The Refugee Law Reader Framing a Syllabus for Asia: A Note

B.S. Chimni* I Introduction Framing the syllabus for the Asian section was a difficult task for several overlapping reasons that deserve mention. First, only few countries in Asia are party to the 1951 UN Convention on the Status of Refugees viz., Cambodia, China, Japan and Philippines. Second, unlike Africa, the Asian Region does not have a regional convention on the status of refugees. There is also no regional convention on human rights. Third, the non-binding AALCO principles, first adopted in 1966, have not had, as for instance the Cartagena Declaration (1984) has had in Latin America, any serious influence on the law and practice in the region. Fourth, most countries in Asia have not passed a national legislation on the status of refugees so that it is not always easy to discover the law that governs the world of refugees in individual national jurisdictions. In South Asia the status of refugees is not distinguished from that of aliens in general. Fifth, the absence of national law has meant scarce case law on matters relating to the determination of refugee status or the rights of refugees. Even where cases have gone before Courts there is a tendency not to engage with international refugee law. The decisions are taken on the basis of domestic legal provisions regulating the rights of aliens. Sixth, the secondary literature on the legal status of refugees for the very reasons is scant and of uneven quality. While there is a reasonable literature on the origin and condition of refugees it does not extend to a legal analysis of the relevant issues. Seventh, there is little literature on explaining why States in the Asian region have not become parties to the 1951 Convention, or adopted a regional convention or for that matter passed national laws. Eighth, while several States from Asia are members of the Executive Committee of UNHCR there is very little written about the role these have played in shaping the policies of UNHCR in the region. Ninth, the legal texts defining the relationship of UNHCR with individual countries are not always easy to access. For instance, the MOUs of UNHCR with Pakistan are not readily available. Tenth, it was not sensible to try and include materials on every jurisdiction. First, this is a task beyond an individual editor within a short period of time. Second, it is not easy to find the relevant materials because the literature is scant, scattered and often not available in translation. Third, and most significantly, it did not seem very

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useful to include fragmented materials that do not offer any serious understanding of the status of refugees in a particular jurisdiction. Eleventh, last, but not the least, the definition of Asia is not clear. II The Syllabus In the light of the above the decision was taken to place materials in the Syllabus under four headings: 1. Asia: General 2. States Parties to the 1951 Convention 3. States not parties to the 1951 Convention and 4. Extended Readings. Some points need to be made by way of explanation. First, a problem was how to introduce the Asia section in the absence of relevant laws, cases and secondary materials for most countries. It was felt that assembling general materials on Asia, including readings that explained Asian exceptionalism may offer the right setting in the backdrop of which to read available materials. Section I has this objective. A second problem was identifying the States to be included in the third category viz., States not party to the 1951 Convention. It was decided to include the law and practices of States that had been or are hosts to large number of refugees or had a corpus of reasonably evolved jurisprudence on the status of refugees. Some selection had to be made here as well. It was decided to include the practices, in so far as available, of four States: Bangladesh, India, Pakistan, and Thailand. Three of these States are in South Asia. This decision was taken because among the States parties to the 1951 Convention all belong to the South East or East Asian region and their practice was being included in Section II. Few other points need to be made: First, the syllabus does not cover the fate of Palestinian refugees and the work of UNRWA because of the distinct legal regime, issues and concerns. Second, no materials have been included on countries of Central Asia and West Asia. When we talk of Asia the reference is to South and South East Asia. Third, the secondary readings recommended are in some cases dated but it is believed that these are useful as preliminary readings. Fourth, the materials used here can be usefully supplemented with information and analysis provided in annual surveys like the World Refugee Survey (Can be scanned and uploaded or a hyperlink can be provided) published by the USCR which provides an overview of the refugee situation in most of the Asian countries. Fifth, no material has been included on internally displaced persons (IDPs). Such material could however easily be included. III

