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Global Legal Framework for Refugee and Bangladesh`s Stand-Part-II

Emdadul Haque


Unluckily, any regional Convention or Declaration on refugees by Asian states is yet to be adopted. However, the only agreed to but non-binding, statement of refugee protection principles with regional applicability for many countries in Asia is the Bangkok Principles, as adopted in 1966 by the Asian-African Legal Consultative Committee (AALCC). The Bangkok principles were revised and consolidated by the Asian-African Legal consultative Organization (AALCO) in June 2001 as a result of six years of negotiations.                

Despite not being a party to 1951 and 1967 Refugee Convention and Protocol and amid ample of limitations Bangladesh has been generous enough to around 500,000 Rohingya refugees in Cox’s bazaar and Bandarbann for more than 30 years, considering humanitarian grounds.

Officially there are only around 30000 de jure refugees while 470,000 are de facto ones entered into the country in 1978 and during 1991-1992. Deprivation of nationality and persecution of Myanmar have compelled the Rohingya Muslim ethnic community to seek sanctuary in the country.

Myanmar shares a 271 kilometre border with Cox’s Bazar and Bandarban, 54 km with Teknaf upazila alone and so it is toilsome for Bangladesh to stop coming of Rohingya illegally.

But recent refusal in June 2012 for not allowing further Rohingya boat people in the territory has sparked wider criticism around the world without any justified reason. However, Bangladesh has treated the persecuted boat people humanly with food, water, medicine and care. In opposed to the stand of Bangladesh, the richest countries in the world are more cruel and inhuman in treating boat refugees and related endangered section of people.

The United States of America, Canada and Australia are the burning examples in this regard.     

During the 1980s more than 20,000 Haitian boat people were interdicted by U.S. officials at sea—and only one in a thousand was permitted to apply for asylum seekers. Similarly, since 1995, the US wet feet, dry feet policy has usually allowed Cubans who reach dry land in the U.S. to stay while those intercepted at sea by the U.S. Coast Guard are returned to Cuba.

Canada has sent back about 90 Chinese boat people to China amid tight security under an agreement with Chinese authorities in 2000 because their arrival sparked intense debate over Canadian asylum and immigration laws. Canadian government said sending the boat people back will help deter future human trafficking.     

Australian Government refused to accept 438 asylum seekers of Norway at sea in 2001. After rescuing asylum-seekers in distress at sea, the Norwegian ship MV Tampa was not allowed to enter Australian territorial waters and port. As a reason of no entry into Australian territory the government said the boat people intended to enter the country illegally which violates provisions of immigration law as well as coastal law.    

Keeping tough stand like USA, Canada and Australia, Thailand also denied to accept Rohingya boat refugees and in case of intrusion by boat refugees the Thai government either detained indefinitely or intercepted at sea pushing the risk back to sea for many times arguing that Thailand is not a signatory to the 1951 Refugee Convention and 1967 Protocol and also devoid of having domestic laws on refugee or asylum issues.  

Cited national security concern, regional tension and environmental damage as reasons, if these states blocked to accept no more refugees, then why, Bangladesh a small state crippled with manifold deficiencies and concerns with limited resources will allow mass influx of refugees from Myanmar.   

In fact, Bangladesh is among the world’s least developed countries with density of population over 1000 per km. Also, security concern, resource constraints and unbearable burden practically makes the country bound to take such tough decision to return back the Rohingya people recently.

On the other hand, Myanmar is five times bigger than Bangladesh but only has 65 people living per km.  So, world bodies must take a rock solid stand against Myanmar rather than to convince or compel to end the persecution on Rohingya minority Muslims.  

Bangladesh is reverent country towards international humanitarian law and international refugee law as a branch of human rights law apart from overall international law and relation since its inception in 1971 especially its membership in the UN in 1974. Now, considering the vulnerabilities of Bangladesh, world communities including regional and international bodies must be involved for a compromised better end of the crisis.           

Furthermore, it could be referred that state practice of the principle of non-refoulement concerning the boat refugees is very thorny issue. The principle of non-refoulement ensures the guarantee of refugee`s right, and conversely, under Article 33(2) of the 1951 Convention state may reject the refugee application and restrict their entry into the territory owing to national security and state policy.

In addition to these, state sovereignty, limited resource and national security along with national policy always get priority over the customary international law in practice but not in theory.      

