The refugees in the present vicious visage want to stand to reason within the bounds of possibility by holding the scales at the odds being in favour etched in the feast of reason and the flow of soul so that they could come out of the horns of a dilemma.

Refugee status is an incredibly malleable legal concept that can take on different meanings as required by the nature and scope of the dilemma prompting involuntary migration. I have been talking about a trajectory of refugee rights beyond the rubrics of rights sans any regurgitation for more than two decades that is not reflected in the contemporary international refugee law. The governance architectures across the globe have blackballed the refugees from their itinerary of international obligations and prescriptions as enunciated in the UN Charter and Universal Declaration of Human Rights (UDHR). The International community has been performing its refugee mandate in a state of ostensible action for refugees who have been grappling with the quagmire of cynicism that has morphed all avenues of evolving solutions into geo-strategic polemics. Cartelization of humanitarian assistance and relief on the grounds of caste, colour, ethnicity, race, region, political opinion, social origin and statelessness amounts to the decimation of dignity, elimination of equality and liquidation of liberty.

The global dimensions of diplomacy, political permutations of international relations and paradoxes of protection priorities have pandered to procrastination in durable solutions which have trussed the paradigms of refugee protection. I have tried to have deciphered an understanding of refugee discourse that is innate, instinctive, intrinsic and inherent in transcendentalism whereas it is native, natural and normative in existentialism. Although, it is a well-established fact that classical and contemporary institutional conviction does not speak of this inalienable framework of refugeehood. Therefore, the present international refugee law poses more questions than offers answers. Despite the fact of it’s more than sixty years of existence it could not offer any durable or permanent solution to the problem of refugees such as Palestinian refugees and other intractable refugee questions across the globe. The most prominent challenge of the contemporary international refugee law is of its survival as law, and it must be attended in the right earnest otherwise it may turn out be a positive morality of a vanishing vacuum of the jurisprudence of international law. Let’s talk about rights beyond rights in a refugee peregrination paradigm from utopianism to utilitarianism within the premise of permanent protection having dwelt into epistemological, teleological, sensible and jurisprudential understandings of the refugee discourse.

The Refugee Desideratum

We, the People of the World, are all refugees in scriptures, structures, and literature commanded in the logistical and tactical architecture of divine delineations. But they are not regarded as such in geopolitical identities on planet earth at which refugees are conditioned by crossing lines called blurred borders, barbed boundaries and bracket barriers in a world-wide web of justice, equity, and the rule of law. Nobody wants to be a refugee but people are being made refugees that has really created a void in human relationships across the spectrum of humanity. That has pandered to the galvanizing a new cornucopia of questions which are not straightforward to answer as these are impregnated with multi-layered predicament, prevarication, and predaciousness of those who have the propensity to stir the course of history. Thus, the plight of refugee flight has acquired an immutable multitude, marmoreal magnitude, and immaculate mapping thitherto not available to be rummaged outside the confines of rudimental oblivion to regimental reminiscences.

There are refugees; there are rights but whose rights, what rights that are the questions? Should rights be understood in innate sense or merely as an expression of modern codification? Intrinsic rights should be regarded horizontal foundation for the vertical gestation and growth of refugee rights which are ancillary, incidental, peripheral and vicarious to the refugee discourse. Should rights be alive or dead? Rights could not be lifeless, if they were, they could not have been rights. How to visit these rights in classical and contemporary jurisprudence? How to address the psychological, mental and intellectual premise of violations forming an itinerary of alienation, agony, and trauma resultant in human displacement, social dehumanization, and human demonization? Is there any moral, ethical and ecclesiastical possibility to have the categorization of human pain, sufferings and deprivations enslaved in occidental and Asian jurisdictions, jurimetrix cs and jurisprudence? Should there be victors’ rights only? Is there just majoritarian premise of rights? Could refugee rights be interpreted, appreciated and adjudicated upon within the legalistic welter of words enunciated in hard laws and soft laws in the garb of definitions sans governance accountability? What about the poverty, gender, communal conflagration, generalized violence, organized crimes, mass rape, economic sanctions, economic recession, climate change, development displacement, mass movements of persons fleeing civil war, military occupation, foreign domination, gross violations of human rights, natural disasters, or simply bad economic conditions, natural disaster and scientific experiments as well-founded grounds of being treated as refugees? Should refugee protection paradigm still depend upon other human rights instruments for its being considered before national and international judicial tribunals? Shouldn’t time have come to make refugee law an independent substantive discipline of study? Shouldn’t existing definition of refugee be deconstructed, developed and designed? Shouldn’t we head for a new, novel and nice comprehensive, consolidated and cosmopolitan refugee law?

