Repatriation

What is Repatriation

Repatriation is the act of returning or restoring a person or a thing to the country of origin, allegiance, or citizenship. It is a term broadly used in international law, migration studies, cultural heritage preservation, and humanitarian assistance. Repatriation can occur voluntarily or involuntarily, often depending on the context and the parties involved. This process may refer to human entities, by way wherein military personnel or refugees are sent back to their place of origin after a war or to non-human entities, such as conversion of foreign currency into the currency of own country. In times of international crises, the term also applies to diplomats and international officials. However, for refugees the term indicates either a voluntary return or deportation to the place of origin.

Legal Provisions related to Repatriation in India

India’s legal framework for repatriation and deportation is shaped by its constitutional and domestic laws as well as its international obligations. India is a signatory to the International Covenant on Civil and Political Rights, which mandates fair treatment and due process for all individuals including foreign nationals. However, although India is not a signatory to key instruments like the Refugee Convention 1951 and its Protocol, India has devised a system of its own through a mix of statutory provisions and judicial decisions.

Domestic Frameworks

Foreigners Act, 1946

This Act governs the entry, stay and deportation of foreign nationals in India. It grants the government with the broad powers to detect, detain and deport individuals deemed to be unlawfully present in the country. This Act also further places the burden of proving legal entry and stay on the individual. Section 3 of this act grants power to the Central Government to make provisions by passing an order either generally or with respect to any particular foreigner or any prescribed class or description of foreigners, for prohibiting, regulating or restricting their entry or departure therefrom or their presence or continued presence therein.

The Citizenship Act, 1955

This provides the legal framework for the determination of citizenship and addresses the issue of illegal migration. Individuals who enter India without valid documentation or overstay their visas are considered illegal migrants and may face deportation. It essentially outlines the process for acquiring and terminating Indian citizenship, allowing individuals to become citizens through birth, descent, registration, naturalization or incorporation of territory. It also defines conditions under which the same may be revoked.

The Passports Act, 1967

This Act regulates the entry and exit of Indian citizens and foreign nationals and provides them with the framework for deportation in any case of forged or invalid travel documents. It regulates the issuance of passports and travel documents to Indian citizens while outlining the procedures for obtaining, renewing, impounding and revoking them while also defining grounds for refusal.

Extradition Act, 1962

This Act facilitates the return of individuals facing criminal charges in another country, based on bilateral or multilateral extradition treaties entered into with other countries. This outlines procedures for handling extradition requests from different countries and governs procedure for foreign nations without formal extradition agreements with India.

Repatriation of Prisoners Act, 2003

This Act came into effect to facilitate the transfer of certain prisoners from India to another country and from another country to India. This legislation was essentially brought so as to assist prisoners in serving the remainder of their sentences in their respective home countries, with the Central Government mandated with the perusal and consideration of requests for transfers from prisoners.

JJ Amendment Rules, 2022

Under the guiding principles of the Juvenile Justice Act 2015, the JJ Amendment Rules, 2022 provides for measures and steps to facilitate the restoration of children with their families or guardians. The repatriation of children is a pivotal aspect of the restoration process, if the child’s native origins are from a different place than the one they are found in. Rule 81(5A), (5B) and (5C) of the JJ Model (Amendment) Rules, 2022 mandates for the development of protocols to facilitate the repatriation of children who hail from a different State/District to their native place.

Judicial Precedents

• NHRC v. State of Arunachal Pradesh (1996):

The Supreme Court upheld the rights of Chakma refugees from Bangladesh to reside in Arunachal Pradesh, emphasizing the protection of life and liberty under Article 21. The Supreme Court pronounced its judgment in the case of National Human Rights Commission (NHRC) Vs State of Arunachal Pradesh by declaring the Chakmas and Hajongs as citizens and directing the Government of India and the State of Arunachal Pradesh to process their citizenship applications. It was held that under Article 21 of the Constitution of India, no person or group, citizen or not, may be deprived of life and liberty by any body or organization and that they must be protected from any such threats by the State, or it fails to perform its Constitutional as well as Statutory obligations.

• Mohammad Salimullah v. Union of India (2021):

The present case was a a petition challenging the deportation of Rohingya Muslims who had taken refuge in India to escape persecution in Myanmar. The Supreme Court refused to halt the deportation of Rohingya refugees, stating that India was not bound by the Refugee Convention. However, it reiterated that deportation must align with constitutional protections like Article 21. The court rejected any relief and allowed their deportation subject to proper procedure being followed.

• Hans Muller of Nuremberg v. Superintendent, Presidency Jail (1955):

The Supreme Court held that the power to deport foreign nationals lies exclusively with the central government, provided it adheres to due process.

