Despite to the fact that India is not a party to the 1951 Convention and it does not have a national framework for refugees, as per UNHCR assertions, India hosts a large number of refugees from neighboring States, and respects the UNHCR mandates, and holds respects towards the principle of “non-refoulment”.
by Vijay Kumar
India recently has amended its Citizenship Act 1955 called the Citizenship (Amendment) Act 2019 (CAA). The provisions of the CAA has caused the violent protests in several parts of India, however, reasons for such protests are different in different regions. Such as the North-East region is apprehensive about the fact that the CAA will result in their demographic changes, whereas others are protesting for different concerns. The provision of the CAA states that a person shall be deemed to be the citizens of India who migrated from Afghanistan, Bangladesh or Pakistan on or before 31 December 2014. The problem arises due to the fact that the person includes only the specified religious community i.e., Hindu, Sikh, Buddhist, Jain, Parsi, and Christian. The exclusion of Muslims, therefore, is viewed as discriminatory and against the secular character of India. In the backdrop of the above provisions and concerns raised by several international bodies and States, the author explores India’s obligations with respect to refugees’ treatment under international law.
Obligations under Treaties
The leading Convention Relating to the Status of Refugees 1951 (Refugee Convention) defines the rights and standards of an individual who should be treated as refugees and thereby setting obligations on the host States to grant them asylum and afford protection. Art. 1 of the Convention provides a broader definition of the term “refugees” which is inclusive in nature who are facing persecution. However, the most relevant part of the Convention is Art. 33 which prescribes the principle of “non-refoulement”. It means that no Contracting State shall expel or return refugees. However, at the same time, Art. 33 in para 2 provides that a State can invoke reasonable grounds of national security to deny the refugee status. The 1967 Protocol Relating to the Status of Refugees reaffirms the principle of “non-refoulment”.
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| Indian students of the Jamia Millia Islamia University and locals participate in a protest demonstration against a new citizenship law in New Delhi, India, Saturday, Dec. 21, 2019. Critics have slammed the law as a violation of India's secular constitution and have called it the latest effort by the Narendra Modi government to marginalize the country's 200 million Muslims. Modi has defended the law as a humanitarian gesture. Placard center reads "Stop attacking universities." (AP Photo/Altaf Qadri) |
However, the application of the principle on India remains unclear as India has not signed both of these documents; the 1951 Convention and the 1967 Protocol. India has opposed the signing of these documents due to various reasons, such as objections to the definition of the term refugees, security concerns, and suspicious role of the UNHCR. Jurists like B.S.Chimni has also opposed the treaty provisions by arguing that the Convention propagates the Western conceptions and concerns, rather than a global approach. Though India is not bound under the 1951 Convention and its Protocol, it can be bound by the “non-refoulment” principle available under Torture Convention 1984, to which India is a party.
Still, as a treaty obligations, India seems to be able to negate the principle of “non-refoulment” as it has not signed the 1951 Convention and the aims and objectives of the Torture Convention are comparatively limited than the 1951 Convention.
Obligations under Customary International Law
Despite the fact that a trend of treaty-making has developed as a prime source of international law, the Customary International Law (CIL) remains the profound source of international law and States’ practices, jurists’ opinion, and the courts have taken the recourse to CIL whenever required.
It is now well accepted among the jurists and supported by the State practices that the principle of “non-refoulment” as a legal norm has attained the status of CIL. Indian practice, in this regard, is also not contrary. However, the historical nature of the evolution of the international instrument – the Refugee Convention 1951 – which is basically adopted for the European concerns of refugees emerges aftermath of the World War II, and several initiatives at the regional levels raise the scope of persistent objections and selective State practices in granting the refugees status. Such examples of regional concerns are the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa 1969, which states that the member “shall use their best endeavors consistent with their respective legislations to receive refugees.” Similarly, the Convention on Territorial Asylum adopted by the Organization of American States 1954 contemplates that “every State has the right, in the exercise of its sovereignty, to admit into its territory such persons as it deems advisable, without, through the exercise of this right, giving rise to complaint by any other State.” The Asian-African Legal Consultative Organization (Head Quartered in New Delhi)– a leading organization to voice Asian and African concerns at the international platform to which India is a founding member, has expressed that the “State has the sovereign right to grant or refuse asylum in its territory to a refugee.” In addition to these, the Committee of Ministers of the Council of Europe adopted a Declaration on Territorial Asylum in 1977 asserted that the States have the right to decide on granting asylum.
In this way, it can be argued that, though the principle of “non-refoulment” has attained the status of CIL, still there is the scope of assertions of the sovereign right of granting the refugee status. The States have also shown selective approaches towards the issues of refugees. Therefore, it is also evident and commonly accepted among scholars, that the principle of “non-refoulment” has not attained the status of peremptory norms (jus cogens) of international law. Thus the scope of derogation still remains open by the States. The issue of terrorism has also affected the applicability of the principle of “non-refoulmnet” as States have resorted to Art. 33(2) to invoke the security concerns many times, mainly after 9/11 attack.
Whether the CAA contrary to the provisions of International Law
It is well noted, historically, that the South Asian region has been the troubled spot in the world in terms of refugee generation. Afghanistan being top in the list among South Asian countries, and second in the world, the partition of India, and the birth of Bangladesh have seen the instances of the mass influx of people into each other jurisdictions. Despite these historical instances except Afghanistan, none of the South Asian countries has signed the 1951 Convention due to various concerns.
Despite to the fact that India is not a party to the 1951 Convention and it does not have a national framework for refugees, as per UNHCR assertions, India hosts a large number of refugees from neighboring States, and respects the UNHCR mandates, and holds respects towards the principle of “non-refoulment”.
The present Amendment, in this context, though has generated the violent protests and criticisms from different sections of the society and international organizations, the CAA stands in consonance of the international law as it does not strip citizenship of any person or expel illegal migrants from its territory rather it mandates to grant citizenship to specific person migrating to India from specific countries. Thus the principle of “non-refoulrent” in this amendment is not being violated. However, the exclusion of Muslims in this amendment has raised the concern of religious discrimination and against the secular fabric of India.
To be continued
Vijay Kumar: is pursuing his Ph.D. in the area of International Law from the Indian Institution of Technology (IIT) Kharagpur, India.
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