Understanding India’s refusal to accede to the 1951 Refugee Convention: context and critique by Sreya Sen

Camp for Sri Lankan refugees in Tamil Nadu

Camp for Sri Lankan refugees in Tamil Nadu

SREYA SEN is pursuing her doctoral research as a Junior Research Fellow at the University of Calcutta, India. Her research focuses upon the gendered dimensions of environmental displacement in South Asia. She can be reached at shreya69@gmail.com 

Abstract:
India is a refugee receiving country in South Asia. Refugee groups that have sought asylum in India include Tibetans, the Tamil from Sri Lanka, Partition refugees from erstwhile East and West Pakistan, the Chakmas from Bangladesh, Bhutanese refugees from Nepal, Afghans, Rohinyga and other refugees from Myanmar and refugees from Somalia, the Democratic Republic of Congo (DRC) and Sudan. In spite of having such a substantive asylum seeking and refugee population, India is not a signatory to the 1951 Refugee Convention[1] or the 1967 Protocol[2]. Neither has any domestic legislation in India been passed to protect refugees. The fate of individual refugees in India is essentially determined by protections that are made available under the Indian Constitution. The question often raised is why India, like several other nations in South Asia, has not ratified the 1951 Refugee Convention. This article analyzes a number of scholastic arguments that have been made to explain India’s refusal to accede to the Refugee Convention, and examines the existing legal set-up for refugees in India in order to arrive at an understanding of the context of non-accession. This opinion paper concludes that India will likely never be party to the Convention despite hosting numerous refugees on its soil, and argues that uniform domestic protection legislation must be enacted.                       .

 

An Overview of the Legal Situation of Refugees in India

There is no domestic procedure or law that governs the protection of refugees in India. There is also no regional agreement of a binding nature such as the Organization for African Unity (OAU) Convention (1974) or a detailed declaration for refugee protection such as the Cartagena Declaration (1984) enacted in Central America.[3] Refugees on Indian soil are instead subject to the control provisions of domestic legislation such as the Passports Act of 1967 (Act No. 15), the Registration of Foreigners Act of 1939 (Act No. 16) and the Foreigners Act of 1946 (Act No. 31), all of which define a person of non-Indian nationality as a ‘foreigner’, independent of their specific legal status.

While the Indian state does offer de facto protection to refugees, the absence of any legal framework for refugee protection makes the status of a refugee in India a precarious one. This status is usually based on the goodwill and tolerance of the government in power. The ad hoc approach adopted by the government of India towards refugees is reflected in the fact that most refugees have not been granted uniform rights and privileges or legal status[4]. UNHCR Refugee Certificates are technically recognized by the government as legitimate proof of a refugee’s status. However, while the Foreigners Regional Registration Office, local police authorities, and the Ministry of Home Affairs are aware of the existence of such certificates, refugees in possession of these certificates are granted extended periods of stay without any permanent status in India. Refugee certificates remain the only measure of protection against arbitrary arrests and the detention and deportation of refugees in the absence of any other identification papers.

The role of The National Human Rights Commission (NHRC), which was established via The Protection of Human Rights Act in 1993, is worth mentioning for its laudable efforts towards upholding the dignity and safety of refugee communities in India. The function of the NHRC is to investigate complaints of human rights violations either on the basis of a petition that is presented to the NHRC by the person whose rights have been violated, or by anyone else on his or her behalf (suo moto).[5] The NHRC has been known to intervene on behalf of several refugee groups in India, the most notable example being its intervention in the harassment of Chakma refugees by the state of Arunachal Pradesh. The NHRC is provided with its own team of investigators by the NHRC Regulations, but it is also allowed to recruit outsiders–such as members of diplomatic corps stationed presently in New Delhi, in human rights courts, in state human rights commissions and in non-governmental organizations–who might be of assistance to the investigation of cases as either observers or investigators.


