Interview: Why the UN Rights Office Is Concerned About the CAA

In conversation with Pia Oberoi, senior advisor on migration, UN Human Rights Office.

A few days ago, the United Nations Human Rights Office issued a statement condemning the “fundamentally discriminatory” Citizenship (Amendment) Act. While welcoming the goal of protecting persecuted groups, the UN Body called out against the exclusion of Muslims including minority sects.

The statement pointed out that the new law “undermines” the commitment to equality enshrined in India’s constitution. The Act also goes against India’s obligations under the International Covenant on Civil and Political Rights and the Convention for the Elimination of Racial; both of which prohibits discrimination based on racial, ethnic or religious grounds. Editor of the Suno India podcast D.V.L. Padma Priya reached out to Pia Oberoi, senior advisor on migration, UN Human Rights Office to understand their concerns around the Act.

Pia, your office recently issued a press release saying that the Citizenship Amendment Act, which was ratified by the Indian parliament, was fundamentally discriminatory in nature. Could you please explain to our listeners why that is?

We expressed a concern that the act was fundamentally discriminatory because of the consequences that it could have on particular groups. We fully applaud and welcome the intention of the Indian government to establish a framework of protection for people that are being persecuted. And indeed, we have as well human rights mechanisms, have asked for a number of years that a robust national asylum system should be put into place to include people that are fleeing harm, persecution, conflict, human rights violations for all the recognised grounds.

Our concern is that by only picking out not just certain countries, but within them only particular groups of religiously defined groups, that there’s a strong element of discrimination. We are concerned that, for instance, people of Muslim origin that are fleeing from these countries will not be considered to have suffered persecution and will be prevented from accessing the benefits of the regularisation of the amnesty provisions of this Act.

Should there be really a concern to protect people that are fleeing persecution and violations, then one could very easily imagine a national asylum system which puts in place non-discriminatory brands of protection for all people that flee certain kinds of harm. And, it is important that India does so to avoid these charges of discrimination.

Your press release further states also that the amended law appears to undermine the commitment to equality before the law one enshrined in the Indian constitution, but also under a different international governance. Could you tell our listeners a bit more about these international covenants? Which part is India party of and what has it not signed?

Certainly, as we know, international human rights law, right from the founding of the Universal Declaration of Human Rights in 1948 protects mall people on the basis of their humanity, on the basis of their fundamental humanness. So, we have a number of core international human rights instruments, such as the International Covenant on Civil and Political Rights. In fact, the International Covenant on Economic, Social and Cultural Rights, as well as the Convention for the Elimination of Racial Discrimination, which covers discrimination on religious grounds.

Now, India is a party to all of these instruments, as well as having strong constitutional provisions to protect the fact that all people within its jurisdiction have certain fundamental rights which cannot be legislated away, if you will. And this is important because it means that we can ensure that all people have a certain level of protection, not because they come into the country with a particular visa and not because they have a particular passport or because they profess a certain religion, but because on the basis of the sharing of the common humanity that we all share, India is obliged to provide that protection. So, this is the fundamental basis on which the human rights protections and the fundamental principle of non-discrimination operate.

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In addition, we have protections within International human rights law to protect on the one hand, refugees such as the 1951 Refugee Convention and its 1967 protocol, as well as on the other protections for migrant workers and members of their families within the International Convention on Migrant Workers. Unfortunately, India has not ratified either of these two important conventions, and we would very much, you know, call the Indian government to look seriously and consider seriously ratification. But even without that ratification, as I said, international human rights are the core instruments that India has already ratified and call on the country to look seriously and with a nondiscriminatory lens at all people on the move.

Pia Oberoi. Photo: OHCHR website

We have seen that people move for different reasons, that people have particular and often very individual reasons for protection as they move. We also don’t insist, we don’t believe that every country must open its doors to everybody that is on the move. International law fundamentally respects the principle of sovereignty. It is up to a government to decide who it wants to welcome into its country.

But there’s important caveats to that. One is that, for instance, you cannot render a person stateless in deciding to withdraw your citizenship from the person. So, you have to investigate whether by withdrawing your citizenship, if this person would face harm, human rights violations. And the second is, as the international community over the last two years, maybe two or three years, has realised that there needs to be a fundamental rethink about how people on the move are being governed.

And this is not just related to India, to South Asia, but to really the whole world. We have seen big, complex movements of people in Europe, in the Americas, where the international community just has decided to really think about what we need to do to cooperate better, to provide protection to people.

So, on the one hand, we have had a process of development of a Global Compact on Refugees, which India has been part of. And secondly, we have had the adoption in December 2018 of a Global Compact for Safe, Orderly and Regular Migration, again, which India endorsed. And taken together, these two frameworks really provide a roadmap for countries and for regions to come together to put in place protections for people on the move and to govern migration in a way that is fair for the communities into which they come, as well as for those people on the move themselves.

Thank you so much, Pia. So, at one side, the Indian government is saying that this the new Citizenship Amendment Act provides refuge to persecuted minorities from three different countries. But at the same side, you have national leaders also talking about illegal immigrants.

