1549983376179_research Paper Saarc

REFUGEE LAW IN SAARC NATIONS: A NEW APPROACH ON LAW AND MORALITY

REFUGEE LAW IN SAARC NATIONS: A NEW APPROACH ON LAW AND MORALITY “No one puts their children in a boat unless the water is safer than the land.” -Warsan Shire INTRODUCTION “Displacement is so much a fact of everyday political life that far from being exceptional, it ought to be seen as a regular part of global politics. Far from being temporary, displacement ought to be assumed to be long term and enduring. Living outside of a nation-state is no longer an anomaly that can be brushed aside as exceptional to contemporary political life; it has in many ways become a standard way of living for millions of people, and will increasingly be so in the future. The treatment of people during their displacement, because it is regular and enduring, not exceptional and temporary, ought to be subject to rigorous ethical consideration.”1 “No one leaves home unless home is the mouth of a shark.”2 Probably the aftereffect of “growth” has made millions of homes, mouth of shark and millions of people are leaving their home for being Climate Refugee.

Movement of population is generating a range of destabilizing

socio‐political, economic, ethnic and communal tensions in South East Asia, because of high population rate and insufficient resources in host countries. With all kinds of degradations Refugees are moving for better life prospects. Climate change has the potential to severely degrade the environment to a point of inhabitability in many regions of the world; this level of suffering and displacement warrants, yet, does not receive adequate humanitarian action. As per Experts, by 2050 we will have 150 million environmental refugees. 3 However, there is no specific international legal instrument dealing with the issue of climate change refugees, even if they are outnumbering the traditional Refugees. This paper attempts to look into the historic trends existing in SAARC, in treatment of refugees owing to its morality guided by religious philosophies. It also examines the shift from open door policy of SAARC to that of closed door towards refugees. The paper is an attempt to analyze in depth the space for law and scope for

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Routledge, Refugees and the Ethics of Forced Displacement, (2016) Warsan Shire, Teaching My Mother How to Give Birth, (2011) 3 Robert A. McLeman and Lori M. Hunter, Migration in the context of vulnerability and adaptation to climate change: insights from analogues, 450, (2010) 2

FOURTH PROF. N.R.MADHAVA MENON SAARCLAW LAW STUDENTS’ CONFERENCE, 2018-19

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REFUGEE LAW IN SAARC NATIONS: A NEW APPROACH ON LAW AND MORALITY

morality and how far, South East Asia is equipped to conform to the values of International Morality in treatment of climate refugee along with conventional refugees. In this regard, the responsibility for the whole humanity is unlimited however, the actions, in this regard, for the developing countries are limited. Therefore, is it justified to bind a nation with an obligation to protect refugees on the name of International Morality? Should current refugee structure protect the ‘Environmental Refugees’? Should International Refugee Law accommodate climate change? PHILOSHOPIES &TRENDS IN SAARC VIS-À-VIS REFUGEE PROTECTION Morality, of the nations and the humanitarian practices which they adopt and accept are often guided and defined by religion. It is the religious practices and beliefs of the masses that define the civilizational ethos and values which they possess and treatment of persons in need of international protection. In this conspectus, we need to analyze the religious practices of the SAARC and their core beliefs inherent in them. Hinduism, Islam and Buddhism have been the most relevant and widely practices religion of the SAARC. Hindus call ‘Hinduism’ Sanatana Dharma the ‘eternal law’. Dharma is universally valid law according to the way in which the Universe works and which individuals’ function within society.4 Concepts of community and interdependence are emphasized in Hindu cultures, as opposed to individualism and autonomy. The world is to be seen as ‘one family’ and the implication here is that there is a collective responsibility for community and societal issues.5 The principle that the world is to be seen as ‘one family’ is imbibed in the phrase “Vasudhaiva Kutumbakam”6 Buddhism is widely practiced religion of South-east Asia. Also imbibes some core values as to determine the relationship with others. It contemplates for the practice of Sila which means virtue, good conduct, and morality. The practice is based on two fundamental principles: The