International Framework for Repatriation of Individuals

The legal frameworks for repatriation exists at both international and national levels, which seeks to balance state sovereignty over immigration policies and the protection of human rights. These frameworks governs the removal or return of individuals while ensuring compliance with international obligations:

International Framework	Mandate	Application
Refugee Convention, 1951	Prohibits refoulement (return to danger)	Refugees and asylum seekers fleeing persecution
Protocol to the Refugee Convention, 1967	Extends protection beyond original limitations of the 1951 Convention	Refugees worldwide
Convention against Torture, 1984	Prohibits expulsion of individuals to states where torture is likely	Applicable to all individual facing the apprehension of torture
International Covenant on Civil and Political Rights, 1966	Article 13 ensures a fair hearing before deportation of individuals	All immigrants facing expulsion
UN Guidelines on Internally Displaced Persons	Promotion of safe, voluntary and dignified return for displaced persons	Internally displaced persons (IDPs)

Repatriation of Individuals

Voluntary Repatriation

Voluntary repatriation occurs when individuals are willingly returned to their homeland or country of origin. This is often facilitated with the oversight or assistance from governments, international organizations or NGO’s. It is unlike expulsion and deportation which are sovereign actions imposed on individuals and is defined as more of a personal right under specific conditions. It is also a common occurrence for refugees and asylum seekers to seek return to their homelands after conflict resolution, political stabilization and living conditions are improved. This stems from the fact that seeking refuge is a temporary condition that arises due to an unstable or threatening situation that originates in their country. The United Nations High Commissioner for Refugees (UNHCR) plays a pivotal role in ensuring the facilitation of safe and dignified voluntary repatriation and the Statute of the United Nations High Commissioner for Refugees (UNHCR) entrusts the international body with the responsibility of ‘assisting governmental and private efforts to promote voluntary repatriation or assimilation within new national communities”.

The 1969 Organization of African Unity (now called the African Union) Convention Governing the Specific Aspects of Refugee Problems in Africa also similarly noted the importance of repatriation and emphasizes the fact that the same must be voluntary.

Therefore, for lawful practice under international law, the repatriation of refugees must be carried out in a voluntary, safe and dignified manner that respects the principle of non-refoulement, which prohibits the practice of sending people back to a place that carries danger to their life and safety. The following are the key operational principles that govern a lawful practice of repatriation:

• Voluntary Character

The principle safeguarding the voluntary character of repatriation process is the cornerstone for protection of refugees and asylum seekers. It is derived from the principle of non-refoulement which is set forth in the 1951 Refugee Convention, wherein it is forbidden practice to send individuals back to the countries of origin which poses a danger or threat to their life or safety. The OAU Refugee Convention of 1969 does however state that the ‘voluntary character of repatriation shall be respected in all cases’ and that the same is not be carried out against the will of the individual.

In practice, the 1951 Refugee Convention accords the UNHCR with the mandate to protect individuals who have crossed a border, which can only be exercised within the State of exile. Therefore, the protection stops at the border of the State of origin and the protection of the UNHCR is lost beyond that. Given the same, any involuntary repatriation is then viewed as equivalent to refoulement. In order to ensure that the voluntary character is observed, the UNHCR must monitor the conditions in the country of origin as well as the situation in the country wherein asylum is sought. This is to ensure that the individual has access to reliable information before leaving and they are allowed to exercise their freedom of choice. Repatriation is considered to not be voluntary when, the authorities of the country of asylum removes any possibilities for the refugees to have freedom of choice by imposing measures that encourage their departure.

• Safe Return

A safe return to the country of origin is pivotal to a lawful repatriation process. The same is considered to be fulfilled when judicial conditions such as amnesties and guarantees of individual security as well as physical and material safety is ensured. These are in practice incorporated in tripartite agreements entered into amongst the UNHCR, the country of origin and the country of asylum.

• Dignified Manner

Although this principle is abstract in nature, it simply seeks to reinforce that the human dignity of individuals must be respected throughout the whole process.

Forced Repatriation

Forced or involuntary repatriation involves the return of individuals to their country of origin without their consent. This often operates under international legal agreements or a as a result of deportation from a country, which occurs when migrants are found to residing illegally within a foreign country or when prisoners of war (POWs) are returned under terms of treaties like the Geneva Convention. This often raises ethical and legal concerns, especially in situations where the individuals may face persecution on return to their home country. Countries may establish procedures through re-admission agreements for return of individuals to their country of origin, especially in the case of illegal migrants who may have to be repatriated as a result of government policy.

