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ENCLAVES: NEED FOR INTERNATIONAL ATTENTION
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ENCLAVES:
NEED FOR INTERNATIONAL ATTENTION
AUTHORED BY: TANVEE JAIN
tanveejain333@gmail.com
+91 9433050372
27/1 Sailendra Nath Bose Road,
Salkia, Howrah, West Bengal – 711106.
Amity University, Kolkata.
CO-AUTHOR -VANESSA REGINA VINCENT
vanessaregina303@gmail.com
+91 6204208488
Vincent villa, professor colony lane
no 06,
Chiragora, Dhanbad - 826001
Amity University, Kolkata.
CO-AUTHOR - RATUL GHOSAL
+91 7439160195
Sukanta Nagar, P. O. - Michael Nagar,
P. S. - Dum Dum, North 24 Parganas,
Kolkata - 700133
Amity University, Kolkata.
According to Article 1 of the
Convention relating to the Status of Stateless Persons[1],
the term “stateless person'' means a person who is not considered as a national
by any state under the operation of law. This article dwells into the concept
of the Enclaves. Enclaves have not been defined under any statute. It aims to
elucidate on the insufficiency of the International Laws with respect to the
protection of the basic Human Rights of the persons residing in the Enclave. By
confining itself to the UN Charter[2], New York
Declaration for Refugee and Migrants[3]
and UNHCR, it talks about the violation of rights of the enclave dwellers with
special reference to the 'Chitmahal' and lack of statutes to address the same.
The existing International Statutes & Conventions are insufficient for
protecting the Human Rights of the persons residing in Politically Segregated
Enclaves. This article questions as to whether there is need for a separate
statute for the protection of the basic Human Rights of the persons residing in
such politically segregated enclaves. On studying the various statutes that
exist in the international fora, it is evident that there are no separate
statutes or conventions in favor of the persons residing in Enclaves.
Introduction
Across ages, the geographical
territory of states has expanded, receded or altered, and with it the people
residing in such regions have shifted or reallocated their shelters to obtain
secured livelihood options under one's regime. During such a process of
geographical alteration, some territorial portions of one state may lie in the
territory of another state forming enclaves. Enclaves have not been defined
under any statute. The subjects of a monarch or, in the modern democracies, the
citizens of a nation residing in such enclaves become stateless persons,
thereby getting stripped off of all the rights enjoyed by those people while
being citizens of the concerned state. These people suffer from lack of
political identity in the geopolitical framework. Inability to get registration
under any authority, and lack of access to formal education, job and so on and
so forth make their lives a living nightmare.
According to Article 1 of the
Convention relating to the Status of Stateless Persons[4],
the term “stateless person'' means a person who is not considered as a national
by any state under the operation of law. One of the instances of enclaves was
the dispute over 'Chitmahal' shared between India and Bangladesh. The
Bangladeshis of the 'Chitmahal' lying within the territory of India were
deprived of their basic human rights for decades as they were stateless persons
in the legal spectrum who were unable to claim such rights neither from
Bangladesh nor from India. Although inadequate, certain measures were taken by
the Indian government for the aid of these people. However, it was not binding
on the Indian Union to cater to their basic needs as India was not a signatory
to the Convention Relating to the Status of Refugees, 1951[5].
On studying the various statutes that
exist in the international fora, it is evident that there are no separate
statutes or conventions in favor of the persons residing in Enclaves.
Article 1 of United Nations
Convention on Status of Refugees states that refugees are those who are “owing
to a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group, or political opinion, is
outside the country of his nationality, and is unable to or, owing to such
fear, is unwilling to avail himself of the protection of that country.”
According to Article 55 of the UN
Charter: "With a view to the creation of conditions of stability and well-being
which are necessary for peaceful and friendly relations among nations based on
respect for the principle of equal rights and self-determination of peoples,
the United Nations shall promote:
·
higher
standards of living, full employment, and conditions of economic and social
progress and development;
·
solutions
of international economic, social, health, and related problems; and
international cultural and educational cooperation; and
·
universal
respect for, and observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language, or religion."
In Article 57 of the UN Charter it is
stated that:
1.