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Ramesh Pattni, Hindu Perspectives on Humanitarian Work: Principles and Practice, Some key Hindu concepts, (Jan.27, 2019, 3:31 PM),https://www.unhcr.org/50ab90629.pdf 5 Supra 6 S Shah & V Ramamoorthy, Soulful Corporations, Springer Science, ISBN 978-8132212744, 449, (2014) FOURTH PROF. N.R.MADHAVA MENON SAARCLAW LAW STUDENTS’ CONFERENCE, 2018-19

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REFUGEE LAW IN SAARC NATIONS: A NEW APPROACH ON LAW AND MORALITY

principle of equality: that all living entities are equal. The principle of reciprocity that is to do unto others as you would wish them to do unto you. It is found in all major religions. It is also the law of Karma. Islam, the second most practiced religion of the world as well as of the South-east Asia most explicitly deals with the concept of migration, the migration or hijrah, is central within the teachings of Islam and its history. The Qur’an speaks explicitly about the issue of asylum seekers and refugees “And if anyone of the disbelievers seeks your protection, then grant him protection so that he may hear the word of God, and then escort him to where he will be secure.”7 Political philosophers and thinkers of subcontinent have also played a sub conscious role in framing the policies relating to aliens. For example, Kautilya in his masterly work "The Arthashastra" has said that a King had two responsibilities to his state, one internal and other external, for which he needed an army. One of the main responsibilities was Raksha or protection of the state from external aggression. The defence of the realm, a constant preoccupation for the king, consisted not only of the physical defence of the kingdom but also the prevention of treachery, revolts and rebellion. The physical defensive measures were the frontier posts to prevent the entry of undesirable aliens and forts in various parts of the country.8 SAARC has been home to refugees for centuries. From the time when almost the entire Zoroastrian community took refuge in India fleeing from the persecution they were then subjected to on religious grounds, SAARC nations have, from time to time, continued to receive large numbers of refugees from different countries, not necessarily from the neighboring countries alone, but have also received refugees from some distant countries like the Islamic Republic of Iran, Iraq, Syria, Somalia, Sudan and Uganda. Rose Varghese sums up the refugee situation in South Asia thus, "...approximately 35-40 million people have moved across national boundaries in India, Pakistan, Bangladesh, Sri Lanka and Nepal since 1947, some as economic migrants and more as refugees".9

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Prof. Ahmed Abou-El-Wafa, The right to Asylum between Islamic Shari’ah and International Refugee Law, Naif Arab University for Security Sciences, 4, Riyadh- 2009 (1430 H.) 8 Shri L.N. Rangarajan, Arthashastra by Kautilya,676 (1992) 9 Myron Weiner, Rejected Peoples and Unwanted Migrants in South Asia, Economic and Political Weekly, Vol. 28, No. 34 1737-1746 (1993). FOURTH PROF. N.R.MADHAVA MENON SAARCLAW LAW STUDENTS’ CONFERENCE, 2018-19

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REFUGEE LAW IN SAARC NATIONS: A NEW APPROACH ON LAW AND MORALITY

The largest migration of all times took place in 1947-48 between India and then newly formed East and West Pakistan. Further there has been historic migration of about 100,000 Tibetan refugees who took refuge in India in the 1950s. Burmese Indians, who fled colonial India, to India, the forced migration of Sri Lankan Tamils to India due to civil war and LTTE movement in Sri Lanka. Afghan refugee movement from Afghanistan to Pakistan during USSR and Taliban conflicts. Bangladeshi refugees from East Pakistan to India, fleeing persecution of west Pakistani army and the Nepalese speaking Bhutanese known as Lhotsampas who were forced to migrate to Nepal from Bhutan. South Asia hosts about 17% of the total population of refugees recognized by UNHCR.10 Pakistan holds the second largest refugee population of world after Turkey. Migration within SAARC has generally been commenced or initiated by a fear of persecution. However, a more recent trend signifies that climate change is a new factor. It is interesting to note that none of the SAARC states apart from newly added Afghanistan, have signed UN Refugee Convention, 1951 or its Additional Protocols. However, the region has been mostly generous throughout its history in accepting and granting asylum to refugees. Although, the region has faced a shift from open door policy to close door towards refugees. SAARC nations have changed from being hospitable hosts to a country now reluctant to house refugees. This changing trend is evident of the fact that India is adamant to admit Lhotampas and deporting Rohingyas, Pakistan is forcing repatriation of Afghan refugees. This trend indicates towards a moral crisis in the region and exposes the limitations of adhoc mechanism on refugee treatment issues. MORALITY AS A SANCTION FOR REFUGEE PROTECTION International morality is based on moral principles which are recognized by number of nations. The principle of customary international law reflects the international morality. It acts as a major source and sanction of international law. Individual conduct in society is often regulated by moral and legal norms which ensure order in society. Likewise, in the international arena the conduct of states is regulated by international law and international morality. The concept of international morality implies that there are certain behavioral practices recognized by the 10

