INTRODUCTION:

Non- refoulement, as a fundamental principle of international law, prohibits nation states from turning away from its territorial boundaries any person to a place where he has genuine fear of being persecuted or subjected to other gross abridgement of human rights¹. In exercise of their sovereignty, countries have a prerogative to decide whether or not to permit access to non- citizens within their territory. Nevertheless, it is a fundamental principle of international law that non- citizens reaching the boundaries of a country must be treated humanitarianly and must not be forcibly evicted to a country where they may have to face risk to their lives and personal liberty².

This principle, recognized as the principle of non-refoulement has been proclaimed to be “the undisputed cornerstone of international refugee law” and is applicable to refugees, asylum seekers and aliens who are in need of refuge from a country where they might have to face serious violations of human rights³. It has been incorporated in Article 33 of the 1951 Geneva Convention Relating to the Status of Refugees, several international human rights treaties and is also treated as an essential component of customary international law. However, despite receiving such wide recognition, there is no clarity on the point as to what should be the specific component of the principle. The primary constituent element of non-refoulement is that a refugee or asylum seeker should not be refouled or returned to persecution⁴. But there is no established parameter to determine as to what constitutes persecution⁵ and therefore, there is ample discretion available to both to international and national bodies to interpret the word persecution to include torture, degrading or cruel treatment amongst others⁶.

Non-Refoulementas a principle of International Customary Law:

Article 38(1)(b) of the Article 38(1) of the Statute of the International Court of Justice, requires the courts to make applicable international customs as evidence of a general practice accepted as law. Thus, in order to be categorised as a part of customary international law, existence of two essential elements are necessary- consistent State practice and opinio juris. What has to be conclusively established is that a particular practice has been consistently embraced by the nation states for a considerable time period⁷.

It is generally accepted that the norm of non-refoulement fulfils the above prerequisites and thus constitutes a principle of customary law. In this regard, in the sixth session of the Executive Committee of the High commissioner’s programme, United Nations High Commissioner for Refugees (UNHCR) adopting an activists approach for the protection of the rights of refugees and asylum-seekers emphasised upon the principle of non-refoulement as being a part of customary law developed mainly due to its normative character⁸.

Being a part of customary law entails that the principle of non-refoulement will be binding even for those nation states that have not ratified the relevant international instruments incorporating the principle.

International Jurisprudence of the Principle of Non-Refoulement:

The principle of non-refoulement has been incorporated both in international refugee law as well as in several international human rights treaties. To begin with, for the first time, the principle of non-refoulement got formal recognition was in Convention Related to the Protection of Civilian Persons in time of war, 1949 (Fourth Geneva Convention) which, in this regards, provides that no protected person shall be transferred to a country where he may have reason to fear persecution for his or her political opinions or religious beliefs⁹. Thus, this provision in Fourth Geneva Convention is an early recognition of the principle of non-refoulement which later came to be formally incorporated in 1951 Refugee Convention.

The 1951 Refugee Convention defines non- refoulementin Article 33 as follows:

Article 33(1) as follows:“No Contracting State shall expel or return (‘refoulr’) 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.”

The primary obligation imposed by this principle is that a refugee or asylum seeker should not be forced to return to territory where he may have genuine fear of being persecuted for reasons of race, religion, nationality, membership of a particular group or political opinion.

However, the 1951 Convention fails to enlist as to what all actions would amount to persecution. Furthermore, the protection guaranteed by Article 33(1) is not absolute since, Article 1(f) of the Convention which incorporates the exclusion clause¹⁰ and Article 33(2)¹¹ lays down certain ground the existence of which will deprive an individual from seeking the protection of the 1951 Refugee Convention.

African Union also has embraced the principle of non-refoulement in 1969 Organization of Africa Unity (OAU) Convention Governing the Specific, Aspects of Refugee Problems in Africa. Article II(3) of the Convention which provides: “No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened.” What is noteworthy about the convention is that it does not incorporate any exceptions which imply that a person seeking asylum under no circumstances can be forced to return to a territory where his life or liberty would be threatened.

The principle of non-refoulement has found recognition in Cartagena Declaration of 1984in Section III, paragraph 5¹². Even though the Declaration does not have legally binding obligation, yet provisions of the same have been assimilated into the legislation of several States in Latin America.

Apart from the above international refugee law instruments, there are several human rights treaties as well which have dealt with the principle of non-refoulement. To begin with Article7 of the 1966 International Covenant on Civil and Political Rights provides that¹³

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.

The principle of non- refoulement has also been dealt with in Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984. The relevant provision is Article 3 which forbids member States from forcibly refouling a person to a territory where he or maybe subjected to torture¹⁴.

Similarly, Article 16 of the International Convention for the Protection of All Persons from Enforced Disappearance proscribes the forcible eviction of a person by a member state where such a person has a threat of being to enforced disappearance¹⁵.

