As the International Court of Justice prepares to rule on whether or not to place emergency measures in the Rohingya genocide case, it has become apparent that Rohingya Muslims are just one of many communities in South Asia seeking refuge or escaping persecution. Moreover, it is clear that the asylum policies in these countries need to be reviewed and revamped.
The stand taken by both India and China–two key regional powers–on the Rohingya Muslims issue is tainted with an Islamophobic bias. While China, a close ally of Myanmar, has boycotted talks on the Rohingya issue in the UN, Indian officials have announced their decision to deport 40,000 Rohingyas. Like the Myanmar government, the Indian authorities labeled them as “illegal Bengalis”, citing the issue of Muslim refugees as a threat to the very fabric of the Indian society.
Bangladesh hosts 100,000 Rohingya refugees, and officials have hinted at shifting them to a regularly submerged island with its territory. The UN and various international aid agencies have raised concerns about the possibility of a storm overwhelming the island and risking the lives of the inhabitants.
The international legal framework on this issue is ineffective in this region. Except for China, no other country has ratified the 1951 Refugee Convention. Furthermore, no South Asian country is a party to the Convention Relating to the Status of Stateless Persons either.
The current fragmented structure, wherein each country has its own rules and procedures, excludes a large number of such asylum seekers from protection. The failure to establish a formal policy guiding asylum procedures in the region leads to ambiguity and arbitrariness in the assessment of the applications.
Hence, there is a dire need to implement a uniform, centralized regional policy that is both able and willing to deal with the growing issue of asylum seekers–irrespective of their country of origin–and also respects their fundamental human rights. This would ensure the protection of 'stateless' minorities and the protection of the fundamental human rights of asylum seekers. Such a policy could lean on the European Union (EU) for inspiration.
The EU has a multinational uniform policy for asylum-seekers implemented by each member-State. Following the enormous influx of individuals seeking asylum, there were disagreements between member-States on how to tackle the issue without over-burdening a single country. As a solution, the EU incorporated The Common European Asylum System (CEAS). This policy creates a standardised procedure across member-States. It also ensures the protection of fundamental human rights of the asylum-seekers during the process and after.
The Dublin Regulation determines which country will assess the asylum application. The general rule is the “first state of entry rule”. However, this rule is modified in certain instances keeping in mind the possibility of over-burdening.
Once decided, the process requires the registration of every asylum seeker on a shared database. While they wait on authorities to assess their claim, they are entitled to stay in the territory of the member-State. It is mandated for every member-State to have minimum reception conditions, such as housing, food, employment and health care.
The application is then presented before a judge who adjudicates on the applicant’s requirement for international protection. Once granted, the asylum seeker is entitled to receive residence permits, travel documents, access to employment and education, social welfare and health care.
This centralised policy in the European Union led to a reduction in illegal immigration. With the entry of merely 150,000 illegal immigrants in 2019, the number was at its 5-year low since 2015. This was a result of the coordination between European countries and countries like Turkey and Libya to deter illegal immigration into Europe. By joining forces under a uniform policy that encourages information-sharing, the EU countries combine their efforts to reduce instances of illegal immigration. Simultaneously, by regulating the migration into the region through a uniform policy, the EU eased their entry into society through social and economic integration policies. Thus, this not only guards against the nations' concerns of illegal immigration but also against the immigrants' concerns of the deprivation of their fundamental rights.
There are millions of ‘stateless’ individuals in South Asia, and the number continues to grow. For instance, following India's implementation of its National Register of Citizens, over 2 million individuals in the state Assam have been rendered stateless. They are now being herded into detention centres. There are several boundary disputes in the region. Additionally, movement across the fluid borders in this region is frequent. This causes divergent understandings of state borders, nationality, and country of residence.
In such a situation, a centralised system becomes necessary. However, it is important to note the unique circumstances facing South Asia which prevent an exact replication of the EU model. In the EU, migrants and asylum seekers come from outside, while in South Asia, 'stateless' individuals are already within the borders of the country.
In most instances in South Asia, international protection is denied to such individuals, owing to a lack of documentation determining their nationality. However, on establishing a standard policy in the region, such individuals can be recognised through a unique procedure acknowledging their distinct situation.
A uniform policy would also ensure abidance by humanitarian principles through a system of checks and balances. In the EU, for instance, there are necessary conditions of “reception”–the interim period after registration, but before adjudication–that guarantee uniform asylum procedures, protections and rights.
Since there is co-dependence in the system, there is also accountability. The compliance to the centralised standard is ensured by member-States to avoid over-crowding in a region that guarantees better protections.
While theoretically a uniform system is ideal for the region, a diplomatic conversation achieving this is impossible given the history of mutual distrust in the region. The main reason for this is the issue of Kashmir, which affects the political dynamic between India and Pakistan and China.
Additionally, the growing trend of Islamophobic policies governing the region acts as another hindrance to developing humanitarian policies. This caused the India-Bangladesh alliance to sour as well. Indian officials referred to Muslims in Assam as “illegal Bengalis” and threatened to deport them to Bangladesh. Soon after the Citizenship Amendment Act was passed, Bangladesh's Foreign Minister AK Abdul Momen and Home Minister Asaduzzaman Khan cancelled their visits to India.
Even if the EU model were to be replicated in–or modified for–South Asia, successful and genuine implementation is contingent on the eradication of Islamophobic governance, which seems unlikely. While European concerns centre around curbing illegal immigration, Indian concerns are more centred around the identity of the immigrants, not the nature of their immigration. It is therefore difficult to export an immigration model from one region to another when the prevailing attitudes against immigration are so divergent, as they are trying to tackle completely different concerns.
However, with porous and unguarded borders across South Asia, immigration will take place whether authorities want it to or not, and they will be left to deal with the overwhelming repercussions. Hence, they must acknowledge the urgency of the issue to avoid a “migration crisis”, as was seen in Europe from 2015-2016 despite the implementation of the CEAS. With India threatening to “remove” all illegal Bangladeshi Muslims from Assam, which is predicted to be followed by nationwide deportations, the region is on the brink of a crisis without sufficient policies–or a willingness to implement policies–to save it.
References:
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