An impression is increasingly gaining ground amongst lawyers and legal scholars that the case of the Union of India before the Supreme Court in the Rohingya refugee issue, as contained in its affidavit to the court, has amounted to making a declaration that international law is only ‘a vanishing point of jurisprudence’. The contents of the affidavit, they feel, are a swift and sudden strike marking a paradigm shift in the approach of the central government towards principles of international law, especially in view of India’s stand before the International Court of Justice (ICJ) in the case of Kulbhushan Jadhav.
It is no doubt true that unlike some other countries, India does not have a specific and separate law by way of a statute to govern and regulate the influx of illegal migrants into Indian territory and grant them refugee status. Nevertheless, there are some international instruments on the subject of ‘Non-Refoulement’ i.e. expulsion or return of 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 to which India is a party.
That apart, India is a prominent member of the United Nations and has adopted the Universal Declaration of Human Rights, which affirms rights for all persons – citizens and non-citizens alike. India has also voted affirmatively to adopt the UN Declaration of Territorial Asylum in 1967, ratified the International Covenant on Civil and Political Rights as well as the International Convention on Economic, Social and Cultural Rights. India has further ratified the UN Convention on Rights of the Child in 1989. India also ratified the Convention on the Elimination of All Forms of Discriminations against Women in 1974 and has also accepted the principle of Non-Refoulement as envisaged in the Bangkok Principles of 1966.
It is also true that, while India is signatory to instruments like the 1984 Convention against Torture, it is not a signatory to either the 1951 Convention relating to the status of the Refugees nor the 1967 Protocol. An argument has therefore been advanced that in the absence of specific adaptation of the provisions of the 1951 Convention on Refugees or the 1967 Protocol relating to the status of Refugees, the Government of India is not bound by the provisions of such treaties, and further that these multi-lateral treaties and conventions, being in the nature of non-self executing treaties, cannot become binding upon India unless they are incorporated into the domestic municipal law of India.
Nevertheless, it cannot be overlooked that India has a continuing obligation to respect International Conventions – both general and particular – as well as the rules established thereunder which have been expressly recognised by all Civilised Nations. Article 51 of the Constitution of India has provided that the state shall endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another. Article 51A, which was inserted into the Constitution by way of the forty-second amendment, also provides in clause (h) that it shall be the duty of every citizen of India to develop scientific temper, humanism and the spirit of inquiry and reform.
The Rohingya refugee issue is concededly a grave humanitarian issue. In the Kulbhushan Jadhav case, India has vehemently argued that, both India and Pakistan being signatories to the 1963 Vienna Convention on Consular Relations, it was obligatory on the part of Pakistan to allow consular access and assistance to Jadhav, who was facing trial in Pakistan. In the context, it is further relevant that the principle of ‘pacta sunt servanda’ i.e. ‘treaties concluded in good faith need to be carried out in good faith’ has been expressly incorporated into provisions of the 1963 Vienna Convention. Under such circumstances, India being a signatory to the 1984 Convention against Torture and ‘refoulement’ being recognised internationally as a facet of torture, it would not be appropriate for the Union of India to take a contrary stand in the Rohingya refugee issue. It is also evident from the Kulbhushan Jadhav case that India has heavily relied upon and has been granted interim relief on the strength of the ICJ statutes and especially Articles 73 and 74 of the said statutes. Hence it is imperative that the Union of India takes cognisance of Article 38(1) of the ICJ statutes, which provides as follows;-
“1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognised by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognised by civilised nations;
d. subject to the provisions of Article 59, [.e. that only the parties bound by the decision in any particular case,] judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.”
It is therefore felt that the Government of India may do well to consider it appropriate to give the issue a relook so as to avoid the possibility of any embarrassment before the Apex Court as had happened in the Right to Privacy case.
The author, Jana Kalyan Das, is a Senior Advocate in the Supreme Court of India.
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