The role of international law in defining the protection of refugees in India

This is the author's version of a work accepted for publication in Wisconsin International Law Review, 2015 Volume 33.India has not acceded to either the 1951 Refugee Convention or its 1967 Protocol. The admission and protection of refugees in India continues to be controlled by the 1946 Foreigners Act, which gives the state sweeping powers to detain and expel all foreigners in India. India is bound by a wide range of general human rights and customary norms that combine to produce a broad norm prohibiting forced return (refoulement). Yet, no provision is made in the domestic law of India to protect displaced persons from refoulement. Efforts to introduce a comprehensive refugee law that would provide for such protections have been consistently defeated following objections from the Indian security and intelligence agencies. In this paper, I consider the current position of India in light of its domestic legal regime, its membership of the UNHCR Executive Committee (ExCom), and the limitations it continues to impose as a matter of policy on UNHCR operations in the country. I describe the standards applied in the admission and protection of refugees in India, with a particular focus on Tibetan and Sri Lankan refugees. While Indian admission and protection policies have often been quite generous, they are also obviously unequal, with standards among refugee communities varying widely according to ethnicity, country of origin, and date of arrival. I explain the international standards that control in this matter and, in particular, argue that both the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention against Torture (CAT) each carry obligations of non-refoulement for India. This is in addition to the well-established obligations of non-refoulement imposed by the International Covenant on Civil and Political rights (ICCPR) and the Convention on the Rights of the Child (CRC). Finally, I argue that the various norms relevant to the issue of non-refoulement in both the refugee law and human rights context, although superficially disparate, have now largely converged. As such, a standard rule can now be construed that forbids India from returning individuals to situations where there is a real risk of serious human rights violations. This norm is non-derogable and can be properly evaluated only with respect to the seriousness of any potential violation, and not the category of the rights concerned