Ranabir Samaddar, The Marginal Nation, Trans border Migration from Bangladesh to West Bengal, 29, 30 (1999)

FOURTH PROF. N.R.MADHAVA MENON SAARCLAW LAW STUDENTS’ CONFERENCE, 2018-19

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REFUGEE LAW IN SAARC NATIONS: A NEW APPROACH ON LAW AND MORALITY

civilized states and any defiance and deviation from those leads to an adverse and negative public opinion which acts as a sanction. In the words of Austin "The so-called law of nations consists of opinions or sentiments current among nations generally.”11 It may be noted that no legal sanction of the kind suggested and required by Austin exists at present in the law of nations, but that obedience to a principle of international law results from public opinion12, in this case international opinion.13 International morality is guided by two factors firstly, World Public Opinion and Secondly, Domestic Public Opinion. WORLD PUBLIC OPINION AS A SANCTION The force of world public opinion as a sanction behind international morality is well recognized and well accepted by states. It is evident from the fact that nations are concerned with the image they present before the world and the fact that they attempt to justify their actions within international commune. The capability of a state to carry out its aspirations in international arena is dependent upon power as well as consent. The consent sometimes also reflects the soft power of state. In the changed global scenario, state is more powerful and persuasive with its soft power, rather than its hard power. This element becomes a more determining factor in the case of SAARC states which are mostly underdeveloped or developing. International community has been more alarmed with respect to human rights violations, especially refugees. In the recent arena of global terrorism and civil wars, every state projects itself as champion of human rights and any deviation from accepted principles of human rights and refugee protection is condemned. Thus SAARC states in order to sustain their image and to increase their global acceptance among the nations have also shown decent respect for the opinion of mankind. These states are not in a position to bear the cost of international economic sanctions and are sometimes in need of the economic aids and favors which the international community provides in lieu of refugee protection. Praises by the international community helps in branding the nation, for instance Bangladesh may be referred as an example which was praised by UNHCR for accepting the Bihari refugees as citizens 14 and 11

John Austin, The Province of Jurisprudence Determined, 188,189 (Cambridge University Press 1995) James B. Scott , The Legal Nature of International Law, Columbia Law Review, 124-152 (1905). 13 Sir Edward S. Creasy's, First Platform of International Law, 65-76 14 Jack Redden, Boosting refugee protection in Pakistan, (Jan.23, https://www.unhcr.org/news/latest/2004/12/41c6d2524/boosting-refugee-protection-pakistan.html 12