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Section I “Asia: General” This section has nine readings. Reading 1 is from Vitit Muntarbhorn's well-known book on The Status of Refugees in Asia. It offers an introduction to relevant features and refugee policies in the Asian region. It also offers an overview of refugees in Asia in 1990. While dated, the reading offers a brief but insightful historical context. This reading should be done along with the current issue of World Refugee Survey published by USCR that summarizes the refugee situation in major countries in Asia. Reading 2 is a recently published interesting article on Asian exceptionalism. Reading 3 sketches some theoretical models in relation to which the debate on the entry of aliens and refugees takes place in the North and posits an alternative perspective that takes into account the concerns of post-colonial States. Reading 4 offers in this background the possible reasons why a country like India does not ratify the 1951 Convention and considers their validity. Reading 5 offers a perspective from Bangladesh on the ratification of the 1951 Convention and also the adoption of a regional convention. Reading 6 is the text of the AALCO declaration on the Status of Refugees. Even though not influential it is the only legal text at the regional level and therefore worthy of study. Reading 7 provides a hyperlink to RSDWatch which is a major website debating RSD issues. It is followed by a text on the problems and prospects of RSD. Readings 8 and 9 contain the text of Comprehensive Plan of Action (CPA) and an insightful discussion of its negotiation and operation. These two texts have been included to see if the CPA offers a model for responding to refugee flows in Asia in the future. IV Asian Countries Party to 1951 Convention Section II looks separately at the countries that have ratified the 1951 Convention: Cambodia, China, Japan and Philippines. Part A contains three readings on the relevant laws of Cambodia. Secondary materials are not readily available. Part B is devoted to China and contains five readings. Reading I and Reading III include a brief description of the legal status of refugees in China and its response to asylum seekers from North Korea. Reading II is the text of a border control agreement between China and North Korea (authenticity to be confirmed). Reading IV contains a brief section on North Korean refugees in general. Reading V contains a report on protecting North Korean refugees in China.

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Part C is concerned with Japan. Reading I is the text of the Japanese legislation on immigration control and refugee recognition. Reading II refers to some case law. Readings III and IV briefly describe Japan’s legal framework to deal with immigration and refugees. Besides, the two readings also look at issues such as burden sharing, urban refugees, and the role of NGOs. Reading V discusses the Free Afghan refugees movement after September 11 and reforms in the Japanese asylum system. Part D contains three readings on Philippines. Reading I contains the relevant legislation and Readings II and III offer a historical background. V Asian Countries Not Party to 1951 Convention: Select Review Section III refers to the relevant legislation of Bangladesh, India, Pakistan and Thailand. In the instance of Bangladesh there is a single secondary reading. In the case of India two readings are included. There is some case law as well: the key cases have been incorporated. For Pakistan besides relevant legislation, a brief reading has been included. In the case of Thailand the readings chosen are by established scholars of refugee law. VI Extended Reading List Section IV will contain an advanced reading list. This is a short list that will be extended in due course. VII Concluding Remarks It is perhaps important to stress in conclusion that if the assembled materials do not offer a very comprehensive and holistic picture of the status of refugees in Asia it is because of the absence of refugee specific legal regimes in most countries and therefore accompanying case law, as also the lack of secondary writings. However, the materials collected are for that very reason an important first step towards understanding the status of refugees in Asia. On the other hand, I have little doubt that the Syllabus and the Readings can be added to and improved. ******************

DRAFT REFUGEE LAW SYLLABUS FOR ASIA B.S.Chimni SECTION I : ASIA GENERAL

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1. MUNTARBHORN, V (1992), The Status of Refugees in Asia, Clarendon Press, Oxford. (Text to be scanned and uploaded) pp.3-29. (This text may be read with the latest issue of World Refugee Survey) 2. DAVIES, S (2006), 'The Asian Rejection? : International Refugee Law in Asia', Australian Journal of Politics and History, Volume 52, No 4, pp 562-575. (PDF File to be uploaded) 3. CHIMNI, B.S (2005), 'Outside the bounds of citizenship: The status of aliens, illegal migrants and refugees in India', in Civil Society, Public Sphere and Citizenship: Dialogues and Perceptions, edited by Rajeev Bhargava and Helmut Reifeld, SAGE, New Delhi. Pp. 277-313. (Text to be scanned and uploaded) pp. 277-285; 295-297 4. …………….. (2003) 'Status of Refugees in India: Strategic Ambiguity' in Samaddar, R ed., Refugees and the State: Practices of Asylum and Care in India 1947-2000, Sage Publications, New Delhi. (Text to be scanned and uploaded) 5. ABRAR. C (2001), 'Legal Protection of refugees in South Asia', Forced Migration Review 10, April. (PDF to be uploaded) pp.21-23 (See sections i) Accession to international instruments, ii) Framing of a regional instrument, iii) National legislation 6. AALCO Text 7. RSDWatch.org – (An independent source of information about the way the UN Refugee agency decides refugee cases). The Asian states in which UNHCR conducts RSD will be identified. These include Bangladesh, Cambodia, China, Hong Kong, India, Malaysia, Nepal, Pakistan, Sri Lanka, and Thailand. KAGAN, M (2006), 'The Beleaguered Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status Determination', International Journal of Refugee Law, Vol. 18:1, pp.1-29. (PDF to be uploaded) 8. Comprehensive Plan of Action (CPA) 1989 for Indo-Chinese Refugees (PDF to be uploaded): (Orderly Departure Programme, individual refugee status determination, resettlement in third countries for recognized refugees, and facilitated return for rejected claimants). 9. BETTS, A (2006), ‘Comprehensive Plans of Action: Insights From CIREFCA and the Indo-Chinese CPA’, New Issues in Refugee Research, Working Paper No. 120 (PDF file to be uploaded) SECTION II - STATES PARTY TO THE 1951 REFUGEE CONVENTION: Cambodia/China/Japan/Philippines A. CAMBODIA 1. Cambodia, Law of Nationality 1996 Chapter II – Citizenship by Birth; Chapter III – Citizenship by Marriage; Chapter IV - Naturalisation 2. Cambodia, Sub-Decree No. 30 on Formalities of Application for Authorization to Enter, Exit and Reside in the Kingdom of Cambodia, of Immigrant Aliens, 1996

