanmar?
3. Fundamental Rights for Non-Citizens: Do fundamental rights under the Indian Constitution
apply to non-citizens?
4. Non-Refoulement Principle: Is India bound by the principle of non-refoulement, a component of
customary international law, despite not signing the 1951 Refugee Convention?

Contentions:

Petitioner’s Side:

● Non-Refoulement: The petitioner argued that Article 21 of the Indian Constitution implicitly
includes the principle of non-refoulement, a protection against returning refugees to places where
 they face serious threats. Although India is not a signatory to the 1951 Refugee Convention, it has
committed to various international human rights instruments like the Universal Declaration of
Human Rights, the International Covenant on Civil and Political Rights, and the Convention on
the Rights of the Child, which support non-refoulement. The petitioner also highlighted the
International Court of Justice's ruling in The Gambia v. Myanmar, recognizing the severe
persecution of Rohingyas.
● Fundamental Rights: It was argued that Articles 14 and 21 of the Indian Constitution extend
certain fundamental rights to non-citizens, including refugees.
● Security Concerns: The petitioners contended that deporting Rohingyas back to Myanmar would
put their lives in jeopardy given the ongoing violence and the recent military coup in Myanmar.

Respondent’s Side:

● Previous Rejections: The respondents pointed out that a similar petition regarding Rohingya
deportation from Assam was rejected on October 4, 2018.
● Security Risks: The Indian government argued that open and porous borders with several
countries raise significant security concerns, leading to stringent measures against illegal
immigrants.
● Foreigners Act, 1946: According to this Act, the Indian government has the authority to issue
deportation orders for any foreign individuals or groups. The respondents maintained that
Rohingyas, considered foreigners under this Act, could be deported.
● Non-Refoulement: The respondents asserted that India is not legally bound by the principle of
non-refoulement as it is not a party to the 1951 Refugee Convention.
● Rights of Non-Citizens: While acknowledging that non-citizens may enjoy certain rights, the
respondents argued that the right to reside and live, specifically mentioned in Article 19(1)(e), is
reserved for citizens.

Rationale:

● Foreigners Act, 1946: Provides the legal framework for deportation orders against foreigners.
● Principle of Non-Refoulement: While not legally binding in India due to the lack of ratification
of the 1951 Refugee Convention, it is argued to be a part of customary international law and
reflected in various human rights treaties India is party to.
● International Instruments: India's commitments under the Universal Declaration of Human
Rights, the International Covenant on Civil and Political Rights, and the Convention on the
Rights of the Child.
● Constitutional Provisions: Articles 14 (right to equality), 19(1)(e) (right to reside and settle),
and 21 (right to life) are central to the argument concerning the rights of non-citizens and refugees
in India.

2. The Gambia vs Myanmar

Background: In the case of Mohammad Salimullah v. Union of India, a writ petition was filed to
challenge the Indian government's decision to deport Rohingya refugees. The petitioners, including
Mohammad Salimullah, argued that the deportation violated their fundamental rights and sought
protection against the deportation, citing their status as UNHCR-registered refugees and the existential
threat they faced in Myanmar.

Relevant Legal Provisions:

1. The Foreigners Act, 1946, Section 3: Grants the Central Government the authority to regulate,
restrict, or prohibit the entry, departure, or presence of foreigners in India.
2. Principle of Non-Refoulement: An international human rights principle that prohibits returning
refugees to a country where they face torture, cruel, inhuman, or degrading treatment. This
principle is recognized in international law but not directly binding in India due to non-signature
of the 1951 Refugee Convention.
3. Indian Constitution:
○ Article 14: Guarantees equality before the law and equal protection of the laws within
India.
○ Article 19(1)(e): Grants the right to reside and settle in any part of India, exclusively to
Indian citizens.
○ Article 21: Protects the right to life and personal liberty, stipulating that no person shall
be deprived of these rights except according to the procedure established by law.
○ Article 51(c): Directs the State to foster respect for international law and treaty
obligations.

Judgment Summary (08.04.2021):

● Deportation Decision: The Supreme Court of India upheld the Indian government's decision to
deport the Rohingya refugees. The Court noted that India is not a party to the 1951 Refugee
Convention or its Protocol, thus the principle of non-refoulement does not have binding force in
India.
● National Security Concerns: The Court acknowledged the government’s concerns about
national security due to the porous nature of India’s borders and the potential influx of illegal
immigrants.
● Application of Constitutional Rights:
○ Articles 14 and 21: The Court affirmed that these rights apply to both citizens and
non-citizens. However, these rights do not extend to granting asylum or protection against
deportation in cases involving national security.
○ Article 19(1)(e): The Court clarified that this right is reserved for Indian citizens and
does not apply to refugees.
● International Court Influence: The Court stated that while national courts can be inspired by
international judgments, they are bound by domestic laws and cannot overrule them based on
international considerations alone.
● Interim Relief: The Court ruled that no interim relief could be granted to the petitioners. The
deportation process would continue according to established legal procedures.

