South Asian countries lack national refugee laws despite the fact that the region hosts some of the world’s largest refugee populations. Only Afghanistan among members of the South Asian Association for Regional Cooperation (Saarc) has signed the UN Refugee Convention.

Unlike in Africa, Europe or Latin America, there are no regional instruments to regulate refugee matters in South Asia. Yet, countries like Pakistan, Bangladesh, India and Nepal have provided refuge to millions for decades. South Asia currently hosts more than 2.5 million refugees.

The world’s second largest refugee population of 1.38 million lives in Pakistan. There are around 1 million in the world’s largest refugee camp in Bangladesh. India hosts some 200,000 refugees and a relatively small number of 26,000 refugees live in Nepal. South Asia is also an origin, transit and destination in the global mixed migratory movements. Refugees flee home from persecution, conflict and war; and migrants move voluntarily in search of a better life.

Abandon the ad hoc

Nepal is party to numerous treaties or declarations of various rights which are either part of or form the basis for several refugee rights. In providing protection to people seeking asylum, Nepal has, like its neighbours, resorted to ad hoc administrative arrangements, generally respected the relevant international norms, and relied heavily on international aid.

Consequently, Nepal’s ad hoc approaches and practices have been inconsistent between different refugee populations. They remain unpredictable, especially at times of political uncertainty and in response to national or geopolitical imperatives. Most recently, the response given by some Nepali authorities to media reports about the arrival of Rohingya refugees is no exception. This void has also contributed to occasionally ill-informed public opinions fuelling anti-refugee sentiments.

The time has come for Nepal to abandon this ad hoc approach. Instituting a legal framework in conformity with international standards will benefit both Nepal and asylum seekers.

Those who argue against Nepal signing the Refugee Convention or adopting an asylum law before India and Pakistan have done so need to note the following two developments. In early 2017, Pakistan adopted a policy decision to enact a refugee law.

An internationally renowned lawmaker initiated a bill for adoption of a refugee law in India. There is a growing realisation in the neighbourhood that institutionalising refugee matters is in the interest of the host countries too.

Another misplaced argument is that signing the Refugee Convention or adopting a refugee law will attract an influx of refugees or irregular migrants, and by consequently allowing them to work, own businesses, access education and move freely, render Nepal unable to protect its national interests.

Experiences of Nepal and other South Asian countries show that not being a party to the Refugee Convention or not adopting a refugee law does not prevent refugees from coming. 

Regulating refugee matters in conformity with international norms equips the state with a solid legal basis to safeguard its national interests, maintain law and order, require international solidarity to meet the needs of refugees and address the various impacts caused by their presence, and find lasting solutions for them.

A law clearly prescribing standards and procedures on asylum in accordance with international norms empowers authorities to correctly distinguish between refugees and migrants, address any abuse of asylum, and exclude those who do not deserve asylum and associated rights.

International refugee law provides that while an individual has the right to seek asylum, the country of asylum has a sovereign right to grant or deny it. Besides rights, refugees also have a duty to abide by the law of their host country.

A properly crafted legal framework also enables the state to, inter alia, manage refugee matters efficiently and predictably, so they are consistent with the state’s obligations, thus enhancing its international credibility.

Some fundamental principles of refugee protection, like the prohibition against forcing refugees to return to danger, are now part of the international customary law, to which all nations including Nepal will continue to be held accountable irrespective of their association with the Refugee Convention or existence of asylum legislations.

Win-win situation

Lack of a legal regime exposes refugees to abuse exploitation, and illegal or harmful practices for survival, thus victimising them further.

An inclusive legal framework recognising their potentials and basic rights enables them to live a dignified life while contributing to the host communities. Uganda, a developing African country hosting one of the world’s largest refugee populations, offers a leading example of how an inclusive policy enabling refugees to work, move freely, cultivate land, own businesses and access the most essential services, reduces their dependency on humanitarian aid, mutually benefits the host communities and contributes to the national economy. 

Refugees bring courage, resilience, talents, skills and capacities mutually benefitting all. When enabled, refugees become part of the solution. An inclusive approach by host countries is increasingly encouraged and desired by humanitarian and developmental partners including donors who provide vital resources to support the communities hosting refugees.

In the absence of a legal framework, treating refugees as irregular migrants or subjecting the matter to inconsistent or arbitrary practices contradicts the universal principles of refugee protection and a state’s obligations. In 2015, the UN Human Rights Council recommended Nepal to become a party to the Refugee Convention, which has been signed by 145 countries so far.

Elected to the council in 2017 to promote and protect all human rights globally, Nepal has an opportunity to lead by example in South Asia. Nepal’s decades long familiarity with international norms on asylum and engagement in managing and finding solutions for refugees deserves to be institutionalised for consistency, predictability and international credibility. Now is the opportune time for Nepal to fill this void. A win-win for all.

- Wostey works for the United Nations; views expressed here are personal