India’s International Commitments

While India is not a signatory of the 1951 Refugee Convention, it is still obliged to adhere to the principle of non-refoulement, which forms a crucial part of customary international law. The principle of non-refoulement is one that is binding on every state whether or not that state has ratified the 1951 Refugee Convention or its 1967 Protocol. This obligation is further strengthened, as India is a signatory to the 1984 Torture Convention.[6]. A wider legal basis for respecting customary international law has been articulated by the Torture Convention, including the principle of non-refoulement.[7]. Article 3 states that,

  1. No State Party shall expel, return (refouler) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.
  2. For the purpose of determining whether there are such grounds[8], the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.[9]

It is important to remember, however, that there are no specific provisions in the Indian Constitution that oblige the Indian state to implement or reinforce international conventions and treaties. An analysis of case law and a joint reading of the different provisions listed under the Constitution clearly reveal that international agreements, conventions, covenants, and treaties will constitute an aspect of domestic law in India if and only if these are incorporated specifically into its legal framework by the government. The Supreme Court has ruled that international law needs to first undergo a transformation into Indian municipal law before this can become an internal law in a number of decisions [10]. While international legal clauses may be invoked in Indian courts, their implementation is subject to there being no existing conflict between domestic and international law and, further, no violation of the spirit of national legislation and the Indian Constitution. If any conflict does exist, it has been well established that it is the domestic law which shall prevail.[11]


Critical Analysis of India’s Stance on the 1951 Convention

Scholars of India and South Asia offer a number of insights into India’s position with regard to the 1951 Refugee Convention. Myron Weiner, for instance, believes that there are certain features unique to the region of South Asia that must be borne in mind when discussing the problem of failure to accede[12]. Weiner argues that borders in the region are highly permeable and that each South Asian state lacks the political, administrative or military capacity to enforce rules with regard to population entry. Weiner also raises the issue that the cross border movements of people in South Asia are known to affect political stability, international relations and internal security, and not simply the provision of services to new arrivals or the composition and structure of the labor market. He also notes that it is possible that refugee flows would result in or be seen as effecting change in the religious or linguistic composition within the receiving area of the country.

Weiner is correct that local anxieties are particularly acute when a perceived economic or cultural threat exists. In 1971, for example, owing to the substantive presence of Bengalis in the North Eastern States of Tripura, Assam, Meghalaya, state authorities were concerned that this Bangladeshi ‘influx’ would lead to indigenous peoples becoming minorities in their own land. Governments within South Asia believe that international agreements could end up constricting their freedom of action, and have thus largely concluded that unwanted migrations, including those of refugees, should be the focus of bi-lateral rather than multilateral relations. As observed by David Dewitt and Amitav Acharya,[13] Third World nations are highly sensitive to international humanitarian operations, even if these are conducted by neutral multilateral organizations. There are many examples of the unshakeable faith that the South Asian Association for Regional Cooperation (SAARC)’s member states have in bilateral negotiations to resolve conflicts. The SAARC’s exclusion of population movement concerns from its purview, which was done primarily out of fear that its inclusion might disrupt the organization, is one such example, as are the ongoing dialogues between Bhutan and Nepal to improve the plight of the Lhotsampa Bhutanese refugees in the South of Nepal and between India and Bangladesh to resolve the situation of Chakma refugees given asylum in the Indian state of Arunachal Pradesh.

There are other possible reasons that India’s accession to the 1951 Convention has never come about, I believe. Firstly, it is necessary to note that India has always hosted refugees quite willingly and has allowed the UNHCR to have an official presence in New Delhi and Chennai; thus India feels there is no need to ratify the Convention. Secondly, as argued by some scholars[14], India has adopted a skeptical outlook towards the political or non-humanitarian role of the UNHCR, owing to the uncooperative stance demonstrated by the UNHCR during the Bangladesh crisis of 1971. A third important reason for India’s refusal to accede to the 1951 Refugee Convention is that the rights that are incorporated within the Convention for refugees are entirely impractical for Third World countries like India, which can barely meet the needs and requirements of its own citizens. India could always make use of or invoke a reservation clause in order to accede to the Convention, but doing so would not restrict criticism from the Indian NGO community and the UNHCR. The general lack of understanding of refugee law in Indian official circles further complicates matters; the discretionary powers that would be vested with the Indian state were it to ratify the Convention have not been deeply considered.

Legal scholars in India often reference the Eurocentric definition of a refugee as defined in the Convention, and I believe this is apt.[15] These scholars have argued that the definition confines itself to the violation of civil and political rights of refugees, but does not extend to economic, social and cultural rights. The definition does not allow for the protection of groups or individuals fleeing situations of generalized violence or internal warfare. If India is to be party to the 1951 Refugee Convention, it would also have to allow for the intrusive supervision of the national regime by the UNHCR, via Article 35,[16] and the UNHCR would be granted permission to access detention centers and refugee camps. The apprehension that NGOs could embarrass India before the international community by presenting negative reports that fail to take into cognizance the practical difficulties faced by a Third World nation like India is present.[17]

These valid legal critiques also lay the groundwork for considering the serious issue of burden sharing[18], which affects India’s decision of whether to accede. B.S Chimni makes the defensible argument that India should always refrain from acceding to the 1951 Convention, as it is violated by nations in the Global North in both the letter as well as the spirit of the law. [19] Chimni feels that India, along with other South Asian nations, should argue that accession to the Convention would be conditional to a reversal of the no entry regime created by western states. This regime is currently evidenced by a wide range of administrative and legal measures, including the safe third country rule, carrier sanctions, interdictions, visa restrictions, the widespread practice of detention, removal of access to social welfare benefits for asylum seekers, and, again, the restrictive interpretations of the refugee definition.