Could you explain to our readers how your office views these terminologies, like refugees vs an illegal immigrant? Because I know that there is a lot of conversation around even the usage of this terminology. And how should one view this conversation now? Because  if I’m hearing you right, at the end of the day, refugees should be provided on the basis of need. Every individual has a reason for seeking the refuge.

But on the other side, there is this whole conversation about illegal immigration happening from the different South Asian countries into India. So how should one look at this conversation? Even in terms of whether it’s media reportage or even the conversations that are happening, the conversation seems to be leading towards ‘Oh well, these are illegal immigrants. They need to be put inside detention centres. They should not be inside the country or they should be kicked out of the country.’ How do we balance this conversation?

You know, it is a very important question. And you know, just to put it in context, these are conversations that are happening in many countries in South Asia, in Asia Pacific, in Europe. I mean, these are very fundamental conversations that are happening in many countries.

Let’s just take the example of the Citizenship Amendment Act, for instance, which says that it wants to provide protection to religious minorities from three specific countries. This would be fine if it was being placed within the framework of a broader, non-discriminatory system that said, everybody that came into our country seeking protection from various harms, from various persecution or conflict or human rights harms is entitled to apply for that protection.

Once you have a situation where you are only singling out particular people from particular countries, you start to become kind of less convinced that this is about putting in place a broad umbrella of protection. The issue about terminology is important. We have and in fact, the General Assembly way back in 1975 basically called on countries not to use the term “illegal migrant” precisely because a person cannot be illegal. Their administrative status may be illegal at one point or the other.

But again, it comes back to this issue of dehumanisation, of rhetoric, kind of putting people into this this this idea that they are illegal, that they are somehow criminal for the fact that they lack a valid paper and the kinds of assumptions that they made about the character and the criminality of people that lack these papers is of great concern to the international community and to human rights mechanisms and to my office. What we would prefer is if the terminology was used off as ‘migrants in irregular situations’ to indicate that they see their administrative situation is irregular at one point it may very well change.

This is the main point, as I said, people that are moving people on the move, are often in very complex circumstances and we completely understand that some people enter countries irregularly. Sometimes they enter countries irregularly because they have no legal way to come into that country. But they may be very valid reasons for them to enter, such as to seek asylum. Another very valid reason to enter may be to reunify with family. And I should say that there’s many Indians on the move and in many parts of the world they do move irregularly for, for instance family reunification reasons.

We also see that people move irregularly initially and then through a process of administrative regularisation or amnesty are able to acquire a regular conditions, a situation. So, mixing the fact that the ways in which people move are complex and administratively, often very intricate, with ascribing them to that irregular movement or personal failing or criminality of character or a dangerousness of intent is, I think, very worrying. And if you mix that with a kind of a communal character and say, well, certain religious groups are excluded because certain religious groups are fundamentally dangerous to our societies, you start going down a road where you can see discrimination to an extent which will ultimately lead to harm and violence towards people.

Demonstrators hold placards and shout slogans during a protest against a new citizenship law in Mumbai, India, December 30, 2019. Photo: Reuters/Francis Mascarenhas

From your experience of having worked in this field of migration to your office, tell us some of the reasons why people within South Asia move like, for example, you have the Rohingya who were fleeing persecution, then you have other conflict situations. So perhaps could you just throw a bit of light in terms of what are some of the reasons for this irregular migration that happens?

Yes, absolutely. I mean, you know, you said yourself. So, we have people that are feeling kind of broad-based persecution based on prohibited grounds, such as the Rohingya fleeing persecution of statelessness. You have all groups in the Asia Pacific region that are fleeing other kinds of conflicts. In various parts of the region, there is a big and growing concern about people that are forced to flee because of climate and environmental reasons. And I mean, we can think about, for instance, the Pacific, where you have not just concern about livelihoods but really an existential concern about whether they are the islands will continue to exist given the rates of climate change.

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So you have people on the move who are fleeing complex combinations of poverty and disenfranchisement related to conflict reasons. You have people that are fleeing political persecution and this might not be big groups of people. India, for instance, has seen large groups of Tibetans that have entered the country and Tamils from Sri Lanka, Afghan refugees fall for a number of years and has provided to a large extent and a relatively stable refuge to people. And this is why we believe that it would be important to have a system that considers in the individual case reasons for why people are moving in to provide protection accordingly.

The Global Compact for Migration is interesting because it talks about migrants in situations of vulnerability and it asks governments to consider the reasons why these people might be vulnerable and including in that issues around environmental degradation and the climate, but also lack of access to human rights, such as the Right to Food or the Right to Health, and calls on governments to put in place measures where they can assess the reasons, they can screen people for why they are in the situation. So, the Asia Pacific region, is home to a number of people moving for reasons of political persecution, of social unrest and an upheaval and climate and environmental degradation.

You also talked in the press release about a national asylum framework. Are there any countries within South Asia or even broader which actually have a good working national asylum framework? Because I mean, if I even look at, say, the United States, which is now looking at refugees as illegal, are there actually any countries where this is working? I mean with a very, very robust asylum framework.

Yes, the answer is yes and no, in the sense of there are countries in many parts of the world that have a strong legal framework of protection. Think about Europe, or Thailand, which is at the moment putting in place a screening mechanism to provide protection to people fleeing persecution and human rights violations.

