Modi Government Affidavit on Rohingya Refugees Reverses India's Long-Held Stand on Non-Refoulement

The Wire went through India’s statements made at international meetings on refugees to check other references to non-refoulement over the last two decades.

New Delhi: When the Ministry of Home Affairs, on behalf of the government of India, in its affidavit before the Supreme Court, submitted that India, as a non-signatory to the 1951 United Nations Refugee Convention, was not obliged to adhere to the principle of non-refoulement, this was a reversal of India’s publicly stated position made at various international fora over the years.

Non-refoulement is a principle in international law that stops a country from returning a person to a place where they would be at risk of persecution.

The Supreme Court had asked the government to file its view on the case brought by two Rohingya refugees against a proposal to deport the 40,000 strong-community, out of which 14,000 had been certified by the United Nations High Commissioner for Refugees (UNHCR).

In the affidavit, the home ministry’s joint secretary (foreigners) said that non-refoulement or the “prohibition of return” was a “codified provision” in the 1951 Convention. The affidavit added:

“It is submitted that this obligation is binding only in respect of the states which are parties to the convention. Since India is not a party to the said convention, or the said protocol, the obligations contained therein are not applicable to India.”

It also claimed that while India is a party to the International Covenant on Civil and Political Rights, the scope of this multilateral treaty does not extend to the principle of non-refoulement.

The Indian Express had reported on September 19 that the home ministry’s affidavit  contradicted the Indian position put forth at a discussion on refugees at the UNHRC in July this year.

“We support the concept of burden sharing, including relocation of refugees on case to case basis, that too with the consent of the refugees. While doing so, we need to be cautious not to open the path for re-defining the Refugee Convention and its protocol, and in no case diluting the principle of ‘non-refoulement’,” said Anil K. Rai, counsellor (humanitarian affairs) at the permanent mission of India to the UN in Geneva on July 10, at the first thematic discussion towards a global compact on refugees.

It turns out that this endorsement of the principle of non-refoulement was no one-off occurrence.

The Wire went through India’s statements made at international meetings on refugees to check other references to non-refoulement over the last two decades. The multilateral platforms included meetings of the executive and standing committee of the UNHCR, the UN Human Rights Council (UNHRC) and the UN General Assembly’s third committee in New York.

Non-refoulement is a principle in international law that stops a country from returning a person to a place where he or she would be at risk. Credit: Reuters

Non-refoulement is a principle in international law that stops a country from returning a person to a place where he or she would be at risk. Credit: Reuters

It was apparent from perusing those statements that India’s position on non-refoulement went beyond Rai’s remarks, which arguably only expressed concern at the dilution of this principle in a treaty which New Delhi has not signed.

Rather, India had repeatedly asserted on the international stage that it had always “abided” by this principle, despite not being a signatory to the Refugee Convention. In fact, India has rounded on the European Union-Turkey refugee deal for violating this principle and has even advised Australia to introduce non-refoulement into its legal system.

In March 2016, the EU and Turkey signed a deal to stem the waves of Syrian refugees headed for Europe, in return for incentives like financial aid and visa-free travel. The UN’s refugee agency had claimed that this deal violated the heart of the 1951 Refugee Convention. And India agreed.

At a preparatory workshop in Delhi for the World Humanitarian Summit in Istanbul, then external affairs ministry secretary (west) Sujata Mehta, on May 6, 2016, said:

“Let me say that efforts such as the EU-Turkey deal, which tries to stem the flow of asylum seekers and irregular migrants travelling across the Aegean Sea from Turkey to the Greek islands is apparently a deviation from the 1951 UN Refugee Convention and its 1967 Protocol, as the latter obligates the receiving states’ parties to provide protection to people in need, and also adhere to the principle of non-refoulement.”

India’s discomfort with the EU-Turkey deal was largely to do with the belief that the terms ‘migrants’ and ‘refugees’ are being used interchangeably – which Mehta pointed out “limits the obligations of countries of refuge to provide protection to refugees”.

Incidentally, at the National Human Rights Commission on Thursday, home minister Rajnath Singh claimed that Rohingyas were not refugees, but “illegal immigrants” as they had not applied for political asylum.

Spelling out the difference between the two terms, Mehta had noted last year that refugees are those who move out of their countries of origin because of threat to their lives and are in need of protection.

Unlike refugees, countries have the right to deny or admit migrants. Therefore, western countries often tightened their migration policy as a populist measure to stop refugees. Not surprisingly, New Delhi had not been in favour of this approach, as Indian professionals then find it harder to get past the door.

“…international migration should be seen in the context of demand and supply of workforce. Hence, the emphasis in such cases should be on the developmental dimension of migration,” Mehta argued.