FOURTH PROF. N.R.MADHAVA MENON SAARCLAW LAW STUDENTS’ CONFERENCE, 2018-19

2019),

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REFUGEE LAW IN SAARC NATIONS: A NEW APPROACH ON LAW AND MORALITY

opening its doors for Rohingyas. It was also granted aids as $200 million by World Bank 15 and US $22.25 by United Kingdom.16 In another case, Pakistan was praised for granting citizenship to some Afghan refugees on one hand and criticized for forced repatriation of Afghans on the other hand.17 India was criticized by UN and Human Rights Council.18 DOMESTIC PUBLIC OPINION The domestic public opinion plays a very influential role in foreign policy decision. International morality is often observed because of the public conscience and because of the domestic public opinion. This opinion becomes more significant in issues like grant of asylum and refugee protection as the interest of the citizens is in conflict. Nations decide their policies according to the aspirations of their population. The same applies for the SAARC states. Here the policies are determined on the basis of how does the public perceive the refugee groups? Are public opinions more negative or positive? The shift from open door policy to that of a close door in SAARC can be explained through the changing public opinion. The masses in SAARC have become hostile towards refugees because it has in different ways affected their political, economic and social fabrics. The SAARC nations have been facing terrorism from the last two decades which has provoked the Islamophobia, especially in India and Sri Lanka19 which has developed a sense of hatred towards Rohingyas and Bangladeshi refugees. Further, the people also have apprehension of change in ethnicity and a fear of being reduced to minority in their own state. Sometimes, a refugee flow has a possibility to change the linguistic or religious composition of the receiving area.20

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Elena Karaban, World Bank Helps Host Communities, Rohingya in Bangladesh, (Jan. 23, 2019), https://www.worldbank.org/en/news/press-release/2018/11/05/world-bank-helps-host-communities-rohingya-inbangladesh 16 David Peterson, UK announces broad support for Rohingya refugees and host communities in Bangladesh, (Jan. 23, 2019) https://www1.wfp.org/news/uk-announces-broad-support-rohingya-refugees-and-host-communitiesbangladesh 17 Jack Redden, Boosting refugee protection in Pakistan, (Jan.23, 2019), https://www.unhcr.org/news/latest/2004/12/41c6d2524/boosting-refugee-protection-pakistan.html 18 Sudipto Roy, India’s Rohingya policy criticized by the UN National security vs. Human Rights, (Jan. 23, 2019) https://mediaindia.eu/business-politics/indias-rohingya-policy-criticised-by-the-un/ 19 Mohamed Nawab Bin Mohamed Osman. “Understanding Islamophobia in Asia: The Cases of Myanmar and Malaysia.” Islamophobia Studies Journal, 17–36 (2017). 20 Myron Weiner, Rejected Peoples and Unwanted Migrants in South Asia, Economic and Political Weekly, Vol. 28, No. 34 1737-1746 (1993). FOURTH PROF. N.R.MADHAVA MENON SAARCLAW LAW STUDENTS’ CONFERENCE, 2018-19

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As a result of population movement from Bangladesh, the spectre looms large of the indigenous people of Assam being reduced to a minority in their home State. Their cultural survival will be in jeopardy, their political control will be weakened and their employment opportunities will be undermined.21 The statistical analysis of the sharp growth of Muslim population in Assam vis-a-vis Hindu population for the decades 1951-61, 1961-71 and 1971-1991 is as follows: YEAR

ASSAM MUSLIM

HINDU

1951-1961

38.37

33.70

1961-1971

30.99

37.18

1971-1991

77.42

41.89

The chart given above clearly indicates that Muslim population of Assam has shown a rise of 77.42% in 1971-1991, whereas Hindu population has risen by nearly 41.89% during the said period.22 There are three Districts in Assam, which has borders with Bangladesh viz. Karimganj, Cachar and Dhubri. All India percentage of decadal increase in population during 1981-1991 is 23.85% whereas in the Border districts of Assam namely, Karimganj shows decadal increase of 42.08%, Cachar district 47.59% and Dhubri district 56.57%. From the above it can be assumed that the infiltration of foreigners from Bangladesh contributed significantly to the sharp increase of population in Assam.23 The eight member state of SAARC comprise of nearly 2 million square miles area making up to a total of 3% of world geographical area holding a population of over 1.7 billion accounting to 21% of world’s total population. The states are densely populated with a minimal or no scope of 21

Sarbananda Sonowal vs. Union of India, 5 SCC 665 (2005) Sarbananda Sonowal vs. Union of India, 5 SCC 665 (2005) 23 Sarbananda Sonowal vs. Union of India, 5 SCC 665 (2005) 22