The Refugee Status

The most conspicuous stigma on humanity is having some of its integral parts as refugees whose life, liberty and dignity have been decimated, destined and destroyed in camps.  The contour, conviction, and commitment to contemporary international refugee law have outlived its utility. The present global refugee law poses more questions than offers answers. Despite the fact of it’s more than sixty-five years of existence it could not offer any durable or permanent solution to the problem of Palestinian refugees and other intractable refugee questions across the globe. The most prominent challenge of the contemporary international refugee law is of its survival as law, and it must be attended in the right earnest otherwise it may turn out be a positive morality of a vanishing vacuum of the jurisprudence of international law. Let’s talk about rights beyond rights in a refugee peregrination paradigm from utopianism to utilitarianism within the premise of permanent protection having dwelt into epistemological, teleological, sensible and jurisprudential understandings.

The matter of refugee status is of ancient origin, although the manner of treating it has not always been that which is currently acceptable. At every stage of its historical evolution, it underwent a volatile metamorphosis of legal construction. The idea of giving a home to the stranger appeared as early as the Old Testament. The complete code of treatment of refugees has also been crystallized in the Holy Quran and rights of refugees have also been come to be supplanted by modern refugee regime. Mass population movements occurred throughout history: The arrival of the barbarians in the Roman Empire, expulsion of Jews from Spain in 1492, expatriation of French Protestants after revocation of the Edict of Nantes in 1685, emigration of the French aristocracy after 1789 and the exodus of Jews from German territory are but a few examples. The estimated number of refugees in the world today ranges between twelve and fourteen million. A survey by the United States Committee for Refugees at the end of 1988 reported over four million refugees in Africa, nearly nine million in the Middle East and South Asia, nearly 280 000 in Latin America and the Caribbean, over 625 000 in East Asia and the Pacific, and almost 350 000 in Europe. As new refugee situations develop, such as the flow of more than half a million new refugees in Southern Africa, thousands of Iraqi Curds into Iran and Turkey, or as the number of Vietnamese boat people in Hong Kong increased sharply in 1988, or as thousands flee the civil war in Yugoslavia or the worsening economic situation in Eastern Europe, the problem becomes exacerbated.

Refugee Rights Beyond Rights

Refugees are the counter-product of sustainable hate that has a past in the present to shape the future oozed out of the clash of clans, castes, communities’ and countries since the inception of humanity. Human migration, movement, and mobility are entrenched in the human psyche since pre-socio-political crystallizations that have become most obvious, desirous and catastrophic in the twenty-first century necessitated by the ever-growing paradigmatic shift in its dialectics, dimensions, and delineations regarding perception, interpretation, and determinations. Deviant to the grounds whatsoever of displacement the biggest pain in one’s life is to have been dislocated from his or her country of origin in a manner that is fallible, fallacious and fatal? Thus, there are refugee rights beyond rights which can only be felt by the human soul and mind in the most profound sense of mental integration with the roots of birth. To displace anybody from his land of habitual habitation tantamounts to deny and divest him of his or her a catena of rights such as:

