Right on the Rohingya

By Ajay Sabharwal

Thulasi K. Raj, a lawyer at the Kerala High Court, wrote a comment/op-ed piece titled ‘Wrong on the Rohingya’ for ‘The Hindu’ on 5th February 2019. She argued that the “deportation of refugees is legally and morally problematic” and that “India’s repatriation of the refugees contravenes international principles on refugee law as well as domestic constitutional rights”. This response article will counter the author’s claims and refute the position that India is obligated to accept the entry of Rohingya refugees.

Having described the history and development of the refugee law, which is not under question here, the author says the prevailing norm is that “no contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” She further accepts that “it is often argued that the principle does not bind India since it is a party to neither the 1951 Convention nor the Protocol.” It must be noted that this is not a position that is merely ‘often argued’ but the central premise of any argument by any state that is not a signatory to or has not ratified an international convention or protocol.

In response to this, the author argues that, “the prohibition of non-refoulement of refugees constitutes a norm of customary international law, which binds even non-parties to the Convention.” The basis of establishing such a practice as binding custom, according to the author, comes from “the Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations, UNHCR, 2007,” from where the author quotes that the principle “is binding on all States, including those which have not yet become party to the 1951 Convention and/or its 1967 Protocol.”

To analyse and critique this claim, it is required that the basis of the principle be discussed for which a thorough reading of the advisory opinion as well as the corresponding citations and references is necessary.

The entirety of paragraph 15 of the Advisory Opinion, (from which the author picks up a sentence), reads as follows:

“15. UNHCR is of the view that the prohibition of refoulement of refugees, as enshrined in Article 33 of the 1951 Convention and complemented by non-refoulement obligations under international human rights law, satisfies these criteria and constitutes a rule of customary international law. As such, it is binding on all States, including those which have not yet become party to the 1951 Convention and/or its 1967 Protocol. In this regard, UNHCR notes, inter alia, the practice of non-signatory States hosting large numbers of refugees, often in mass influx situations. Moreover, exercising its supervisory function, UNHCR has closely followed the practice of Governments in relation to the application of the principle of non-refoulement, both by States Party to the 1951 Convention and/or 1967 Protocol and by States which have not adhered to either instrument. In UNHCR’s experience, States have overwhelmingly indicated that they accept the principle of non-refoulement as binding, as demonstrated, inter alia, in numerous instances where States have responded to UNHCR’s representations by providing explanations or justifications of cases of actual or intended refoulement, thus implicitly confirming their acceptance of the principle.”[1]

Among the central principles of international law is state consent. While this premise has been rejected by the author, it is pertinent to note that the basis of such a rejection is the opinion of the UNHCR, which itself stands on a faulty ground. The basis of the UNHCR recognizing such a principle to be binding even those states which have not consented to the 1951 Convention or the 1967 Protocol, is that some non-signatory states have hosted a “large numbers of refugees”. Furthermore, the UNHCR, claims that, “states have overwhelmingly indicated that they accept the principle of non-refoulement as binding” The UNHCR does not state here whether such states include non-signatory states. Without a doubt, signatory states would accept the principle of non-refoulement as binding, and they would be in overwhelming number, considering that almost three-fourths of all UN members states have accepted both the 1951 Convention and the 1967 Protocol. While the UNHCR claims, and perhaps, correctly so, that some non-member states have hosted a “large numbers of refugees” (and even if that includes India, as the UNHCR states) that does not result in the non-signatory states consenting to the principle as being binding on them. The UNHCR’s claim that by providing explanations or justifications of cases of actual or intended refoulement, non-signatory states “implicitly [confirm] their acceptance of the principle” suffers from grave fallacies.

Merely because some non-signatory states have acted on some occasion as having accepted refugees, does not necessarily bind them to accept the principle on all occasions. Moreover, merely because an ‘overwhelming’ number of states have accepted the principle as binding does not necessarily mean that it must also be binding on those who have not accepted it. According to the line of argument taken by the UNHCR, consent to a particular action, once given, would result in an obligation forever, even when the state is objecting to consenting to such a principle in perpetuity. To deal with the problem of lack of consent, international conventions and protocols are required to be ratified by the states for them to become biding treaties for such states. It is only after becoming a party to one or more provisions that a state declares itself to be in perpetual obligation to the said provision(s), till such time that it withdraws such consent.

While there maybe scholars who wish to reject the principle of consent[2] to speed up the good work by international institutions, it remains the cornerstone of international law. The rejection of such a principle would mean the rejection of state sovereignty, independence and democracy (or whatever little of it remains at such international forums). It would not be prudent to consider this scenario to be plausible or acceptable by the states anytime in the foreseeable future.

Reading further into the Advisory Opinion, the 9th reference/footnote, regarding the Executive Committee of the UNHCR states that “while its conclusions are not formally binding on States, they are relevant to the interpretation and application of the international refugee protection regime. Conclusions of the Executive Committee constitute expressions of opinion which are broadly representative of the views of the international community. The specialized knowledge of the Committee and the fact that its conclusions are reached by consensus adds further weight.” This only proves that there is no legal obligation that arises out of such reports either. Irrespective of how the UNHCR sees its itself or judges its own competence to legally bind states to its diktats, the principle of consent still prevails.

