Authors: Ms.Sanchita Makhija & Mr. Debojeet Das
The genocidal act of ethnic cleansing undertaken by the State of Myanmar has forced millions of Rohingya Muslims to flee to other countries for shelter. A wave of refugees also managed to reach India in numbers which are estimated to be around 40,000. The Indian government was in the process of clarifying its stance over the last seven years when it refused to condemn the genocidal measures undertaken by the Myanmar government. This stance became clearer than ever during the hearings in the Supreme Court on the 26th March, 2021.
A petition was filed by two Rohingya immigrants, who on the basis of a Reuters report claimed that the Central Government is going to deport the 10,000 Rohingya refugees located in Jammu & Kashmir, back to their country of origin i.e., Myanmar. The petitioners were represented by Prashant Bhushan, Ashwini Kumar, Rajeev Dhavan and Colin Gonsalves. Mr. Bhushan began by using the judgment of the International Court of Justice as his starting point which, in the month of January 2020 recognized the genocide carried on by the State of Myanmar and ordered it to take urgent steps to protect the Rohingya population. After citing this judgment, the petitioners’ side went on to establish the violence this refugee population was fleeing from.
These hearings were interesting for multiple reasons but one thing stood out. The hearings witnessed Mr. Bhushan referring to the principle of non-refoulement and how deporting these refugees would violate this principle.
Non-refoulement is deemed to be a fundament of international law and international refugee law in particular. This principle flows from refugees’ right to pursue a secure asylum as enshrined under the Universal Declaration of Human Rights. The universally accepted definition of non-refoulement is stated under Article 33(1) of the 1951 Convention Relating to the Status of Refugees (hereinafter referred to as the 1951 Convention) as:
“No Contracting State shall expel or return (‘refouler’) 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.”
This is what we are concerned with: the principle of non-refoulement and its vital character because of it being an important part of international law. Presently, it is well established by authorities such as Guy S Goodwin-Gill & Jane Mcadam that non-refoulement is a principle that countries cannot violate regardless of whether they are parties to the 1951 convention. This piece is an attempt at explaining why the Indian government should not be apathetic towards the responsibility imposed by the principle of non-refoulement. It argues that India ought to implement the principle, by virtue of being a party to various treaties anchoring the said principle and it also being a part of customary international law. Therefore, one way or the other, the court cannot not take notice of this essential principle.
India as a Party to Treaties Enshrining the Principle of Non-refoulement
Innumerable treaties that India is a party to anchor non-refoulement. To start with, India has ratified treaties such as the International Covenant on Civil and Political Rights, Convention on the Rights of the Child, etc.
The country is also a signatory to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, International Convention for the Protection of All Persons from Enforced Disappearance, the Bangkok Declaration and the New York Declaration
Non-refoulement as a Part of Customary International Law
Non-refoulement could be deemed to be a part of customary international law subject to a couple of pre-conditions and they are: state practice and opinio juris.
India has witnessed a time-hallowed recognition of the said principle. From judgments given in cases such as Ktaer Abbas Habib Al Qutaifi case of the Gujarat High Court to the Dongh Lian Kham case of the Delhi High Court, the principle of non-refoulement has been included as an essential extension to the substance of Article 21. This important transformative extension became essential for refugee rights. Furthermore, the country has also recognized that the principle is included under the category of customary international law in two meetings conducted by the United Nations in 2016 and 2017.
The existence of opinio juris can be established by the evaluation of the connection between the principle of non-refoulement and the two most consequential standards of international law namely jus cogens and erga omnes.
Non-refoulement as a Jus Cogens Norm
Jus cogens norms refer to the paramount international law rules, which override any other law and therefore, have to be upheld at any cost. Vienna Convention on the Law of Treaties under Article 53 declares the following: an obligation to attain the normative value of jus cogens must satisfy two requirements i.e., it must be a peremptory norm and a standard against which no derogation is acceptable. (Peremptory norm refers to a rule which is “expected to be obeyed immediately and without any questions.”)
