When Union Home Minister Rajnath Singh labelled Rohingya refugees in India “illegal immigrants” he was patently wrong. The difference between illegal immigrants and refugees is quite simple – choice. An illegal immigrant chooses to cross borders, while refugees have no choice, migrating because of extreme duress in their normal habitat. The question in the legal sense, from the Indian point of view, is different. First, does it have a legal obligation to abide by the UN Refugee Convention to which it is not a member? Second, at what point are its legal obligations to refugees trumped by the need to maintain domestic law and order?

For India, the refugee problem has two dimensions: one, the question of whether to let them in, and second, the principle of non-refoulement – that is to say not forcibly repatriate them to a situation of danger. Both these questions come under the ambit of customary international law, which implies that even if India has not acceded to the Refugee Convention, the fact that a vast majority of countries have acceded to it accords it with the force of law. Such an interpretation runs against long-standing Indian exceptionalism. Further, the very nature of what is customary in international refugee law is changing. Finally, there is a cast iron national security provision even within the Refugee Convention that allows India to argue both entry denial and deportation very successfully.

The biggest argument against the application of customary law to India is the ability of a state to resist and thereby withstand a forcible implementation of its decisions. This means that 'small' states generally tend to follow such international conventions while 'big' states tend to refuse, and there is no provision under the UN or any international law that can force them to abide. Simple examples of this so far have been the decision of Russia and the US to withdraw from the International Criminal Court (ICC), and China and India's refusal to join it. Other countries like Sudan despite refusing to ratify it have limited scope to resist, with the Sudanese President Omar Bashir being indicted. However that indictment triggered the withdrawal of several African states from the ICC.

The rather more insidious implication of accepting such universal definitions of customary international law in one sphere can extend precedent to other spheres. For example, the Non-Proliferation Treaty (NPT), which India is not a signatory to and refuses to accept, can be imposed on India as "customary law" should India accept this interpretation, and this would then on the basis of precedent extend to all treaties that India stays out of. At any rate, when someone says that "India must" abide by the provisions, these are toothless words as there is no enforcement mechanism and no consequences for not abiding, as opposed to the massive national security consequences of abiding.

What if the consequences of allowing "customary international law" to overrun sovereignty are ignored? Here again the very definition of 'customary' is beginning to change. 'Custom' is a simple legal formula where custom is a total of opinio juris plus state practice. The biggest problem here is that the state practices of the biggest supporters of the Refugee Convention are now changing. This concerns the European Union (EU) finalising a deal with Turkey in 2016, not entirely dissimilar to Australia’s 'Pacific solution'. Under this deal, Turkey would be monetarily incentivised to prevent the onward migration of refugees to Europe and for accepting those rejected from Germany. 

Equally, there are indicators that the EU is using a mix of coercion and cajoling to prevent large-scale movement of refugees from North Africa, though this goes unreported. Similarly, Australia’s Pacific solution adamantly and defiantly refuses to let in refugees; instead sending them off to small Pacific islands that are incentivised for accepting them. Importantly, not one EU or Australian leader has been held in violation of the Refugee Convention despite being full member states to the Convention. All of this begs the question – if state practice is turning against the core tenets of the Refugee Convention, can it be considered "customary" law at all?

Lastly, the 1951 Refugee Convention itself accepts exceptions to admission and non-refoulement under the principle of national security. The definition of national security is left entirely to the receiving state – including if its application will be individual (on the basis of a specific crime committed) or collective (based on a generic threat perception of the incoming population). India of course has several credible grounds of national security here. First is the Islamic State's (IS) links to several Rohingya organisations, including the Arakan Rohingya Salvation Army (ARSA), and the ARSA’s militarisation of civilians along Myanmar's Maungdaw area. The second is overwhelming evidence (from its own Twitter activity and YouTube videos) that ARSA sought, through its 25 August 2017 attack, to provoke a Myanmarese overreaction, and was counting on a refugee crisis to create fertile grounds both for infiltration and recruitment. Finally, the fact remains that given almost every Northeastern border state in addition to West Bengal is in the grips of an ethnic "us-versus-them” cauldron, the risks of internal destabilisation are undeniable. Prioritising security here therefore is not just a state imperative, but also recognised as such by the Convention.

To sum up, insisting that refugees have any kind of right to come into and reside in India without being deported is, at best, questionable - whether it is seen in light of the applicability of the relevant statutes to India, the current practice of those statutes, or indeed, the national security exceptions enshrined in those statutes.