EQUAL PROTECTION OF REFUGEE IN A NON– SIGNATORY STATE
[Vol 2/ Issue 1/ May 2016] [ISSN 2394 -9295]
Dr. Priti Pandey
Amity Law School, Noida
E -mail: firstname.lastname@example.org
As the ever increasing gap between the theory and practice of human rights of refugees assumes the form of a crisis, it is significant to identify the reasons for the crisis and to propose some solutions. Since the situation is worst in states which are non-signatories to the Refugee Convention and thus without a concrete source of obligation, it becomes imperative to diagnose the situation of refugees in such states. Among such countries India is important because it hosts refugees from countries ranging from Asia to Africa. This paper aims at identifying the problems that prevent achieving equal protection for refugees in India. It also aims at identifying the sources of obligation for India to ensure equality for the refugees. Succinctly, the aims and objectives of the present paper are three fold, firstly,to provide a detailed analysis of the existing legal framework which aims at ensuring equal protection for refugees. Secondly,to categorise the legal principles, legal provisions and judicial decisions which aim to ensure equal protection for refugees in India and thirdly, to analyse the conditions of refugees in India and discriminatory practices towards them with an aim to identify the possible ways to negate discrimination, if any.
In this way, this paper aims at establishing that the difficulties in providing equal protection to refugees are deeper than previously thought. It aims to emphasize that the normative quality of law, with justice as its ultimate objective, is an important tool to alleviate the conditions of refugees.
Key Words: Refugee Convention, Equal Protection for Refugees, Normative quality of Law
All individuals, solely by virtue of being human, have moral rights which no society or state should deny‘and these rights are rightly denoted as the human rights. They are not mere ethical yardsticks to measure a government‘s function or degree of civilization; they embody the very idea of equality, justice, human dignity. Human rights, like natural rights, are alleged entitlements that empower and protect individuals because they are persons and not merely because they are citizens. They are non -negotiable in nature and equality is a part and parcel of the omnipresent doctrine of human rights. The question of rights of refugees is inextricably linked to the contemporary international human rights law as most of the rights claimed by the refugees are in themselves human rights protected and guaranteed under various international instruments on human rights. These human rights instruments are mainly in the form of General Assembly Resolutions and international treaties and include the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights,International Convention on Racial
STATES OBLIGATION TOWARDS REFUGEE UNDER INTERNATIONAL LAWS
There exists an opinion to the effect that ―the general principles of law recognized by civilized nations , identified as an important source of international law, are nothing but the principles of natural law and some think that they are derived from natural law. Further, in the wake of the withering away of the concept of sovereignty it is submitted that the obligation for equal treatment in International law attaches to acts of bodies other than the state itself. Grotius recognized the possibility of international protection of human rights even against one‘s own state. He justified individual rights in international law on the basis of the law of nature. Apart from obligation of states under customary international law towards aliens regarding equal treatment of aliens there exists number of international and regional treaties, declarations and conventions providing certain rights to the aliens. Further, it is a well settled principle under international law that the state in whose territory an alien resides must afford his person and property at least that level of protection which is sufficient to meet those minimum international standards prescribed by international law, and must grant him at least equality before the law with its own nationals so far as far as safety of person and property is concerned. The UNESCO Convention against Discrimination in Education, adopted on 14 December 1960 and entered into force on 22 May 1962 defines discrimination in Article 9 as including, ―any distinction, exclusion, limitation or preference which, being based on race, color, sex, language, religion, political or other opinion, national or social origin, economic condition or birth, has the purpose or effect of nullifying or impairing equality or treatment in education and prohibits the same. In the Case concerning certain German interests in Polish Upper Silesia (Merits), it was held that aliens should be treated in a manner similar to the nationals. The European Court of Human Rights has regarded discrimination as existing if there is a difference of treatment without any objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realized.‘.
STATES OBLIGATION TOWARDS REFUGEE UNDER INTERNATIONAL HUMAN RIGHTS LAW
International Human Rights law outlines the basic universal human rights which are available to all human beings irrespective of his nationality. As most of the rights which the refugee are in need of are basically human rights per se. There are ample provisions under different international human rights instruments providing protection to refugees by conferring upon them different rights. Right to equal treatment is also one among such rights and even if a state is not party to Refugee Convention, if it is signatory to any of the abovementioned instruments the responsibility and obligation of the receiving state stands clear and unambiguous.