The
various specialized agencies, established by inter-governmental agreement and
having wide international responsibilities, as defined in their basic
instruments, in economic, social, cultural, educational, health, and related
fields, shall be brought into relationship with the United Nations in
accordance with the provisions of Article 63.
2.
Such
agencies thus brought into relationship with the United Nations are hereinafter
referred to as specialized agencies."
Post Independence in 1971, issues of
land and illicit migration have caused strain relations between Bangladesh and
India. Both the countries are still unable to reach an agreement. The enclave
dwellers are considered as men of nowhere land. The enclave dwellers are
stripped of their basic human rights that are available to all the citizens,
although the culture and languages are the same, and there is no demarcation
that separates the enclave from the mainland. These enclave dwellers felt as if
they were staying in a foreign land. The enclave dwellers suffer from an
identity crisis. They are not given any birth certificates. They lack the basic
amenities of life as well as they are deprived of the right to education. They
are not allowed to send their children to school. They lack the right to health
as well. The border security force had the authority to arrest these enclave
dwellers anytime they moved out of their enclaves. Additionally the law
authorities did not have the permission to enter their enclaves.
In the General Assembly resolution of
the UNHCR, the General Assembly calls upon the government of the member states
to cooperate with the UNHCR in the performance of its functions concerning
refugees which falls under the competence of this office.
An
enclave is a portion of a land that formed a part of a foreign territory within
some existing country, the lives of the enclave dwellers remain under
persistent threat because of innumerable reasons. These reasons are not
favorable for their survival in reality. Majority of the countries lack
advocate rules that will govern or rather provide and guarantee rights to the
enclaves. Even India is one such country which lacks a proper legal framework
that will govern the rights of the
people residing in Enclaves. According to Article 1 of the Convention relating
to the Status of Stateless Persons[6],
the term “stateless person'' means a person who is not considered as a national
by any state under the operation of law.
India
is a signatory to the Universal Declaration of human rights. Due to this
reason, India was bound to take immense precautions in order to ensure that the
fundamental rights which are mentioned under part three of the Indian
constitution can siding with the provisions mentioned under the UN declaration
of human rights.
The
constitution of India embodies a number of provisions that are available to all
persons irrespective of the fact whether or not there is a citizen of India.
Article 21 is paramount in the Indian constitution. article 21 embodies the
right to life and personal liberty. This article states that no person shall be
deprived of his life or personal liberty except according to the procedure
established by law. This fundamental right Is accessible to the Indian citizens
as well as foreigners or any other person living within the Indian territory.
In addition to this article 21A provides for the right to elementary education
to everyone.
Article
14 guarantees to the people the right to equality before law. This article
states that no person living within the territory of India will be denied equal
protection of law. Article 22 of the Indian constitution gives the fundamental
right to protection against arrest and detention in certain cases.
Article
25 gives to all the persons freedom of consciousness, freedom of profession,
practice and propagation of religion. In addition to these provisions, article
23, 24, 26, 27 and even 28 is guaranteed to all the persons who reside within
the territory of India eat a spectrum of the fact that whether they are an
Indian or a foreigner.
In
the case of Louis De Raedt v Union of India,[7] It was
held by the court that the fundamental right to life, liberty, dignity will be
accessible by non citizens of India as well. Further in the case of Vaisakha v
state of Rajasthan[8]
The court was of the opinion that international conventions and norms are
significant for the purpose of interpretation of the guarantee of gender
equality, calmer right to work and human dignity in article 14, 15, 19(1)g and article 21 of the Constitution.
Enclaves
and refugees are thought of as aliens or stateless in India. The term alien is
embodied in the constitution of India under article 22, in the Civil Procedure
code under article 83 and in the Indian citizenship act 1955 under Section
3(3)(b).Majority of the acts muddle up the issues prevailing rights of the
refugees. In furtherance to this the foreigners act 1946 empowers the officers
to arrest or detain any foreigner on mere grounds of suspicion for non
compliance.
India
has signed and ratified the UN charter and is an ipso facto member of all its
organs.The UN charter under article 55 mentions that consciously to create a environment of stability and
well-being which are required for the coexistence of peaceful and friendly relations among nations
based on respect for the principle of equal rights and self-determination of
peoples, the United Nations shall promote:[9]
·
Higher
standards of living, full employment, and conditions of economic and social
progress and development;
·
Solutions
of international economic, social, health, and related problems; and
international cultural and educational cooperation; and
·
Universal
respect for, and observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language, or religion.
