Disposiciones facultativas

Let us now connect the threads in this article by revisiting the main argument, that the other scene of power and influence in the global refugee regime is that of power and responsibil- ity at the margins. Too often we focus on the global regime of power and influence that mark the protection regime, while ignoring the dynamics of responsibility that mark the protection scenario at the margins. As a result our critique too has suffered from a top-down approach. Posing from the margins the question of responsibility is a post-colonial reflection of the way power is organized. In that sense the question posed in the article has a broader significance, for the implication is that we must examine the dynamics of responsibility whenever we study power.

The post-colonial framing of responsibility will mean taking into account the background of decolonization, parti- tions, structural reforms, environmental disasters, and neo- liberal development against which population flows con- tinue. The article has argued that against this background of continuing population movements, the legal definitions of the victims of forced migration and their protection norms are starkly inadequate. Because this is the postcolonial real- ity, it is important to study the local dynamics of power and responsibility in protection of the victims of forced migra- tion. This article argues that we need to study local and variegated experiences of refugee protection, because there is a greater burden of protection at the micro level—at the margin.

One may argue that the power and influence of the global refugee regime is largely ineffective against the realities of the post-colonial world. The migrant has emerged as a sig- nificant subject28 _{under conditions of globalization, aggres-} sive wars, transgression of borders, and a political economy that allows differential inclusion of migrant labour. But if the post-colonial experiences suggest plural responsibilities for protection and hospitality, it means that we must accept legal pluralism as the foundational principle for rebuilding the architecture of protection.29

While not all post-colonial experiences are the same, the article suggests that the Indian experience is indicative of a general experience and problematizes assumptions about the experience of states on the margins of the international system.

Notes

1 Margaret E. McGuiness discusses the 1951 convention’s “limited nature of the definition of a refugee” in “Legal and Normative Dimensions of the Manipulation of Refu- gees,” Refugee Manipulation: War, Politics, and the Abuse

of Human Suffering, ed. Stephen John Stedman and Fred Tanner (Washington, DC: Brookings Institution Press, 2003), 135–66; on the politics of encouraging secessions in former Yugoslavia, the resultant Balkan war in the 1990s, and the refugee flow, see Joseph Rudolph Jr., “The Doubt- ful Effects of Military Intervention on Forced Migration in Yugoslavia,” in The Politics of Forced Migration: A Concep- tual, Operational, and Legal Analysis, ed. Nina Nachmias and Rami Goldstein, 191–224 (Baltimore: Publish America, 2004).

2 UNHCR, Global Trends: Forced Displacement in 2015, www .unhcr.org/576408cd7.pdf.

3 UNHCR, “Contributions to UNHCR for Budget Year 2015 (as at 31 December 2015),” http://www.unhcr.org/part- ners/donors/558a639f9/contributions-unhcr-budget-year- 2015-31-december-2015.html.

4 Aristide R. Zolberg, Astri Suhrke, and Sergio Aguayo, Escape from Violence: Conflict and the Refugee Crisis in the Developing World (1989; Oxford: Oxford University Press, 1992).

5 In ancient philosophies the question of hospitality was sig- nificant in determining personhood. For example, Pericles said in the funeral oration speech, “Our city is thrown open to the world, and we never expel a foreigner or prevent him from seeing or learning anything of which the secret if revealed to an enemy might profit him.” The History of the Peloponnesian War in Complete Works of Thucydides, trans. Benjamin Jowett, 2nd. ed. (Oxford: Clarendon, 1900), bk. 2, para. 39; see also on hospitality, Cicero, On Duties, ed. M.T. Griffin and E.M. Atkin (Cambridge: Cambridge University Press, 1991), bk. 2, 86–89; of the Indian classical texts the Mahabharata deals at length with hospitality. In this con- nection see the discussion by J. Derrida, On Cosmopolitan- ism and Forgiveness (London: Routledge, 2001).

6 In his address to the Roundtable Workshop on Refugees in the South Asican Association for Regional Cooperation (SAARC) Region, the president of SAARCLAW (India Chap- ter), A.M. Singhvi admitted that these questions of state obligations needed to be viewed in the context of human rights. The debate on the need for a national refugee law in India and the work on a model law has been conducted, however, often from a courtroom angle, and not from the perspective of massive and mixed flows—though it must be admitted that such debate represents a clear advance from the earlier state of affairs in policy matters. On the address, see Report on Roundtable Workshop on Refugees in the SAARC Region: National Legislation on Refugees, SAAR- CLAW and UNHCR, New Delhi, 30 April 1999, 13–18. 7 Clearly in the present European migration crisis, refugees

have become forced themselves as active subjects in policy formulation.

