Insights into Editorial: Wrong on the Rohingya
The UN High Commissioner for Refugees (UNHCR) called for a report from India on the deportation of a group of Rohingya refugees to Myanmar in October 2018.
India’s process of sending back of the refugees offend against the prohibition or order of international principles on refugee law as well as domestic constitutional rights.
According to a BBC report, The Rohingya are “among the world’s least wanted and most persecuted people”.
In Myanmar, they are denied citizenship, the right to own land and travel, or to even marry without permission, says the report.
According to the UN, the Rohingya issue is one of systematic and widespread ethnic cleansing by Myanmar.
The Rohingya are Burma’s Muslim minority who reside in the northern parts of the Rakhine region, a geographically isolated area in western Myanmar, bordering Bangladesh.
The Rohingya are ethnically, linguistically, and religiously different from Myanmar’s dominant Buddhist community.
About 1.1 million Rohingyas are said to live in Myanmar’s Rakhine region, which is Myanmar’s least developed region, with more than 78 per cent of households living below the poverty line.
Global framework of Refugee law:
In order to address the problem of mass inter-state influx of refugees, UN adopted the Convention Relating to the Status of Refugees in 1951.
This was followed by the Protocol Relating to the Status of Refugees in 1967.
Most significant features of the Convention: Principle of non-refoulement:
The Principle of non-refoulement norm requires that “no contracting State shall expel or return a refugee in any manner whatsoever 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.”
This idea of prohibition of expulsion lies at the heart of refugee protection in international law.
Argument of India has not violated international obligations:
It is often argued that the principle does not bind India since it is a party to neither the 1951 Convention nor the Protocol.
However, the prohibition of non-refoulement of refugees constitutes a norm of customary international law, which binds even non-parties to the Convention.
According to the Extraterritorial Application of Non-Refoulement Obligations, UNHCR, 2007, the principle “is binding on all States, including those which have not yet become party to the 1951 Convention or its 1967 Protocol.”
Argument that the India has not violated international obligations is a mistaken one:
- Article 14 of the Universal Declaration of Human Rights provides that everyone has the right to seek and enjoy in other countries asylum from persecution.
- Article 51 of the Constitution imposes an obligation on the state to endeavour to promote international peace and security.
- Article 51(c) talks about promotion of respect for international law and treaty obligations.
- The chapter on fundamental rights in the Constitution differentiates citizens from persons.
While all rights are available to citizens, persons including foreign citizens are entitled to the right to equality and the right to life, among others.
The Rohingya refugees, while under the jurisdiction of the national government, cannot be deprived of the right to life and personal liberty.
Therefore, the Constitution conceives of incorporation of international law into the domestic realm.
India may have to play to nurture a long-term solution to the problem:
Refugee law is a part of international human rights law.
On the reported presence of 40,000 Rohingya in India, view is that this is a complex problem.
It is difficult to envisage, given the present circumstances, use of force to send the unfortunate and suffering people back as neither Myanmar nor Bangladesh.
At the same time, we obviously cannot send a message that India is willing to receive a huge number of displaced people from Myanmar.
India’s actions make it clear that it would not compromise with the security concerns of the country while dealing with Rohingya issue.
But simultaneously, India have to take measures to ensure safety of Rohingyas on morality grounds with proper monitoring and supervision that not to divert to unlawful activities.
India was able to nurture good relations with the military government while maintaining a cordial relationship with the pro-democracy movement.
The world expects India to contribute to a lasting solution to this problem. This is our region. Our Act East policy demands it. We should take an apolitical, pragmatic position that is free from ideological inclinations.
The American philosopher Ronald Dworkin argues that if we claim international law to be law, we must understand it as part of the greater morality. In such a conception, the deportation of refugees by India is not only unlawful but breaches a significant moral obligation.