Introduction

In international refugee law, the Transnational Legal Process (TLP) offers a framework for understanding how global legal norms permeate national jurisdictions, aiming to harmonise domestic laws with international human rights standards. TLP posits that international law influences domestic legal systems through interaction, interpretation, and internalisation (Harold Hongju Koh, 1996). Here, interaction implies the constant engagement of the state and non-state actors in the dynamic process of the exchange and development of international legal norms, leading to their permeation into the domestic legal system. The constant interpretation of these norms allows the states to adopt them in a way that benefits their legal, cultural and political milieus. This is followed by the internalisation of these norms by the domestic legal systems through judicial decisions, legislative actions, and administrative practices. Thus, TLP explains how international legal norms are embedded into domestic legal systems and shape state compliance.

In the context of refugee law, TLP implies that international norms, such as those enshrined in the 1951 Refugee Convention and its 1967 Protocol, should inform national policies and judicial decisions concerning the treatment of refugees. Central to these norms is the principle of non-refoulement, which prohibits the forced return of refugees to countries where they face serious threats to their life or freedom.

The case of Mohammad Salimullah v. Union of India (2021) highlights the tension between India’s sovereign prerogatives and its international legal obligations, particularly concerning the rights and protections afforded to refugees. This essay explores the intricate dynamics of this case within the context of TLP, shedding light on the broader implications for refugee protection in India.

Mohammad Salimullah: A Critical Juncture

The Supreme Court’s decision in Mohammad Salimullah v. Union of India (2021) presents a critical juncture in the country’s refugee jurisprudence. By allowing the deportation of Rohingya refugees back to Myanmar, where widespread persecution and human rights violations are documented, the judgment highlights a critical disconnect in TLP, particularly in the internalisation phase where international principles should be integrated into national jurisprudence. Notably, India is not a signatory to the 1951 Refugee Convention, which governs international refugee protection standards, including the principle of non-refoulement. However, as a signatory to other international human rights treaties, such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 1984, the International Covenant on Civil and Political Rights (ICCPR) 1976, and the Convention on the Rights of the Child (CRC) 1989 and its Optional Protocol on the Involvement of Children in Armed Conflict (OPAC) 2000, that implicitly endorse non-refoulement, India’s actions regarding the Rohingya refugees warrant scrutiny through the TLP lens.

The political economy of international law suggests that decisions like Salimullah reflect a complex interplay of sovereignty and global legal norms, often influenced by asymmetrical power structures (Chimni, 2000). It could be argued that the judgment exemplifies India’s assertion of sovereignty in the face of international refugee law, raising questions about its commitment to global legal standards. This perspective aligns with the TLP’s interaction phase, underscoring a missed opportunity for India to engage constructively with international norms.

In this regard, E. Tendayi Achiume’s intervention application in the Supreme Court of India becomes significant as it exemplifies the application of TLP to the Indian legal system. Her application invokes India’s obligations under international treaties like the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 1965 to argue against the deportation of the Rohingya Muslims. Achiume’s request to assist the Supreme Court of India as amicus curiae also signifies a key aspect of TLP i.e. allowing international legal experts to intervene in domestic cases to ensure the protection, interpretation and timely application of international norms by the national courts.

It is my submission that the decision to deport the Rohingyas disrespects the fundamental notion of human rights – that they belong to all human beings and their foundation cannot be restricted by the laws of any government or society (Locke, 1698). Locke’s principles suggest a moral imperative to protect those fleeing persecution, an imperative that seems sidelined in the judgment.

TLP as a Lens for Non-Refoulement

The TLP framework provides a valuable lens for analysing the dissonance between the judgment of Salimullah and international refugee protection norms. First, the interaction component of TLP, which involves the engagement of state actors with international standards, seems to be at odds with the decision to deport Rohingya refugees. This action suggests a reluctance on the part of India to engage with the international legal principles concerning refugee protection fully.

Second, the interpretation phase of TLP emphasises the role of domestic legal institutions in understanding and applying international norms within the national legal context. The judgment, however, reflects a narrow interpretation of India’s international legal commitments, particularly overlooking the broader implications of the principle of non-refoulement as a fundamental aspect of human rights law.

