By Arunav Kaul, Just Security
In a recent order, the Supreme Court of India refused to stay the deportation of Rohingya refugees back to Myanmar and directed the Indian government to follow the prescribed procedure for their deportation. According to media reports, there are close to 150 to 170 refugees detained by the Indian police and set to be deported.
This is not the first time the court has refused to stay such a deportation. The case was first filed in the Supreme Court in 2013 around when many people from the Rohingya community started fleeing Myanmar. Since then, the Supreme Court has refused to stay their deportation on multiple occasions. Persecution of Rohingya Muslims has been going on in Myanmar for several years. Today’s refugee crisis began in 2012 in the Rakhine state in Myanmar, where thousands of Rohingyas, an ethnic Muslim minority group, were systematically killed and forced to flee to nearby countries, including India. As per the estimates of the Indian government, there are more than 14,000 Rohingyas that have registered with the United Nations High Commissioner for Refugees (UNHCR) in India. Another 40,000 of them are residing illegally and with no proper documents, according to the government.
The move to deport Rohingya refugees poses a serious risk to their lives, including to the lives of their children. Further, given the recent military coup in Myanmar, and the violent crackdown on dissent that’s taken place in its aftermath, the danger of violence that Rohingyas would face if they returned to Myanmar has only increased. The Indian government’s decision to deport them goes against an established rule of non-refoulement that can be found, not only in the Refugee Convention of 1951, but also in several other international instruments and customary international law. However, India is not a party to the Convention, so to what extent does the rule of non-refoulement apply? This is an issue that needs thorough analysis.
The non-refoulement rule in the Indian context
As per Article 33 of the Refugee Convention, no refugee should be expelled or returned to a territory where the life or freedom of the refugee would be threatened based on race, religion, political opinion, nationality, or membership in a particular group. However, India is not a party to the Refugee Convention or its Protocol (1967) and does not have any legislation that recognizes this rule. Presently, there are 146 States that are a party to the Refugee Convention and 147 States that are a party to its Protocol. India is one of the few countries in the world that is not a party to either of them. Given the lack of a proper legal framework to support refugees, the courts in India have, time and again, intervened on humanitarian grounds and decided upon the issues relating to refugees and their deportation. In the past, Indian courts have dealt with refugee issues from Bangladesh, Sri Lanka, Iraq, Iran, and other countries. In many of these cases, the courts have halted deportations and allowed individuals to register with the UNHCR and avail its protection. However, the process is not backed by any domestic legislation. Even the presence of UNHCR in India is not supported by any statute as its operations are based solely on political agreements. In a country where courts rely heavily on domestic legislation, the lack of statutory recognition poses difficulties.
Further, Indian immigration laws provide sweeping powers to the government. Noteworthy amongst them is Section 3 (1) of the Foreigners Act, which states that the government has the power to prohibit or regulate the entry of foreigners in India or their departure therefrom. The Act does not refer to the rule of non-refoulement and provides complete authority to the government to decide the fate of individuals.
India’s obligation under International law
Non-refoulement is an established rule international law. Apart from the Refugee Convention, its reference can be found in other international instruments to which India is a party. For instance, the International Covenant on Civil and Political Rights to which India acceded, implicitly obligates the parties under Article 7 not to refoul individuals to a place where they can be subjected to torture or cruel or inhumane treatment. This interpretation has been unequivocally stated by the U.N. Human Rights Committee. A similar approach towards the inclusion of non-refoulement has been taken in the International Convention on the Elimination of All Forms of Racial Discrimination and Convention on the Rights of the Child, to which India is also a party. Further, the Convention Against Torture makes an express mention of non-refoulement under Article 3. Although India is a signatory to the Convention and not bound by its terms, prohibition of torture has certainly acquired the status of jus cogens norms, which cannot be derogated by States. Prohibition of torture encapsulates an associated obligation to not send individuals to a place where they may suffer such a treatment or punishment by another State. Hence, sending Rohingya refugees to Myanmar would be in clear violation of a jus cogens norm and India is therefore bound to follow the rule of non-refoulement. There is also rich literature that supports the fact that non-refoulement has indeed acquired the status of international customary law. In an advisory opinion of the UNHCR, it was noted that non-refoulement constitutes a customary law and is binding on all States, including those who are not a party to the Refugee Convention and the 1967 Protocol.
In fact, the debate has gone even further as many academic writings argue that the rule is acquiring the position of a jus cogens norm, a fundamental obligation that all the States need to follow. The Executive Committee Conclusion No. 25 on International Protection, UNHCR (1982) suggested that non-refoulement is “progressively acquiring the character of a peremptory rule of international law.” The peremptory or jus cogens norms cannot be derogated by States. While the jus cogens status of non-refoulement may still be debatable, it is nonetheless certain that the rule has emerged to be customary international law and therefore must be respected by all countries. Given the customary nature of the rule and India’s obligation under different treaties/conventions, it is legally bound to follow it.
The recent order of the Supreme Court did not deal in-depth with any of these international norms or India’s obligation under international law. Instead, the court acceded to the national security concerns raised by the government without probing further the particular dangers that the refugees may present. While the Indian government has not publicly shared the details of the national security threat it claims the Rohingya refugees pose, one cannot help but wonder: Couldn’t the government have explored safer channels to resolve the issue? Could the government have shifted them to another location rather than deporting them to Myanmar, ensuring they don’t face the worst outcome? Prohibition of torture and inhumane treatment are absolute rights and national security cannot be used as a tool to violate these fundamental norms.
Despite the presence of strong evidence that establishes India’s obligation to comply with non-refoulement, many Rohingya families over the past few years have been deported. The Supreme Court had the opportunity to reverse this wrong and pave the way for a system that respects international law. Unfortunately, it did not do so. On the contrary, the Indian Supreme Court stated that “national courts can draw inspiration from international conventions/treaties, so long they are not in conflict with the municipal law.” This approach needs to be changed. Protecting the human rights of citizens and non-citizens, is a sacrosanct duty. Domestic courts have the power to protect these rights by implementing international norms and enforcing the State’s obligation under international law. Sadly, with the Indian Supreme Court’s refusal to implement these obligations, it has dented the hopes of thousands of Rohingyas who continue to seek refuge in India.