Violence in the Northern Rakhine state of Myanmar against the Rohingya has escalated in the last two months creating a large-scale refugee crisis in the region. India, which shares a 1643-km-long border with Myanmar, has recently taken a troubling stand on the issue as revealed by the statements of certain members of the present government, and its affidavit filed in the Supreme Court in a petition filed by two Rohingya Muslims. India has chosen to deport around 40,000 Rohingyas who have settled in its territory over the last many years on the ground of them being a potential threat to national security. While the Supreme Court is yet to consider the issue and the government has decided to wait till a final decision by the Court, the government's stand seems highly problematic under international law and the municipal regime. Its stand must be examined in the context of the applicable international law, and more importantly, India’s stellar record in dealing with past refugee crises in the region.
The Refugee Convention of 1951 and the 1967 Protocol enshrined the principle of non-refoulement, which has thereafter found recognition in various other international instruments. However, with considerable state practice the principle is now widely regarded as a fundamental tenet of customary international law. It could even be argued that it has attained the status of a peremptory norm (jus cogens) - those norms in general international law from which no derogation is permitted. One of the recognised exceptions to this principle is a reasonable apprehension of threat to national security. It is also widely accepted that non-refoulement must be elevated to the status of a human right to be protected regardless of the polity of individual nations.
Although not a signatory to the Refugee Convention or the Protocol (which now has 140 signatories), India is a signatory to various other instruments like the Convention against Torture, and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), the International Covenant on Civil and Political Rights (ICCPR), and the Conventions on the Rights of the Child (UNCRC), which recognise the principle of non-refoulement.
Even in practice, India has garnered an excellent reputation over the years by granting asylum to various persecuted groups that has fled to its territory, be they the Sri Lankan Tamils, Tibetans, Afghans or Burmese. The United Nations High Commissioner for Refugees (UNHCR) representation in India has constantly provided support to the Indian government in dealing with the claims of these asylum-seekers, and as of August 2017, a Reuters report puts the number of registered Rohingyas in India at 16,500. It is in this background that the sudden shift in state policy towards the Rohingyas - which has baffled observers and the UNHCR itself, prompting a statement by it denouncing the proposed deportation - must be analysed.
If the statements in the affidavit filed before the Supreme Court by the government are any indication of India’s changed policy towards the Rohingya, what is revealed is that the government has taken a hyper-technical approach in claiming immunity from these principles (including non-refoulement) on the ground that it is not a signatory to the 1951 Convention. This pedantic approach is grossly erroneous because the non-refoulement principle has attained the status of customary international law and therefore has an elevated status much like a treaty obligation. Even otherwise, India is bound by the principle in view of its accession to other conventions that recognise it. To cite recent trends in Europe and the Americas where the principle has been watered down as evidence of diminishing state practice is descending into whataboutery. It can never be a justification for India to ignore its own state practice over the years.
India’s sudden departure in state practice towards the Rohingya is bad in law for the singular reason that it has not been necessitated by any fundamental change of circumstances. Moreover, the last two months have provided unmistakable evidence of persecution of the Rohingya, mostly civilians, and including women and children. In the wake of this humanitarian crisis, while trying to place itself as a regional power, India must lead by example to provide a regional solution to the refugee crisis, rather than escalating the issue with deliberate mass deportations. The deportations will certainly have the effect of using a sledgehammer to crack a nut.
Furthermore, the affidavit filed by the Ministry of Home Affairs (MHA) has wrongly fashioned the right claimed by the petitioners before the Supreme Court (registered Rohingyas) as being available exclusively to citizens of India, whereas long-standing precedent mandates that the protection afforded by Article 21 of the Indian Constitution is available to all persons and not just citizens. Even though a comprehensive municipal legislation that covers the field of refugees is yet to be passed in India, various High Courts have recognised the right of an asylum-seeker as being part of their Article 21 right.
The government’s decision seems to have been largely fuelled by conjecture and claims that intelligence exists that many Rohingya settlers are being recruited for terrorism and insurgency-related operations within the territory. In the wake of speculation that the 2013 Bodh Gaya bomb attacks were in response to the violence perpetrated by the ultra-nationalist Buddhist majority in Myanmar, the Indian government may to an extent be justified in being more cautious in dealing with an influx of refugees from Myanmar. However, the UNHCR has itself commented that the national security exception is one that requires to be invoked with greatest caution. India as a sovereign state is well within its right to invoke the national security clause; however, the invocation must be analysed on its merits.
The question of national security and the case made for the deportation of the Rohingya must be seen as not just bad policy but a possibly discriminatory move. Apart from the general perception that the current dispensation is largely anti-Muslim, diatribe in favour of deportation of the Rohingya from various fringe groups that support the ruling party has also emerged in the recent past. However, even if the issue is strictly seen in light of the affidavit, it fails to provide any cogent reasons for a blanket deportation of all 40,000 Rohingyas settled in India - apart from sweeping statements on terrorism-related activities. Domestically, the impending assembly elections in West Bengal where refugee influx is a political issue could also offer some explanation for the sudden shift in the government's stand.
The question really is not whether the trappings of customary international law bind India to receive or to not deport Rohingyas as per the principle of non-refoulement, but whether the invocation of the national security exception is legitimate, proportionate, and absolutely free from malice.