On the plight of the Rohingyas

BACKGROUND

"Approximately 671,000 Rohingya refugees have fled targeted violence and serious human rights violations in Myanmar since August 2017. Many walked for days through the forest to reach safety in Bangladesh, including pregnant women, young children, the sick and the elderly. Refugees have spontaneously settled in and around existing refugee communities in two main settlements, Kutupalong and Nayapara, overstretching already-limited services and scarce resources. (Source: https://unhcr.maps.arcgis.com/apps/Cascade/index.html?appid=5fdca0f47f1a46498002f39894fcd26f)

For more information about the Rohingya Emergency, consult this page - https://www.unhcr.org/en-in/rohingya-emergency.html

WHICH ACTORS ARE AT PLAY - Myanmar, Bangladesh, India and UN High Commission for Refugees

India - https://www.unhcr.org/4cd96e919.pdf 2011 FactSheet and a more recent on here - https://www.unhcr.org/protection/operations/50001ec69/india-fact-sheet.html

"India is not party to the 1951 Refugee Convention or its 1967 Protocol and does not have a national refugee protection framework. However, it continues to grant asylum to a large number of refugees from neighbouring States and respects UNHCR’s mandate for other nationals, mainly from Afghanistan and Myanmar. While the Government of India deals differently with various refugee groups, in general it respects the principle of non-refoulement for holders of UNHCR documentation" (Source: https://www.unhcr.org/4cd96e919.pdf)

RELEVANT INTERNATIONAL LEGAL FRAMEWORK - The Convention Relating to the Status of Refugees 1951. Myanmar, Bangladesh and India are not members of this convention, which is widely accepted and ratified. A fact sheet about membership is here - https://www.unhcr.org/protection/basic/3b73b0d63/states-parties-1951-convention-its-1967-protocol.html

MOST RELEVANT IOs & Civil Society Actors - UN High Commission for Refugees, AMNESTY International, Human Rights Watch

You can take a look at the Report of Amnesty International here - https://www.amnesty.org/download/Documents/ASA1617742020ENGLISH.PDF which provides a larger context of looking at the larger context of violence and curbs on freedom of expression and general violations of human rights in Myanmar.

A summary, in brief, while the origins of the plight of Rohingya's lie in Myanmar, we see that Bangladesh is currently bearing the burden of accommodating a large number of Rohingyas who have sought refuge there. In this context, the UNHCR India office is directly engaged in providing relief, but there is a significant gap in what they can provide. 

While Myanmar's actions are generally condemned, India, which might have some leverage over Myanmar hasn't expressed any significant concern over the plight of Rohingyas, and in fact, handed over a family of five to Myanmar in January 2019. This is suggestive of India violating the principle of non-refoulement which is argued to have taken on a customary nature under International Law.  It is reported that 40,000 Rohingyas are now in India in different parts of the country, but the Citizenship Amendment Act and the associated process of creating a National Register of Citizens only puts further pressure on the Rohingyas who are Muslims, and are excluded as a category from CAA. So the prospects look very bleak for them in India.

This only means that, Bangladesh will continue to bear the burden of hosting the Rohingyas and any international aid, directed through the UNHCR, will only be partially adequate to meet the needs of these refugees.

One noteworthy matter that needs to be looked at is the Case brought by Gambia against Myanmar, before the International Court of Justice, for violating the Genocide Convention, to which Gambia and Myanmar are parties. This suggests that there are other forms of pressure being brought to be born on Myanmar to address the plight of the Rohingyas.

IL and Indian Municipal Law

Visakha Case	Some provisions in the 'Convention on the Elimination of All Forms of Discrimination against Women', of significance in the present context are: Article 11: "1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on basis of equality of men and women, the same rights, in particular: (a) The right to work as an inalienable right of all human beings; (f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. Article 24 : "States Parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognised in the present Convention." The general recommendations of CEDAW in this context in respect of Article 11 are :     "Violence     and     equality    in employment: 22. Equality in employment can be seriously impaired when women are subjected to gender specific violence, such as sexual harassment in the work place. 23. Sexual harassment includes such unwelcome sexually determined behavior as physical contacts and advance, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment. Effective complaints procedures and remedies, including compensation, should be provided. 24. States should include in their reports information about sexual harassment, and on measures to protect women from sexual harassment and other forms of violence of coercion in the work place." The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
WTO Uruguay Agreement 1994	Novartis Case involving TRIPS Section 3(d) in The Patents Act, 1970
India - US Nuclear Deal	Joint Statement of July 18, 2005 India and the US announced that they would co-operate in civil nuclear energy in the Joint Statement of July 18, 2005 by PM and President Bush during the visit of PM to Washington. Understanding It was envisaged that the United States would adjust its laws and policies and work with friends and allies to adjust international regimes to enable full civil nuclear energy cooperation and trade with India.  H.R.5682 - Henry J. Hyde United States and India Nuclear Cooperation Promotion Act of 2006 Reciprocally, India committed itself to identifying and separating civilian and military nuclear facilities in a phased manner, placing voluntarily its civilian nuclear facilities under IAEA safeguards, signing an Additional Protocol and continuing India’s voluntary and unilateral moratorium on nuclear testing. Additional Protocol was signed between the Government of India and the IAEA on 15 May 2009. An Additional Protocol (AP) to the Safeguards Agreement between the Government of India and the IAEA for the Application of Safeguards to Civilian Nuclear Facilities entered into force on 25 July 2014. THE CIVIL LIABILITY FOR NUCLEAR DAMAGE ACT, 2010 (For more: https://bit.ly/2OUwOL5)

SPECIFIC PROVISIONS IN THE INDIAN CONSTITUTION

Seventh Schedule - Union List

14. Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.

Article 253 in The Constitution Of India 1949

253. Legislation for giving effect to international agreements Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.

ADDITIONAL RESOURCE
Article titled - TREATY-MAKING POWER UNDER OUR CONSTITUTION