Non-Refoulement and the Case of the Rohingya
By Sonia Bucan, Nikolas Dolmat, Sarah Hajjaji, Lucy Keller, Ali-Mikael Sanji
Introduction
The world is currently experiencing a global refugee crisis of the largest magnitude in history. According to the United Nations High Commissioner for Refugees, there are currently over 70 million people in the world that have been forcibly displaced from their homes, more than at any point before. These refugees and asylum seekers are escaping from an array of human rights violations, but there has been a concerning trend regarding their forced repatriation. This action directly violates the principle of non-refoulement, which protects refugees and asylum seekers from being sent back to the country from which they have fled. The principle of non-refoulement is often regarded as the core of international refugee protection. It is not only an indispensable international norm, but a vital aspect of human rights law, directly relating to the Responsibility to Protect (R2P) commitment by UN member states. However, the moral obligations of R2P are not legally binding. Thus, non-refoulement demonstrates an inextricable clash with state sovereignty as it threatens the notion that a sovereign state has complete authority over its borders and the regulation of movement between those borders. Through the analysis of the Rohingya crisis in Myanmar, this article argues that despite the fact that non-refoulement is critical for the promotion of human rights, states are able to break this principle for a prioritization of state security due to a severe lack of enforcement mechanisms.
Non-Refoulement in the Global Sphere
The principle of non-refoulement was first codified during the post-WWII period within the United Nations 1951 Convention Relating to the Status of Refugees, and is defined as “the practice of not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution”. The principle applies to a wide range of people, “including those seeking asylum as well as those already granted asylum, regardless of whether the individual entered the host state legally”. While this international law serves to protect human rights, it also creates tension with a state’s sovereignty because it disregards a state’s monopoly over the authority of its population and territory. The concept of state sovereignty was introduced in the Treaty of Westphalia in 1648 and emphasizes the role of a state to make decisions based on national security. The way in which this affects the principle of non-refoulement can best be understood through the state centric theory. Within this theory, one assumes that when choosing between state sovereignty and the protection of human rights, states will choose to maintain their sovereignty. This approach to global governance has caused the principle of non-refoulement to be disregarded by its signatories and for the decrease of its effectiveness.
Due to the influx of refugees in the past two decades, states have begun putting more emphasis on the non-intervention principle within the UN Charter of 1945 which is “the prohibition of the threat or use of force against the territorial integrity or political independence of any state”. In stating that the UN is not authorized to intervene in matters of domestic control, this principle furthers the state’s ability to take a state-centric approach to disregard non-refoulement. For the purpose of maintaining national security and public order, states are citing the non-intervention principle which delegitimizes the effectiveness of non-refoulement. By permitting the refoulement of refugees and asylum seekers based on a state’s perception of the person seeking asylum, there is an evident neglect and disregard of human rights. States have begun refoulement based on past criminal records, the exclusion of certain nationalities, and sometimes even religious identities. Due to the fact that the principle of non-refoulement is simply a moral obligation with signatories, states have used the argument of sovereignty and the UN non-intervention principle to legally close their borders to those seeking refuge with the underlying principle of non-refoulement.
While states have the ability to condemn or sanction states who choose not to abide by non-refoulement, it is nearly impossible today for monetary actions to be effective because some of the most powerful and influential states are going against the principle; perhaps most crucially, the US.
The Rohingya Refugee Crisis
The Rohingya people are a highly persecuted Muslim minority in the state of Rakhine in Northern Myanmar. The Myanmar government is primarily Buddhist and has implemented a number of systematic abuses through state policy, and refuses to recognize the Rohingya as an ethnic minority. The Pacific Rim Law Journal states that “Myanmar's Rohingya are the victims of genocide carried out jointly by the central political state and anti-Muslim ultra-nationalists among the Buddhist Rakhine peoples”. In addition, it is reported that the institutional crackdown from the government officially started in October of 2016, which has led to a continuous exodus of the Rohingy, followed by state sponsored expulsion attempts. In fact, according to Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide:
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.