Conclusion

Political, economic and ethical considerations prevent the Indian state from being party to the 1951 U.N. Convention on Refugees, and this paper has shown the practical and conceptual difficulty the Indian government, local officials, and scholars have with reconceptualizing the Convention or Constitution for the purposes of protection. Therefore, it is vital that the development of a specific legislative framework for addressing refugee issues be established. If the 1951 Refugee Convention is not incorporated into the domestic legal setup in India, a uniform legislation, at the least, must be enacted for the protection of refugees. A rights-based approach must be adopted for refugee concerns to be given proper weight in a framework which recognizes the essence of humanitarian problems, and which provides legal recognition to the crucial fact that all persons, national or alien, are worthy of treatment that does not violate their dignity. A rights-based, specific, and uniform legislation will reduce the chance of the fate of refugees being entirely left to the discretionary powers of the Indian Executive and Judiciary[20].

REFERENCES

Ananthachari, T. “Refugees in India: Legal Framework, Law Enforcement and Security.” In ISIL Yearbook of International Humanitarian and Refugee Law, 2001.

Chimni.B.S “Status of Refugees in India: Strategic Ambiguity.” In Samaddar Ranabir Ed. Refugees and the State: Practices of Asylum and Care in India, 1947-2000, 2nd ed. Sage Publications, 2008.

Chimni, B.S. “Legal Condition of Refugees in India.” In Chimni B.S Ed. International Refugee Law: A Reader, 7th ed. Sage Publications, 2008.

LianCung Van Salai “A Brief Introduction to the Legal Status of Refugees in India: Indian Policies and Laws towards Refugees. Available at:http://www.academia.edu/3073508/A_Brief_Introduction_to_the_Legal_Status_of_Refugees_in_India_India_Policies_and_Laws_towards_Refugee, last accessed on 21.5.2015

Nayak Kumar Prafulla, “Protection of Refugees: A Humanitarian Crisis in India” Voice of Research, Vol.2,Issue 3, 2013.

Nair Arjun, “National Refugee Law for India: Benefits and Roadblocks” IPCS Research Papers, 2007.

Weiner, Myron. “Rejected Peoples and Unwanted Migrants in South Asia.” In Economic and Political Weekly, 34th ed. Vol. 28. 1993.

The Hindu Opinion. “Wanted: A Law for Refugees.” 2012. The Hindu. Available at http://www.thehindu.com/opinion/editorial/wanted-a-law-for-refugees/article3812816.ece. last accessed on 21.5.2015

Sen, Sarbani. “Paradoxes of the International Regime of Care: Role of the UNHCR in India.” In SamaddarRanabir Ed. Refugees and the State: Practices of Asylum and Care in India, 1947-2000, 2nd ed. Sage Publications, 2008.

Sengupta Ipshita, “UNHCR’s Role in Refugee Protection in India”, http://infochangeindia.org/index.php?option=com_content&view=article&id=7247:unhcrs-role-in-refugee-protection-in-india&catid=249:migration-a-displacement&Itemid=149, last accessed on 21.5.2015

[1] Convention Relating to the Status of Refugees 28th July 1951.

[2] Protocol Relating to the Status of Refugees of 31 January 1967.

[3] Sen, Sarbani. “Paradoxes of the International Regime of Care: Role of the UNHCR in India.” In SamaddarRanabir Ed. Refugees and the State: Practices of Asylum and Care in India, 1947-2000, 398-399. 2nd ed. Sage Publications, 2008.