The same has a long and complex history starting from the aftermath of the World War II, when millions of displaced persons were repatriated to their countries of origin. Operation Keelhaul was one of the most controversial repatriation effort, where Allied Forces repatriated Soviet citizens and members of the Soviet Army to the USSR, where they faced persecution or execution upon their arrival.

It continues to be a contentious issue as governments routinely deport individuals who are illegally in their countries which is often a process fraught with challenges. In contemporary times in 2014, China faced international censure for forcing North Koreans who had crossed over illegally to return back. The United Nation’s Commission of Inquiry published a report which pointed out that numerous North Koreans, who had all been previously subjected to inhuman treatment and punishments such as torture, imprisonment, starvation and sexual violence, were being forcefully returned to North Korea. According to the Universal Declaration of Human Rights, however, political refugees under persecution should be granted asylum and the forced return of people to any country their ‘life or freedom’ would be threated due to factors such as race, religion, nationality, etc. is against the Protocol Relating to the Status of Refugees.

Similarly, The Rohingya, a Muslim minority group from Myanmar, have faced decades of persecution and violence, leading to mass displacement to neighboring Bangladesh starting from the first attempt in 1992. While there have been attempts to repatriate the Rohingya to Myanmar, these efforts have been criticized due to ongoing violence and lack of guarantees for their safety and rights. Forced repatriation in this context poses significant risks to the lives and well-being of the Rohingya. This practice of forced repatriation raises several ethical and humanitarian issues aside from the risk of persecution including separation of families, denial of access to fair legal processes to challenge their deportment as well as long term psychologic effects stemming from the stress and trauma of repatriation.

Cultural Repatriation

Cultural repatriation refers to the return of artifacts, human remains, and cultural heritage items to their country or community of origin. This type of repatriation is particularly significant in the context of colonialism, where items of cultural, spiritual, or historical importance were taken without consent. These objects, often taken during periods of colonialism, war, or unethical trade practices, hold deep cultural, historical, and spiritual significance for their original owners and the return is a symbolic acknowledgement of the cultural autonomy and rights of the affected communities.

The practice of removing cultural artifacts dates back centuries, with powerful empires often seizing items from conquered territories as symbols of domination. However, the large-scale acquisition of cultural artifacts occurred during the colonial period, when European powers systematically looted heritage objects from colonized regions in Africa, Asia, the Americas, and Oceania. These artifacts were subsequently displayed in museums and private collections, often without the consent of the originating communities. The return of the Benin Bronzes to Nigeria is an illustration of cultural repatriation where Nigeria sought the return of the bronzed which is believed to have originated in the Kingdom of Benin (modern day Nigeria) in a British expedition in 1897 and has since been housed in museums such as the British Museum, the Metropolitan Museum of Art (MET) and the Germanisches National Museum.

Legal Frameworks

The key legal frameworks that govern cultural repatriation include:

• The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property, which obligates signatory states to prevent the illicit trafficking of artifacts and the facilitation of their return to the rightful owners. However, the Convention is not retroactive in nature and only applies to disputes post-1970.

• The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, which supplements the UNESCO Convention by highlighting private collections and instituting guidelines for the return of cultural property, including cases of private party involvement.

• Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 1954 which seeks to protect cultural property during wartime and mandates the return of stolen items post the conflict.

Notable Cases of Cultural Repatriation

Machu Picchu Artifacts

In 2010, Yale University returned numerous artifacts to Peru that were taken from Machu Picchu as part of the 1911 expedition, which excavated bones, ceramics and metal objects by Hiram Bingham. The dispute stemmed out of the fact that these artifacts were taken on loan but never returned, while Yale initially argued, that it had rightful possession. After years of negotiations and public pressure, an agreement was reached in 2010 for the artifacts to be returned to Peru. These artifacts are considered to be a critical part of Perus cultural heritage and the return of the same marked a significant victory for Peru in reclaiming its history.

Elgin Marbles

The Elgin Marbles Case, also known as the Parthenon Marbles case is a controversial debate over the ownership of the sculptures, believed to be created in the 440s and 430s BC by Phidias to decorate the Parthenon in Athens, which was removed and shipped to London, in the early 19th century by Thomas Bruce, the 7th Earl of Elgin and British Ambassador to the Ottoman Empire, which has been thereafter on display at the British Museum for over 200 years. The Greek government claims that the sculptures were illegally obtained and should be returned to Athens while the British government refutes the claims by stating that it should remain in its collection and the collection is still under dispute.

Economic Repatriation

Economic repatriation involves the transfer of assets, investments or financial resources back to the country of origin. This can include instances of repatriation of profits by multinational corporations to their home countries or the return of funds by expatriates, often in the form of remittances and the recovery of stolen assets, such as in the form of corruption.