A United Nations logo is seen on a glass door in the Assembly Building at the United Nations headquarters in New York City, September 18, 2015. Credit: Reuters

India’s affection for the principle of non-refoulement can also be demonstrated by its recommendation to Australia to include this protection for refugees in its legal code.

“We recommend adequate steps to promote and protect the rights of asylum seekers, refugees and migrants. In this regard, we urge the government to review the policy of mandatory immigration detention and to codify the obligation of non-refoulement in migration laws,” India told Australia during its 2nd Universal Periodic Review cycle at the UNHRC on November 9, 2015.

India’s advice to Australia came in the background of rising criticism of Canberra’s policy of turning back boats and pushing for third-country detention of asylum seekers.

It is significant that India suggested to another country that it ‘codify’ non-refoulement, especially when this principle is not explicitly part of Indian law. Instead, refugees in India get legal protection based on Article 21 of the Indian constitution and adherence to certain international treaties.

India had refused to sign the 1951 convention and protocol on the ground that the international treaties were tailored to the post-war European conditions and could not be applied to the massive movement of populations in the subcontinent.

However, New Delhi – whichever government has been at the helm – has always pronounced at nearly all meetings that India voluntarily follows the Convention’s fundamental principle of non-refoulement and will always continue to do so.

“There was a long history of large communities seeking shelter in India. Those seeking refuge had never been turned away; India had time and again demonstrated its commitment to the principles of protection,” Indian diplomat Mayank Joshi told the third committee on November 3, 2016.

The UN General Assembly’s third committee – which deals with items related to human rights issues – usually has a discussion on the report of the UNHCR in November every year.

Hosna Ara Begum, 30, a UNHCR staff member talks with newly arrived Rohingya refugees. Credit: UNHCR

Hosna Ara Begum, 30, a UNHCR staff member talks with newly arrived Rohingya refugees. Credit: UNHCR

At the November 2015 meeting, Rahul Kaswan, a BJP MP from Rajasthan who was part of the official Indian delegation, asserted that India had always been committed to not turning away refugees. As per the UN records of the meeting, Kawan said that his “country had clearly demonstrated at all times its commitment to the principles of protection and non-refoulement”.

A month earlier, Ajit Kumar, India’s then permanent representative to UN in Geneva, had taken part in the general debate at the 66th session of the UNHCR’s executive committee.

“India’s assimilative civilisational heritage, inherent capabilities as a state with a good record of non-refoulement, hosting and assimilating refugees gives us a rounded perspective on dealing with matters pertaining to refugees and other persons of concern,” he said on October 7, 2015.

Receiving refugees and migrants was an Indian tradition since millennia, said Kumar. “We remain committed to these principles as these have been part of Indian ethos and civilisation,” he said.

One year before that, Kumar’s deputy at the time, B.N. Reddy, had stated that India had an “abiding commitment” to non-refoulement of refugees, who have assured rights under the constitution.

“Our protection regime is based on the fundamental rights guaranteed by the Indian constitution and other relevant legal provisions. We have time and again demonstrated our abiding commitment to the principles of protection and non-refoulement,” he said.

This reference to the rights of the refugees under the Indian constitution was again asserted by India a month later across the Atlantic. “India’s refugee assistance programmes were funded entirely by the government, whose protection regime was based on the fundamental rights guaranteed by the Indian constitution and other relevant provisions,” said the official summary of the November 5, 2014 meeting, quoting Joshi.

These remarks were, obviously, a continuation in policy as made clear from previous Indian statements.

During UPA-2, Samajwadi Party MP Arvind Kumar Singh, a member of the Indian delegation, reiterated at the third committee in 2013 that India had “clearly demonstrated its commitment to the principles of protection and non-refoulement”.

Also read: Despair and Desolation: Life in a Rohingya Refugee Camp in Delhi

After returning to the Rajya Sabha as a BJP member, Najma Heptullah was part of the Indian delegation to the UN General Assembly in 2012, where she asserted that India “would continue to provide protection for refugees under its laws”. Two years earlier, the late BJP leader Gopinath Munde had also referred to India’s commitment “to humanitarian concerns, including the principles of principles of protection and non-refoulement…” This point had also been made by Congress’s Rajeev Shukla in 2008 and People’s Democratic Party’s Mufti Mohammed Sayeed talked of guarantees under the constitution in 2006.

As far as back in 2001, Indian diplomat R.N. Prasad had said at the UNHCR that the Indian judiciary had taken care of the rights of refugees. “With regard to refugees’ access to courts and the justice system, he said, “courts in India had laid down certain markers for refugees based on the principle of the right to life and liberty of all persons residing in the national territory.”

