Situating the Principle of Non Refoulement in the Indian Legal Scenario
8 Pages Posted: 15 Dec 2019
Date Written: August 8, 2018
‘The problem of Refugees’ and ‘India’ share an umbilical cord. Indian independence was accompanied by the mass exodus of Hindu refugees from the newly created Pakistan. In the years that followed, refugees from Tibet, Afghanistan, Bangladesh and Sri Lanka sought refuge in India. However, it is the ongoing genocide of Rohingyan muslims in Myanmar that has brought to light India’s contentious position on Refugee’s rights. Where on one hand the government has granted citizenship to about 4300 hindu and Sikh refugees, it is shying away from even recognising Rohingyans as ‘refugees’ and plans to deport them. While India isn’t a party to the 1951 Refugee Convention, it is a signatory to the 2016 New York Declaration for Refugee and Migrants, thereby giving a tacit recognition to the Principle of Non-Refoulement (Article 33 of the Refugee Convention; Paragraph 24 of the New York Declaration). But there are some complex legal questions involved with regards to the Indian government’s stance on the Rohingya Issue. Is the principle of non-refoulement a Customary International Law? Does India have an erga omnes obligation towards refugees? Can an obligation erga omnes trump national interest? Can the exceptions to the principle of non-refoulement validate India’s position on Rohingyas? This article aims to emphasize India’s obligations under Customary International Law and look for possible solutions to the ongoing Rohingya issue.
Keywords: Refugee Convention, Non-Refoulement, CRC, CAT, Customary International Law
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