FOURTH PROF. N.R.MADHAVA MENON SAARCLAW LAW STUDENTS’ CONFERENCE, 2018-19

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REFUGEE LAW IN SAARC NATIONS: A NEW APPROACH ON LAW AND MORALITY

additional burden. Most of the states have a population growth rate of more than 1.3% which means any further assimilation is over population and strain on their natural resources.24 Further, most of the countries of SAARC apart from Sri Lanka have HDI ranking below 125, employment to population ratio around 50 to 55%, around 40% population is below National Poverty Line 25, and Unemployment rate ranges from 3% to 11%26. Refugees may be an asset for a country which is lacking work force, but they are liability for the countries like India, who have the youngest and largest working population of the world. The refugee influx often changes the structure and composition of labour market. Wages are largely affected with a depression in minimum wage rate affecting the living standard of population. The large refugee migration is marked by sharp increase in crime rate of the area often increasing the petty offences. All these issues are determining factor of the public opinion towards refugees in Southeast Asia. This is evident from the fact that the decision of Pakistani P.M Mr. Imran khan to grant citizenship to some of the Afghan refugees and to provide passport to undocumented Bengali immigrants caused nationwide controversy in Pakistan over the fears of political and demographic consequences.27 Further, politicization of the issue has also played a significant role in the changing public opinion; masses have been mobilized against refugees for political benefit. A recent trend shows that in order to maximize their electoral support, both governments and opposition parties are now more prone to encourage nationalistic and xenophobic sentiments.28 CONFLICTING INTERESTS: A LEGAL AND MORAL DICHOTOMY IN SAARC The absolute sovereignty over one’s territory is always taken as an argument by SAARC countries while rejecting refugee claims. The concept of sovereignty implies that one of the rights possessed by the Supreme power in every state is the right to refuse to permit an alien to enter that state, to annex what conditions it pleases to the permission to enter it, and to expel or 24

SAARC countries 2019, World Population Review, (Jan. 28, 2019), http://worldpopulationreview.com/countries/saarc-countries/ 25 Central Bureau Statistics (2012) 26 Supra 27 Kamran Yousaf, Legal Status of Refugees Surrounded by controversy in Pakistan, (Feb. 1, 2019), https://www.trtworld.com/asia/legal-status-of-refugees-surrounded-by-controversy-in-pakistan-20643. 28 The States of World’s Refugees, UNHCR Report, (Feb.1, 2019), https://www.unhcr.org/3eb789f42.pdf FOURTH PROF. N.R.MADHAVA MENON SAARCLAW LAW STUDENTS’ CONFERENCE, 2018-19

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deport from the state, at pleasure, even a friendly alien, especially if it considers his presence in the state opposed to its peace, order, and good government, or to its social or material interests.29 The reception of aliens in ones territory is the exercise of discretion as every state has absolute supremacy over its territory and is competent to exclude aliens from any part of its territory. Right of state to expel aliens is generally recognized notwithstanding that alien is only on a temporary visit or having established his domicile. Even though, such expulsion may be very harsh on individual enemies. It is generally accepted to be justified.30 However, State sovereignty implies responsibility and the primary responsibility for the protection of its people lies with the state itself and that where the population is suffering serious harm as result of internal war and insurgency, external aggression repression or state failure and the state in question is unwilling or unable to halt or avert it, the principle of non intervention yields to the international responsibility to protect.31 We need to foresee the concept of responsibility to protect in the international refugee law and try to define the liability which this responsibility creates on states and consequences that their breach may entail. A common argument in favour of closed-borders and strict immigration policy is the view that the country in question does not have the means and resources to house and employ a large influx of refugees or in words of Thomas Hardin “Nation’s Capacity” is limited. This argument is supported by his “Lifeboat Ethics” which contemplates that it is better not to take any refugee even if there is a scope for few to be taken in.32 The SAARC states which are either developing or underdeveloped often put forward this idea referring to their economic and spatial capacity. Another argument taken by SAARC nations is that refugee problem is a global crisis which needs to be resolved with an integral element of an international approach based on solidarity. 33 The states argue that responsibility to protect the refugees in SAARC countries does not only lay with the SAARC nations rather it calls for greater burden sharing by the more affluent nations of