So, there are a number of countries around the world which have taken meaningful steps that have established very precise and fair asylum procedures. The concern is that enough resources are put to such a system and such a system is not undermined by political considerations, and this is where having an asylum system that is built into a legal framework of protection is important so that any kind of elements of discrimination or inequity, inequality can be challenged before the law so that there are, they are good practice examples around the world.

There is also concern that once the whole issue of immigration and asylum becomes politically weaponised, that the frameworks of protection are not allowed to kind of then fall sway to the political considerations because as India is seen, and as many countries have seen, the issue of who we get to say is part of our society is something that can and has been very successfully weaponised by populist leaders, by populist media, by other public figures for all sorts of reasons, electoral gains being one.

We have concerns, for instance, hate of foreigners is a good way to sell these papers, for instance. And we are working with groups that try to push back against media outlets that profit from the kind of the selling of hate. So the concern, I guess, the issue about what kind of asylum and immigration systems should be put in place is not just a technocratic one for governments, it is one for every one of us as members of society to consider what kind of societies we want to live in, what kind of society we want our children to live in, and then to insist to our governments that those are the kinds of societies that should be built that provide protection for people on the move and not to divide people into those that seem to be deserving or undeserving of rights.

Well, we can say that there are certain groups of migrants, which is refugees that need particular protection. It doesn’t follow from that that those people that don’t need the protection of asylum law, such as other migrants or even migrants and irregular situations are therefore undeserving of rights. And I think this is where we, that the conversation needs to evolve from saying, well, we are only going to protect a certain group of people that we call refugees. And for the rest, we are completely happy with indefinite detention and collective expulsions and other human rights violations, because human rights law doesn’t agree with the idea that even if you are not a refugee, you then somehow fall into a category of being completely banished from the norms of protection.

How is your office viewing these ongoing concerns about India building detention centres though it’s been categorically denied by the government but there are reports coming out by journalists and by other organisations that there are detention centres being built in other parts of the country. How is your office viewing these developments and also the ongoing protests?

We will wait to see what the reality is in relation to the actual detention centres. But I do want to say that again, while a country and the government is entirely within its sovereign entitlement to detain people who may not have the right to remain in a country. There are strong protections that are, for instance, provided through the International Covenant on Civil and Political Rights, to which the state party for such detention.

Again, bearing in mind that the detention of a person for immigration reasons does not mean that that person is a criminal in the ordinary sense of the word. They have either overstayed a visa or they enter the country without the necessary papers. But they haven’t committed a crime against a person or property or even a crime against national security just by crossing the border irregularly.

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So, we would call the authorities should there be the contemplation of immigration detention that this detention is not arbitrary, that it pays particular attention to groups in situations of vulnerability, such as families and children, for instance, or women at risk, so that we are not going to end up in a situation where people that there is a mass violation of human rights is as large and lots of people are put into detention centres. And also, if there is no prospect of removing them, if there is no prospect that they will, in fact, be returned to the country, that the government claim they are from then their detention would turn into prolonged, or indefinite and therefore arbitrary.

So, there are a number of concerns that could arise around the whole issue of immigration detention. In terms of the protests, we have already expressed concern and called for restraint to ensure that people are entitled to their right to freedom of expression, to be the ability to protest peacefully their political and other views, and to ensure that any allegations of disproportionate use of force or violence by the authorities is properly investigated and prosecuted.

Say, tomorrow or in a few weeks or months, because that is also the talk of the date in the Nationwide National Registry of Citizen and the NPR that is going to be rolled out. The fears are – and the fears don’t seem very unfounded frankly – the fears are that even if 1% of the population of 1.3 billion people get affected and they are put in detention centres and this like you said, if it turns arbitrary. Is there anything that the international community can actually do to put pressure on India in case these detentions turn arbitrary?

You know we have been following the different trajectories that this situation can take and as you said one of the concerns could be again – and I want to be clear from our perspective, we want to talk about what is happening at the moment but we do also have an eye on the possibilities that could arise from extension of the national register of citizens.

The main concern that we have is that there should be no discriminatory application of protection or denial of protection, so where there is a process of determining who is a citizen or not, these processes are applied in a non discriminatory way and the result itself doesn’t cause human rights harm.

But one of the concerns that there is a real prospect of statelessness and if we come back to the issue of detention, that we don’t end in a situation where a mass detention infrastructure is created when there is no prospect of release or return. You know we have to be aware of why and how the right to liberty is removed from a person. It is a very fundamental right and again included in the International Covenant on civil and political right, and it applies to everybody and removing that right should not be done lightly. There should be due process and structures put in place such as judicial review, right to appeal, access to legal counsel etc is available; to ensure that we don’t end up in a situation where large number of people are not placed in detention for arbitrary reasons and where there is no prospect for return.

So yes we are aware that there may be further ramifications for this process to play out. We don’t believe that we are at that situation right now and we are expressing our concern for the specific issue of citizenship provision and the discriminatory nature of regularisation at this point.

This is a transcript of an episode of The Suno India Show. Listen to the original here.