Blog by Diksha Singh *
Introduction
India is building a wall. The recent, unilateral decision to terminate the long-standing Free Movement Regime (FMR) with Myanmar and erect a fence along the entire 1,643 km border is more than a policy shift; it is a profound challenge to the international legal order. This is not happening in a vacuum. Across the border, Myanmar is collapsing into a brutal civil war, pushing thousands of desperate civilians, ethnic minorities, and defecting soldiers to seek refuge. In this crucible of conflict and humanitarian crisis, India has chosen to construct a physical and legal fortress.
This post contends that India’s new border policy is a multi-pronged assault on its international legal obligations. The core inquiry, therefore, is not whether a State may legitimately secure its borders, but at what human cost. This policy forces a confrontation between the State’s security prerogatives and the humanitarian needs of people fleeing persecution. While international law does not automatically prohibit border barriers, such measures can significantly impede access to protection, placing vulnerable populations in grave danger. Simultaneously, the internationally recognized rights of indigenous peoples are transformed from a declaration of principles into the practical question of whether a community’s social and kinship fabric can survive being torn apart by a new line of concertina wire.
The Legal Framework and Obligations
The common refrain from New Delhi is that India never signed the 1951 Refugee Convention, as if this absolves it of all responsibility. This is a shield made of glass. The bedrock principle of refugee protection, non-refoulement is not a mere contractual obligation; it is a binding norm of customary international law that forbids returning people to a place of persecution. Its status as a jus cogens means it is a non-negotiable norm from which no state can deviate. Crucially, this principle’s application cannot be defeated by a physical barrier. While the precise scope of non-refoulement at the frontier is a key point of legal debate, a strong line of jurisprudence, particularly from the European Court of Human Rights, has affirmed that State obligations are triggered wherever a state exercises ‘effective control’ over an individual. When a State erects an impassable wall, it is exercising a form of de facto control over a person’s ability to seek asylum, arguably triggering its non-refoulement obligations under customary international law.
But this legal aspect is layered over a profound human one. The Indo-Myanmar border is not an ancient reality; it is a recent scar cut across the ancestral lands of the Naga, Kuki-Chin, and Mizo peoples. For these communities, the line on the map is a painful fiction that slices through families, farmlands, and sacred groves. Their identities and kinship networks have flowed across these hills for generations, long before any mapmakers arrived.
India itself has acknowledged this truth by endorsing the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Article 36 of that declaration is not an abstract ideal; it is a direct recognition of this reality, affirming the right of these communities to maintain their relationships across the border. It protects the right of families to remain families, even when a map says they live in two different countries.
India’s Border Policy
The termination of the FMR is a radical departure from decades of policy that acknowledged the unique ethnic tapestry of the borderlands and allowed communities to sustain their cultural, social, and economic lifelines through a pragmatic arrangement. The government’s justification for its new policy of fencing and termination is a familiar cocktail of national security concerns: insurgency, drug trafficking, and illegal immigration.
The practical implication for asylum-seekers is the near-total extinguishment of their ability to seek refuge. A physical fence, combined with the criminalization of undocumented entry, creates an environment where the legal concept of asylum becomes a practical impossibility.
For a refugee fleeing the Myanmar army, the wall is a formidable obstacle to reaching safety. This policy of prevention raises serious humanitarian concerns and clearly challenges India’s ability to provide effective protection to those in need, conflicting with international norms. For indigenous communities, the impact is a form of cultural amputation. The fence severs ancient pathways, separates families, and disrupts local economies. It transforms a porous region of cultural exchange into a hard, securitized border. The State’s security is thus privileged over the fundamental rights of the people who inhabit the land, in direct contradiction to the spirit and letter of the UNDRIP.
Balancing National Security and International Legal Norms
The invocation of ‘national security’ is the State’s central justification, but it does not absolve India of its binding obligations under International Human Rights Law. Even though India is not a party to the 1951 Refugee Convention, it is a party to the International Covenant on Civil and Political Rights (ICCPR), and its security measures must still be necessary and proportionate when they interfere with protected rights. The proposed wall is a direct interference with the rights of the Naga, Kuki-Chin, and Mizo peoples, engaging India’s obligations under Article 17 (the right to family life) and Article 27 (the cultural rights of minorities) of the Covenant. The legal burden is on the state to demonstrate that a 1,643 km wall is a proportionate response, and not a discriminatory and excessive infringement on the rights of these communities.
The tension between sovereign border control and human rights is often a manufactured one. International law does not deny a State’s right to control its borders; it simply establishes that this right cannot be used to annihilate other co-existing obligations, particularly those that are non-derogable. As jurisprudence from international courts has repeatedly shown, refugee protection and State security are not mutually exclusive goals. By opting for a wall rather than a more flexible border regime, India undermines the protection of both refugees and indigenous communities.
Legal and Normative Questions
India’s actions raise profound and troubling questions for the future of international law. Does this unilateral act of a major regional power begin to fray the edges of customary law? When a State as influential as India acts in defiance of the principle of non-rejection at the frontier, it reinforces a dangerous global trend of securitized containment, potentially weakening the norm for everyone.
This is where the policy forces a direct confrontation, not between legal theories, but between the power of a state and the rights of a people. By prioritizing a hard line of concrete and wire over the living bonds of a community whose identity is woven across that very line, India’s policy makes a dangerous declaration: that State security can silence the rights of its people, even when those rights are enshrined in international instruments like the UNDRIP. This is not just a “damaging precedent”; it risks weakening protections for indigenous communities globally. The long-term impact is the slow, deliberate erasure of the very gains in international law that were meant to protect them.
Conclusion
India’s new border policy with Myanmar is not about checkpoints. It is a major shift where the State’s security logic collides head-on with its obligations under international law. By ending the Free Movement Regime and closing off the frontier, India is not only shutting the door on refugees fleeing violence but also tearing through the fabric of indigenous life that has always crossed this border.
What makes this troubling is not simply the direct harm on indigenous families and asylum-seekers but the signal it sends. If a State of India’s stature can sidestep principles like non-refoulement or the rights recognised in UNDRIP, it weakens protections far beyond its own borders. These are supposed to be hard lines in law, not flexible rules that can be fenced off when inconvenient.
The question, then, is not whether India can claim the right to secure its territory, but whether it can do so without hollowing out the very norms that give meaning to international law. The wall on the Indo-Myanmar border is more than an inter-State regional dispute; it highlights the complex tension between State security policies and the international norms designed to protect refugees and indigenous communities worldwide.
* Diksha Singh is an undergraduate student at National Law Institute University, Bhopal
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