THE ROHINGYA REFUGEE CRISIS- “RETHINKING” INDIA’S OBLIGATIONS

TOWARDS INTERNATIONAL LAW

Madhav Mallya

Assistant Professor, Lloyd Law College, Greater Noida

The ongoing Rohingya refugee crisis has raised a critical issue - the balancing of India’s national
security and economic interests with its humanitarian obligations towards stateless refugees. The
government seeks to deport more than 40,000 stateless refugees who have fled religious and
ethnic persecution in Myanmar’s Rakhine province on the grounds that the community poses a
threat to national security and have been engaging in illegal activities such as the printing of false
documents. The deportation is now sub- judice before the Supreme Court of India, based on a
petition filed by two refugees against the decision of the government.

India is not a party to the 1951 Refugee Convention or its 1967 protocol. It has signed but not
ratified the 1984 United Nations Convention against Torture. Both these instruments incorporate
the principle of non-refoulement- a principle of customary international law which places an
obligation on a state receiving refugees not to return them to their state of origin if they face
persecution or a threat to their lives there. Indeed, the question at the center of this crisis is
whether the state is bound to respect customary international law and not deport the refugees,
irrespective of the absence of treaty based obligations.

This paper will argue that while the principle of non-refoulement is binding on the state, not least
because of the opinio juris and state practice that have made it a universal principle of customary
international law, there are substantial benefits that can accrue to a state both internationally and
domestically, through adherence to international law. The remainder of this brief abstract will
explain this argument and the central theme of this paper.

International law obligations are often perceived to lie in direct conflict with state sovereignty
and domestic political and economic interests. While a conflict may most certainly exist, it is
often argued by jurists who argue in favour of international law (and correspondingly
international delegation), that adherence to international norms can bring about substantial
benefits and may even be a way for states to achieve their domestic goals. (Hathaway, 2008). For
example, Ryan Goodman argues that several new democracies especially in developing nations
sign international human rights treaties so as to not prevent a backslide into previous illiberal
regimes. Likewise, there are arguments that investment treaties promote the rule of law for
foreign investors in developing nations and therefore also benefit domestic institutions through a
trickledown effect.

This paper will examine the effect of international law on the domestic rule of law, taking into
account the theories highlighted above. It will posit that while deciding the fate of the Rohingya
refugees, the Supreme Court should go beyond the conflict between domestic and international
interests and “rethink” its approach towards international law from a broader perspective, i.e. the
effect of its decision on the human rights and fundamental freedoms of not just refugees, but also
citizens and other domestic constituents.