UNDER UDHR, ICCPR, ICESCR
Art 1 and 2 of UDHR are provisions in general nature addressing the issue of discrimination. Article 1 reads as, ―All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 2 provides that, ―Everyone is
entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non -self -governing or under any other limitation of sovereignty Art 3 of UDHR speaks for right to life and liberty. It provides that, ―Everyone has the right to life, liberty and security of person!
Though, UDHR has been argued to have the status of soft law, being a declaration, the fact that it has been adopted by overwhelming majority of the nations and that there exist a uniform state practice coupled with the desired opinio juris provides much needed support to the view that it has acquired a status of customary international law and must be adhered to by all nations without fail. Art. 2(2) of ICCPR provides for institutionalization of human rights protection. It provides that, ―Where not already provided for by existing legislative or other measures, each State party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant Art. 13 recognizes the rights of aliens in following terms, ―An alien lawfully in the territory of a State Party to the present Covenant may be expelled there from only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.
Thus, there exists a clear obligation under ICCPR to provide equal treatment to the refugees. India acceded to it in 9979 with interpretative declarations regarding common Art. 9, Art. 9 and Art. 93. But still the obligation under Article 26 is operative in Indian context.
Art. 3 of International Convention on Economic Social and Cultural Rights is also pertinent here as it aims at ensuring equality. It provides that, ―The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant. Though, the obligations under ICESCR are also directly concerned with the rights of individuals to be treated equally and their enjoyment of cultural, social and educational rights. India acceded to the Covenant in 1919 with interpretative declarations regarding Art. 4, 8 and 1(c).
UNDER OTHER INTERNATIONAL COVENANTS
Among other relevant provisions are Art 2 and Art 3 of CAT Article 3 of CAT states that ―NoState Party shall expel, return (―refouler ), or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. Art.22 of CRC, providing for assistance to refugee child. It states that, ―States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. For this purpose, States Parties shall provide, as they consider appropriate, co – operation in any efforts by the United Nations and other competent intergovernmental organizations or non -governmental organizations co -operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention. India is a signatory to CRC and it has not placed any reservation to Art. 22 of CRC. This provision makes imperative on part of India to provide protection to the refugee child and his family too.
REFUGEE RIGHTS UNDER CONSTITUTION OF INDIA
Indian Constitution is guided by the principle of constitutionalism which embodies in itself certain human rights to all the individuals, and also as the Indian Constitution was drafted almost at the same period when the United Nations was drafting the Universal Declaration of Human Rights so the drafters while drafting have taken into account its provisions also. They are called fundamental rights and are contained in part III of the Constitution. Some of these rights are available only to the citizens while some of them are available to both the citizens as well as non -citizens. Right to equality is one such fundamental right which is available to both the citizens as well as the non -citizens. The Constitution of India guarantees the Right to Equality through Art.14 to
18. Art.14 guarantees to every person the right to equality before the law or the equal protection of the laws in following words; ―Article 14 – Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Bhagwati, J. propounded a new approach to Art.14 in the following words: ―Equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabined and confined‘ within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarchy. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14. In the case of Maneka Gandhi v. Union of India27 quoting himself from Royappa case, Bhagwati, J. very clearly read the principle of reasonableness in Art.14. He said: ―Art. 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which logically as well as philosophically, is an essential element of equality or non -arbitrariness, pervades Article 14 like a brooding omnipresence .Apart from Article 14, the Fundamental rights as enshrined under Article 21 of the Indian Constitution regarding the Right to life and personal liberty, applies to all irrespective of the fact whether they are citizens of India or aliens. Art. 51 (c),Art. 51 A (h), Art. 253 and Entry 13, 14,260 17261 & 16262 of List I read with Art. 246 imposes obligation on the Union of India and the individuals to take concrete steps in order to fulfill its international obligations and to behave with humanism. These obligations are by no means secondary and a change in approach is required to recognize their worth in bringing equality for the refugees.