World bodies, human rights organizations and even Pro Rohingya communities while discussing on the issue, refer the liberation history of the country in an emotional way, although the context of being refugee of Bangladeshi people in 1971 was different. Creation of independent Bangladesh was accompanied by a historical availing of refuge opportunity of 10 million people out of 70 million in neighbouring India.

Even the incumbent Prime Minister of Bangladesh took refuge in Germany in 1975 after a brutal killing of Bangabandhu Sheikh Mujibur Rahman, the father of the nation along with his family members by some disgruntled army personnel on August 15, 1975.

The country being a member of UN and UN Human Right Council has so far ratified eight out of nine core international human rights documents including ICCPR, ICESCR, UNCRC, CEDAW and CAT except the UN Convention on the Rights of Persons of Enforced Disappearance.

These human rights instruments do not bind the country to take direct responsibility of such refugees but moral obligation is lying on the shoulder. Simultaneously, there are some fundamental rights to be guaranteed by the state for citizens and non citizens as per its 1972 Constitution.

These rights include right to equal protection (Article 31) rights to life and personal liberty (Article 32), safeguard as to arrest and detention (Article 33), prohibition of forced labour (Article 34) protection in respect of trial and punishment (Article 35) etc.

Truly speaking, human rights in the country has been suffering from the curse of state afflicted extrajudicial killings, enforced disappearance, and unlawful torture in the custody by the law enforcing agencies and also startling to stop India for the killing of innocent people in boarder. The born citizens of the country are struggling to access basic human rights but how can it think about human rights of people of other country.      

However, there are some statutory laws of the country under which refugees are being managed.

These comprise Passport Act, 1920, Naturalization Act, 1926, Registration of Foreigners Act, 1939, Registration of Foreigners Rules, 1966, Citizenship Act, 1951, Bangladesh Control of Entry Act, 1952, Bangladesh Passport Order, 1973, Extradition Act, 1974, Children Act, 1974, Special Powers Act, 1974, Women and Children Repression Prevention Act, 2000, Legal Aid Act, 2000 and Birth and Death Registration Act, 2004.      

Now, there are over 43.7 million refugees and IDPs in the world with more than 80% are women and children. Asia hosts 45% of all refugees, followed by Africa (30%), Europe (19%) and North America (5%). Europe receives a third of the world’s asylum seekers while South Asia hosts 10% of the world’s refugees.  

Of those, UNHCR provides lifesaving assistance and protection to 33.9 million of them. It also cooperates with other UN agencies, including WFP, UNICEF and UNFPA, as well as IOM and further engages international and national NGOs and civil society to promote refugee protection and the coexistence of refugees and host communities.

The current number of refugees do not include the amount of people who have migrated due to the Arab Spring uprising. Each year on June 20, the UN and civic groups around the world celebrate World Refugee Day since its declaration by the UN General Assembly in 2000. Bangladesh like other nations observes the day like other countries to honour the courage, strength and determination of women, men and children who are forced to flee their homes under threat of persecution, conflict and violence.          

Every year, the US as a primary desired destination for many is applied for permanent resettlement out of the region.  However, the US takes very few of these applicants for permanent resettlement.

The most diverse country in the world, Canada takes over 250,000 immigrants per year for 20 years more than 120 countries but accepts about 25,000 to 30,000 persons per year as refugees or as persons who have humanitarian and compassionate grounds.

Of this number, about 10,500 are selected from refugee camps and brought to Canada either on a government program or through a private sponsorship program. These individuals and/or families are granted permanent residents (PR) status when they arrive in Canada.      

Using available figures from the UN and others, Human Rights Watch has estimated that, in the 21st century, nearly 80% of the world’s refugees come from just ten areas: Afghanistan, Angola, Burma (Myanmar), Burundi, the Democratic Republic of the Congo, Eritrea, Iraq, the Palestinian territories, Somalia, and Sudan.  

Other top locations include Vietnam and the former Yugoslavia.  Palestinians are the oldest and largest recognized refugee population, and are thought to make up more than one-fourth of the world’s official refugees, residing in and around camps in Jordan, Lebanon, Syria, the West Bank and Gaza. The refugee issue seems to be an ever ending process with bleak past and gloomy future.    

The Writer is a Senior Lecturer of the Department of Law and Justice, Southeast University.

02 Oct 2012   09:29:51 AM   Tuesday
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