The UNHCR Conclusions can be used to establish the link between the principle of non-refoulement and jus cogens. In its 33rd session, the UNHCR Executive Committee stated that the principle is “progressively acquiring the character of a peremptory rule of international law.” In its 47th session, the said committee stated that “principle of non-refoulement is not subject to derogation”. It should be noted that Article 33 of the 1951 Convention, which anchors the concept of non-refoulement does not permit any reservation and is, therefore, not subject to ‘derogation’.
Non-refoulement can also be deemed to be a jus cogens norm as it prohibits torture by imposing a duty on the states to not expel or refoul refugees to a state wherein they shall face torture. The proscription of torture was recognized as a jus cogens norm in the Furundzija case and was later upheld in the Senegal case.
Non-refoulement as an Erga Omnes Obligation
Erga Omnes obligations are the obligations that every state must uphold to secure the stability of the underlying structure of the aspirational fraternity of states. These obligations are deemed to be of a higher status in comparison to other obligations irrespective of their source i.e., a treaty or a custom. The International Court of Justice initially recognized the obligations in the Barcelona Traction case and further upheld the same in the Gambia v Myanmar case.
Guy S Goodwin-Gill & Jane Mcadam have recognised non-refoulement as an erga omnes obligation. To further establish the link between non-refoulement and erga omnes, the ratio of the Barcelona Traction case is useful. It provides that an obligation can be deemed to be an erga omnes obligation if it is a ‘concern of all states’ and it creates a ‘legal interest’ for all states. It is further relevant to the ‘importance of the rights involved.’
The application of the non-refoulement principle to all states can be established by the UNHCR’s Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention and its 1967 Protocol, wherein it was stated 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.” The Conclusion adopted by the Executive Committee can further be used to illustrate its importance. In its 40th session, the Committee “called on all states to refrain from taking such measures and in particular from returning or expelling refugees contrary to fundamental prohibitions against these practices.”
The second important factor i.e., the creation of a legal interest mainly arises in cases of human rights as they give rise to a ‘collective interest’ amongst the international community as a whole. The Advisory Opinion of the International Court of Justice in Reservations to the Convention on the Prevention of and Punishment of the Crime of Genocide states that principles relating to safeguarding human lives and morality give rise to a common interest amongst states. The International Law Commission’s Report also further re-affirms the said rule as it states that interests pertaining to human rights are “not allocatable” to a single state and can be invoked by all the states that are bound by customary law. As has been established above, non-refoulement concerns itself with basic human rights as it is the prevention of expelling refugees to states, where they might face a risk to their lives and freedom.
The third factor, i.e., the importance of rights involved is determined on the basis of how consequential the rights are, or the significance of the rights involved. The instruments of international law remain silent on how important an issue should be in order to qualify as an erga omnes obligation, but the court has insinuated in the Barcelona Traction case that the violation of basic human rights falls under the ambit of the same.
Although, the Supreme Court observed that India is not a signatory of the 1951 Convention, a multitude of authorities have been cited to establish that non-refoulement has been given a higher impetus in various treaties that India itself is a party to. It should also be noted that the principle has been widely recognised as a segment of customary international law; this is sufficient to prove that the state has to respect the said principle. The Supreme Court’s decision by the order dated 8th April, 2021, on how to handle the population of the Rohingyas is not only against the most basic humanitarian impulses but also completely antithetical to the principles of international jurisprudence. The Apex Court of our nation had the opportunity to set a historical precedent for years to come. It had the opportunity to set the tone for how our nation will treat refugees in the coming decades. This will prove to be consequential also because of the changing geopolitical scenario and the growing majoritarian tendencies in our country.
Although the Court made a fleeting remark on the acceptability of not following certain international obligations due to their inconsistency with the municipal law, it failed to even mention the principle of non-refoulement and its inviolable nature. The Court, by not dealing with certain binding international obligations has brushed some of the most cardinal rules of international law under the rug.