The BJP led Central Government on March 17 filed a 129-page preliminary counter affidavit in response to a batch of petitions filed in the Supreme Court (SC) challenging the constitutional validity of Citizenship Amendment Act (CAA) 2019. The CAA fast-tracks Indian citizenship for Hindu, Sikh, Buddhist, Christian, Parsi, and Jain “illegal migrants” from Afghanistan, Bangladesh and Pakistan, who came to India before December 31, 2014 but excludes Muslims from this benefit.

The government affidavit, besides refuting other claims of petitioners, has also contended their claim that “the principle of non-refoulement is a part of customary international law.” It has also been asserted that “in the context of this case articles 14 and article 21, cannot be interpreted with reference to any international convention or treaty to which India is neither a signatory nor it has ratified the same.” It has been also argued that “the Foreigners Act, 1946 confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains.”

Earlier in 2017 the government, in its counter affidavit in case related to deportation of Rohingyas, has also maintained that “The obligations of non-refoulement is essentially covered by the provisions of the 1951 Refugee Convention, to which India is not a party.”

In the light of the repeated claims by the BJP leaders, particularly the Home Minister, that his government will throw out every illegal immigrant, Rohingya Muslims from Myanmar fear deportation despite the high risk of persecution in contravention to the principle of non-refoulement.

It is against this background a dispassionate debate, clarifying the concept and nature of the principle of non-refoulement deserves special attention. It is surprising and unfortunate that while we claim to become a global leader but we fail to appreciate the importance of  international law especially when it is growing. This also reflects our poor understanding of the concept of non-refoulement, which is considered to be one of the cardinal principles of international human rights law in general and refugee law in particular.

The principle of non-refoulement protects individuals from being returned, expelled, or extradited from one country to another when there are substantial grounds for believing that such individual would be in danger of being subjected to violations of basic human rights in their country of origin.

It is indisputable fact that every state enjoys sovereign authority to regulate the entry and stay of foreigners in its territory including the right to send them back to their country of origin. This is, however, not absolute and unfettered right of a state and must be exercised with due regard to its international law obligations. This restriction is primarily intended to protect the rights of the most vulnerable groups within their jurisdictions, especially migrants and refugees.

Though the principle of nonrefoulement  contained Article 33 of the Refugee Convention, it has been explicitly expressed in various other international and regional human rights instruments such as   the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Article 3), the International Convention for the Protection of All Persons from Enforced Disappearance (Article 16), the Convention Governing the Specific Aspects of Refugee Problems in Africa ( Article 2. 3) and the American Human Rights Convention ( Article 22).

In addition to these legally binding instruments, the principle of non-refoulement also finds expression in several norm creating instruments like Declaration on Territorial Asylum, Asian- African Refugee Principles, Cartagena Declaration, Bangkok Principles etc. The principle of non-refoulement has also been recognized in the constitutions and/or ordinary legislations of a number of States.

In view of its universal acceptance, the principle of non-refoulement has not only been incorporated into customary international law but also been elevated to the level of jus cogens norm also known as a peremptory norm of international law of which no derogation is allowed. Recently UN High Commissioner for Human Rights Michelle Bachelet in her petition in the Supreme Court against CAA has also recognized non-refoulement as” absolute and non-derogable.”

International custom is defined as “evidence of a general practice recognized as law”. An international law norm attain the status of custom when it fulfills the requirement of state practice which must be uniform and consistent and acceptance of this very practice as law known as opinio juris. The International Court of Justice in cases such as the Asylum (1950), North Sea Continental Shelf (1969) and the Nicaragua (1986) has already clarified these principles concerning the formation of customary international law.

The most striking feature of customary international law is that it is binding on all the members of the family of nations. However, the treaties are binding only upon those states that give their express consent through signature and ratification. It must be also noted that conventional principles and customary principles of similar content can, and frequently do, exist side-by-side. In international law the existence of a conventional rule does not preclude the existence of a customary principle of similar content.

The view that the principle of non-refoulement has become a rule of customary international law is based on a consistent practice combined with recognition on the part of States that the principle has a normative character. This assertion is based on the fact that the principle of non-refoulement has been incorporated in numerous international and regional treaties to which a very large number of States have now become parties. The elevation of non-refoulement to the status of norm of customary international law and jus cogens renders this principle binding on all States including India irrespective of whether they are parties to the Refugee Convention or not.

The principal UN refugee agency, the Office of the United Nations High Commissioner for Refugees (UNHCR) has repeatedly recognised non-refoulement as a rule of customary international law. Its Executive Committee in 1982 stated that “the principle of non-refoulement [is] progressively acquiring the character of a peremptory rule of international law” and later in 1996, it further elevated non-refoulement to the status of jus cogens – a peremptory norm of inter­national law. Interestingly this time India was also member of the Executive Committee when this was discussed and concluded. The UNHCR’s considered view on non-refoulement as a norm of customary international law has also been supported by jurisprudence and the work of jurists. Against this backdrop it is erroneous on the part of the government of India to assert that the principle of non-refoulement is not a part of customary international law.

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Professor of political science at Aligarh Muslim University, Aligarh.


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