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Attorney-General for Canada vs. Cain, AC 542 (PC: 1906) Oppenheim, Oppenheim's International Law, 400, 401, 413 (9th ed. Robert Jennings 1992). 31 The Responsibility to Protect, Report of the International Commission on Intervention and State Sovereignty, (International Development Research Centre 2001) 32 Lifeboat Ethics: The Case Against Helping the Poor by Garrett Hardin, Psychology Today, (1974) 33 Narayan Sharma, Refugee Situation in South Asia: Need of A Regional Mechanism, 118, 119 (Feb.1 , 2019), http://www.mcrg.ac.in/WC_2015/Reading/D_Regional_Mechanism.pdf 30

FOURTH PROF. N.R.MADHAVA MENON SAARCLAW LAW STUDENTS’ CONFERENCE, 2018-19

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REFUGEE LAW IN SAARC NATIONS: A NEW APPROACH ON LAW AND MORALITY

the world.34 The argument in favor of regional mechanism, that the causes of refugee flows lie within the region is rejected on the basis of historical claims that colonialism is one of the regions to be blamed for instability and forced migrations in SAARC. Further, the neo-colonial approach of the more powerful western countries is also cited as a reason behind refugee crisis of SAARC. Thus, on these grounds the SAARC nations claim for an international responsibility regime for refugee protection. This line of argument is supported Thomas Pogge’s An Egalitarian distributive principle in Law of Peoples.35 It is also argued by the SAARC states that the countries with ability to provide aid to refugees are morally obligated to do so.36 As observed by Myron Weiner, SAARC nations reluctance towards a concrete legal regime owes to the peculiar features of South Asian region. Firstly, long-porous borders limit the state ability to control population entry. Secondly, cross border population movement pose a threat to internal security, political stability and international relations and are often characterized by cross border terrorism and insurgency. Thirdly, threat of changing the linguistic or religious composition and unnecessary economic burden resulting in acute local anxieties.37 One of the reasons cited for not having a concrete legislation is forwarded as a contention on treatment of aliens. The disagreement sterns on approach for the treatment of aliens that is international minimum standard and national treatment. The SAARC nation owing to their socioeconomic limitations favor the national treatment approach, however, many developed nations, insist for international minimum standard.38 When confronted with the question whether the asylum or the refuge should lead to integration or should it be a means of providing protection until repatriation is possible is answered by SAARC nations with the concept of temporary protection which implies that admission of the refugees on a provisional basis, pending their resettlement in other countries. Pakistan has

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B.S. Chimni, The Law and Politics of Regional Solutions: The case of South Asia, Working on Refugees and Displaced Persons in South Asia, Bangladesh 1 ( 1998) 35 Pogge, T.,Egalitarian Law of Peoples, Philosophy & Public Affairs,23, 195-224, (1994) 36 Peter Singer, Famine, Affluence, and Morality, Philosophy and Public Affairs 229-243 (1972) 37 B.S. Chimni, International Refugee Law, A Reader, India and the 1951 Convention, 529(2000) 38 David Harris, Cases and Material on International Law, 462 (7th ed., Sweet and Maxwell, 2010) FOURTH PROF. N.R.MADHAVA MENON SAARCLAW LAW STUDENTS’ CONFERENCE, 2018-19