[4] Ibid. Certain refugee groups have been granted uniform refugee rights. For instance, despite the ‘ambiguous’ status of Sri Lankan Tamil refugees in India they are accepted as de facto refugees and there are organized administrative mechanisms set up for them (Raizada 2013). See Raizada, H. Sri Lankan Refugees in India: The Problem and the Uncertainty, International Journal of Peace and Development, Vol.1, No.1, August 2013, pp 1-29.

http://acascipub.com/International%20Journal%20of%20Peace%20and%20Development/IJPD_Vol.%201,%20No.%201,%20August%202013/Sri%20Lankan%20Refugees%20in%20India.pdf .last accessed on 21.5.2015

[5]Chimni.B.S “Status of Refugees in India: Strategic Ambiguity.” In SamaddarRanabir Ed. Refugees and the State: Practices of Asylum and Care in India, 1947-2000, 455. 2nd ed. Sage Publications, 2008.

[6] The process of ratifying the Torture Convention has been initiated in Indian Parliament. A Bill for the Prevention of Torture has been passed by the Lower House (Lok Sabha) of the Indian Parliament on 6 May 2010 and presented to the Upper House (Rajya Sabha) of the Indian Parliament in December 2010, for consideration. See http://www.asianews.it/news-en/UN-Convention-Against-Torture-Ratified.-Hope-for-Christians-in-Orissa-18102.html, last accessed on 21.5.2015

[7] Chimni.B.S “Status of Refugees in India: Strategic Ambiguity.” In Samaddar Ranabir Ed. Refugees and the State: Practices of Asylum and Care in India, 1947-2000, 448. 2nd ed. Sage Publications, 2008.

[8] Coercion, intimidation, infliction of pain by persons who act in an official capacity.

[9] (Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment 10 December 1984).

[10] “The Status of International Law under the Constitution of India,” http://www.legalindia.com/the-status-of-international-law-under-the-constitution-of-india/ . last accessed on 21.5.2015 and Ananthachari, T. “Refugees in India: Legal Framework, Law Enforcement and Security.” In ISIL Yearbook of International Humanitarian and Refugee Law, Vol.1. 2001. Paragraph 34.

[11] Ananthachari, T. “Refugees in India: Legal Framework, Law Enforcement and Security.” In ISIL Yearbook of International Humanitarian and Refugee Law, Vol.1. 2001. Paragraph 34.

[12] Weiner, Myron. “Rejected Peoples and Unwanted Migrants in South Asia.” In Economic and Political Weekly, 1737-46.34th ed. Vol. 28. 1993.

[13] Acharya Amitav and Dewitt .B. David, “Fiscal Burden Sharing” in Hathaway C. James, Ed. Re-conceiving International Refugee Law, 126, The Hague: Martinus Njhoff Publishers, 1997 and Chimni, B.S. “Legal Condition of Refugees in India.” In Chimni B.S Ed. International Refugee Law: A Reader,  529, 7th ed. Sage Publications, 2008.

[14] Weiner, Myron. “Rejected Peoples and Unwanted Migrants in South Asia.” In Economic and Political Weekly, 1743, 34th ed. Vol. 28. 1993. Also see Saha K.C. “The Genocide of 1971 and the Influx in the East” in Samaddar Ranabir Ed. Refugees and the State: Practices of Asylum and Care in India, 1947-2000 pp 240 – 241. 2nd ed. Sage Publications, (2008.) and Chimni, B.S. “Legal Condition of Refugees in India.” In Chimni B.S Ed. International Refugee Law: A Reader, 529, 7th ed, Sage Publications, 2008.

[15]Chimni B.S. “Status of Refugees in India: Strategic Ambiguity.” In Samaddar Ranabir Ed. Refugees and the State: Practices of Asylum and Care in India, 1947-2000, 444-445. 2nd ed. Sage Publications, (2008.)

[16] Article 35 entitled, “Co-operation of the national authorities with the United Nations’ States”: (1) The Contracting States undertake to cooperate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.

[17] Chimni B.S. “Status of Refugees in India: Strategic Ambiguity.” In Samaddar Ranabir Ed. Refugees and the State: Practices of Asylum and Care in India, 1947-2000 pp 445.. 2nd ed. Sage Publications, (2008.)

[18] a principle of customary international law that requires all states to share the responsibility of asylum provision

[19]Chimni B.S. “Status of Refugees in India: Strategic Ambiguity.” In Samaddar Ranabir Ed. Refugees and the State: Practices of Asylum and Care in India, 1947-2000, 447-448. 2nd ed. Sage Publications, (2008.)

[20] For some discussion of the work on developing a model of South Asian refugee law, please see the work of Ranabir Samaddar and Tapan Bose, or organizations such as the South Asia Forum for Human Rights and the Calcutta Research Group. See Bose, Tapan K. Protection of refugees in South Asia: need for a legal framework, South Asia Forum for Human Rights, Kathmandu, 2000.

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