Principle of Non- Refoulement in India:

India has a historical tradition of welcoming refugees with open arms and giving them a place of honour and dignity in the society. According to UNHCR statistics there were about 197,122 refugees present in the country as of year ending in 2017¹⁶. However, despite the presence of such large number of refugees in the country, India does not have a specific legislation or consistent policy to deal with their problems. India also is not a party to the 1951 Refugee Convention and its 1967 Protocol.

In the non-existence of any refugee definite legislation and non –accession to international instruments dealing with protection of refugees, on the face of it, it can be assumed that India is not obligated to abide by non-refoulement norm. Conversely, this is not true as India is bound by the international customary law and principle of non-refoulement has acquired the status of peremptory norm of international law. In addition to this, India is a party to several international human rights Universal Declaration of Human Rights¹⁷, the Declaration on Territorial Asylum¹⁸, the International Covenant on Civil and Political Rights¹⁹, the International Covenant on Economic, Social and Cultural Rights²⁰, the Convention on the Elimination of All Forms of Discrimination against Women²¹, and the Convention on the Rights of the Child²², which incorporates the principle of non-refoulement. India has also accepted the fundamental the principle of non-refoulement, as early as 1966 with the adoption of the Bangkok Principles on the Status and Treatment of Refugees.

Also, the Indian judiciary in numerous cases has, time and again reiterated that if a provision of international law comes in conflict with an Indian law, it cannot be compiled with, however, if there is no inconsistency between the two, then former must be complied with. This implies that norms recognised in the several international human rights instruments, and under the 1951 Refugee Convention, if not contrary to any domestic law in India, can very well be extended to refugees living in the country.²³

Indian Constitutional and Legal Regime and Principle of Non-refoulement:

The legislative framework in India fails to expressly incorporate the principle of non-refoulement. The Passport (Entry into India) Act, 1920, Passports Act, 1967, Registration of Foreigners Act, 1939, Foreigners Act, 1946, Citizenship Act, 1955, some of the legislation applicable to refugees living in the country do not recognize the concept of non-refoulement.

Nevertheless, the Indian Constitution enumerates several fundamental rights which are available to all persons including refugees and asylum seekers. These are Articles 14, 20, 21, 22, 32, 226 which the Indian judiciary, by adopting a realistic, progressive and humanitarian approach, has time and again interpreted progressively in recognising and protecting basic human rights of refugees living in the country.

With respect to principle of non-refoulement, under the Constitution there are two specific articles in which principle can be located. Firstly, under the umbrella of Article 21 of the Constitution whereby all persons, including refugees are equally entitled to claim that any action against the person concerned must be procedurally fair, just and reasonable²⁴. This implies that State cannot return a refugee to a place where he has a well-founded fear of persecution for it may turn out to be unfair, unjust and unreasonable. Secondly, Article 51(c), which provides for fostering respect for international law and treaty obligations. Here, according to interpretation given by Prof. C.H. Alexandrowexz, the words ‘international law’ would include international customary law and treaty obligations implies obligations undertaken under several international treaties and conventions.²⁵ It can be argued that Article 51(c) does not form an authority regarding the stance of International law in the country, since it forms a part of Directive Principles of State Policy and Article 37 of the Constitution provides that these principles are not enforceable in the court of law. However, latter part of Article 37 also reads that provisions contained in Part IV are fundamental in the governance of the country and it is the duty of the state to keep in mind these principles while framing the laws. In numerous decisions, Supreme Court has stated that simply because the principles contained in Part IV are non-justiciable, it cannot be contended that they are of no significance or are of less significance.²⁶ So far as customary international law is concerned, it can be read into the municipal law so far as it is not inconsistent with any domestic legislation or constitutional provisions.

Against this backdrop it can be stated that Article 51 incorporates principle of non- refoulement as it not inconsistent with domestic law and as already discussed, is widely acknowledged as being a part of customary international law, thereby creating a binding obligation upon India.

Judicial Role in Recognising and Protecting the Principle of Non- Refoulement:

There are various decisions of both Supreme Court and High Courts where the judiciary has applied the principle of non-refoulement in providing protection to refugees and thereby preventing their forced deportation.

In Khudiram Chakma v. State of Arunachal Pradesh,²⁷ the Apex Court, taking note of Article 14 of UDHR which stated that “although an asylum seeker has no right to be granted admission to a foreign state equally a state which has granted him asylum must not later return him to the country from where he came.”

In Dr. Malvika Karlekar v. Union of India²⁸, Burmese facing deportation orders from the Andaman Islands when pleading violation of Article 21 were granted a stay of their deportation, in conformity with principle of non refoulment, and were allowed to approach the UNHCR for refugee status.

