By Amisha Mittal

“My daughter was looking for a place to hide, but she fell on a rock and hit her head and since then, she has been suffering from epilepsy. That was the final straw – we simply had to move.” – Um Nawwaf, a Syrian refugee in Jordan

Abstract

Although the principle of non-refoulement lies at the core of the international protection of refugees, there still remains disagreement over its legal standing. In this piece, the author examines whether it has attained the status of a Jus-Cogens norm through judicial interpretation. To prove this, this piece first examines its recognition as a customary norm tapping on its widespread state practice and then tapping on its non-derogatory character to trace its recognition as a Jus-Cogens norm. This piece then examines the judgment given by the Supreme Court of India for the case of the Rohingya refugees to comment on the non-derogatory nature of the norm of refugee protection and puts forth suggestions for its widespread enforceability.

Introduction

A society evolves through various partitions, wars, acts of violence, and hatred among those of love and kindness and there are communities in a society that always deal with oppression that is more extensive than the others owing to the variables attached to their name. Refugees have always been at the center-stone of oppression. With the world presently experiencing the largest refugee crisis in history with over 70 million people currently forcibly uprooted from their homes, the genesis of principles of refugee protection gains high relevance. While the mainstream world continues to strive to facilitate better living standards and luxury for themselves, humans like refugees continue to fight for survival. A refugee always lives in a veridical fear of persecution, war, and violence substantiating from their race, ethnicity, religion, nationality, political opinion, or their conformity to a particular social group. It is because of this, that most refugees flee from their homes, aren’t able to live like ordinary humans, or avail themselves of the protection in their home country and seek homage in neighboring countries.

Article 33 of the 1951 Refugee Convention (hereinafter referred to as ‘The convention’) facilities the prohibition on refoulement of refugees for it says that “no State shall expel a refugee in any manner whatsoever to the frontiers of territories where they might fear persecution, their life or freedom be threatened or they may face torture, treated in a cruel, inhumane way on account of their race, religion, nationality, membership of a particular social group or political opinion.” Although the principle is not absolute or unconditional for it can be reasonably restricted on account of national security, after World War II, the idea of non-refoulement has matured and gained traction internationally, laying the groundwork for international refugee protection while also being a prime principle of international human rights law.

Customary International Law

Refugee law is fundamentally treaty law but several countries including that of India, Pakistan, Iran, Bangladesh, etc are not parties to refugee protocols like the 1951 Refugee Convention and its 1967 Protocol and are accordingly not obliged to abide by it. Hence, the presence of customary refugee law can make the enforcement of refugee principles widespread by establishing the grounds of compunction when it comes to refugee protection.  Customary international law is notably onerous to enforce and identify as a rule of law backed by a legitimate source that can be enforced by the International Court of Justice (ICJ) while dealing with conflicts. This gap initiates the debate of whether non-refoulement of refugees must be recognised as a Jus-Cogens norm.

The principle of ‘Jus-Cogens’

Articles 53 and 64 of the 1969 Vienna Convention on the Law of Treaties necessitates the principle of Jus-Cogens. While Article 53 deals with the treaties conflicting with a peremptory norm of general international law (Jus-Cogens) and states that a treaty is void if it at its ratification intersects or curtails with a peremptory norm of universal international law that is widely accepted and practiced as a customary norm across states, Article 64 states that if a new norm of Jus-Cogens emerges, any existing treaty conflicting with that new norm stands void and terminated. These provisions together safeguard the existing peremptory norms under international jurisprudence while also creating space for norms that might come to exist in the feature.

Jus-Cogens and Jus-Dispositivum are the two types of laws that govern the behavior of the international community of States. The former constitutes a higher category of norms that cannot be violated. The norms labeled as Jus-Cogens acquire an essential position within the international community and its contravention results in placing the entire system in question. The concept of Jus-Cogens is generally applicable and not merely limited to Vienna Convention and treaties among the states.

Non-refoulement as a Jus Cogens Norm

To determine whether the norm of non- refoulement has seized the standardized value of Jus-Cogens, one must examine whether non refoulement as a customary law transcends itself to ‘Corpus Juris Gentium’ which essentially means if it is accepted as a means of international law. The aforesaid is done when it meets the dual requirements of its acceptance ‘by the international community of States as a whole ‘and ‘as a norm from which no derogation is permitted’. The first criteria for the aforesaid is to gain acceptance by the international community of States as a whole. The state exercising the principle of non-refoulement and not retreating refugees must be under the opinion or necessity (‘Opino Juris’) that they are bound by a legal compulsion to not do so. This requirement is met when the principle is recognised as a rule of customary international law meaning that there exists extensive, consistent, and widespread acceptance of it by the States. One can ascertain the customary nature of refugee law through refugee protection practices. Regional courts all over the globe have time and again dealt with refugee protection matters which in some cases integrates and interprets the provisions of the refugee convention, while such interpretation by regional courts stands farther away than identification by international and world courts, it throws a significant light on the customary nature of refugee law.

