Background
The Rohingya are a Muslim-majority group in Myanmar. They constitute 1% of the total population of Myanmar and 4% of the population of Rakhine, a state in western Myanmar. The largest group in the state is the Rakhine Buddhist community, who make up 60% of the state population. Originally, the Rohingya were an ethnic group living in the coastal areas of Bengal, in present day Bangladesh. The British colonial government followed a policy of appeasement towards the Muslims of the region by providing them better opportunities and recruiting them in the army. This resulted in an influx of Muslims in the early 20th century. Consequently, Myanmar considers them migrants who moved to the country in search of a better livelihood.
At present, the Rohingya are devoid of any kind of rights and are not considered citizens of Myanmar as per the Citizenship law passed in 1982. Consequently, they are barred from businesses, jobs, the right to vote and access to the courts. Bangladesh has also refused to accept the Rohingya as citizens as it considers them a burden on their population, in what is already one of the most densely populated countries in the world. This means that the Rohingya are currently stateless. There has been a forced displacement of nearly 140,000 Rohingyan Muslims after the 2012 riots between Buddhist and Muslim groups in the area. In June 2014, a rumour on social media of a Buddhist girl being molested by Muslims again led to widespread riots in the region. The Rohingya Muslims were targeted, rounded up and put in concentration camps. The Myanmar government was thus accused of ethnic cleansing and multiple human rights violations. This led to a refugee crisis as Rohingyas started migrating to neighbouring countries like Bangladesh, India, and Thailand etc. Nearly 14,000 Rohingya Muslims have taken refuge in various states across India. According to a Reuters report, only 14,000 Rohingya Muslims have formally registered, while the actual number of refugees goes up to 40,000.
Is the Indian Government’s Approach a Violation of International Law?
The Indian government believes that the Rohingyas are illegal immigrants and have no right to stay in India. The Indian government has asked the state governments to identify illegal immigrants and to start the deportation process of the refugees seeking shelter in India. According to the Indian government, there is a viable threat to national security if the Rohingyas are allowed to stay in India, as their vulnerability could be exploited by Islamic extremist groups. India is also eager to maintain good bilateral relations with Myanmar, as Myanmar is a vital ally in dealing with Chinese incursions in the disputed region of Arunachal Pradesh.
The approach of the Indian government has garnered international notoriety, which has led the UNHCR, the UN Refugee Agency, to condemn it as a violation of international law. Article 33 (1) of the UN Convention on Refugees 1951 highlights the principles of non-refoulement, which states that a State shall not expel or return a refugee in any manner 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. According to the report of an UN fact finding mission on Myanmar, crimes committed by security forces against Rohingyas amounted to “crimes against humanity” and “a possible ethnic cleansing”, thus confirming the serious threat faced by the Rohingyas in Myanmar.
According to the Indian government, India is not violating international law as it is not a party to the Convention and thereby not bound by the principles of non-refoulement. The UNHCR states that the principle of non-refoulement constitutes an essential and non-derogable component of international refugee protection. As per article 38(1) (b) of the statute of the International Court of Justice, “International custom is general practice accepted as law” and one of the sources applied by the ICJ when deciding disputes in accordance with international law. The UNHCR is of the view that the principle of non-refoulement constitutes a part of customary international law. Hence it is binding on all States, including those which have not yet become party to the 1951 Convention and/or its 1967 Protocol. The possibility that a provision in a treaty may constitute the basis of a rule which, when coupled with the opinio juris, can lead to the creation of a binding custom governing all states (not just those parties to the original treaty) was accepted by the International Court of Justice in the North Sea Continental Shelf cases, provided that the particular provision is ‘of a fundamentally norm creating character.’
While the 1951 Convention on Refugees is the logical place to start, there are other instruments of international law that are relevant to this case. The 1984 United Nations Conventions against Torture, of which India is a signatory, also has a non-refoulement clause. Article 3 of the convention prohibits the removal of a person to a country where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. India has also ratified the 1966 International Covenant on Civil and Political Rights which creates obligations not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by Articles 6 (right to life) and 7 (right to be free from torture or other cruel, inhuman or degrading treatment or punishment) of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed. Article 14 of Universal Declaration on Human Rights (UDHRC) states that “everyone has the right to seek and enjoy in other country’s asylum from persecution.” India follows a dualist approach to application of international law. Though it has been a signatory to various international conventions, no proper law has been enacted in the country to bring these conventions into force. However, India’s ratification of international conventions shows an intention to recognise these norms and thus creates an obligation to act on such intentions. In addition, in the case of Ktaer Abbas Habib Al Qutaifi versus Union of India & Ors, non-refoulement was recognised under Article 21 of the Indian Constitution by the Gujarat High Court. The courts in India have accepted non-refoulement to be an integral part of the Constitution and have thus had utmost regard for international conventions and treaties.
Conclusion
India distancing itself from its obligations arising out of customary international law and other conventions will not only be considered as a violation of international law but will also be seen to disregard fundamental human rights in accordance to the laws of India. It is time for India to take the leading step as a major power in South Asia and set an example for other countries to follow. Being the world’s largest democracy, the Indian state has the capacity to help people in troubling times. Though national security is a valid exception to jus cogens, it has to be seen whether this exception can be invoked in the current scenario and if it is free from any ulterior motives.