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always insisted that the Afghan refugees have been granted asylum temporarily on its territory and would be repatriated once the condition has improved in Afghanistan.39 However the climate refugees could not be treated with this approach as the possibility of return is often vitiated due to climate change for example, the case of Maldives which is on the verge of submersion or the Bangladeshi boatmen refugees. Again these states believe, the prevailing international refugee regime as unrealistic and unhelpful for developing and under developed countries of SAARC and consider the definitions of refugee and rights and duties contemplated therein insufficient and inapplicable for atypical conditions prevailing in SAARC. The conventional refugee definition fails to address climate refugees which are the breeding concern of South East Asia.40 CLIMATE REFUGEE: A BREEDING CHALLENGE IN SAARC Climate change has had significant impacts on global migration patterns as it contributes to and exacerbates many of the push or pulls factors regarding movement, which has severe implications for global security.41 However, it is difficult to show that any particular natural disaster always causes migration or displacement as this is attributed to various other factors that lead to migration. Often, political and economic factors are searched as the root cause. 42 Migration due to climate change is a growing cause of concern for policy makers at national and international level. Interestingly, the International Refugee mechanisms, protects the needs of post war refugees and currently there is no sufficient protection to a category of displaced people of environmental events, even if they are outnumbering those displaced by war and other conflicts. Environmental crisis in the rural areas of developing countries is increasingly becoming an important cause of cross‐border migration of population and SAARC is no exception to this phenomenon. Studies predict there will be 50 million to 200 million displaced persons before 2100. Factually, Bangladesh alone could have 26 million, and India may have 20 million climate 39

UNHC, The state of the world’s Refugees- in search of solutions, 85-90 (Oxford University Press 1955) B.S. Chimni, International Refugee Law, A Reader, India and the 1951 Convention, 529(2000) 41 Barry Munslow and Tim O'Dempsey, Globalisation and Climate Change in Asia: the urban health impact, Third World Quarterly, 1339 (2010) 42 Nina Hall, Climate Change, Migration and Displacement: UNHCR and IOM Moving Beyond Their Mandates,(Jan. 30, 2019), http://srch.slav.hokudai.ac.jp/publictn/slavic_eurasia_papers/no12/pp.24-pp.31.pdf 40

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refugees by 2100. Climate Change will also lead to millions of people going without sufficient water or food to survive. As per Experts, by 2050 we will have 150 million environmental refugees.43 South East Asia is a pathetic region for Climate Change because of its extremely high population density and scarcity of resources for climate adaptation. India, Bangladesh and Pakistan were within the top twenty countries with most displacements from climate change- induced natural disasters in 2008 with 6.5 million displaced in India and 89,200 in Pakistan.44 Lamentably, Rising of sea level is leading to “The Death of a Nation.”45 One of the glaring examples is Republic of Maldives situated in South East Asia. Maldives which is consisted of 1200 low lying islands is witnessing severe effect of Climate change with the fact that the sea level is dramatically rising with the prediction that the island could be gone in 80 years. As per the warning of UN Intergovernmental Panel on Climate Change (IPCC) the rise in Sea level by 2100, would be between 18 and 59 cm and would be enough to make Maldives virtually extinct.46 Apart from Maldives, the New Moore Island, in India has been disappeared resulting into migration of 10000 people as Climate Refugee. The first inhabited island, Lohachara, Once home to about 10,000 people was submerged under the sea in 1996. Submerging of island due to Climate change is degrading the coastal environment and natural resources on which rural population depends and making them environmental refugee. Another victim is Bangladesh with the threat to lose 17 percent of its land by 2050 due to flooding caused by Climate Change. On one hand, about half the population of Bangladesh lives less than 5 meters (16.5 feet) above sea level, on the other hand half submergence of Bangladesh's Bhola Island, rendering 500,000 people homeless is not a hidden fact.

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Robert A. McLeman and Lori M. Hunter, Migration in the context of vulnerability and adaptation to climate change: insights from analogues, 450, (2010) 44 Michelle Ann Miller, Crossing Borders :Governing Environmental Disasters in a Global Urban Age in Asia and the Pacific, 65, (2018) 45 R.K. Pachauri, Acceptance Speech for the Nobel Peace Prize Awarded to the Intergovernmental Panel on Climate Change, 11 (Jan. 10, 2019), http://www.ipcc.ch/graphics/speeches/nobel-peace-prize-oslo-10-december2007.pdf. 46 JDW,The Republic of Maldives is Sinking, (Jan. 15, 2019), https://rctom.hbs.org/submission/the-republic-ofmaldives-is-sinking/ FOURTH PROF. N.R.MADHAVA MENON SAARCLAW LAW STUDENTS’ CONFERENCE, 2018-19

