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India: The deportation of Rohingya refugee in the light of National Security

Abhishek Trivedi

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In the light of India’s plan to deport illegal Rohingya refugee, Author discusses and critically analyses India’s International legal obligation in the background of India’s constitutional and statutory provisions keeping in mind the State’s national security concern. Parallel he also suggests an idea of comprehensive legislation on refugee in India

 A kind of political intellectual hustle and bustle has been started in the world over India’s plan to deport all Rohingya immigrants who are living in different parts of India illegally or without having any valid refugee card. On August 9, 2017, the Indian minister of state for home affairs, Kiren Rijiju, told the parliament that “the government has issued detailed instructions for deportation of illegal foreign nationals including Rohingyas,” noting that there were around “40,000 Rohingyas living illegally in the country.”  Reacting to this, South Asia director Meenakshi Ganguly said that “India has a long record of helping vulnerable populations fleeing from neighboring countries, including Sri Lankans, Afghans, and Tibetans,” and thereby Indian authorities should abide by India’s international legal obligations and not forcibly return any Rohingya to Burma (Myanmar) without first fairly evaluating their claims as refugees.”  The National Human Rights Commission (NHRC) of India also issued the notice to Central Government after taking suo motu cognizance and sought a detailed report within four weeks on government’s plan to deport about 40,000 illegal Rohingya immigrants.  NHRC also contended that Indian judiciary has given wide protection to the refugees, even unregistered, under the broad ambit of Article 21 of the Constitution of India. United Nations Secretary General Antonio Guterres has also shown his concern about India’s plans to deport Rohingya refugees from Myanmar underlining that refugees should not be returned to countries where they fear persecution once they are registered.

India’s Legal obligation under International law

It is true that India is not a party to 1951 Convention on Refugees and also the 1967 Protocol. But this does not preclude and keep India out of International and domestic legal obligation. As far as International legal obligation is concerned, notwithstanding India is not a signatory to the 1951 Convention principle of customary international law does apply to India in so far as it is consistent with existing municipal law of the Country or if there is a void in the municipal law.  Principle of Non-refoulement has become a well-recognized part of customary international law, thus applies to India also. Principle of Non-refoulement says that “No State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”.  Principle of Non-refoulement is central to refugee protection that prohibits return of an individual to a country in which he or she may be persecuted. Academic consensus on this point has been of the view that the principle of non-refoulement as articulated in Article 33 is broad in scope, offering expansive protection to refugees and must be construed expansively and without limitation, and as such includes no exceptions for other treaty obligations such as extradition.  The principle of non-refoulement applies to a wide spectrum of people, including those seeking asylum as well as those already granted asylum, regardless of whether the individual entered the host state legally.  Furthermore, non-refoulement is commonly regarded as a right which extends through time, applying to the individual as soon as he arrives and throughout his stay in the country of refuge.  The broad scope and ambit of prohibition of refoulement has been taken to prohibit any act of removal (including rejection, expulsion, deportation, and return) that would place the individual at risk, regardless of the formal description of the act given by the removing state.

On the other hand, the principle of Non-refoulement is also not an absolute principle in the sense that it has two exceptions which have the potential to weaken the principle of non-refoulement and leave refugees vulnerable to violations of underlying human rights. These two exceptions which the receiving state may exercise either “to protect the community (public order)” or “defend national security”.  But it is also true that there is a lack of historical consensus toward exceptions to Non-refoulement. Therefore, if the principle of Non-refoulement does contradict with any provision of the existing domestic legal framework in India, to that extent it ceases to be effective. For instance, when a refugee entered into India without a valid passport or travel documents, he may be arrested by immigration authorities and generally handed over to the police and a FIR is lodged against him under the Passport (Entry into India) Act, 1920 and the Passport Act, 1967.

