Misreading the 1951 Refugee Convention in India’s context

India’s non-accession to the Convention is not a gap to be managed, something that the Bangkok Principles somehow compensate

The 1951 Refugee Convention recently marked its 75th anniversary, inspiring a string of commentary. One piece published in this newspaper urges India to do more and commit more, based on a treaty it has not signed. Such exhortation doesn’t recognise India’s actions and policies on refugee protection so far and the realities it is faced with. Since we are discussing international law, let us begin with what the Convention actually says.

The Supreme Court of India has consistently held that international treaties and conventions may inform the interpretation of the Constitution, but only when India is a signatory or party to them. This doctrine reflects a fundamental principle of democratic sovereignty. (Photo credit: Arvind Yadav/HT Photo)

The principle of non-refoulement (i.e. the obligation not to return refugees to territories where their lives or freedom are threatened) is popularly considered a universally binding norm of international law, applicable to all States regardless of whether they have signed the Convention or not.

A deeper examination shows that the principle of non-refoulement was not a pre-existing rule of customary international law that the 1951 Convention merely codified. It was created by that Convention. Its first codification deliberately restricted coverage to events occurring in Europe before January 1, 1951.

This was an intentional geographical and temporal limitation imposed on the principle, not an accident of drafting. These limitations reflected the Cold War priorities of Western States, which wanted the Convention’s protection for their own refugee populations while keeping the door firmly shut against claims from the developing world. Developing country delegates objected vigorously, only to be overruled. The Eurocentric architecture of the Convention is the foundation on which the current framework rests.

The 1967 Protocol only removed the geographical limitations. It did not resolve the deeper question of whether non-refoulement had crystallised into customary international law, binding on all States. State practice, in this case, is demonstrably inconsistent. Scholars have yet to produce convincing evidence supporting a clear, consistent, and uniform State practice required for non-refoulement to be elevated to the level of customary international law. At most, non-refoulement constitutes a regional or hemispherical custom in certain extraterritorial contexts. It is not a universally binding obligation on non-signatory States.

India’s non-accession to the Convention is not a gap to be managed, something that the Bangkok Principles somehow compensate. India has a distinguished record of protecting refugees that is rivalled by very few States. But this is despite the Refugee Convention, not because of it.

India’s non-accession is a well-considered sovereign choice, made at the founding of the Republic, reaffirmed consistently since, and is entirely consistent with every principle of international treaty law. States choose which treaties to join. India has chosen. That choice requires no apology and no compensation.

The Supreme Court of India has consistently held that international treaties and conventions may inform the interpretation of the Constitution, but only when India is a signatory or party to them. This doctrine reflects a fundamental principle of democratic sovereignty: The executive and Parliament, not the judiciary, decide which rules of international law the people of India wish to be bound by.

Certain high courts have departed from this principle and read non-refoulement into Article 21 of the Constitution without any doctrinal foundation. Those decisions have been correctly identified by scholars as per incuriam (arrived at through lack of care).

The Bangkok Principles are just as non-binding as the Refugee Convention. Citing them as evidence of India’s voluntary assumption of non-refoulement-like obligations is a stretch that the text of those principles does not support.

The Rohingya migrants case is currently pending before the Supreme Court, with written arguments filed and oral hearings yet to be scheduled. The petitioners are arguing, among other things, that non-refoulement binds India as a matter of customary international law and must be read into Articles 14 and 21 of the Constitution.

In this context, the claim that India’s protection record already reflects something close to an international legal obligation is not a neutral observation. It has direct bearing on the separation of powers envisaged under our Constitution. The Supreme Court has consistently held that treaties India has not ratified cannot be read into the Constitution.

India’s own record on refugees — imperfect, selective, and occasionally inconsistent, as any sovereign State’s — is the product of its sovereign executive judgment responding to security concerns, regional relationships, and indigenous resources. The underpinning constitutional foundation is suited for India’s needs in the current age.

Khagesh Gautam is professor of law, Jindal Global Law School. The views expressed are personal