Although India is not party to the 1951 United Nations Convention on the Rights of Refugees, this does not preclude it from its Principle of Non-Refoulement, or prohibition of refoulement, due to human rights protections under other international laws. Refoulement is the returning of any person to a country where they would face risk of torture or cruel, inhuman, or degrading punishment and/or other irreparable harm.
This holds relevance in the case of three Uyghur brothers, Adil, Abduhaliq, and Abdusalam Tursun, who fled the Xinjiang Uyghur Autonomous Region (XUAR) of China to India in 2013, where they have since been detained and denied asylum. Within the XUAR, China has been accused of genocide, crimes against humanity, and other international human rights violations against the Uyghurs due to their Muslim faith. Since approximately 2017, over one million Uyghurs, including women and children, have been reportedly tortured, detained, enslaved, sterilized, and raped. Chinese authorities have also destroyed thousands of Uyghur graveyards and mosques in suspected attempts to expunge the minority. Indian authorities have been reportedly instructed to initiate the brothers’ deportation, or refoulment, back to China in 2023. All attempts to secure asylum for the brothers in other countries have failed, and the case is being challenged in the Jammu and Kashmir High Court.
Legal Arguments through International Human Rights Law in Absence of Refugee Law
There are several arguments that can be made against the brothers’ repatriation. Although refoulement is illicit for Refugee Convention signatories under Article 33(1), it is also forbidden per customary international law and jus cogens through which no exception is allowed. Likewise, the Human Rights Committee has interpreted Article 7 of the International Convention on Civil and Political Rights (ICCPR) – to which India is a party – as encompassing non-refoulement. Specifically, it stated that “parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.”
Secondly, authorities must ensure the brothers receive a fair trial. India is a signatory to the Universal Declaration of Human Rights (UDHR) which provides under Article 11(1) that “[e]veryone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial.” Likewise, the ICCPR establishes under Article 14(1) that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal”; under Article 14(2) that “[e]veryone charged with a criminal offence shall have the right to be presumed innocent until proved guilty”; and under Article 14(3)(c) that everyone “be tried without undue delay”. Article 9(3) further stipulates that “anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law… and shall be entitled to trial.”
However, the Uyghur brothers have been denied the right to a fair trial since they entered India in 2013, when they were immediately arrested, charged, and detained. Following their arrest, they were prosecuted under Section(18)(b) of the Public Safety Act (PSA), empowers the government to detain individuals without trial for reasons deemed a threat to public safety. Such presumption of guilt without a fair trial cannot, under international law, occur and thus cannot be grounds for deportation.
Further, India cannot deport based on discrimination. The UDHR prohibits discrimination based on race, language, religion, political or other opinion, and national or social origin under Article 2. Such protections are also in Article 2 of the ICCPR and International Covenant on Economic, Social and Cultural Rights (ICESCR), to both of which India is a signatory. The three treaties state that all people are protected under their respective rights without distinction or discrimination “of any kind”.
Indian authorities’ differential treatment of Uyghur and Tibetan refugees thus suggests that they should cease discriminatory deportation of the brothers per international law. India has openly welcomed thousands of Tibetan refugees fleeing the Chinese-controlled Tibet region, and many now reside in India. However, the Indian authorities have notably been unwilling to protect and welcome Uyghurs. This has been described as “discriminatory and disparate treatment [that] is associated with the Muslim identity of Uyghurs”, which may be influenced by India’s history of Muslim bias. However, “any kind” of discrimination is illicit and thus cannot be reason for refoulement.
Regardless of Refugee Convention signatory status, India must not refoul the Tursun brothers per international human rights law.
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