Conclusion: The Supreme Court of India ruled in favor of the government’s position, emphasizing that
while constitutional protections apply, they do not extend to preventing the deportation of refugees based
on international principles not incorporated into domestic law. The Court also highlighted that the
deportation would follow proper procedures and that national security considerations played a significant
role in the decision.

3. The Citizenship (Amendment) Act, 2019 (CAA) in India provides a path to citizenship for
non-Muslim migrants from Bangladesh, Afghanistan, and Pakistan who faced religious persecution but
excludes Muslims. This has raised significant concerns:

1. Non-Refoulement Violation: Excluding Muslims from protection under the CAA risks violating
the principle of non-refoulement, which prohibits returning refugees to places where they face
serious harm. This particularly affects Rohingya Muslims from Myanmar, who face severe
persecution.
2. Religious Discrimination: The CAA's selective approach to citizenship based on religion is
criticized as discriminatory and inconsistent with constitutional guarantees of equality (Article
14) and non-discrimination.
3. Statelessness Risks: The combination of the CAA and the NRC (which excluded around 2
million people) may result in statelessness for many, leaving them without legal status or
protection.
4. Need for Comprehensive Law: India lacks a uniform refugee and asylum law. Implementing
such a law would ensure protection for all refugees, align with international human rights
standards, and avoid discrimination.

4. Julian Assange is an Australian journalist, publisher, and computer programmer, born in Townsville,
Australia, in July 1971. He is best known as the founder of WikiLeaks, a platform that publishes classified
and sensitive information from anonymous sources.

Here's a brief overview of his background and career:

1. Early Life and Hacking:

○ As a teenager, Assange gained a reputation as a talented computer programmer.
○ In 1995, he pleaded guilty to charges of hacking and was fined. His activities included
infiltrating networks of major organizations, demonstrating his skills in computer
security.
2. Founding WikiLeaks:
○ In 2006, Assange founded WikiLeaks with the aim of increasing transparency and
exposing government and corporate misconduct. The platform allows whistleblowers to
leak information anonymously.
3. High-Profile Leaks:
○ WikiLeaks gained international attention in 2010 when it published a series of classified
U.S. government documents, including the Iraq War Logs, the Afghan War Diary, and
diplomatic cables. These disclosures revealed sensitive information about military
operations and diplomatic relations.
4. Legal Troubles and Asylum:
○ Assange faced legal issues related to sexual assault allegations in Sweden, which he
contended were politically motivated. Fearing extradition to the U.S. where he faced
 charges related to his WikiLeaks activities, he sought asylum in the Embassy of Ecuador
in London in 2012.
○ He remained in the embassy for nearly seven years until his arrest by British authorities
in April 2019, after the Ecuadorian government withdrew his asylum.
5. Extradition and Current Status:
○ Assange has been fighting extradition to the U.S. where he faces charges related to his
WikiLeaks activities, including conspiracy to commit computer intrusion. Supporters
view him as a champion of press freedom, while critics argue that his actions endangered
lives and national security.
○ As of 2024, Assange remains a contentious figure in debates about press freedom,
national security, and human rights.

5. Edward Snowden is an American former National Security Agency (NSA) contractor who gained
global attention for leaking classified information about U.S. government surveillance programs. Here's a
brief overview of his background and career:

1. Early Life and Career:

○ Born on June 21, 1983, in Elizabeth City, North Carolina, Snowden grew up in a family
with a background in government service.
○ He worked in various IT and cybersecurity roles, including for the NSA as a contractor.
2. Leaking Classified Information:
○ In 2013, Snowden leaked a large cache of classified documents to journalists Glenn
Greenwald, Laura Poitras, and Ewen MacAskill. These documents revealed extensive
NSA surveillance programs that collected data on phone calls, emails, and internet
activities of individuals worldwide.
○ His disclosures sparked a global debate about privacy, government surveillance, and civil
liberties.
3. Exile and Asylum:
○ After leaking the information, Snowden fled the U.S. to avoid prosecution. He initially
sought asylum in Hong Kong before traveling to Russia.
○ He was granted temporary asylum in Russia and later received a residency permit. His
stay in Russia has been extended periodically.
4. Legal and Political Implications:
○ Snowden faces charges in the U.S. including theft of government property and espionage.
The U.S. government views him as a traitor, while many human rights advocates consider
him a whistleblower who exposed abuses of power.
○ His revelations led to significant reforms and public debate about surveillance practices
and privacy rights.
5. Current Status:
○ Snowden continues to reside in Russia and remains a polarizing figure. He has written a
memoir, "Permanent Record," and continues to speak publicly about privacy, government
surveillance, and civil liberties.