Lastly, the internalisation aspect of TLP, which envisages the integration of international norms into domestic legal frameworks, appears to be incomplete in the Indian context. Despite India’s robust constitutional protections for human rights, the lack of a comprehensive legal framework for refugee protection and the Supreme Court’s stance on Salimullah highlight a gap in fully internalising international refugee law standards. The Court’s cursory interpretation of constitutional provisions, especially its languid engagement with Articles 14 and 21, reflects a broader judicial reluctance to fully incorporate international human rights obligations. This approach undermines the principle of non-refoulement and highlights the alignment of judicial intent with the restrictive legislative approach.

The judgment underscores a critical challenge in reconciling India’s domestic legal provisions with its international human rights obligations. This challenge is emblematic of a broader issue faced by many countries grappling with the influx of refugees and the imperative to protect national security. However, in the face of such an issue, Salimullah presented an opportunity for a domestic legal system to strengthen the normative force of international legal principles through its judicial interpretations. The Supreme Court of India has historically stood up for refugees as can be seen in the case of the National Human Rights Commission vs. State of Arunachal Pradesh (1996) wherein the court extended the protection of Article 21 to the Chakma refugees from Bangladesh. So, a departure from non-refoulement on grounds of legislative technicality is an oddity. I argue this on two accounts. First, non-refoulement is a norm of customary international law. Thus, it applies regardless of whether it ensues from a treaty or not. Second, the Supreme Court has observed on various occasions that customary international law is deemed integral to domestic law. For instance, in Ram Jethmalani vs. Union of India (2011), the court relied on Article 31 of the Vienna Convention on the Law of Treaties (VCLT) 1969 which refers to the interpretation of the treaty in good faith, and in conformity with its objects and purpose. The court categorically observed that while India is not a party to the VCLT, it contains many principles of customary international law, and provides broad guidelines regarding the appropriate interpretation of a treaty in the Indian context too (emphasis supplied).

In light of the political and social climate, Salimullah was the court’s carpe diem moment to formalise the principles it established in Ram Jethmalani (see also, People’s Union of Civil Liberties vs. Union of India (1997)), particularly in response to the changing paradigms, within and outside the Indian territory. It was an opportunity for the court to devise a national framework with rigorous legal standards, due process, and predictable application of the standards of refugee protection thereby reducing the conflict between the national interests and international obligations. Thus, the legacy of this order may be construed as regressive on crucial fronts including the protection of refugee rights, the adoption of international legal norms and their reconciliation with national interests (emphasis supplied). However, the principles underpinning TLP suggest a pathway forward: through enhanced interactions, a nuanced interpretation, and the eventual internalisation of these norms into domestic law, countries like India can better align their refugee policies with global human rights standards.

Conclusion

Salimullah serves as a poignant reminder of the complexities inherent in balancing national security interests with the imperatives of international refugee protection. Through the prism of TLP, it becomes evident that a more engaged, interpretive, and internalising approach to international legal norms could foster their harmonious integration into India’s legal system. This case is a stark illustration of the crucial yet failing synergy between national and international legal norms. However, TLP offers vital insights into why aligning domestic legal norms with global standards is desirable. Koh argues that synergising international law and domestic frameworks legitimises international norms, strengthens a country’s diplomatic standing, and fosters mutual respect and stability in international relations (Koh, 2004). By undermining a crucial principle like non-refoulment, the Salimullah judgement has weakened the necessary international cooperation required to address an issue like refugee protection. As the global refugee crisis continues to unfold, the lessons from this case and the TLP framework offer valuable insights for policymakers, jurists, and civil society alike, advocating for a refugee protection regime that respects both sovereign prerogatives and the fundamental rights of the most vulnerable.

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Amrisha Tripathi pursued her Master of Laws (LL.M.) specialising in International and Comparative Public Law at the West Bengal National University of Juridical Sciences (NUJS), Kolkata. During her tenure at NUJS, she contributed to multiple empirical research projects, particularly focusing on dispute resolution mechanisms and child rights advocacy. She has taught at notable institutions such as the Tamil Nadu National Law University (TNNLU), Trichy and CHRIST University, Bengaluru. Amrisha was briefly associated with the Migration and Asylum Project (MAP) where she extensively worked on refugee rights and advocacy. Her research primarily explores the intricate intersectional challenges within refugee law and policy. She aspires to use her scholarship and pedagogy to foster a more dynamic interaction between classroom teaching and the practical application of law and policy.

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Image: The New Indian Express.