Article
56 of the UN charter reinforces that all the members “pledge themselves to take
joint and separate action in cooperation with the Organization for the
achievement of the purposes set forth in Article 55”[10]
There
are two landmark conventions that have Endeavour to define the status and
rights of stateless persons. These are
From
a lawful perspective, people living in an enclave can be considered as a
stateless person. Article 1(1)Of the
1954 convention defines a stateless person as “A person who is not considered
as a national by any state under the operation of its law[11]” And
it is observed by the international Law Commission that this definition forms
an integral part of customary laws. Article 1(1) Of the convention is related
to de jure statelessness. The pertaining question here is not Whether the
person's identity is effective or not; rather, it is whether every person has
an identity at all.
De
facto Stateless persons are considered to be the people who are not in the
country of their own nationality and are not able to return to their country of
nationality for whatever may be the reason or even if they do not return to the
country of nationality by choice. In this case the stateless person may also be
considered as a refugee. Enclave dwellers can be seen falling under the
category of de facto statelessness but at the same time they do not belong to
the refugee category.
All
the nation states were encouraged by the international humanitarian
organization to give the consent to these conventions. Despite their
encouragement many nation states including India and Bangladesh are not
signatories to these conventions.
Having
established that laws and conventions exist for refugee enclaves as well as
stateless persons in the domestic as well as international fora a conclusion
can be drawn that India lacks specific laws that would deal with the rights and
protection of existing enclaves. After the land border agreement 2015 though
cliffs are exchanged but still the increase will remain in India are facing a
lot of issues. In 2018 the West Bengal land reform amendment bill 2018 was
passed. According to this bill the included dwellers would acquire citizenship
of India in addition to all the civil amenities and citizenship rights but even
after so many years of the bill being passed, included dwellers are still
facing the same problem. The included dwellers feel as if they are being
cheated by the state government and are not receiving what they had been
promised. Though they have received their voter cards, they are yet to receive
the land documents without which they can neither sell or even get a loan on
that land.
History of Chitmahal[12]
There exists a long history of the
disputed land along the India-Bangladesh border. Some believe in legend while
others rely on historical records.
A popular legend tells that centuries
ago two regional kings, the Raja of Cooch Behar and the Maharaja of Rangpur,
used to play card or chess games in which the enclaves were used as stakes.
However, in recorded history, these patches of disputed land were apparently
the result of a confused outcome of a 1713 treaty between the Kingdom of Koch
Bihar and the Mughal Empire. Quite possible that the Kings of Koch Bihar and the Mughals ended a war
without determining a boundary for what territories had been gained or lost.
After the partition of India in 1947,
the Raja of Cooch Behar, who was the ruling a native state, was given the
choice of merging its territory with India or Pakistan or maintain the status
quo. He finally agreed to join hands with the Indian government and in 1949 the
territory was merged with India forming the Cooch Behar district.
The intention to “de-enclave” the
disputed land was realized with the introduction of an agreement in 1958
between Jawaharlal Nehru and Feroz Khan Noon, the then Prime Ministers of India
and the erstwhile Pakistan respectively. The object of the agreement was to
make an exchange of enclaves between India and East Pakistan without
considering loss or gain of territory.
A case was filed in the Supreme Court
regarding this agreement and the apex court’s judgment became a roadblock in
the path of such an ambitious exchange. It ruled that in order to transfer the
land a constitutional amendment was required, and so the Ninth Amendment[13] was put
to the legislative floor to facilitate the implementation of the agreement.
However, the amendment could not be passed owing to the objections to the
transfer of the southern Berubari enclave. With time, the India-Pakistan
relation deteriorated and the issue was shelved. But with the independence of
Bangladesh through the Bangladesh Liberation War of 1971 which was aided by
India, the negotiations again began.
Decades later, on 16 May 1974 the
Land Boundary Agreement was signed between Indira Gandhi and Sheikh Mujibur
Rahman, the then Prime Ministers of India and Bangladesh respectively that
paved the way for the exchange of enclaves and the surrender of adverse
possessions.
