[Is an LL.M. Student at Stamford University Bangladesh and an Intern at the South Asian Institute of Advanced Legal and Human Rights Studies in Dhaka]
A person becomes a refugee because of circumstances that are beyond her/his control. Refugees are human beings.
Bangladesh is the host country of asylum seekers and refugees, mainly from Myanmar (Burma). It has been hosting the Rohingya, an ethnic Muslim minority from Myanmar for decades.
As per records of the United Nations High Commissioner for Refugees (UNHCR) and Government of the People’s Republic of Bangladesh, there are around 28,000 Rohingyas who are “officially recognized refugees” now living in two camps in the southern district of Cox’s Bazaar. They are the residual of recorded 258,800 Rohingyas who fled Myanmar during 1991-92 and took refuge in Bangladesh. Apart from that there are reportedly 300,000 to 500,000 Myanmar nationals, mainly the Rohingyas in Bangladesh without any status.
Though, Bangladesh does not have a national legislation to deal with asylum seekers and refugees, however, the State has registered and granted “refugee status” once to those 258,800 Rohingyas through an “executive order” 1991. By the time, UNHCR was invited and it signed a Memorandum of Understanding (MoU) with the Government and mandated to look after the protection issues.
Bangladesh is also not a party to the 1951 UN Convention Relating to the Status of Refugees (Refugee Convention) or its 1967 Protocol. Despite of that the state has been providing refuge to the Rohingyas along with tolerating their “illegal presence.”
However, recent denial by the Bangladesh Government of extending any refuge to the Rohingyas fleeing communal violence in the Northern Rakhine State, and apparent “push back” have created concerns among the human rights organizations and international communities.
Obligation of Bangladesh Under International Law
The 1951 Refugee Convention and its 1967 Protocol are basic legal instruments with regard to protection of refugees.
The 1951 Convention provides criteria to be recognized as a refugee, their rights and obligations, and visa vie obligations of State parties.
Under 1951 Convention, a person can claim refugee status with three conditions: (i) being out of the country, (ii) well-founded fear of persecution for specific grounds, and (iii) unable or unwilling avail protection from the government of the country of origin. And, the specified grounds are of persecution are based on one’s race, religion, nationality, membership of special group, and political opinion.
The Convention (Article 33) also provides the principle of non-refoulement- meaning no person shall be return to a territory where he/she may be exposing to persecution. This principle is now considered as part of international customary law and is widely practiced (including Bangladesh in previous years, even for the Rohingyas).
The Principle has indeed expanded State's protection obligations beyond the 1951 Refugee Convention framework; therefore, one cannot be returned to his or her country of origin; hence, contributing to deprivation of life, and putting forward to torture, or cruel, inhuman or degrading treatment or punishment.
Generally, those countries which are parties to the Refugees Convention are legally bound to follow all the provisions thereof.
Bangladesh, despite of not being a party to the Refugee Convention is expected to respect the principle of non-refoulement as part of customary international law, as argued by Mostafa Mahmud Naser, an Assistant Professor of Law at the University of Chittagong in his article published in The Daily Star on 23 June 2012 (link: http://www.thedailystar.net/law/2012/06/04/index.htm). According to this academic, who is now pursuing his doctoral research at Australia’s Macquarie University, Bangladesh has obligation to asylum seekers and refugees despite of not ratifying the 1951 Convention or 1967 Protocol as because it is a member to the United Nations and is thus obliged to protect and promote human rights. Apart from that Bangladesh is a party to the International Covenant on Civil and Political Rights, 1966 (ICCPR) and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 (CAT) among other human rights isnstruments.
Article 14 of the Universal Declaration of Human Rights 1948 (UDHR), guarantees for “…right to seek and to enjoy in other countries asylum from persecution.” The UDHR is consider as jus cogens, thus those rights are universally accepted and enforced by all parties despite of whether they are party to the 1951 Convention or 1967 Protocol.
Bangladesh has also obligation under Article 3 of CAT (non-return of a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture).”
In case of the Rohingays, it is very likely that they would be targeted for torture, inhuman and degrading treatment upon pushed back to Myanmar which is tantamount to persecution.
Also, persecution by “non-state actors” (in presence of apparent reluctance or inability by State actors to prevent or/and prosecute such persecution) does qualify one for a refugee status under refugee law.
Obligation Under National Laws
Though Bangladesh does not have any national law as such to deal with asylum seekers and refugees; however, some Constitutional provisions are instrumental in protecting and promoting their rights.
Article 25 of the Constitution states that “…State shall base its international relations on the principles of respect for .... international law and the principles enunciated in the United Nations Charter”.
Article 31 of the Constitution provides for equal protection of law for “each citizen” and “every other persons staying in the country for time being.” Thus, the Article extends protection the asylum seekers and refugees (non-citizen) who for the time being are staying in the country.
The Constitution also guarantees for right to life and personal liberty for all (Article 32).
The Supreme Court of India has also upheld “right to life and personal liberty” for refugees in India despite of the State not being a party to the 1951 Convention [National Human Rights Commission v.The State of Arunachal Pradesh (1996 (SC) AIR 1234)].
The Foreign Minister of Bangladesh, Dipu Moni has reportedly said in the National Parliament that: “ it is not in the country's best interest to allow more Rohingyas into the country while Bangladesh is already burdened with Rohingya refugees, and many of them are involved in subversive and militant activities.”
This generalized branding of Rohingya population in Bangladesh does not relieve the State from its international obligations.