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Chapter III – Residing, Labour, entry, Exit 3. Cambodia, Law on Immigration, 1994 Chapter 2 – Non-Immigrant Aliens; Chapter 3 – Immigrant Aliens; Chapter 6 - Expulsion B. CHINA 1. CHAN. E and SCHLOENHARDT. A (2007), ‘North Korean Refugees and International Refugee Law’, International Journal of Refugee Law, pp.215-245. A brief description of legal status of refugees in China is on pp. 222-225 (PDF can be uploaded) 2. Democratic People's Republic of Korea Ministry of State Security & People's Republic of China Ministry of Public Security – ‘Mutual Cooperation Protocol for the Work of Maintaining National Security and Social Order in the Border Areas’ –1986 (not certain about the authenticity of the text) 3. SEYMOUR, J (2005), ‘China: Background Paper on the Situation of North Koreans in China’, Writenet Report, commissioned by UNHCR, Protection Information Section (DIP). (PDF can be uploaded) China and Human Rights (pp.4-6, 11-12) 4. MUNTARBHORN, V (2007), Report of the Special Rapporteur on the situation of Human Rights in the Democratic People's Republic of Korea, UNGA, 62nd Session, A/62/264. Pp. 9-13, Section C – Asylum: rights pertaining to refugees and those seeking refuge. 5. CHARNEY, J. R (2005), ‘Acts of Betrayal: The Challenge of Protecting North Koreans in China’, A Report, Refugees International. C. JAPAN 1. Japan, Immigration Control and Refugee Recognition Act 1951 (last amended 2006) Chap II- Entry and Landing; Chap VII2, Articles 61-62 Recognition of Refugee Status and other Related Issues. 2. Case Law: • Heisei 14 (2002) Gyo-U (Administrative Case) No. 49 (Lawsuit for Revocation of Decision to Reject Application for Refugee Status) Nagoya District Court, Date of Decision 15 April 2004 Afghan v. Japan (Proscecutor) Heisei 14 (2002) U (Criminal Case) No.129. Available at http://www.unhcr.org/cgibin/texis/vtx/refworld/rwmain?docid=4271e21c4 Hanrei Jiho (Ryo Kan-ei) Case. Japan: High Courts. 6 December 1982. Available at http://www.unhcr.org/cgibin/texis/vtx/refworld/rwmain?docid=3ae6b6f118 Sougil Yung Decision. Japan: Supreme Court. 26 January 1976. Available at http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=3ae6l

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3. DEAN, M. & NAGASHIMA. M (2007), 'Sharing the Burden: The Role of Government and NGOs in Protecting and Providing for Asylum Seekers and Refugees in Japan', Journal of Refugee Studies, Vol. 20, no.3, pp.481-499.

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4. BANKI, S (2006), 'Burmese Refugees in Tokyo: Livelihoods in the Urban Environment', Journal of Refugee Studies, Vol.19. No.3., pp.328-344. 5. KANEKO, M (2003?) 'Beyond "Seclusionist" Japan: Evaluating the Free Afghans/Refugee Law Reform Campaign after September 11', Refuge, Vol. 21. No.3, pp. 34-44, especially pp. 35; 39; 41 D. PHILIPPINES 1. The Philippines Immigration act of 1940 (Commonwealth Act of 613) Section 13 (a); 29 (a); 47 (b) 2. MUNTARBHORN, V (1992), The Status of Refugees in Asia, Clarendon Press, Oxford. PP. 81-89 ‘Philippines’ 3. USCRI Country Report – Phillipines – 2004 SECTION III - STATES NOT PARTY TO THE 1951 REFUGEE CONVENTION (Bangladesh/India/Pakistan/ Thailand) BANGLADESH 1. Bangladesh Citizenship(Temporary Provisions) Order, 1972 2. Bangladesh Control of Entry Act, 1952 (Bangladesh had no refugee law. The 1920 Passport Act, the 1946 Foreigners Act, and the 1952 Control of Entry Act applied to all foreigners without exception for refugees.) 3. ABRAR, C (2003) “State, Refugees and the Need for a Legal Procedure” in C R Abrar and Shahdeen Malik eds., Towards National Refugee Laws in South Asia pp.4549. INDIA 1. Relevant Articles in Constitution of India –‘Indian Constitutional Law’, in TRAKROO, R, BHAT, A. & NANDI, S (ed) Refugees and the Law, Human Rights Law Network, New Delhi, (Text to be scanned and uploaded) pp 68-76. 2. The Foreigner's Act 1946 (India) Passport (Entry into India) Act, 1920 and Passport Act, 1967 Registration of Foreigner’s Act, 1939 Foreigner’s Order, 1948 Illegal Migrants (Determination by Tribunals) Act, 1983 Indian Penal Code, 1860 Protection of Human Rights Act, 1993 3. Case law

