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The Rohingyas in India: the morality and legality of the issue

Richa Chauhan

Forced migration/displacement of people has become the sad reality of our times. The number of people forced to leave their homes due to the fear of systematic persecution, violence, and human rights violation has reached its highest ever number i.e. 65.6 million.[1] Out of these around 10 million people are stateless i.e. they have been denied nationality/ citizenship, and are devoid of all the basic human rights attached with it.[2] The majority of Rohingyas are Muslims, they are an ethno-religious minority in the largely Buddhist population of Myanmar; they have been denied citizenship, rendering them stateless. The Rohingyas have been termed as “one of the most vulnerable communities of the world”.[3]

The Rohingya community has been facing systematic violence at the hands of the military forces of Myanmar; and suffering loss of life and property, destruction of their villages etc.[4] The religious aspect of the discrimination and violence faced by the Rohingyas cannot be ignored.[5] The violence faced by the people of this community has forced many of them to flee Myanmar into neighbouring countries like Bangladesh, Thailand, India etc.

In August 2017, the Indian Government announced that it has decided to deport 40,000 Rohingyas back to Myanmar; this announcement has captured the attention of both the national and international communities. A Public Interest Litigation has been filed with the Supreme Court of India, challenging the government’s decision to deport them by two Rohingya refugees- Mohammad Salimullah and Mohammad Shaqir. The Indian Constitution under Article 21 guarantees Right to Life to every person, and the petitioners have argued that deporting 40,000 Rohingya refugees back to Myanmar will in effect be a “death sentence” for them. This is in clear violation of the “Right to Life”. In response to thius petition the government has submitted that the Rohingya refugees pose a threat to the “national security”. The Supreme Court has said that one cannot be blind to the sufferings of innocent people; it has put a hold on the deportation of Rohingyas for now, and asked the government to “strike a balance between national security and human rights of the refugees”.  The three-judge bench headed by Justice Dipak Misra, is scheduled next to hear the arguments of both the sides on January 31st 2018. It will be interesting to see how the bench interprets the government’s obligations under both the Indian Constitution as well as its obligations under international law.

The Indian government’s decision to deport the Rohingya refugees back to Myanmar is in violation of the international law principle of non-refoulement. The principle of non-refoulement precludes states from sending refugees or people who seek asylum back to a country where they face continuing threat of persecution; this may be either their country of origin or any other country.[6] The principle of non-refoulement is enshrined in Article 33 of the Refugee Convention 1951. Indian government has put forth the argument that since, it is not a signatory to the Refugee Convention 1951 or its Optional protocol 1967; therefore, its decision to deport the Rohingya refugees does not violate any of its international obligations. However, there are certain principles in international law which are considered to be customary international law, i.e. the whole of international community has accepted them as law and even though a state has not categorically accepted them under a particular treaty, the said principles cannot be violated for example “prohibition against torture”. And the UNHCR has long held the view that the principle of non-refoulement is a part of customary international law. [7] Therefore, in line with this opinion the Indian government is under the obligation to not violate the principle of non-refoulement.

Non-refoulement is part of number of regional as well as international human rights treaties and other non-binding declarations. It is enshrined in the provisions of 1969 American Convention on Human Rights, 1969 OAU Convention Governing Specific Aspects of Refugee Problems in Africa, 1984 Cartagena Declaration1966 Principles Concerning Treatment of Refugees, adopted by the Asian-African Legal Consultative Organisation (of which India is a member), Article 3 of the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment etc. The European Court of Human Rights in the following cases of Soering v. United Kingdom (1989), Cruz Varas v. Sweden (1991) and Chahal v. United Kingdom (1996) has interpreted “Article 3 Prohibiting torture” to include the principle of non-refoulement (the said principle was also read into the interpretation of a parallel provision against torture under Article 7 of the ICCPR).[8] Therefore, though the principle of non-refoulement is an essential aspect of international refugee protection regime, it is also part of the international human rights law. And the 1951 Refugee Convention does not preclude the obligation of host states under the international human rights regime.[9]

India as a country both within its domestic laws and as a member of the international community has always taken great pride in its unconditional support to the “human rights regime”. And the principle of “non-refoulement” has been considered an extension of the same; forcefully sending a person back to a country where he/she faces a threat of persecution is clearly in violation of human rights. However, “a threat to national security” is the only recognised exception to the principle of non-refoulement (Article 33, 1951 Refugee Convention)[10] and the same is qualified by the terms “reasonable grounds”. Therefore, to be able to justify its decision, the Indian government will have to prove certain “reasonable grounds” to substantiate its claim that the refugees pose a threat to national security. And though the Supreme Court has categorically mentioned that it will not base its decision on “emotional arguments” put forward by both the sides; however, the situation itself is extremely sensitive and emotions do run high on both the sides. The court has the difficult task to balance “national security” with the “human rights” of the refugees.

Notes:

1.UN High Commissioner for Refugees (UNHCR), "Global Trends: Forced Displacement in 2016," (UNHCR, 2017).

2. Ibid.

3. Equal Rights Trust, "Equal Only in Name: The Human Rights of Stateless Rohingya in Malaysia," (Equal Rights Trust, 2014)., 1

4. Ibid.,11

5. Kelly Staples, "Contemporary Statelessness: The Rohingya," in Retheorising Statelessness (Edinburgh University Press, 2012)., 139

6. Sir Elihu Lauterpacht and Daniel Bethlehem, "The Scope and Content of the Principle of Non-Refoulement: Opinion," in Refugee Protection in International Law: Unhcr's Global Consultations on International Protection, ed. Volker Türk Erika Feller, Frances Nicholson (Cambridge University Press, 2003)., 89

7. UNHRC, "Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol," (2007).

8. See, Bethlehem, "The Scope and Content of the Principle of Non-Refoulement: Opinion."

9. UNHRC, "Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol.", 4

10. UN General Assembly, "Convention Relating to the Status of Refugees," ed. United Nations (UN General Assembly, 1951).

Bibliography
(UNHCR), UN High Commissioner for Refugees. "Global Trends: Forced Displacement in 2016." UNHCR, 2017.
Assembly, UN General. "Convention Relating to the Status of Refugees." edited by United Nations: UN General Assembly, 1951.
Bethlehem, Sir Elihu Lauterpacht and Daniel. "The Scope and Content of the Principle of Non-Refoulement: Opinion." Chap. The scope and content of the principle of non-refoulement: Opinion In Refugee Protection in International Law: Unhcr's Global Consultations on International Protection, edited by Volker Türk Erika Feller, Frances Nicholson, 87-177: Cambridge University Press, 2003.
Staples, Kelly. "Contemporary Statelessness: The Rohingya." Chap. CONTEMPORARY STATELESSNESS: THE ROHINGYA In Retheorising Statelessness, 139- 57: Edinburgh University Press, 2012.
Trust, Equal Rights. "Equal Only in Name: The Human Rights of Stateless Rohingya in Malaysia." Equal Rights Trust, 2014.
UNHRC. "Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol." 2007.

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Jan 14, 2018


Richa Chauhan u5775477@anu.edu.au

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