REFUGEE RIGHTS AND INDIAN JUDICIARY
As for the question of respecting Refugee Law, an analysis of Supreme Court‘s stand on the matter brings to light India‘s interesting position. In the case of Ktaer Abbas Habib AlQutaifi v. Union of India the court held that, the International Conventions and treaties are not as such enforceable by the Government, nor they give cause of action to any party, but there is an obligation on the Government to respect them. It held that the power of the Government to expel a foreigner is absolute. It was recognized that Article 29 of the Constitution of India guarantees right of life on Indian Soil to a non -citizen, as well, but not right to reside and settle in India. It was observed that the international covenants and treaties which effectuate the fundamental rights guaranteed in our constitution can be relied upon by the Courts as facets of those fundamental rights and can be enforced as such. It recognized that the work of the UNHCR being humanitarian the Government of India is under obligation to ensure that Refugees receive international protection until their problem is solved. It was emphatically observed that the principle of nonrefoulment‘ is encompassed in Article 29 of the Constitution of India and the protection is available, so long as the presence of the refugee is not prejudicial to the national security. It was also observed that, in view of directives under Article 59(c) and Article 253, international law and treaty obligations are to be respected and that the Courts may apply those principles in domestic law provided such principles are not inconsistent with domestic law. The right of refugees to adequate protection and fair treatment was upheld in the case of NHRC v. State of Arunachal Pradesh.In this case, due to deteriorated relations between citizens of Arunachal Pradesh and the Chakmas the latter complained that they were being subjected to repressive measures with a view to forcibly expelling them from the State of Arunachal Pradesh.
Equality has an embryonic characteristic as it has been developing all over the world, ad infinitum. It serves as the bedrock of justice and is the cornerstone of a just, peaceful and ordered society. The concept of equality has its roots deep in the natural law concept which aims at justice and rationality. As inequality among individuals is an inescapable phenomenon, reasonable classifications are required so that equality is ensured in deed. However, its trajectories have been different and so has been its fate. Equality is well recognized as a part and parcel of ancient Indian culture, though the same has been diluted and virtually lost with the passage of time. The ebb and flow of the movement of equality is unparallel. The study demonstrates the need as well as the reasons for maintenance of equality in the society as it is an essential human right and has transcendental characteristics. Its significance further increases in the context of refugees who flee their country under the fear of persecution and threat of death. There existed a tradition of affording protection and equal treatment to refugees on humanitarian grounds. This obligation had its source in morality, conscience and religion. But, now in the wake of increasing international diplomacy, pursuit of national interests and stress upon sovereignty the obligation for equal treatment is largely watered down in operation.
In International law, the obligations regarding equal treatment of refugees is well settled and now we need to advance the theories of cosmopolitan theory of justice and cosmopolitan federalism in order to minimize the adverse effects of sovereignty upon human rights aspiration. The doctrine of state sovereignty which has so far
shielded naturalization, citizenship and denationalization decisions from scrutiny by international and national courts must be challenged in order to establish the omnipresent regime of equality in international law. Narrow sense of identity and a distinct bond of alienage coupled with an all -powerful state eyeing at national interests have led a fatal blow to the legitimate concerns of the refugees. Unfortunately, this is so despite the fact that there exists a clear obligation to provide equal treatment to refugees under International treaty law, customary principles as well as the decisions of national and international courts. Thus, even if a state is non -signatory to the Refugee Convention, there exists an obligation for equal treatment to refugees. Such obligation is to be traced through the general principles of international law, various treaties among nations, principles of customary international law, various human rights treaties and declarations in the forms of soft laws, national legislations and decisions of national and international courts.
The problems pertaining to equal treatment of refugees will have multifarious repercussions as it has already led to a sense of impunity among government authorities in most part of the country. India has the laws and the legal mechanism but the same is under used and sometimes misused. The legal system in India provides for most of the key characteristics of human rights protection and equal treatment but the same has failed here due to the gap in their implementation and due to the reason that it has failed to connect the society with the law. For example, the Constitution of India in itself aims at ensuring all the basic human rights through various provisions ranging from Part III and part IV of the Constitution. Engagement with the law must be one strategy as law is an important component of social organization. In fact, the exploration of legal and social change has a necessary connection in the growing humanitarian concern with the refugees. India stands in need of a movement from within the masses and the role of education in the process is going to be the most vital one. International law stipulates that refugees should enjoy a broad spectrum of rights derived by virtue of their humanity and their particular vulnerability.