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Movement of population is generating a range of destabilizing socio‐political, economic, ethnic and communal tensions in SAARC. For instance, the continuance of migration from Bangladesh to India is causing tension between these two countries. The scarcity of resources, rapid population growth and unequal resource distribution and development, are causing widespread landlessness, unemployment, and degradation of human habitat and consequently, migration to India for better life prospect is prominent. Climate change related events will exacerbate existing social, ethnic and political tension, which may contribute to or even instigate armed conflict and forms of persecution as fights over scarce resources appear.47 Additionally, Thomas Fingar, chairman of the National Intelligence Council, testified to the U.S. Congress that climate change will exacerbate poverty and increase social tensions, leading to internal instability and conflict, and giving parts of the global population additional reasons to migrate.48 There is no specific international legal instrument dealing with the issue of climate change refugee. Climate change has the potential to severely degrade the environment to a point of inhabitability in many regions of the world; this level of suffering and displacement warrants, yet, does not receive adequate humanitarian action. The 200,000 Bangladeshis who become homeless every year due to river erosion are in a similar situation as the many that are trapped in sinking island states in the Pacific. These individuals cannot appeal to international organizations for refugee status or resettlement49. Those persons who have actually suffered from these man-made disasters and does not have ability to live in their homeland should be accepted and backed by such organizations, given the ethical framework from which humanitarianism stems. However, the question remains can ‘Environmental Refugees’ seek protection under the current refugee structure? Should International Refugee Law accommodate climate change? Can the SAARC help to protect people seeking safety abroad if their homes and jobs are destroyed by climate change related phenomena in the same way as if they were displaced by war or human rights abuse? And they are “Unanswered” 47

Barry Munslow and Tim O'Dempsey, Globalisation and Climate Change in Asia: the urban health impact, Third World Quarterly, 1339 (2010) 48 Thomas Fingar, Statement for the Record before the Permanent Select Committee on Intelligence, House of Representatives, (Jan 25, 2008), http://globalwarming.markey.house.gov/tools/2q08materials/ files/0069.pdf 49 Lorraine Elliott, Climate Change, Migration and Human Security in South East Asia, RSIS Monograph No. 24, (2012) FOURTH PROF. N.R.MADHAVA MENON SAARCLAW LAW STUDENTS’ CONFERENCE, 2018-19

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CONCLUSION: SOFT LAW- AN ALTERNATIVE The SAARC nations need to compromise between competing interests, in the instant case the need to insure humane treatment of the victims of operations on the one hand and the national interest of the sovereign states on the other. As argued by Thomas Nagel, the most important task for political theory today is to find ‘workable idea’ about justice in the domain of global or international institutions.50 “Given the circumstances of SAARC efforts should be taken to develop a comprehensive ‘Soft Law’ as noted by B.S. Chimni, the political realism of the region thwarts the emergence of a regional mechanism in the general environment of suspicion and distrust, which vitiates inter-states relations in the region is not conducive in the immediate future to a common approach to the refugee problem.51 Soft law instruments are usually nonbinding instruments which often have the potential to morph into hard law in future. They act as guiding principles in deciding policies. SAARC nations need to develop a soft refugee law in order to define the rights and duties of refugees and the state responsibility towards refugee protection. Further, it is also required in order to address more recent challenges like climate change refugee along with conventional refugees. Soft law being a flexible option is acceptable to even the most reluctant states as it does not create a legal obligation on them. Further, it has a chance to convert into customary international law if observed by all the states in good faith. It often can be used as evidence opinio juris.

50 51

Thomas Nagel, The Problem of Global Justice, Philosophy and Public Affairs, 11347 (2005) B.S. Chimni, The Law and Politics of Regional Solutions: The case of South Asia, 10 ( 1998)

FOURTH PROF. N.R.MADHAVA MENON SAARCLAW LAW STUDENTS’ CONFERENCE, 2018-19

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