The author then cites Article 14 of the Universal Declaration of Human Rights which provides “that everyone has the right to seek and enjoy in other countries asylum from persecution.” While this remains an appeal to emotion, and a flawed one, as it places no obligation of India to do so, it can also be rejected on the grounds that, (as stated in Paragraph 8 of the said advisory opinion cited by the author) “the principle of non-refoulement as provided for in Article 33(1) of the 1951 Convention does not, as such, entail a right of the individual to be granted asylum in a particular State.”

Furthermore, the author claims that the nation has violated international obligations because Article 51 of the Constitution states that the State shall endeavour to promote international peace and security. While the State is required to attempt to do so, not taking in refugees does not amount to a breakdown of the global order of international peace. On the contrary, there may be serious security ramifications if the necessary safeguards are not followed in letting people into the country. The author, further cites Article 51(c) as an obligation on the State to promote respect for international law and treaty obligations. Article 51 does not imply that international conventions automatically become national law, but on the contrary, must be made into law by the Parliament, as under Article 253. While courts may have read and interpreted constitutional provisions to incorporate and harmonize international conventions, such a practice does not reject the principle that national law would prevail when it is contrary to any international law. It is important to note that the obligations under the Convention are not completely consistent with the rights granted to non-citizens and such persons under the Constitution of India.

Thereafter, the author, gives Rohingya refugees a status that has not been available to any Indian citizen under the Constitution of India. She claims that, “the Rohingya refugees, while under the jurisdiction of the national government, cannot be deprived of the right to life and personal liberty.”

A closer reading of the relevant article of the Constitution of India would provide the author the much-needed clarity. Article 21 reads as follows:

“No person shall be deprived of his life or personal liberty except according to procedure established by law.

While the word, ‘person’ may be interpreted to include foreign citizens and they may also be entitled to their life and personal liberty, such liberties may be taken away by procedure established by law, i.e. by an enactment of the Parliament of India. The author claims that “India lacks a specific legislation to address the problem of refugees, in spite of their increasing inflow” Such an averment is without any merit as such legislation already exists. The enactment in this case is The Foreigners Act, 1946, which, according to the author “fails to address the peculiar problems faced by refugees as a class” and “also gives unbridled power to the Central government to deport any foreign citizen.”

Firstly, as far as problems faced by refugees as a ‘class’ are concerned, it is a settled position of law that Article 14 of the Constitution of India prohibits class legislation.[3] Furthermore, it is also a settled position of law that foreign nationals, do not have a right to say or claim that they should continue in India once directed by the Central Government to leave.[4] The liberty under Article 21 cannot be extended to such cases. As far as Article 14 is concerned, the relevant tests of equality to determine its scope would suffice as their intelligible difference between Indians and foreign nationals. Coming to the claim that the Act, also “gives unbridled power to the Central government to deport any foreign citizen” this position has been accepted by the courts as well. There is no denying the existence of such a provision. Section 3(1) of the Act, states that:

“The Central Government may by order make provision, either generally or with respect to all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner, for prohibiting, regulating or restricting the entry of foreigners into India or, their departure therefrom or their presence or continued presence therein.”

For proper reference, Section 2 (a) of the Act defines “foreigner” as “a person who is not a citizen of India.” All Rohingyas fall under this category and hence, the Act applies to them, therefore any order of the Central Government to prevent their entry into the territory of the Republic of India is not without legal backing. As far as the Central Government possessing such powers is concerned, the author may be free to argue that the law must change but as of now, even if it is harsh, it is the law. There remains no legal violation on the part of the Government of India in preventing the entry of Rohingya refugees. The other claims regarding BBC reports and the unparalleled nature of Rohingyas are mere appeals to emotion and do not warrant a reply separately.

As far as the nature of the Citizenship (Amendment) Bill of 2019 is concerned, right to citizenship is not a fundamental right that is available to foreign nationals. It is a privilege that can be conferred by the Government of India. [5]

The author ends by turning the argument towards the moral dimension. She refers to the words of American philosopher Ronald Dworkin that “if we claim international law to be law, we must understand it as part of the greater morality.” The foremost requirement herein, is to accept international law as law. While there may be several schools of thought dressing the issue, it must be understood that for any system to be considered legally binding on actors within it, there must be an autonomous and permanent mechanism to make it enforceable. Since, this feature is inherently lacking in international law, it is difficult to accept it as the law we know and adhere to. This by no means is an argument to not follow international law, merely one that points out why it isn’t followed. Lastly, if there is a moral stance to be taken in favour of letting Rohingyas in, the opposite stance, also from a moral perspective, must be considered. The author is free to hold a view that India has a significant moral obligation, but globalized virtue signalling is not going to benefit the Republic of India or its citizens. The contrary view that the primary responsibility of the State is the protection of its own citizens, is not without its merits.

This article is a part of The Agenda’s reviews and critiques. It is a response to Thulasi K. Raj’s article that can be found on The Hindu, here.

About the Author

The author studies law at the Faculty of Law, Delhi University.

References

[1] UN High Commissioner for Refugees (UNHCR), Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, 26 January 2007, available at: https://www.refworld.org/docid/45f17a1a4.html [accessed 5 February 2019]

[2] Guzman, A. (2011). The Consent Problem in International Law. UC Berkeley: Berkeley Program in Law and Economics. Retrieved from https://escholarship.org/uc/item/04x8x174

[3] Mumbai Pune Taxi Owners Association v. The Principal Secretary, Ministry of Surface Transport, AIR 2014 BOM 2 (7) DB

[4] David John Hopkins vs The Union of India, AIR 1997 Mad 366

[5] Ibid.