As India is not a party to any International Refugee Law instrument, itsobligations under international law are limited to the human rights instruments it has ratified and to the relevant principles of customary international law. These include the principle of non -refoulement and the provision of a minimum standard of treatment that allows refugees to live a life of dignity. India‘s international legal commitments thus encourage the development of an effective domestic legal framework that protects the rights of refugees in accordance with the standards of protection outlined under International Human Rights Law.Developing a strong and streamlined national refugee determination process would demonstrate that India is a modern state capable of dealing with pressing national refugee issues in a consistent and just manner. Creating domestic refugee legislation and a national refugee protection body would also enable the Government of India to assert its sovereignty, by addressing refugee issues through effective national legal mechanisms rather than symbolic international ones.
David Sidorsky, Contemporary Reinterpretations Of The Concept Of Human Rights, Essays on Human Rights, David Sidorsky (ed.), reproduced in International Human Rights in Context, (New York: Oxford Univ. Press) 27
Carlos Santiago Nino, The Ethics Of Human Rights (New York: Oxford University Press, 1991)
It prohibits an exchange of rights for benefits which cannot be expressed in terms of rights. See John Rawls, A Theory Of Justice Rev. Ed. (Cambridge, MA: Harvard Univ. Press, 1971/ 1999).
For details see Jurgen Habermas, Between Facts And Norms, Transl. W. Rehg (Cambridge, MA: MIT
Press, 1996). See also David Held, Democracy And The Global Order: From The Modern State To Cosmopolitan Global Governance, (Stanford Univ. Press, 1995). See also J. Rawls, Political Liberalism (Cambridge, MA: Harvard Univ. Press, 1996)
Hereinafter referred as UDHR. On December 10, 1948 the General Assembly of the United Nations
adopted and proclaimed the Universal Declaration of Human Rights
Hereinafter referred as ICCPR. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966.
Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965
The Convention was adopted in 1979 by the UN General Assembly,
Hereinafter referred as CRC
Hereinafter referred as CAT
See Art 38(1) of Statue of International Court of Justice.
Such authors include Spiropoulos, Salvioli and Cavagleiri. For details see Bin Cheng, General Principles Of Law As Applied By International Courts And Tribunals, (London: Stevens & Sons Limited, 1953) 3
Le Fur, ―La Coutume et les principles generaux du droit comme sources du droit international public. , 3
Recueil Geny, 1936, 362 at 368 cited by Bin Cheng, General Principles Of Law As Applied By International Courts And Tribunals, (London: Stevens & Sons Limited, 1953) 4
―The right of a state to adopt the course which it considers best suited to the exigencies of its security and to
the maintenance of its integrity, is so essential a right that, in case of doubt, treaty stipulations can not be interpreted as limiting it. The Wimbledon case (1923), PCIJ,
Hersch Lauterpacht, International Law And Human Rights, (New York: Garland Publishing Inc., 1973) 340.
―The obligation of the members of the United Nations probably include the duty to promote and to ensure the respect of human rights and fundamental freedoms not only in relation to legislative and administrative action by the authorities of the state conceived as an international person, but also, in certain cases, in relation to the local autonomous subdivisions of the State and even private bodies and individuals. See at 155
See Articles 14 and 26 of the ICCPR, 1966.
David Harris, Cases and Materials on International Law,(New Delhi, Sweet and Maxwell 2011) 500 18 David Harris, Cases and Materials on International Law,(New Delhi, Sweet and Maxwell 2011) 507 http://www.un.org/en/documents/udhr/
E.P. Royappa v. State of T.N. (1974) 4 SCC 555
Art 51 (c): ―The State shall endeavour to— foster respect for international law and treaty obligations in the dealings of organized peoples with one another‘
Art 51 A (h): ―to develop the scientific temper, humanism and the spirit of inquiry and reform
Art 253: ―Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.
Art 51 (c): ―The State shall endeavour to— foster respect for international law and treaty obligations in the
dealings of organized peoples with one another‘ http://www.worldlii.org/int/journals/ISILYBIHRL/2001/7.html Dr. Malvika Karlkekar v. Union of India, Cr. WP 583 of 1992 (SC) NHRC v. State of Arunachal Pradesh (1996) 1 SCC 742
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