8 Report on Roundtable Workshop on Refugees, 21.

9 G. Loescher and J. Scanlan, Calculated Kindness: Refugees and America’s Half-Open Door, 1945–Present (New York: Free, 1986).

10 B.S. Chimni, “Status of Refugees in India: Strategic Ambi- guity,” in Samaddar, Refugees and the State, 443–71. 11 S.K. Das, “State Response to the Refugee Crisis: Relief and

Rehabilitation in the East,” in Samaddar, Refugees and the State, 147.

12 R. Menon, “Birth of Social Security Commitments: What Happened in the West,” in Samaddar, Refugees and the State, 186 (emphasis added); on the complex process of forging a new identity among refugees in the western part of India, Ravinder Kaur, Since 1947: Partition Narratives among Pun- jabi Migrants of Delhi (New Delhi: Oxford University Press, 2007).

13 J. Chatterjee, “Rights or Charity? Government and Refu- gees: The Debate over Relief and Rehabilitation in West Bengal, 1947–1950,” in Partitions of Memory, ed. S. Kaul, 74–110 (Delhi: Permanent Black, 2001).

14 The lasting significance of the Indian experiences of host- ing and finally accommodating the Partition refugees is embedded in the critical question of legitimacy: thus, why is the Indian state legitimate? Because it accommodates the shelter-seekers, or, how long can India accommodate them? Again, India has a duty to the kin states and the other poor states. But this does not mean that that the pro- tection policy has not changed over the years. But the stra- tegic ambiguity this article refers to evolved from the times of Partition in 1947 and the following decade, and remains, notwithstanding the particular differences.

15 See, for instance, D. Norbu, “Refugees from Tibet: Struc- tural Causes of Successful Settlements,” Tibet 26, no. 2 (2001): 3–25.

16 J. Derrida, On Cosmopolitanism and Forgiveness (London: Routledge, 2001), 16.

17 For a good summary of the refugee flows in South Asia and the state response, see Pia Oberoi, Exile and Belonging: Refu- gees and State Policy in South Asia (New Delhi: Oxford Uni- versity Press, 2006). We also note that the Indian story greatly resembles the refugee hosting experiences and practices of other South Asian countries, such as Bangladesh hosting the Rohingyas, Nepal hosting the Tibetan refugees, and Pakistan hosting the Afghan refugees and earlier the Mohajirs. Like in the Indian case, in these three cases also the care and protec- tion was overwhelming informal, the dynamics of kin states operated, the states were signatories to the Refugee Conven- tion, and by and large refugees were not forcibly repatriated. On a broad and comparative study of South Asian experi- ences of care and protection, see Omprakash Mishra, ed., Forced Migration in the South Asian Region: Displacement, Human Rights, and Conflict Resolution (New Delhi: Centre for Refugee Studies, Jadavpur University, Brookings Institu- tion, and Manak Publications, 2004).

18 R. Samaddar, “Refugees and the Dynamics of Hospital- ity: The Indian Story,” in Immigration Worldwide: Policies, Practices, and Trends, ed. Uma A. Segal, Doreen Elliott, and Nazneen S. Mayadas, 112–23 (New York: Oxford University Press, 2010).

19 I have here summarized the conclusions of the reported and unreported cases, discussed in ibid., 117–21.

20 For instance, the study by R. Samaddar, The Marginal Nation (New Delhi: Sage, 1999).

21 The UN secretary general conceded the significance of pro- tracted displacement in creating statelessness, when he defined “stateless persons as persons who are not nationals of any State, either because at birth or subsequently they were not given any nationality, or because during their life- time they lost their own nationality and did not acquire a new one.” “A Study of Statelessness,” United Nations Department of Social Affairs, August 1949 (re-edited by UNHCR, Geneva, 1995), 8; this because “the right to nation- ality” is seriously impaired by protracted refugee-hood. See also the discussion on the implications of de facto state- lessness in constituting de facto stateless people in Hugh Massey, UNHCR and De Facto Statelessness (UNHCR, April 2010), http://www.unhcr.org/4bc2ddeb9.pdf, 13; see also for detailed case studies (stateless groups such as Chakmas in Arunachal Pradesh in India, or the Tamil plantation labour from Sri Lanka in India) on this point, Paula Baner- jee, Anasua Basu, Ray Chaudhury, and Atig Ghosh, eds., The State of Statelessness in South Asia (Hyderabad: Orient

Blackswan, 2015).

22 On the up-and-down history of the UNHCR in India, see Sarbani Sen, “Paradoxes of the International Regime of Care: The Role of the UNHCR in India,” in Samaddar, Refu- gees and the State, 396–442.