As per the agreement, India retained
the Berubari Union No. 12 enclave while Bangladesh retained the Dahagram-
Angarpota enclaves with India providing access to it by giving a
178-by-85-meter corridor, called the Tin Bigha Corridor. Though Bangladesh
ratified the agreement soon but India refrained from doing so. However, in 1992
the Tin Bigha Corridor was leased to Bangladesh.
A list of enclaves was prepared in
1997 by the two states. “Two Joint Boundary Working Groups were formed to work
out the details of enclaves in 2001. A joint census was carried out in May
2007. In September 2011, India signed the Additional Protocol for the 1974 Land
Boundary Agreement with Bangladesh.” An announcement was made by the two states
to swap 162 enclaves, giving residents a choice of nationality.
Under the agreement, India received
51 of the 71 Bangladeshi enclaves (from 51 to 54 of the 74 chhits) that were
inside India proper (7,110.2 acres), while Bangladesh received 95 to 101 of the
103 Indian enclaves (111 out of 119 chhits) that were inside Bangladesh proper
(17,160.63 acres). Bangladesh retained the 4,617 acres of its
Dahagram-Angarpota exclave. After the exchange of enclaves, India lost around
40 km2 (10,000 acres) to Bangladesh. According to the July 2010 joint census,
there were 14,215 people residing in Bangladeshi enclaves in India and 37,269
people residing in Indian enclaves in Bangladesh.
Amid protests from the Nationalist
groups in Assam for losing 10,000 acres land, the Constitution (119th
Amendment) Bill, 2013[14] was introduced in the
Rajya Sabha. The Indian government under the leadership of Narendra Modi
supported it in order to de-tangle the conflicting land along the
India-Bangladesh border that was pending for decades. On 28 May, 2015 the bill
received the Presidential assent of Pranab Mukherjee. On 6 June, 2015 the
agreement was ratified from both ends under the presence of Modi and the then
Bangladeshi Prime Minister Sheikh Hasina.
The implementation of the exchange of
enclaves and land parcels in adverse possession, and the boundary demarcation
took place in a phased manner between 31 July 2015 and 30 June 2016. The
transfer of enclave residents was expected to be completed by 30 November 2015.
The choice of citizenship given to
the enclave residents was to be completed by 13 July 2015. It was observed that
100 families residing in the Indian enclaves applied for Indian citizenship,
while none of the residents of the Bangladeshi enclaves chose to go to
Bangladesh. New citizenship took effect from 1 August 2015.
Though the residents of such enclaves
after becoming the citizens of India have gained some rights that have improved
opportunities of livelihood from the previous situation, it cannot be
overlooked that there had been serious human rights violations on such
residents. It should also be noted that such violations had taken place across
history in other regions of the world and it may again happen in the near
future. Thus, the world requires a statute to address the same.
Infringement of Human Rights
Persons voluntarily living in the
enclaves are exploited in ways beyond imagination. They are slowly led towards
a downfall whatsoever. There is a very poor Infrastructure in the education
field and the health field. The problem of land demarcation still exists and is
hardly taken care of. Persons living in these regions face poor hygiene and
sanitation conditions.
The biggest problem of all is that
the crime rate is very high and most of these persons are actively engaged in
illegal activities. One of the many reasons behind this issue of crime rate
being high is due to very less occupational diversion. There also exists a huge
gender discrimination due to which there is low female labor force
participation rate in these regions.
They effortlessly and conveniently
hide their real income so that they can get away with the payment of taxes. The
sad part is that even after all these aspects, the persons residing in these
areas want to stay here willingly.
Though they are deprived of many
facilities, they want to remain in these areas, creating a social conflict.
According to the Social Conflict Approach Model economic outcome is less
diversified due to the deprived economic opportunities.
Most persons living in these regions
are engaged in agricultural activity. The government is the least bothered to
provide them with any kind of concession to improve their economic status.