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National Human Rights Commission vs State of Arunachal Pradesh and Another 1996, SCC (1) 742 (Right to Life and Liberty) Article 21 of the Constitution of India Dr.Malvika Karlekar v. Union of India (Criminal Writ Petition No.583 of 1992) (Right of asylum seekers to approach UNHCR). Text to be found. The Sarbananda Sonowal v Union of India (2005) 5 Supreme Court Cases 665 (Aliens; Aggression; Illegal Migrants; Powers of State) The State of Arunachal Pradesh v Khudiram Chakmas 1994 Supp. (1) SCC 615 (Citizenship of Chakma Refugees)

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4. SAXENA, P (2007) 'Creating Legal Space for Refugees in India: the Milestones Crossed and the Roadmap for the Future', International Journal of Refugee Law, pp. 246-72. (PDF can be uploaded) 5. KHARAT. R (2003) Tibetan Refugees in India, Kaveri Books, NewDelhi. Chapters 3 – Survival in Exile pp. 46-71; 5. Implications for India as a Host Nation pp.84-88; Conclusion pp.89-94. OR 6. OBEROI, PIA (2006) “Tibetan Refugees in India” in Exile and Belonging: Refugees and State Policy in South Asia Oxford: New Delhi pp. 77-103 PAKISTAN 1.The Foreigner’s Act, 1946 –(Pakistan) 2. Foreigner’s Order, 1951 (Pakistan) 3. Pakistan’s Citizenship Act, 1951 4. Foreigner’s (Amendment) Ordinance 2000 (Pakistan) (that led to the creation of the National Alien Registration Authority) 5. SHEIKH, A R (2003) ‘Toward a Legal Regime for Refugee Protection in Pakistan’, Refugee Watch, Issue no 19, August, Mahanirban Calcutta Research Group, Kolkata. THAILAND 1. Immigration Act, B.E. 2522 (1979) (Thailand) Section 4; 11-12; 22; 57 2. MUNTARBHORN, V ‘Refugee Law and Practice in the Asia and Pacific Region: Thailand as a Case Study’. 3. LOESCHER, GIL and MILNER, J (2006) 'Protracted Refugee Situation in Thailand: Towards Solutions', Presentation to the Foreign Correspondents' Club of Thailand, February 1 SOUTH ASIA: GENERAL 1. OBEROI, P (2006), 'Conclusion', Exile and Belonging: Refugees and State Policy in South Asia, Oxford University Press (OUP), New Delhi. Pp. 232-244.

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SECTION 4 : EXTENDED READINGS Refugee Status Determination (RSD) CHIMNI, B.S (2005) “Cooption and Resistance: Two Faces of Global ” New York University Journal of International Law and Politics, vol.37, no.4, pp.799-827 (Link can be provided) Statelessness 1. SEN. S (1999), 'Stateless Refugees and the Right to Return: The Bihari Refugees of South Asia – Part 1', International Journal of Refugee Law, Vol.11. No.4, pp. 625-645. (PDF file to be uploaded) pp. 629-639. 2. ……… (2000) 'Stateless Refugees and the Right to Return: The Bihari Refugees of South Asia – Part 2', International Journal of Refugee Law, Vol.12. No.1, pp. 41-70. (PDF file to be uploaded) CPA 3. BARI, S (1992), 'Refugee Status Determination under the Comprehensive Plan of Action (CPA): A Personal Assessment', International Journal of Refugee Law, 4:4, pp.487-513. (PDF file to be uploaded) India 4. DHAWAN, R (2004) Refugee Law and Policy in India, PILSARC, New Delhi, pp.32-80. (Text to be scanned and uploaded) pp. 43-59. 5. CHIMNI, B.S (2000) International Refugee Law: A Reader New Delhi: Sage Chapter VIII (Text to be scanned and uploaded) *********************

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