In P. Neduraman v. Union of India²⁹ and Dr. Ramdoss v. Government of India and Others³⁰, the High Court issued notices to both the Central and state governments about forced repatriation³¹ of Tamil refugees from Tamil Nadu. However, both governments gave an undertaking that they would not repatriate anyone without their consent and the petition was disposed of accordingly. Subsequently the UNHCR’s extension office was established to verify the ‘voluntariness’ in the repatriation process of the refugees back to Sri Lanka.

Kfaer Abbas Al Qutaifi v. Union of India³², is another significant case where the court again emphasized the importance of the principle of non refoulment with regard to its application in India. The facts of the case were that two nationals from Iraq had filed a petition in the Court for their release from detention and also sought directions from the court that they should be handed over to UNHCR instead of being deported to Iraq. Both the petitioners were recognised as refugees by UNHCR. The contention of the petitioners was that they were in danger of facing persecution in Iraq because of their denial to join compulsory military service. It was further contended that because of this reason their fundamental right to life and personal liberty granted under Article 21 of the Constitution was threatened. Further, it was put forward by the petitioner that by virtue of Article 51 of the Constitution³³, India has to comply with the principle of non-refoulement which forbids forcible eviction of refugees in situations where they face danger to their life and personal liberty.

The court, with regard to the principle of non-refoulement categorically stated that the principle prohibits eviction of a refugee where his life or liberty would be in danger on account of his race, religion, nationality, membership of a particular group or social opinion. Its appliance protects life and liberty of an individual regardless of his nationality.

These aforesaid cases clearly brings to light the fact that inspired by the international human right instruments and international refugee law, Indian judiciary has adopted an activists approach in accepting the principle of non-refoulement being within the purview of Article 21 of the Indian Constitution.

Deportation of Rohingya Refugees: India’s Deviation from the Principle of Non-Refoulement:

Hitherto, the India judiciary, adopting an activist and creative approach, has always acted for the protection of rights of refugees living in the country and has specifically taken a stand for the recognising principle of non- refoulment as being part of municipal law. However, going against the traditional practice of giving humanitarian assistance and protection to refugees, in 2018, the Apex court, contrary to its previous stance, refused to interfere with decision of the Assam government to deport seven Rohingya refugees to Myanmar. The court accepted the contention of the central government that these Rohingya Muslims were illegal migrants and posed a serious threat to the security of the country. It is pertinent to note that because of being persecuted by the Myanmar authorities, security forces, police, and extreme section of the majority Buddhist people, the Rohingy as have been forced to take refuge in various countries including India. Repatriation of such refugees to a country where they have a genuine fear of being persecuted is nothing but ablatant violation of principle of non-refoulement. The assertion of the Government, that these persons are being accepted as citizen by Myanmar, does not hold any ground as given the ethnic identity of these individuals, they can be subjected to persecution which would be a abridgement of their right to protection and would tantamount to refoulement.

CONCLUSION:

The principle of non refoulement is the most direct and powerful means for protecting the life, liberty and other basic human rights of a refugee as it ensures that he’ll not be returned to a country where his life or liberty would be violated. This principle is established to a part of customary international law which implies that it will be binding even on those States which are not a party to the instruments incorporating the principle, thus imposing an obligation upon them not to refoulany person to a country where his life or liberty would be threatened. Thus, although India is not a party to the 1951 Refugees Convention or its 1967 Protocol, yet, it is bound to abide by the principle of non-refoulement.

So far as the binding force of international refugee law on India is concerned, it has been categorically established by the judiciary that if there is no inconsistency between international law and Indian law, to that extent International law should be read to be a part of municipal law. There is no domestic law related to the refugees that is in conflict with international conventions. Therefore, it can be said that ICCPR and ICESCR, and also International Refugee Law as established through the 1951 Refugee Convention and the 1967 Protocol has been fully incorporated into Indian Law.

Further, rule of non refoulmentis encompassed in Article 21 of the Constitution and Article 51(c), thereby imposing an obligation upon Government not to refoul any person and also upon the judiciary to ensure that no refugee is involuntarily repatriated to a country where he may have genuine face of being persecuted, without following a procedure which is just, fair and reasonable.

In a several decisions of High Courts and Apex Court, this principle has been applied to provide relief to refugees. However, there have been instances where refugees have been forcefully deported because they do not possess valid travel documents. Such instances amount to the non-observance of the principle of non-refoulement. Also, so far as the Indian approach towards the current Rohingya crisis is concerned, it is in clear contrast to its traditional position on refugees and also is in breach of several international humanrights obligations including the breach of principle of non-refoulement.

No doubt, India has an excellent record in giving refuge to those who flee due to fear of persecution, and the Indian judiciary has mostly been helpful in safeguarding the rights of refugees. However, assistance on humanitarian grounds and positive judicial approach towards refugees is not sufficient. It should be strengthened by enactment and implementation of a national legal framework specifically designed for uniform treatment of all refugee groups living in the country, and for expressly recognising and protecting the principle of non refoulement.