Backwardness and orthodoxy still
prevails amongst the people residing in these enclaves as these areas lack
educational institutions and health centers. These areas are considered to be a
buffer zone. The reason behind this is that there exists a lot of political disturbances. In
accordance with this model it can be concluded that though they are deprived of
a proper facility, economic subsidies, they still want to remain in these
places and do not have any plan to migrate to another place in future.
Their backwardness and poor
educational qualifications do not allow them to think and come across new and
innovative ideas for the development of these regions. There can be various
recommendations to improve their living conditions in these areas. Growth of
poor infrastructure in the fields of education and health. A legal adviser can
be deployed in order to demarcate the land.
Improve poor sanitation conditions. Providing employment opportunities
to decrease the high rate of crime.
Requirement of women empowerment in all aspects of education, work and
psychological freedom so that there is an increase in work participation rate
of women. Strict prevention of illegal activity in these areas. There should
also be an increased occupational diversion.
The persons residing in these areas
have been leading their life in darkness of the future. The economic situation
is not well sustained. The economic sphere of these areas has completely
assimilated with the host country through illegal migration, currency and
marketing. And therefore, there exists no economic relation with their own
country. It is very difficult to conclude the present status for the residents
of these areas as the people are equally happy with available resources as well
as being deprived of basic amenities.
The Legal Vacuum
As far as the laws and conventions
are concerned, there do exist a few international treaties to safeguard the
refugees and illegal immigrants across the world. Certain organizations also
fight for their rights when questioned on their identity or in violation of any
statute of the concerned state. But when human right violations are faced by a
section of people who are devoid of any nationality, there is dearth of
proactive measures taken in this regard. Despite the undeniable fact that the
intellectual community at various platforms has raised its voice in respect of
such violations, in the framework of public international law, such voices are
either unheard or best ignored.
Through the eyes of monistic school
of thought, this issue may be addressed if a suo moto cognizance be executed by
a Court of international recognition. But then again, such power of the Court
comes in the way of sovereignty of a state which in itself will be a violation
of general principles of law enshrined under Article 38 of the Statute of
International Court of Justice.
Hence, it is well understood that
there is a need for a new and separate international treaty or convention
signed and ratified by the sovereign states or at least the member states of
the United Nations (UN) to safeguard the rights of people residing in the
politically segregated enclaves. It should be noted that a moral obligation
also lies with the member states of the UN as protection of human rights is
imbibed in the very UN Charter which is considered the constitution guiding the
United Nations and its members.
Another initiative may be taken by
the establishment of an international body with the consensus of the UN General
Assembly to address any issue arising out of the politically segregated
enclaves and to be given the authority to investigate matters pertaining to the
people residing there, to regulate the norms of such territories, and to
transfer any case emerging in respect of any violation of such norm to the
International Court of Justice for adjudication.
Conclusion
From the above discussion, it is very
well understood that enclaves have originated either out of protecting the
ethnic sentiments of a faction of society or have been politically segregated
by way of poor administration of the monarchical or republican states. The
residents of the later region have met with serious human rights violations
across space and time. The public international law failed to address the issue
and thus events like that occurred and are bound to come to the geopolitical
surface again. Hence, such a legal vacuum may be addressed by introducing a new
international treaty or by establishment of a new international body.
[1] Convention relating to the Status of Stateless
Persons, 1954
[2] The Charter of the United Nations, 1945
[3] The New York Declaration for Refugee and Migrants,
2016
[4] Convention relating to the Status of Stateless
Persons, 1954
[5] Convention Relating to the Status of Refugees, 1951
[6] Convention relating to the Status of Stateless
Persons, 1954
[7] 1991 AIR 1886, 1991 SCR (3) 149
[8] 13 August, 1997
[9] UN charter
[10] UN Charter
[11] 1954, convention relating to the status of stateless
persons
[12] India–Bangladesh enclaves, available at: https://en.m.wikipedia.org/wiki/India%E2%80%93Bangladesh_enclaves (last visited on November 12, 2022)
[13] THE CONSTITUTION (NINTH AMENDMENT) ACT, 1960
[14] The Constitution (119th Amendment) Bill, 2013
Article Information
ENCLAVES: NEED FOR INTERNATIONAL ATTENTION
Authors: TANVEE JAIN, VANESSA REGINA VINCENT, RATUL GHOSAL
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/08/30
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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