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Home > Struggle for Tamil Eelam > Tamil Refugees & Asylum Seekers > Study of the Reception of Tamil Asylum Seekers into Europe, North America and India - Nirmala Chandrahasan,1989
extracts from an article published in the
Harvard Human Rights Yearbook, Spring 1989
- Nirmala Chandrahasan, LL.M. (Cambridge), Ph.D.(Colombo)
In July 1983, as a consequence of widespread racial riots in Sri Lanka directed against the minority population, large numbers of Tamil asylum seekers fled from Sri Lanka to Europe, North America and India. For the next four years, this outflow continued as the Sri Lankan ethnic conflict intensified. Conflict between segments of the majority Sinhalese and minority Tamil communities took on the proportions of a near civil war, as Tamil guerrillas fought against government troops for the establishment of a separate state in the north and east of the island nation.
In July 1987, events took a sudden and unexpected turn with the signing of the Indo-Sri Lanka Agreement ("Agreement" or "Accord") between the governments of India and Sri Lanka.' The Agreement was aimed at resolving the ethnic conflict through a process of decentralisation, which would give greater regional autonomy to the Tamils, while India would guarantee the unity and integrity of the country. Although the Agreement did not immediately bring about an end to the fighting, did return civil conditions closer to normalcy and paved the way for the return of many refugees.
The four-year period between the riots and the signing of the Agreement forms the focus of this study. During this period the greatest number of Tamils - approximately 130,000 - sought asylum in India, separated from the northern start of Sri Lanka by a narrow stretch of sea, the Palk Straits. Approximately 70,000 Tamil asylum seekers went to Europe and North America.
As a theoretical matter, many of the Tamil asylum seekers prima facie fit the international legal definition of refugee used by most of the countries to which they fled. But in practice very fey, were accepted as de jure refugees under the refugee determination processes in these countries. and in any event, the acceptance rates varied significantly from one jurisdiction to another. Nevertheless, most of the asylum seekers were accorded temporary asylum of some kind, and very few were sent back to their country of origin during the period under review. However, many suffered abuses of fundamental human rights and were forced to rely primarily on the humanitarian impulses of the countries where they sought refuge.
This movement of Tamil asylum seekers from Sri Lanka to foreign states forms part of a larger phenomenon of refugee flows from the developing world to more developed countries. The Tamils thus exemplify a new category of refugees generated by ethnic conflicts in the postcolonial period. This new category of refugees is more difficult to accommodate within the established legal regime governing refugees- a definition and rules framed primarily for refugees from European countries in the aftermath of World War 11 and the start off the Cold War era. As such, the Tamils and their reception in Europe, North America and India highlight the need for states to interpret existing international norms more flexibly and' as a general matter, the need to adapt these norms to provide greater protection and certainty for modern asylum seekers.
Part I of this Article describes the law applicable to refugees as set out in the relevant treaty provisions, and as applied in the practice of states and international organisations. It then proceeds to evaluate the Tamils' claims for refugee status in light of this law.
Part 11 examines the responses of foreign states to the asylum claims of Tamils, focusing on the political and cultural context of the respective states and questioning whether these states' practices conform to the refugee law elucidated in Part 1. Part 11 also reviews the different statuses and standards of treatment accorded Tamils in the several national jurisdictions surveyed, concluding that the informal practice of temporary refuge' while commendable, lacks predictability and thus suggests a need to tighten the legal norms regarding asylum seekers and to strengthen respect for their fundamental rights.....
The treatment of Tamil asylum claims in different jurisdictions highlights two important points about recent developments in the handling of refugees. First, the reception of Tamils in North America, Europe and India indicates the extent to which national policy perspectives have shaped the respective refugee determination processes. Canada and the United States are both states party to the Convention and have incorporated its major provisions into their domestic asylum law, yet Canada recognised a high percentage of Tamil asylum seekers as Convention refugees, while the United States recognised very few. Likewise, in West Germany' a change in the government's national policy perspective toward the Tamil asylum seekers caused a drop in the number of refugee recognitions.
This disparity in turn reflects certain inherent weaknesses in the 1951 Convention. The 1951 Convention does not establish procedures for the determination of refugee status but leaves this to the individual states. In addition, the restricted definition of refugee in the 1951 Convention, which does not include "civil war" or "generalised violence" as valid grounds for refugee status - two of the major causes of mass migration toady - has confined the application of the Convention to a narrow category of persons. Furthermore, the 1951 Convention definition requires an objective assessment of the facts in the country of origin as part of the determination whether the applicant's subjective fear is justified. But most countries - notably the United States and the United Kingdom-place undue reliance on administrators' politically charged assessments of the background situation and ignore the independent international bodies and NGOs which could provide alternative interpretations of this information.
A second development observed in the practice of Tamil-receiving states is the categorisation of the refugees allowed to stay into subgroups, such as "B status" (in the Netherlands) or "exceptional leave to remain" (in the United Kingdom) or with no designated legal status at all (in India). The willingness of countries to shelter the Tamils on a temporary basis is commendable, and, in practice, may even serve to reinforce the view that non-refoulement no longer depends on the recognition of a person as a 1951 Convention refugee. However, humanitarian-based temporary asylum is very precarious. If, in the view of the receiving state' the situation improves in the country of origin, temporary asylees can be sent back despite their subjective fears of persecution or danger. The question remains to what extent the fate of large groups of persons such as the Tamils can be left to the discretion of governments, rather than firmly based within a framework of binding legal norms.
For example, soon after the Indo-Sri Lanka Agreement of 1987,'77 many European countries felt that conditions had altered sufficiently to send the asylum seekers back. In July 1988, the West German government initiated a program of repatriating Tamils. Although the program has been announced as voluntary, press reports have hinted that Tamils who refuse to leave voluntarily may face deportation.
In India, Tamils did not have to apply for recognition of their refugee status and asylum, so legal complexities did not figure prominently in their reception. The Tamils were freely admitted into the country and accepted as scenario refugees. But the absence of a legally structured response created uncertainties both as to the refugees' tenure in the country and as to their rights and obligations. While the Indian governments decision not to return the Tamils can be treated as evidence that non-refoulement has become a rule of customary international law, the rule nevertheless needs to be more clearly formulated and enunciated.
Moreover, despite Western governments willingness not to return the Tamil asylum seekers to Sri Lanka during the period under consideration, their restrictive interpretations of the 1951 Convention have led to human rights violations in the treatment of Tamil asylum seekers. Although the 1951 Convention prohibits refoulement and imposition of penalties and unnecessary restrictions on refugees unlawfully in the country, states have been able to curtail the effect of these provisions by narrow and restrictive interpretations. Thus, Tamil asylum seekers have found themselves turned away at frontiers and ports of arrival and subjected to restriction of movement and detention in Europe and North America.
The problems that Tamils faced in foreign states emphasise the need for greater protection of the interests of all refugees. The present trend away from a legally-structured approach and toward pragmatic solutions based on humanitarian grounds and policy perspectives is ill-advised, especially when Western nations' policies indicate an increasingly hostile climate towards asylum seekers. id Refugees will be assured the protection they deserve only by the application of legal rules in a consistent manner and with a predictable outcome. Most importantly, revising present refugee instruments and promoting stricter state adherence to international human rights standards and norms would contribute to the realisation of the humanitarian objectives of refugee law.