As the international community recognizes the attack of the Rohingya as a crime against humanity and has validated these atrocities as a genocide and ethnic cleansing, it is evident that this population is at risk of erasure. The Rohingya are a longstanding tribe in Northern Myanmar, effectively providing them with a legitimate right to citizenry. However, their place in the country is challenged by the state, and it denies the minorities’ presence, prescribes them as Bangladeshi illegal immigrants, and even goes as far to exclude them from the latest census.
The case of the Rohingya is an evident example of the dilemma between non-refoulement and state sovereignty. Amnesty International has reported that over 700,000 people have sought refuge in neighbouring countries, many of which have not yet signed on to the UN Refugee Convention. Adding on to the “world’s fastest growing refugee crisis”, Bangladeshi and Indian camps are overcrowded, resources are becoming scarce, and living conditions are deteriorating for both the refugees and those remaining in Myanmar. Consequently, the Rohingya have not been provided with legal refugee status, which leaves them vulnerable to being sent back to Myanmar, where they lack the protection of basic human rights, especially since the host countries cannot sustain the vast amount of incoming migrants. Although sovereign states have a right to control their borders and regulate movement, sending Rohingya populations back to Myanmar would be forcing individuals back to inevitable persecution.
The International and Domestic Conflict of Non-Refoulement
The global governance issue of refugee refoulement is notably observable in India, where refoulement of Rohingya refugees is perpetuated by tensions between weakly enforced international norms of non-refoulement and India’s discriminatory domestic laws causing a lack of national refugee policies.
Under international law, the principle of non-refoulement is codified in Article 33 of the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees. Non-refoulement is further embedded in international human rights instruments like Article 3 of the Convention against Torture and Article 7 of the International Covenant on Civil and Political Rights. Although India has not signed nor ratified any of these international agreements that protect refugees, non-refoulement also falls under the prohibition of torture, a core component of international customary law. Despite claims that it has acquired the status of jus cogens, India’s non-compliance demonstrates that the governance of non-refoulement as an international norm is not effective. In fact, India justifies deportation of Rohingyas on the basis of three central arguments. First, India claims that refugee conventions are Euro-centric and force developing countries to carry the burden of refugees while they struggle to meet the needs of their own citizens. Second, India has taken a state-centric approach to justify non-refoulement by arguing that it compromises state sovereignty. India has frequently highlighted Article 33.2 of the Refugee Convention to justify their claim that Rohingya refugees represent a threat to national security. Third, India claims that refugee inflows deprive Indian citizens of their basic citizenship rights and strain national resources.
Under Indian law, there is no official refugee policy nor explicit laws that ensure refugee protection against refoulement. To uphold its reputation as an emerging, democratic economy, India has, to some extent, conformed to the principle of non-refoulement. Nonetheless, the lack of refugee laws has allowed India to pursue a selective ad hoc approach to non-refoulement revolving around identity politics. The Indian Constitution reveals that refugees are not entitled to the principle of non-refoulement. For instance, Article 21 defines the right to life, but fails to guarantee non-refoulement to refugees. In addition, Article 51 states that the government must respect international law and treaty obligations, but does not include international customary law. Many domestic statutes like the Foreigners Act state that India can refuse the entry or deport any refugee. This act is an explicit example of a state’s prioritization of national security and desire to regulate movement across its borders. Furthermore, India’s citizenship laws are tainted by discrimination against Muslim refugees. Although the Indian Constitution claims that India is secular, the Hindu majority has played a role in the deportation of Rohingyas. In 2016, citizenship laws were amended to welcome asylum-seekers of minority communities, but specifically excluded Muslim communities. While non-Muslim refugees receive full assistance from the Indian government, Muslim Rohingyas are not considered refugees under domestic law, and are often forcibly deported. Moreover, as an emerging and powerful economy, India is unlikely to be intimidated by monetary sanctions for not abiding to the principle of non-refoulement. Therefore, to a severe lack of enforcement mechanisms, India is able to bypass the principle of non-refoulement unscathed on the basis of state sovereignty and domestic laws.