23 On this, see Willem Van Schendel, The Bengal Borderland: Beyond State and Nation in South Asia (London: Anthem, 2005).

24 “Study of Statelessness.”

25 The Bangladeshi expert Chowdhury Abrar has used the term virtual statelessness in the context of the Rohingyas and Biharis. See C. Abrar, “Human Rights and Human Secur- ity Issues of Virtual Stateless People in Bangladesh: The Rohingyas and the Biharis,” preliminary draft, https://www .scribd.com/document/254096219/Chowdhury-Abrar-pdf. The experiential argument in discussions on statelessness has been made by others also; for instance, Victoria Red- clift, Statelessness and Citizenship: Camps and the Creation of Political Space (London: Routledge, 2013), 1–31; P.R. Chari, Mallika Joseph, and Suba Chandran, Missing Bound- aries: Refugees, Migrants, Stateless, and Internally Displaced Persons in South Asia (New Delhi: Manohar, 2003). Signifi- cantly Hannah Arendt also saw the tension as she remarked, “Hence our position of human rights reversed: Every man born with inalienable rights. Theirs: All men born without any rights. And the right is the right to have rights; this right is guaranteed by citizenship. If we do not stop this by having—not a bill with innumerable human rights which only highest civilizations enjoy—but one internationally guaranteed right to Citizenship—whatever this Citizenship happens to be—, we shall have more and more people who

with respect to their legal status no longer are human, who have longer a place within humanity.” Arendt, “Note on Stateless,” unpublished, 22 April 1955, https://www.scribd .com/document/295480219/ArendtStatelesness-pdf. 26 This section is based on the findings of the Calcutta

Research Group’s work on statelessness in India, Stateless- ness, 2010–12, http://mcrg.ac.in/Statelessness/Statelessness_ Report.asp; for the full book-length study based on seven population groups, see Paula Banerjee et al., State of State- lessness in South Asia; see also two legal studies on state- lessness in India and the need for new legal norms: Shuvro Prosun Sarkar, “Reducing Statelessness: A New Call for India,” Refugee Watch 43–4 (2014): 76–89; and Charlotte- Anne Malischewski and Shuvro Prosun Sarkar, “Stateless in Law: Two Assessments,” CRG Research Article series, Policies and Practices 60 (2013).

27 Law Commission of India, Fifth Report on British Statutes Applicable to India, 1957, http://lawcommissionofindia.nic .in/1-50/report5.pdf.

28 On studying the migrant as a central factor in fracturing the protection process, Samaddar, Marginal Nation. While Marginal Nation was a more historical study and an ethno- graphic account, for a more detailed, global, and struc- tural analysis, see Thomas Nail, The Figure of the Migrant (Stanford, CA: Stanford University Press, 2015); studying the post-colonial forced-migration scenario is crucial in order to understand the refugee subjectivity precisely because in the post-colonial world the refugee occupies the in-between space of abnormality and normality. See, in this connection, the study by Paolo Novak on Afghan refu- gees in Pakistan, “Refugee Status as a Productive Tension,” Transnational Legal Theory 6, no. 2 (2015): 1–25.

29 Very briefly, my argument is that the lens of legal pluralism helps the study of the international regime of refugee pro- tection, both in broadening our understanding of the way in which it can operate domestically, and in discovering avenues for reform. India, as a host state for refugees, has not joined and shows no intention of acceding to the major international refugee protection treaties. Nor does the pos- sibility of a national law on refugees seem likely. Never- theless, in practice India’s government and judiciary have responded to multiple refugee situations, and in most cases the basic needs are being met and basic rights are being protected. Although India tends to be isolationist with respect to international law, the judiciary has been incor- porating the aspirations of international human rights law into the domestic constitutional framework, particularly in the context of refugees and foreigners rights. These actions demonstrate limited constitutional pluralism, with the Universal Declaration of Human Rights functioning as the supra-national constitution. While constitutional plur- alism validates the possibility of rights protection occur- ring through these avenues, it also suggests, at least in the context of refugee protection, the possibility of working

towards regional refugee regimes that will more accurately respond to refugee population movements. The advantage of this condition is its ability to recognize a plurality of interpretations and applications of law, while still recog- nizing that the ethics of responsibility remains the guid- ing principle. On this, see Jessica de Shanti, “Pluralisms of

Law: India’s Place in the International Refugee Protection Regime,” Refugee Watch 46 (2015): 73–93.

Ranabir Samaddar is director of the Calcutta Research Group in Kolkata, India . The author may be contacted at ranabir@mcrg .ac .in .