After the Syrian crisis

The unravelling of Syria which began in 2011 had a visible impact on its neighbours by the middle of 2012. In Africa, the fight between government forces and Tuareg rebels started in January 2012 and over 250,000 Malians fled after a coup in the month of March. At the same time, a drought in Somalia led to the movement of a large population to Kenya and Ethiopia.

Against that backdrop, India, at the meeting of UNHCR’s standing committee on June 26, 2012, sought to stress the fundamental principle of non-refoulement and insisted that any return of refugees has  to be voluntary:

“…we believe that the principle of non-refoulement is pivotal to the safety and security of the international protection system for the well-being of refugees. While we recognise the political complexities that limit the implementation of voluntary return in many cases, as states, we need to recognise that voluntary return remains the primary option for refugees and therefore, have a responsibility, through bilateral and regional, political dialogue amongst ourselves, towards reassuring the refugees of safe and stable return to their countries of origin. We would therefore like to urge caution, in allowing issues relating to asylum and migration to intersect.

In the context of India of not needing to sign up to the 1951 convention, Indian delegations had pointed out that it had already done a “successful repatriation of a large number of refugees through bilateral arrangements without any multilateral assistance”. Congress’s B.K. Hariprasad raised this is in November 2009, but it was a common talking point which was reflected in several statements over the years.

India has still not repatriated two major groups of refugees through bilateral agreements – Sri Lankan Tamils and Chakma tribals to Bangladesh. However, it is difficult to see how a bilateral pact can be reached in the case of the Rohingya refugees, with Myanmar not accepting them as citizens.

In October 2004, the then Indian ambassador to the UN in Geneva, Hardeep Puri, who is now minister of state for housing and urban affairs, had expressed apprehension that the international refugee law framework was threatened by “increasing xenophobic tendencies, violations of the principle of non-refoulement and new barriers in traditional countries of resettlement”. In that context, he had said that it was “important not to regionalise refugee situations, since that could be construed as an attempt to contain refugee movements”.

Also read: Life for Rohingya Refugees in Nepal Is Better Than in India and Bangladesh, but Only Marginally

Two years earlier, during the Vajpayee government, Puri similarly shared the concern of the UN high commissioner for refugees that “the principle of the right to asylum had been called into question in certain countries”. “Today more than ever, the international community should reaffirm its commitment to the principle of non-refoulement and the protection of the basic rights and security of refugees,” he said at the standing committee meeting of the UNHCR on October 2002.

As the post 9/11 Afghan invasion and fighting led to another wave of refugees in 2001, India’s representative, R.N. Prasad, on at the UNHCR executive committee meeting on November 21 that year, lamented the fact that countries were not welcoming asylum seekers as in earlier years.

“…We have had in the recent past shocking instances of asylum seekers being literally hounded out and chased. We are cognisant of the fact that there is indeed abuse of the asylum system. We also recognise the legitimate rights of state to control illegal immigration and to take measures to prevent abuse of the institution of asylum. But the moot point is: how far may the states go in preventing such abuse? Can state adopt any methods? If we accept the premise that there is a minimum core content of human rights which apply to everybody in all situations, then obviously there are limits to what the states may do. The human rights of the asylum seekers cannot and should not be given a go by.

Prasad had earlier expressed concern at the “tendency to define asylum-seekers and even refugees as primarily “illegal migrants”, “economic migrants” or “famine victims”, inter alia”. “There had to be a reaffirmation of the principle of non-refoulement, to which no reservations were permitted, and also, as the note rightly pointed out, of the principle of international solidarity and burden sharing,” he asserted.

The oldest Indian policy statement that The Wire could find with a reference to non-refoulement was in 1997.

Arundhati Ghose, who was then posted as India’s PR in Geneva, prefigured Prasad’s words when she said that it was “unfortunate that political refugees were being treated as potential illegal economic migrants”.

“It appeared that signatories to the 1951 Convention were derogating from its provisions by introducing new concepts such as “temporary protection” and questioning the fundamental principle of non-refoulement”.

She also took Europe to task for hiding behind national security to sacrifice the “crucial principles” of the right to asylum and non-refoulement.

“Unilateral solutions, such as the EU’s recent decision to restrict access to asylum because of the threat to security in its member states, were not the right path,” she said in October 13, 1997.

Speaking at the UN refugee agency’s executive committee, Ghose asserted that terrorism should be addressed in a “collective manner”. “An open, transparent and multilateral process was the best means of ensuring a balance between refugees’ need for protection and the legitimate security concerns of states,” she said, 20 years ago.