Moving Towards Better Governance
The Rohingya refugees are in a vulnerable position, living in abject destitution in disaster prone areas. The surrounding nations have a responsibility to ensure that people escaping genocide are not left to their own devices to perish. To begin to rebuild bridges between the various communities of the region requires open cooperation in good faith where the Rohingya people have a seat at the table. Any given community must always be consulted in the future of their community to ensure consent is present and maintained throughout. The Rohingya will not return until they can be guaranteed that their passage will be undertaken safely, voluntarily and with dignity.
The United Nations has a role to play in this under the UNHCR in collaboration with local actors to provide the Rohingya with the necessary information to make an informed voluntary decision about returning to Myanmar in a language they understand. This “Right of Return” is a principle in international law whereby an individual or people have a right to voluntarily return to their state of origin, which is enshrined in the Universal Declaration of Human Rights. Independent actors such as the UNHCR must monitor the situation to ensure hostilities or persecution have been halted and do not recommence.
The international community itself must also be involved in the proceedings, applying pressure or financial and material assistance where needed to support the mass exodus of Rohingya and to facilitate their safe return. Myanmar requires mediators from the international community to negotiate and possibly imply financial sanctions for not complying with international law. India and Bangladesh both must receive praise and encouragement for any positive action taken towards the Rohingya, but also financial assistance to ease the burden of housing the refugees. Financial and material assistance can also serve to raise the living conditions of the refugees while they wait for a day where they may return voluntarily and safely. The international community may also sponsor alternatives, including allowing the voluntary relocation of some Rohingya to other regions of the globe and maintaining their international protections. Currently, despite Myanmar not being a member-state, the International Criminal Court (ICC) has ruled that it has jurisdiction over the crimes facing the Rohingya people as there are refugees in Bangladesh, which is a member-state of the ICC. The ICC has since authorized the Prosecutor of the ICC to proceed with an investigation towards the alleged crimes against the Rohingya people. Furthermore, the Republic of the Gambia has instituted proceedings against Myanmar before the International Court of Justice (ICJ) and is seeking the Court to order a prevention of new acts of genocide and to maintain all relevant evidence. The aforementioned preliminary steps taken at both the ICC and ICJ showcase the positive interactions of the international community towards addressing the alleged crimes against the Rohingya people.
Conclusion
As examined within this paper’s analysis, the Rohingya population is at great risk, not only from their domestic government of Myanmar, but also from deportation from neighbouring countries such as India. The risk of repatriation is high due to the lack of enforcement mechanisms surrounding non-refoulement. Without any means of enforcement, states are able to break this principle without consequence. This indicates a concerning gap in the effectiveness of not only non-refoulement, but global governance as a whole. To combat this, a solution is provided which regards supporting the Rohingya in matters of finances and materials along with social and linguistic resources, in order to assist them in a comprehensive matter. Additionally, by referring Myanmar to the ICC and the ICJ, the international community is inadvertently helping the Rohingya move towards reconciliation and perhaps achieving some form of collective justice.
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[2] Torpey, John. “Coming and Going: On the State Monopolization of the Legitimate ‘Means of Movement.’” The Invention of the Passport, 2000, pp. 4–20., doi:10.1017/cbo9780511520990.002.
[3] Campagna, Michael. “Effective Protection Against Refoulement In Europe: Minimizing Exclusionism In Search Of A Common European Asylum Policy” 17 (n.d.): 31.
[4] United Nations High Commissioner for Refugees. “Note on Non-Refoulement (Submitted by the High Commissioner).” UNHCR. Accessed November 27, 2019. https://www.unhcr.org/excom/scip/3ae68ccd10/note-non-refoulement-submitted-high-commissioner.html.