India’s obligation under Municipal Law

The relevant statutes which deal with refugees in India are the Foreigner’s Act, 1864, the Registration of Foreigner’s Act, 1939, the Foreigner’s Act, 1946, the Fugitive Offenders Act, 1881, the Indian Extradition Act, 1903, the Passport (Entry into India) Act, 1920 and the Passport Act, 1967. Though there is no comprehensive legislation in India which governs and regulate refugee problems, but still Indian judiciary by its creative interpretation of Article 21 of the Constitution which guarantees the right to life and liberty to all persons and not merely to citizens. Refugees may not be citizens but they are certainly persons, and hence they are entitled to the provisions of Article 21. The Indian Supreme Court has interpreted the word ‘life’ in Article 21 to mean not merely an animal life but a dignified life , and hence refugees being persons, are also entitled to the same.  In the same way, rights to equality (Article 14), right to protect in respect of conviction of offences (Article 20). Right to protect against arbitrary arrest (Article 22) and the freedom to practice and propagate their own religion (Article 25) also apply to refugees. It is beyond any doubt that India judiciary has given and protected the number of basic human rights of refugees in India, from right to life, liberty, arbitrary detention, freedom of religion to access to UNHCR office in India where they can get registered with UNHCR. On the other hand, it has also to be noted that SC in Louis De Raedt v. Union of India and Ors,  and S.G. Getter v. The Union of India,  held that Article-21 of the Constitution of India protects the life and personal liberty of all persons including aliens and foreigners happened to be in India. Therefore, refugees as non-citizens cannot be deprived of their rights ‘except according to the procedure established by law’. Therefore, even principle of Non-refoulement and many other Human Rights Principles which are individual centric as referred in UDHR can be circumvented and weakened by way of a legislation in India, and that too India can do even without violating International law as if there is happened to be conflict between municipal law and international law (customary international law) courts must perforce apply national law and give effect to the municipal law. 

Rohingyas: are they threat to State Security

Refugees are no doubt foreign nationals but they are human beings also and before taking any big step, it would well be appropriate and fair for the government to look into every aspect of the situation. It has to be noted that The Rohingyas, who fled to India after violence in the Western Rakhine State of Myanmar, have settled in Jammu, Hyderabad, Haryana, Uttar Pradesh, Delhi-NCR and Rajasthan. Keeping that in mind, The Home Ministry of India has said that infiltration of (Rohingyas) from the Rakhine state of Myanmar into Indian Territory, especially in recent years, besides being a burden on the limited resources of the country, also aggravates security challenges posed to India.  In a communication to all states, the Union home ministry had said the rise of terrorism in last few decades has become a serious concern for most nations as illegal migrants are able to getting recruited by terrorist organizations. Rohingya refugee as a fear for State security has been noted in 2013 when terrorist attack took place in Bodh Gaya—a blast executed to avenge the killings of Rohingya Muslims in Myanmar.  In February, 2017 it has been reported that Rohingyas the minority ethnic community were being abetted by outfits such as Lashkar-e-Taiba  and thereby exploiting radicalization among the Rohingya community, which posed a serious security risk to India. Foreign Minister of Bangladesh AH Mahmood Ali has also shown his concerned about illegal Rohingyas around three to four lakhs staying in Bangladesh and may pose a serious threat to Bangladesh’s national security in future. He went on to say that The Rakhine people have got engaged in various misdeeds, including drug smuggling, arms and human trafficking and manufacturing drug on the border.

Plan ahead for refugee including Rohingyas

Refugee in India have been concerned as a matter of policy rather than law where how to deal with the refugee has also been seen as a part of India’s foreign policy especially in the context of Tibetan refugee. In the light of abovementioned facts and legal background, that till today, the country has evolved a practical balance between human and humanitarian obligations on the one hand and security and national interest on the other. No one leaves home unless home is the mouth of a shark. Keeping that in mind and realizing being a signatory to number of International Human Rights Conventions/Covenants India should legislate a comprehensive law which could uniformly deal with the problems of refugee influx in India and exodus to their original place provided they will not face any king of further persecution thereon and full protection to their life, security and enjoyment will be ensured corresponding to State security will not be compromised.

Abhishek Trivedi is pursuing his LL.M. degree in International Law from Faculty of Legal Studies, South Asian University-an International University established by SAARC Nations, New Delhi. His fields of interest and research in academics are Public international law, Law of International Organization, Human Rights law, Conflict of laws, commercial arbitration and International Environmental Law

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South Asia

The “Neo-Cold War” in the Indian Ocean Region

Kagusthan Ariaratnam

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Addressing an event last week at London’s Oxford University, Sri Lankan Prime Minister Ranil Wickremesinghe said some people are seeing “imaginary Chinese Naval bases in Sri Lanka. Whereas the Hambantota Port (in southern Sri Lanka) is a commercial joint venture between our Ports Authority and China Merchants – a company listed in the Hong Kong Stock Exchange.”

