Refugee and the Non-refoulement obligation

1. INTRODUCTION

India has a long history of giving refuge to refugees fleeing persecution, conflicts, wars, and instability from the world over. Zoroastrian community of Iran to Jews of Europe, all found a safe harbour in India. People who came here, gradually made India their homeland. Jews who later moved to Israel, still call Israel to be their fatherland and India their motherland. Unfortunately, at present India does not have any refugee laws to support people coming to India with hopes of normalcy.

2. HISTORY OF REFUGEE LAW

After WWI, the world had seen an influx of refugees into different countries. Europe was at the centre of this crisis. The absence of refugee law aggravated the situation. The League of Nations for the same reason hired Fridtjof Nansen to help Russian refugees following the October Revolution. The 1933 Convention Concerning the International Status of Refugees was also ratified by the League. However, the convention was not successful.

It was after WWII that the leaders again realized the dire need to have a comprehensive refugee law at the international level to resolve the issue. International checks on state sovereignty over refugees became apparent to the international community. The United Nations adopted the 1951 Refugee Convention which was later ratified in 1967, which clearly defines who refugees are, their rights and the state's obligation towards them.

3. UNDERSTANDING REFUGEES AND NON-REFOULEMENT

A refugee, as defined in Article 1 of the 1951 Refugee Convention and its 1967 Protocol, it states:[1]

Any person owing to 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 or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it

The principle of non-refoulment is stated in Article 33 of the 1951 Refugee Convention. Article 33 states:

Prohibition of expulsion or return (refoulement): 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.[2]

The concept of non-refoulement has many interpretations due to apparent differences in the construction of Article 33 from Article 1, but broadly interpretations can be classified into 2 groups:

i. Narrow interpretation: According to this view, only certain refugee is eligible for non-refoulement protection under the law. This interpretation states that the refugees can be rightfully returned to their country of origin if it is proved that their life and freedom would not be threatened in their country of origin.

ii. Broad interpretation: In this method, the idea of refugee reading extends beyond the parameters of Article 1 and adds new grounds that aren't covered in any of the other comprehensive lists. Since refugees are viewed as victims, efforts are made to grant them additional rights so they can be accommodated in the country.

4. REFUGEES IN INDIA AND THE PRINCIPLE OF NON-REFOULMENT

Currently, the majority of refugees in India come from nearby countries like Afghanistan, Pakistan, Bangladesh, Sri Lanka, and Myanmar. The majority of these refugees are religious minorities from Afghanistan, Hindus and Sikhs from Pakistan and Bangladesh, Tamils from Sri Lanka, and Rohingyas from Myanmar and Bangladesh.

The 1951 Refugee Convention and its 1967 Protocol were not ratified by India. Many people have the common misconception that India is not bound by the 1951 Refugee Convention or its 1967 Protocol because India is not a signatory to them. However, in reality, the non-refoulement principle is a customary international law, which means that even though India is not a signatory, it is nevertheless bound by it.

Also, India is a signatory to International Conventions such as the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights (ICCPR) which provides for non-refoulement principle under their general rules, which have also been reiterated by regional treaties such as Cartagena Declaration on Refugees(1984), Declaration on Territorial Asylum adopted by the United Nations General Assembly on 14 December 1967.[3] This makes India obligatory to the principle of non-refoulement.

5. LEGAL FRAMEWORK AND CHALLENGES

India lacks a comprehensive refugee law, which means that neither the legislature nor the judiciary has a clear mechanism to resolve the issue of refugees in the country. This makes the fate of refugees uncertain. Currently, the only law governing refugees is the Foreigners Act, of 1946 and the Citizenship Act, of 1955. Both define the term foreigners and give power to the government to make rules and issue orders concerning the entry and presence of foreigners in the country.

However, these laws are inadequate to address major issues such as the refugee crisis in the country. Contradictory Judicial decisions are the result of it. The State of Arunachal Pradesh was requested in NHRC v. State of Arunachal Pradesh[4] to fulfil the responsibility of protecting the life, health, and welfare of Chakmas living in the State and to forward their application for citizenship to the relevant authorities without delay.[5] It has also been decided in several other cases that refugees have the right to petition the UN High Commissioner for the award of refugee status and that they should not be subjected to detention or deportation. But in the recent Mohammad Salimullah and others vs. Union of India and Ors[6], the Honourable Supreme Court ordered the deportation of Rohingya refugees back to Myanmar. The current situation of Myanmar under military rule and their treatment of Rohingyas often called the most prosecuted minorities, is well founded to all. The present Supreme Courts decision did not go well with the human rights activists of the country.

There are some genuine concerns with accepting refugees in a country. It leads to a demographic shift causing fears in the indigenous people of the cultural shift of the country. Bengali refugees leading to the demographic shift of Assam has led to large-scale protest. Also, it has been statistically proven that refugees generally are more prone to criminal activities due to their precarious situation. Rohingya Muslims have been involved in crimes around Delhi is well known. These issues lead to the securitization of migration and the rise of anti-immigrant sentiments among the locals and finally, the sentiment peculates into the sphere of politics, which makes bringing laws for the protection of refugees difficult.

The future refugee law in the country needs to address these pertinent issues while giving much-needed human rights to the refugees. These refugees must be seen as victims who have their country not by choice but under compulsion. As Warsan Shire puts it, No one puts their children in a boat, unless the water is safer than the land. A well-defined refugee law taking into consideration Indias history and present socio-economic scenario is needed to do away with the present ambiguity of refugee laws in the country.

6. CONCLUSION

"Countries that open their doors to refugees not only offer sanctuary but also embrace the beauty of humanity's collective compassion and resilience."

- Ban Ki-moon

The consequences of previously turning away refugees have not been good. The infamous MS St. Louis episode, in which 900 Jews fleeing Nazi persecution were denied shelter in many countries and eventually had to return to Europe, resulting in 30% of them being prosecuted(holocaust) is well known. Examples like this should ring a warning bell in our ears, who proudly proclaim to be civilized and modern. It is ironic that a country like India, having a history of accepting refugees with open arms, does not have any refugee law. We Indians need to take the humanitarian view of the problem of the refugees and should sign and implement regional treaties concerning refugees. NGOs, UNHCR and NHRC working together will give a boost to the cause. The refugee crisis is an international issue and for that, the states must find consensus and implement a uniform refugee policy. Upholding refugees' rights also aligns with the Indian concept of Vasudhaiva Kutumbakam (the world is one family) and will reaffirm the country's commitment to humanitarian principles and human dignity for all.