Why India is a non-signatory to the UN Refugee Convention of 1951

The recent developments in Afghanistan involving the withdrawal of troops by the US and the rise to power of the Taliban has led to the unfolding of a grave humanitarian crisis. This has serious implications for India. Throughout history, India has been renowned for keeping its doors open for the unfortunate foreigner seeking shelter. But it does not have a singular policy for dealing with refugee crises. The country is also not a signatory to the 1951 UN Refugee Convention or its 1967 Protocol. In the wake of the emerging refugee crisis in Afghanistan, it is important to understand why India has not signed the Refugee Convention.

While there is no official state explanation as to why India has not signed the 1951 Refugee Convention, scholars have speculated on some of the possible reasons for this. The most prominent reason is that signing the Convention would aggravate India’s security concerns. Since India in particular and South Asia in general have porous borders, mass movements of refugees can be easily facilitated, leading to a burden on local resources. It can also disturb the country’s existing demographic balances.

Another reason that is used to make India’s case against signing the Convention is that India has a reputation of being welcoming towards refugees since ancient times, even without the backing of any international agreement. While this may be true historically, more recent developments have shown India’s hospitality to be selectively expressed. The Rohingya Muslims from Myanmar are an obvious example.

There is also a general feeling of scepticism regarding the ‘universal acceptability’ of UNHCR as it is felt to have been drafted without considering the peculiarities of the Asian context. Hence, it is often felt that a Convention drafted with European concerns as its locus shouldn’t be allowed to dictate India’s policy towards refugees. Additionally, India was not satisfied with how the UNHCR conducted itself during the 1971 Bangladesh Liberation War and the resultant refugee influx.

Refugee law expert B.S. Chimni also lists the historical peculiarity of the region and the ethnic ties which exist across borders as the major reasons for India and other South Asian nations not signing the Convention. Other prominent non-signatories of the Convention include the Iraq, Lebanon, Jordan, Bangladesh, Pakistan, Sri Lanka, Malaysia, Indonesia, Libya, Cuba, etc. While the USA is not a party to the Convention, it is a signatory to the 1967 Protocol.

By not signing the 1951 Convention and its Protocol, India has been shying away from clearly defining what constitutes an ‘illegal immigrant’ as opposed to what constitutes a ‘refugee’ or a “stateless person’. The political turmoil in Myanmar and the Rohingya exodus that followed is a case in point. Following the crisis in Myanmar, both Rohingyas as well as democracy activists have fled to India and Bangladesh. While Myanmar still accepts the democracy activists as its citizens, it rejects the Rohingyas and deems them stateless. Even though the Union Government has not outlined a clear policy for dealing with both sets of refugees, states like Mizoram have expressed solidarity with the fleeing activists. This double standard maintained by the country is, according to Chimni, a ‘strategic ambiguity’ that favours groups like the Tibetans and Tamils while showing an indifference towards such groups as the Rohingyas.

Although not a signatory to the 1951 Convention, India is a signatory to both the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Convention against Torture (UNCAT). Both ICCPR and UNCAT uphold the non-refoulement of refugees. The Constitution of India also provides safeguards to their life and personal liberty through Article 21, which applies to all persons whether citizens or foreigners.

A uniform domestic policy on refugees has become a pressing priority for India in the context of growing geopolitical tensions in the South Asian region. While India’s concerns regarding security, resource-constraints and indigenous cultures are valid and justified, it is also not possible to act with a blind eye towards the humanitarian crisis unfolding in our neighbourhood. A refugee policy that addresses the Indian concerns and at the same time offers respite to refugees is the need of the hour.

Published by mpgauravgogoi

Member of Parliament, Kaliabor Lok Sabha.

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