Prime Minister Wickremesinghe has denied US’ claims that China might build a “forward military base” at Sri Lanka’s Hambantota port which has been leased out to Beijing by Colombo. Sri Lanka failed to pay a Chinese loan of $1.4 billion and had to lease the China-developed port to Beijing for 99 years. Both New Delhi and Washington had in the past expressed concerns that Beijing could use the harbor for military purposes.

Image courtesy of Google

The USA, China, and India are the major powers playing their key role in the “Neo-Cold War” in Central Asian landmass and the strategic sea lanes of the world in the Indian Ocean where 90% of the world trade is being transported everyday including oil. It is this extension of the shadowy Cold War race that can be viewed as the reason for the recent comment made by the US Vice President Mike Pence that China is using “debt diplomacy” to expand its global footprint and Hambantota “may soon become a forward military base for China’s expanding navy”.

According to some analysts, the deep-water port, which is near a main shipping route between Asia and Europe, is likely to play a major role in China’s Belt and Road Initiative.

In his book “Monsoon” Robert D. Kaplan (2010), a senior fellow at the Centre for a New American Security notes the following:

[…] the Indian Ocean will turn into the heart of a new geopolitical map, shifting from a unilateral world power to multilateral power cooperation. This transition is caused by the changing economic and military conditions of the USA, China and India. The Indian Ocean will play a big role in the 21st century’s confrontation for geopolitical power. The greater Indian Ocean region covers an arc of Islam, from the Sahara Desert to the Indonesian archipelago. Its western reaches include Somalia, Yemen, Iran, and Pakistan — constituting a network of dynamic trade as well as a network of global terrorism, piracy, and drug trafficking […]

Two third of the global maritime trade passes through a handful of relatively narrow shipping lanes, among which five geographic “chokepoints” or narrow channels that are gateway to and from Indian ocean: (1) Strait of Hormuz (2) Bab el-Mandab Passage (3) Palk Strait (4) Malacca and Singapore Straits and (5) Sunda Strait.

While Lutz Kleveman (2003), argues that the Central Asia is increasingly becoming the most important geostrategic region for the future commodities, Michael Richardson (2004) on the other hand explains that the global economy depends on the free flow of shipping through the strategic international straits, waterways, and canals in the Indian Ocean.

According to the US Energy Information Administration (EIA)  report published in 2017, “world chokepoints for maritime transit of oil are a critical part of global energy security. About 63% of the world’s oil production moves on maritime routes. The Strait of Hormuz and the Strait of Malacca are the world’s most important strategic chokepoints by volume of oil transit” (p.1). These channels are critically important to the world trade because so much of it passes through them. For instance, half of the world’s oil production is moved by tankers through these maritime routes. The blockage of a chokepoint, even for a day, can lead to substantial increases in total energy costs and thus these chokepoints are critical part of global energy security.  Hence, whoever control these chockpoints, waterways, and sea routes in the Indian Ocean maritime domain will reshape the region as an emerging global power.

In a recent analysis of globalization and its impact on Central Asia and Indian Ocean region, researcher Daniel Alphonsus (2015), notes that the twists and turns of political, economic and military turbulence were significant to all great players’ grand strategies:

(1) the One Belt, One Road (OBOR), China’s anticipated strategy to increase connectivity and trade between Eurasian nations, a part of which is the future Maritime Silk Road (MSR), aimed at furthering collaboration between south east Asia, Oceania and East Africa; (2) Project Mausam, India’s struggle to reconnect with its ancient trading partners along the Indian Ocean, broadly viewed as its answer to the MSR; and (3) the Indo-Pacific Economic Corridor, the USA’s effort to better connect south and south east Asian nations. (p.3)

India the superpower of the subcontinent, has long feared China’s role in building outposts around its periphery. In a recent essay, an Indian commentator Brahma Chellaney wrote that the fusion of China’s economic and military interests “risk turning Sri Lanka into India’s Cuba” – a reference to how the Soviet Union courted Fidel Castro’s Cuba right on the United States’ doorstep. Located at the Indian Ocean’s crossroads gives Sri Lanka the strategic and economic weight in both MSR and Project Mausam plans. MSR highlights Sri Lanka’s position on the east-west sea route, while Project Mausam’s aim to create an “Indian Ocean World” places Sri Lanka at the center of the twenty-first century’s defining economic, strategic and institutional frameworks. Furthermore, alongside the MSR, China is building an energy pipeline through Pakistan to secure Arabian petroleum, which is a measure intended to bypass the Indian Ocean and the Strait of Malacca altogether.