REFERENCE:

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2. Pirjola, Jari. Shadows in Paradise – Exploring Non-refoulement as an Open Concept.. International Journal of Refugee Law. (2007); 19(4), 639 and Migration and International Human Rights Law: A Practitioners’ Guide. Available from URL: http://www.icj.org/wp-content/uploads/2014/10/Universal-MigrationHRlaw-PG-no-6-Publications-Practitioners Guide- 2014- eng.pdf .

3. Hathaway, J.C. Preface -Symposium on the Human Rights of Refugees.Journal of Refugee Studies.1994; 17:79.

4. Elihu Lauterpacht and Daniel Bethlehem.The Scope and Content of The Principle Of Non Refoulment: Opinion. In Erika Feller, Volker Türk and Frances Nicholson (eds.). Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection. 2003, p.107.

5. Gorlick, Brian.The Convention and the Committee against Torture: A Complementary Protection Regime for Refugees. International Journal of Refugee Law. 1999; 11 (3):147-`149.

6. Supra note 1.

7. Verma, S.K. Introduction to Public International law, Satyam Law International, New Delhi. 2012.

8. UNHCR, The Principle of Non-refoulement as a Norm of Customary International Law, Response to the Questions posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany. Available from URL http://www.unhcr.org/home/RSDLEGAL/437bch db64.html.

9. Fourth Geneva Convention on Related to the Protection of Civilian Persons in time of war, 1949, Article 45, paragraph 4.

10. Article 1(F) of the Refugee Convention, 1951 states that: “The provisions of the 1951 Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

11. Article 33(2) of the 1951 Convention provides: “The benefit of the present provision [prohibiting refoulement] may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

12. Cartagena Declaration on Refugees, embodying the Conclusions of the Colloquium on the International Protection of Refugees in Central America, Mexico, and Panama held in Cartagena, 19–22Nov.1984. Retrieved from: https://www.oas.org/dil/1984_cartagena_declaration_on_refugees.pdf.

13. The International Covenant on Civil and Political Rights was adopted by General Assembly Resolution 2200 A (XXI) of 16 Dec. 1966.

14. United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984. Retrieved from: https://www.ohchr.org/en/professionalinterest/pages/cat.aspx.

15. International Convention for the Protection of All Persons from Enforced Disappearance. Retrieved from http://www.refworld.org/docid/47fdfaeb0.html .

16. UNHCR, India: Global Focus. Retrieved from http://reporting.unhcr.org/node/10314.

17. Universal Declaration of Human Rights, GA Res. 217 (III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc.A/810 (1948).

18. Declaration on Territorial Asylum, GA Res. 2312 (XXII), 22 UN GAOR, Supp. No. 16, UN Doc. A/6716(1967).

19. International Covenant on Civil and Political Rights, 999 UNTS 171, 19 Dec. 1966 (entry into force: 23Mar. 1976).

20. International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3, 19 Dec. 1966 (entry intoforce: 3 Jan. 1976).

21. Convention on the Elimination of All Forms of Discrimination against Women, 1249 UNTS 13, 18 Dec.1979 (entry into force: 3 Sep. 1981).

22. Convention on the Rights of the Child, 1577 UNTS 3, 20 Nov. 1989 (entry into force: 2 Sep. 1990).

23. Nilabati Behra v. State of Orissa, Vishaka v. State of Rajasthan, People's Union for Civil Liberties v. Union of India, Apparel Export Promotion Council v. A.K. Chopra.

24. Suryanarayan, V. Need for National Refugee Law. Indian Society of International Law Yearbook of International Humanitarian and Refugee Law, (2001) : 254.

25. Alexandrowexz, C.H. International Law in India. International & Comparative Law Quarterly, (1952); 292.

26. In Keshvananda Bharti v. State Of Kerela, Minerva Mills Ltd v.U.O.I,, Unnikrishnan v. State of Andhra Pradesh, State of Tamil Nadu v L. Abu Kavier Bai

27. AIR 1992 Gau 105.

28. Cr. Petition No. 583/92.

29. WMP 17372, 17424, 18085, 18086/1992 in WP 12298, 12343/1992.

30. Writ Petitions no’s 6708 & 79168/1992 Madras High Court.

31. Repatriation is the process of sending a person back to his country of origin. As a durable solution, repatriation is feasible and humanitarian only when it is carried out on a voluntary basis and when it takes into account respect for the human rights of refugees.

32. 1999 Crl.L J 919.

33. Article51 of the constitution imposes duty upon the State to promote international peace and security, to maintain good relations with other nations and to foster respect for international law and other treaty obligations.

Received on 02.04.2019 Modified on 30.04.2019

Res. J. Humanities and Social Sciences. 2019; 10(2):436-440

DOI: 10.5958/2321-5828.2019.00074.3