  • Right to a healthy life,
  • Right to psychological integration,
  • Right to have past,
  • Right to have a sense of allegiance to the homeland,
  • Right to have an ancestral identity,
  • Right to the immemorial neighborhood,
  • Right to historical culture,
  • Right to perennial socialization,
  • Right to classic climate,
  • Right to mental stability,
  • Right to mental health,
  • Right to specific custom,
  • Right to geo-political predilections,
  • Right to be consulted in economic modules,
  • Right to participate in community development,
  • Right to good governance,
  • Right to the rule of law,
  • Right to socio-economic development,
  • Right to leave and return,
  • Right not to be displaced,
  • Right to have rights beyond rights,

These rights encapsulate all the divisions of rights as natural claims, non-derogable basic bonds, fundamental freedoms, inalienable human entitlements, and rudimental human rights outside the convention-oriented prescriptions. The venomous vicissitudes of global change have presented a picture of development which is muddy, mawkish and manoeuvred by the political class. The politically empowered class happens to be around the chess-board of the common heritage of gene-kind in and around the domestic and international commands at which humanity is at loggerheads with humanity. Nevertheless, from retrospect to prospect, the miasma of migration has more been created, crafted and calibrated by aristocratic wiles, kings cozenage, royal revanchism, political prestidigitation, civilian charlatanry, political chicanery and subterfuge at every stage of the civilizational endurance and its graduation to ultra-modernity.

Diagnosis to Prognosis

Consequently, there is a contemptuous atmosphere of peace, progress, and prosperity that is alienated, exclusive, elite and with a tint of arrogance, aggression, and attitude of above the board while not swotting the experiences from economic melt-downs and fiscal drubbings in USA and Eurozone and elsewhere. These developments have made the humanity to move, move and move in addition to the humanitarian crises and climate-induced displacement as around the globe, millions of people are being subjected to risk of man-oriented displacement at a magnitude that is beyond human comprehension. The first inhabited island was submerged due to rising sea levels, and island nations around the Central Pacific, South Pacific and the Indian Ocean, as well as extensive tracts of land from Bangladesh to Egypt, risk partial or total displacement by the middle of this century. The impacts of global warming on habitat are being felt in multiple modes, various ways and different dimensions around the world. Rising sea levels have imperiled the very existence of Small Island Nation-States, while Inuit communities in North America and Greenland stirred with a well-founded fear of being displaced due to melting ice. It is horrible to note that climate-induced displacement (CID) is of particular significance to Australia given its topographical, geographical and geological proximity to islands such as Kiribati and Tuvalu, where the entire nation’s displacement is imminent. Australia is a prominent destination country in the region for so-called climate change ‘refugees’ who do not qualify as ‘refugees’ under international law. In this conspectus, the growing worldwide flow in the number of people leaving their country has created a significant challenge to India and other population-receiving countries and continents such as USA, Australia, Canada, UK, Switzerland, Pakistan, Europe and South Asia, etc.

These flows are mostly the consequence of pejorative, pernicious and deteriorating social, political and economic conditions in many countries and continents in the 1st, 2nd and 3rd  Worlds in the former Soviet Union, or among states that were within the Soviet, Europe, African and Indian Sub-Continental circumnavigate. Every nation-state at a particular stage of its development and history has struggled with the problem of human influx and outflux in one way or the other, but the stakeholders have rummaged no permanent, pragmatic and plausible or durable solutions in the game with a gavel. The plight of flight is not easy to be understood without having a heterodoxical hermeneutics of the causes, combinations, conflations, permutations, a miasma of mutations and the regime of reasons purportedly to have been emplaced by the state and non-state actors who morphed themselves in ostensible pro bono publico obligations across the globe. Thus, a holistic, panoramic and pervading understanding of the questions and issues of the classical and contemporary refugee regime is required to be rejigged.

Dr. Nafees Ahmad

Ph. D., LL.M, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author teaches and writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law & Forced Migration Studies. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at]gmail.com, drnafeesahmad[at]sau.ac.in

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