A recent study done by a panel of experts and reported by the New York Times reveal that how the power has increasingly shifted towards China from the traditional US led world order in the past five years among small nation states in the region. The critical role played by the strategic sea ports China has been building in the rims of Indian Ocean including Port of Gwadar in Pakistan, Port of Hambantota in Sri Lanka, Port of Kyaukpyu in Myanmar and Port of Chittagong in Bangladesh clearly validates the argument that how these small states are being used as proxies in this power projection.

This ongoing political, economic and military rivalry between these global powers who are seeking sphere of influence in one of the world’s most important geostrategic regions is the beginning of a “Neo-Cold War” that Joseph Troupe refers as the post-Soviet era geopolitical conflict resulting from the multipolar New world order.

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South Asia

IMF bail-out Package and Pakistan

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Pakistan may approach IMF to bail-out the current economic crisis. It is not the first time that Pakistan will knock the doors of IMF. Since 1965, Pakistan has been to IMF 17 times. Almost all of the governments has availed IMF packages. Usually, IMF is a temporary relief and provide oxygen for short time so that the patient may recover and try to be self-sustained. The major role of IMF is to improve the governance or reforms, how the ill-economy of a country may recover quickly and become self-sustained. After having oxygen cylinder for 17 times within 5 decades, Pakistan’s economy could not recover to a stage, where we can be self-sustained and no more looking for IMF again and again. This is a question asked by the common man in Pakistan to their leadership.  People are worried that for how long do we have to run after IMF package? The nation has enjoyed 70 decades of independence and expects to be mature enough to survive under all circumstances without depending on a ventilator.

The immediate impact of decision to approach IMF, is the devaluation of Pakistani Rupees. By depreciating only one rupee to US dollar, our foreign debt increases 95 billion rupees.  Today we witness a depreciation of rupee by 15 approximately (fluctuating), means the increase in foreign debt by 1425 billion rupees. Yet, we have not negotiated with IMF regarding depreciation of Rupees. Usually IMF demand major depreciation but all government understands the implications of sharp devaluation, always try to bargain with IMF to the best of their capacity. I am sure, Government of Pakistan will also negotiate and get the best bargain.

IMF always imposes conditions to generate more revenue and the easiest way to create more income is imposing tax on major commodities including Gas, Electricity and Fuel. Pakistan has already increased the prices of Gas, Electricity and Fuel. It has had direct impact on basic necessities and commodities of life. We can witness a price hike of basic food, consumer items and so on. Except salaries, everything has gone up. While negotiating with IMF formally, we do not know how much tax will be increased and how much burden will be put on the common man.

We believe, our rulers know our capacity and will keep in mind the life of a common man and may not exceed the limit of burden to common man beyond its capacity. We are optimistic that all decisions will be taken in the best interest of the nation.

It is true, that Pakistan has been to IMF so many times, so this might be a justification for the PTI Government to avail IMF package. But, there are people with different approach. They have voted for change and for “Naya” (new) Pakistan. They do not expect from PTI to behave like previous several governments. If PTI uses the logic of previous governments, may not satisfy many people in Pakistan.

Especially, when Pakistan was in a position to take-off economically, we surrendered half way, may not be accepted by many people in Pakistan.

The government has explained that other options like economic assistance from friendly countries was also very expensive, so that they have preferred IMF as more competitive package. I wish, Government may educate public on the comparison of available options, their terms and conditions, their interest rate, their political conditions, etc. There might be something confidential, Government may avoid or hide, one may not mind and understand the sensitivity of some of the issues. But all permissible information on the terms and conditions of all options in comparison, may be placed on Ministry of Finance’s website or any other mode of dissemination of knowledge to its public.

Against the tradition, people of Pakistan have voted Imran Khan, who so ever was given ticket of PTI, public has voted him or her blindly in trust to Imran Khan. A few of his candidates might not be having very high capabilities or very good reputation, but, public has trusted Imran Khan blindly. Imran Khan is the third most popular leader in Pakistan, after Jinnah the father of nation, and Zulfiqar Ali Bhutto, the Former Prime Minister of Pakistan in 1970s.