There are currently 149 parties to the 1951 convention, all of them, acting as a directive to the widespread state support to the principle. While one might argue the absence of certain states in the middle east and Asia from the convention to be indicative of a lack of widespread representation of the principle, one can not deny that despite being absent from the convention, Asian states like Bangladesh and India house a substantial fraction of the world refugee population and have done so, ever since their partition which, in itself, reinforces the widespread customary practice of the principle. The same can be ascertained for the refugee housing states of Jordan and Lebanon. A dissenting state objecting to a customary norm from its inception and unequivocally denying to abide by it also does not negate the representation of such norm when a large part of the international community assents to it and the binding nature of such norm.

In the renowned Nicaragua case, the International Court of Justice further asserted that – “In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is, in fact, justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.” Besides, Refugee law intersects with other parameters of international law where customary law masks a substantial role as a source of law. Such examples include the prohibitions of torture, racial discrimination, and genocide, all of which are recognised as customary law along with the norm of Jus-Cogens, international humanitarian law, prohibition of child labour, etc. The same has been ratified by the UNHCR further strengthening the customary presence of refugee law.

The second criteria to determine the validity of the same is to analyze whether non-refoulement is a norm from which no derogation is permitted. Article 42 (1) of the convention endorsed by Article VII (1) of the 1967 Protocol, itself states that no derogation is allowed to Article 33 of the convention. The same has also been reinforced by Articles 53 and 64 of the Vienna Convention on the Law of Treaties of 1969 which state that any treaty that disagrees with or contradicts the peremptory norm is null and void and they cannot in any circumstances besides existence of a new norm circumvent this standard. The Executive Committee of the programme of the United Nations High Commissioner for Refugees (UNHCR) itself is the most renowned authority to substantiate the argument surrounding non-refoulement as a principle from which no derogation is permitted. The UNHCR Executive Committee (ExCom) in its Conclusions of the late 1980s and 1990s recognised non-refoulement as a principle that was sequentially acquiring the character of a peremptory rule of international law and one that is not subject to derogation.

While Articles 1 and 33 of the 1951 convention also imply certain exceptions or limitations to the principle of non-refoulement, it is important to understand the wide discretionary power conferred upon such articles and accordingly apply them to maintain a harmony between the rights of refugees and their protection along with ensuring international, national security and public order.

The Case of the Rohingya Refugees – The Domestic and International Conflict

In the 2021 case of Mohammed Salimullah v. Union of India, the Supreme Court received a plea contesting the decision to deport approximately 40,000 Rohingya Muslims who sought refuge in India to avoid persecution in Myanmar where they faced constant oppression by the Myanmar government, military, and Buddhist nationalists. The Supreme Court here decided in favour of the government, directing the Rohingyas to be deported in accordance with the law. The verdict alone undermined international treaties and the norms of customary international law recognised as a Jus-Cogens norm.

It is important to note that, India, is neither a signatory to the 1951 Refugee Convention or its 1967 Protocol nor does it have a national refugee protection framework apart from legislations like the Foreigners Act, 1946 which empowers the government to make orders regarding deporting foreigners on certain grounds. However, it has always been congenial to refugees on humanitarian grounds, as attested by its actions during the Tibet Crisis of 1959, the establishment of Bangladesh in 1971, and civil wars in Sri Lanka and Afghanistan or its own partition with Pakistan, where, India offered shelter and protection to many thousands of refugees. While dealing with non-refoulement, the mere fact that a country or territory does not stand as a signatory to refugee treaties does not negate their obligation to abide by such norms because of the existence of their widespread acceptance and recognition as a Jus-Cogens norm as discussed above. Needless to say, In the Indian sub-context, the Indian constitution itself encourages respect for international law and treaties by means of Article 14, 21 and 51 (c) of the Constitution. Reasons such as financial and economic threat as an excuse to reject refuge itself undermine the principle established by such norms and treaties for refugee protection and must not be encouraged without reasonability.

Conclusion

Many states as a general practice flee behind the exception of national security to deny refuge to refugees, thus, standing in animosity with refoulement as a norm of Jus-Cogens. This attests to the need to interpret the exceptions to such principles in a strict sense while prioritizing refugee protection unless a reasonable ground exists. Refugees in India have always been subject to various challenges. Lack of access to education, healthcare, employment, and forced detention are just some issues. Despite being a country that has always been welcoming to refugees from neighboring countries, India has not incorporated international refugee problems into any national legislation protecting refugees and asylum seekers. What is increasing is forced detention cases by the day. Such cases have been reported in various parts of the country. At the outset, such a lack and arbitrary detention policies affect India’s standing and reputation in the international arena. To come to some solutions, temporary refugees as a principle must also be brought under the roof to share the burden of millions of people being displaced from their homes and further explanations in law must be encouraged to lay down the concrete framework of denial of refugees under international law as such exceptional denials cannot be absolutely deserted to ensure public order, national and international security.

About the Author

The piece is authored by Amisha Mittal. Amisha is a final-year student at Jindal Global Law School. Her interest areas lie in Intellectual property and Technology, Media, and Telecommunications.

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