[5] Farmer, Alice. “Non-Refoulement and Jus Cogens: Limiting Anti-Terror Measures that Threaten Refugee Protection.” Georgetown Immigration Law Journal 23 (n.d.): 38.
[6] Kerr, Pauline. The Evolving Dialectic between State-Centric and Human-Centric Security. 2003,2. Canberra: Research School of Pacific and Asian Studies, Australian National Univ., Dept. of International Relations, 2003.
[7] United Nations High Commissioner for Refugees. “Refworld | Convention Relating to the International Status of Refugees.” Refworld. Accessed November 24, 2019. https://www.refworld.org/docid/3dd8cf374.html.
[8] Campagna, Michael. “Effective Protection Against Refoulement In Europe: Minimizing Exclusionism In Search Of A Common European Asylum Policy” 17 (n.d.): 31.
[9] Farmer, Alice. “Non-Refoulement and Jus Cogens: Limiting Anti-Terror Measures that Threaten Refugee Protection.” Georgetown Immigration Law Journal 23 (n.d.): 38.
[10] Arenilla, Shirley Llain. “Violations to the Principle of Non-Refoulement Under the Asylum Policy of the United States.” Anuario Mexicano de Derecho Internacional 15, no. 1 (January 1, 2015): 283–322. https://doi.org/10.1016/j.amdi.2014.09.005.
[11] Maung Zarni and Alice Cowley, "The Slow-Burning Genocide of Myanmar's Rohingya" (Pacific Rim Law & Policy Journal 23, no. 3, 2014), 683
[12] Ibid.
[13] Ibid.
[14] Office of the High Commissioner of Human Rights. “Prevention and Punishment of the Crime of Genocide.” OHCHR. Accessed November 24, 2019. https://www.ohchr.org/en/professionalinterest/pages/crimeofgenocide.aspx
[15] Zarni and Cowley, "The Slow-Burning Genocide of Myanmar's Rohingya,” 691.
[16] Ibid., 700
[17] Amnesty International, “Why Rohingya refugees shouldn't be sent back to Myanmar”, Amnesty International, November 15, 2018. https://www.amnesty.org/en/latest/news/2018/11/why-rohingya-refugees-shouldnt-be-sent-back-to-myanmar/
[18] The United Nations Refugee Agency, "Joint Statement on the Rohingya Refugee Crisis”, UNHCR, 16 October, 2016. https://www.unhcr.org/news/press/2017/10/59e4c17e5/joint-statement-rohingya-refugee-crisis.html
[19] Aoife Duffy, “Expulsion to Face Torture? Non-Refoulement in International Law,” International Journal of Refugee Law 20, no. 3 (2008): 374–84.
[20] Jean Allain, “The Jus Cogens Nature of Non-Refoulement,” International Journal of Refugee Law 13, no. 4 (October 2001): 533.
[21] “Chapter V: Administrative Measures,” In Convention and Protocol Relating to the Status of Refugees, 30.
[22] Omar Chaudhary, “Turning Back: An Assessment of Non-Refoulement under Indian Law,” Economic and Political Weekly 39, no. 29 (July 17, 2004): 3258.
[23] Omar Chaudhary, “Turning Back: An Assessment of Non-Refoulement under Indian Law,” Economic and Political Weekly 39, no. 29 (July 17, 2004): 3257-61.
[24] Amnesty International, “Why Rohingya refugees shouldn't be sent back to Myanmar”. Amnesty International.
[25] United Nations, “The Universal Declaration of Human Rights.” United Nations. December 10, 1948.
[26] Aljazeera. “ICC Approves probe into Myanmar’s alleged crimes against Rohingya” Aljazeera News Agency. November 14, 2019.
[27] International Criminal Court. “ICC judges authorise opening of an investigation into the situation in Bangladesh/Myanmar.” International Criminal Court. November 14, 2019.
[28] International Court of Justice. “The Republic of The Gambia institutes proceedings against the Republic of the Union of Myanmar and asks the Court to indicate provisional measures.” International Court of Justice. November 11, 2019. 1-2.