People of Pakistan have blindly trusted in Imran Khan and possess very high expectations from him. I know, Imran Khan understands it very well. He is honest, brave and visionary leader and I believe he will not disappoint his voters.

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Now India denies a friendly hand: Imran Khan debuts against arrogant neighbors

Sisir Devkota

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Imran Khan is facing the brunt for overly appeasing its arch rival-India. On September 22, Khan tweeted that he was disappointed over India’s arrogant reply to resume bilateral talks in the UNGA and that he had encountered many “small men” in big offices unable to perceive the larger picture.I am observing a south Asian order changing with Khan’s rise in Pakistani politics. We in Nepal need to grasp the possible reality before circumstances shall engulf our interests.

Observation 1

Narendra Modi was undoubtedly “The Prince”of South Asia from Niccolo Machiavelli’s 16th century classic political narrative. I sense the old prince acting in distress over the rise of a new one. Imran Khan’s invitation for a ministerial level meeting in New York; amidst the eyes of foreign diplomats could not have been a better approach by Pakistan in a long time. Instead, Indian foreign minister, Sushma Swaraj dismissed the offer, blaming Pakistan’s double standard in killing Indian forces and releasing Burhan Wani’s (India’s terrorist and Pakistan’s martyr) postal stamps. Khan did not sanction the postal release, but as the Prime Minister of Pakistan, he must be held accountable for failing to stop the killings,just when talks were supposed to happen. He should have addressed the highly sensitive Indian government. But, I do empathize with Khan’s statement, “small men in big offices”; as he clearly outlined the exact problem. He directly called upon the Indian government to think bigger and escape circumstances to solve historical problems. Narendra Modi has developed a new rhetoric these days; that India is not going to keep quiet over Pakistan’s actions. It fits the nature of Machiavelli’s Prince as an authority which can maintain national virtue. Unfortunately, I do not buy Modi’s rhetoric. The Prince has come a bit late in his tenure to act for Indian virtues. I am sure many at the UNGA would have noticed India’s apprehension in the same manner. I suspect that the ex-prince is facing insecurities over the fear of losing his charisma. Nepal, in particular was charmed by his personality when he first visited our capital, with promises that flooded our heart. And then, we faced his double standard; right after the massive earthquake in 2015. Nobody in Nepal will sympathize with Swaraj’s justification of cancelling the meeting.

Observation 2

Let me explain the source of insecurity. Modi has thrived by endorsing his personality. A tea man who worked for the railways under great financial hardships, became the poster man of India. He generated hope and trust that his counterparts had lost over the years. His eloquent stage performance can fool the harshest of critics into sympathizing his cause. People have only realized later; many macro economists in India now argue that demonetization was, perhaps, one of the worst decisions for India’s sake. Narendra Modi is India sounds truer than Narendra Modi is the Prime Minister of India.

Imran Khan, a former cricketer does not spring the same impression as Modi. Khan, a world champion in 1992, is known for his vision and leadership in Cricket. Comparatively, Khan does not need to sell his poster in South Asia. He does not cry over his speeches to garner mass euphoria. Ask anybody who’s into the sport and they will explain you the legend behind his name. I suspect that Modi has realized that he is going to lose the stardom in the face of Pakistan’s newly elected democratic leader. After all, the Indian PM cannot match Imran’s many achievements in both politics and cricket. I suspect that Modi has realized the fundamental difference in how his subjects inside India and beyond are going to perceive Imran’s personality. I expect more artificial discourses from India to tarnish Imran’s capabilities.

Nepal & Pakistan

You will not find Pakistan associated with Nepal so often than with India. Frankly, Nepal has never sympathized with Indian cause against Pakistan. We have developed a healthy and constructive foreign relations with the Islamic republic. However, there has always been a problem of one neighbor keeping eyes on our dealings with another. Indian interests have hindered proximity with past governments. Now, Imran Khan has facilitated the platform for deeper relations. He does not carry the baggage of his predecessors. He is a global icon, a cricket legend and a studious politician. He is not the result of mass hysteria. Imran Khan has pledged to improve Pakistan’s economy, reinstate foreign ties and boost regional trade. For me, he is South Asia’s new Machiavellian prince; one that can be at least trusted when he speaks.

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