On 11thDecember 2019, the Indian parliament passed the controversial Citizen Amendment Act, 2019 (CAA). The amendment seems to cherry-pick on specific religious groups while omitting others by labelling them as ‘illegal migrant’ courtesy Section 2(1)(b) of the said act, unless and otherwise they can prove their citizenship, through a mechanism of National Registrar for Citizenship (NRC). The abovementioned act is also in flagrant violation of the right to seek asylum, which is a fundamental human right, as reflected in the Universal Declaration of Human Rights. The Indian Government can very well argue that it has not signed or ratified the 1951 Refugee Convention, however, the obligation to protect the asylum seekers/refugees stems from human rights obligation, which transcends the refugee law regime. The interplay between refugee law and human rights law is also manifested in the preamble of the 1951 refugee convention additionally preamble forms one of the pivotal sources of treaty interpretation as enumerated in Article 31 of Vienna Convention on the Law of Treaties, 1969.
Further, the definition of refugees under the 1951 refugee convention is akin to the civil and political rights enshrined in the International Covenant on Civil and Political Rights (ICCPR). Therefore, the act needs to be weighted with human rights principles. This short write-up will provide a glance into the refugee law dimension to the CAA.
Refugee Convention and Human Rights Interplay
The definition of refugees under Article 1(A)(2) the 1951 refugee Convention lists downs several grounds under which an individual could claim refugee status, one of which being ‘religious persecution’. The CAA shuts the door for certain group of individuals seeking refugee in India on religious grounds as they are labelled ‘illegal migrants’. Moreover, the plight of the persecuted minorities from Myanmar, i.e. Rohingyan refugees, stands vindicated. If anything is to go by the recent stance of the Gambia before the International Court of Justice, which has established through UN fact-finding reports that systematic targeting of Rohingyan refugee has resulted in widespread ethnic cleansing and Genocide.
The core human right that is violated by the CAA is the freedom of religion. Since religion forms one of the many grounds to seek asylum status, albeit the term ‘religion’ is undefined in human rights law or refugee law, the UNHCR interpretative guidelines suggest that the term requires broad interpretation, i.e. in terms of religious belief, identity and way of life. Notwithstanding this, the right to religion is a non-derrogable human right as codified in Article 4.2 of ICCPR; this implies national security does not preclude the suspension this right. The Government needs to revisit the CAA as it derogates the right to seek asylum on religious ground.
Also, General Comment 22 to Article 18 ICCPR indicates that the right to religion is an absolute right, which includes manifesting religion in any form, despite the limitation under Article 18(3) of ICCPR, viz., protecting public safety, order and health, as well as themorals or fundamental rights and freedoms of others.
CAA and Refugee Law Principles
Firstly, the Indian government while returning refugees as ‘illegal immigrant’ will act in gross violation of non-refoulment principle enshrined in Article 33(1) of the 1951 Refugee Convention, which some scholars argue is a human right and also has the normative status of customary international law and a jus cogens obligation. Further, since the principle of non-refoulment has extraterritorial application, which is acknowledged through the Advisory Opinion on the Extraterritorial Application of non-refoulment obligation under 1951 convention and 1967 Protocol, this implies that refugees need not effectively be within the territory of India to secure protection; moreover, the principle of non-refoulement is precluded from reservations as reflected in Article 42 of the refugee convention (albeit States are not debarred from making any unilateral declaration) is testimony to the fact that non-refoulment is a sacrosanct obligation under international refugee law. Secondly, the government’s policy of embracing refugees based on the grounds of religion is a blatant breach of Article 3 of the Refugee Convention, i.e. the principle of non-discrimination, the privilege conferred to specific sections of refugee while neglect others is indicative of this. The third principle that is abused is the principle of family unity, which, despite not being codified under the Refugee Convention, forms the basis for refugee protection. The CAA could be problematic, especially in cases involving a family consisting members from multiple religions, owing to the act being moulded in a manner that leads to difficulty in conferring refugee status to families as a whole.
Remedies for breach of Refugee Law Obligation
The refugee convention, unlike other regimes in international law, is not a self-contained regime; hence, because it depends on the likes of human rights law to derive its authority and enforceability, the refugee convention merely articulates the substantive portion of the law, while the domestic law of a country ensures the remedial dimension. The validity of the CAA will in all possibility be a challenge in the apex court; however, since India is not a signatory to the 1951 Refugee Convention, India’s obligation towards refugees are exempted. The other recourse is an in-build mechanism under the refugee convention under Article 38, which states:
“Any dispute between parties to this Convention relating to its interpretation or application, which cannot be settled by other means, shall be referred to the International Court of Justice at the request of any one of the parties to the dispute.”
The quandary is that because India is not a signatory to the refugee convention and has further made declaration to the jurisdiction of the International Court of Justice (ICJ) on several counts, this has ensured that it is next to impossible to drag India to the ICJ either through a special agreement or optional clause under Article 36 of the ICJ statute. Apart from these two remedies, the UNHCR could offer guidelines and directions as to the legality of the CAA. It is also predicted that the CAA would be discussed in the United Nations Human Right Council (UNHRC), mainly because the matter of refugees being deliberated in UNHRC is nothing new. Previously, China’s hostile policy towards North Korean refugees was a point of discussion before the UNHRC.
The Central Government is well within its competence to frame laws on citizenship as it is a Sovereign Prerogative, the subject citizenship falls within the ambit of List 1 Entry 17, also. As pointed out, India is not a signatory to the 1951 Convention or the 1967 Protocol; therefore, the Government has not committed any Internationally Wrongful Act by adjusting its internal law. To draw a comparison, some European States have previously adopted stringent immigration policies, thereby halting the movement of illegal migrants and, in many cases, bending the 1951 Refugee Convention. Also European States have previously violated their obligations, thus committing internationally wrongful acts, the same conclusion could by analogy be applied to India. India is further not likely to be challenged on its compliance with the principle of non-refoulment: albeit non-refoulment is a jus cogens norm, by definition, jus cogens norms are binding on all States. However, procedural aspects have previously been drawn upon by States to avoid having them applied before international tribunals, such as in the Jurisdictional Immunities (Germany v Italy; Greece intervening) case. The real test is whether the CAA will pass the mandate in the Supreme Court of India (SCI). Going by recent judgments. The SCI needs to take cognisance of the plight of the victims through the lens of international human rights law vis-à-vis International refugee law for rendering complete justice.
Mr Atul Alexander completed his LLB from School of Excellence in Law Chennai, with distinction and was university topper, he completed his Masters in Law ( International Law and Organisations) from The Tamilnadu Dr Ambedkar Law University Chennai and was a gold medallist and university topper. Mr Atul Alexander is presently Assistant Professor of Law at West Bengal National University of Juridical Sciences (WBNUJS), one of the leading law schools in India. He is also a member of the Asian Society of International Law (ASIL), in the capacity of a member he has taken part in the regional and biennial conferences of the Asian Society of International held in Beijing and Manila. Mr Atul Alexander is also a visiting research scholar at the prestigious Stockholm Center for International Law, U.S Naval War College, United States. Currently Mr. Atul Alexander is part of a research project on a major research project on the “Collaborative Engagement for Research, Training and Developing in Handling of Chemical and Hazardous Waste” eastern region partner, the project is undertaken in collaboration with Ministry of Environment and Forest (MoEF) and National Law School of India University (NLSIU) Bangalore.
Mr Atul Alexander is presently pursuing his PhD on the topic “ The Concept of Peremptory Norm in General International Law”, Mr Atul Alexander has judged several national and international moot court competitions, also has several paper publications to his credit.