Human Rights monitor
Bangladesh's obligation to refugee protection
DR. Uttam Kumar Das
The problem of the refugees has been among the most complicated issues before the world community for a long time. The concept of international protection for refugees evolved gradually. Now, it implies a series of institutional and legal responses.
A number of international instruments have established and defined basic standards for the treatment of refugees. Among them, the most important are the United Nations Convention Relating to the Status of Refugees of 1951 (hereinafter the 1951 Convention) and its 1967 Protocol. The 1951 Convention, which was adopted as a result of the recommendation by the newly established United Nations Commission on Human Rights, was a landmark in setting standards for the treatment of refugees.
The 1951 Convention provides a general definition of the term 'refugee.' It defines any person as a refugee who "… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it." The Convention, however limits the dateline for events for becoming a refugee as of before 1 January 1951.
This is considered as the very limitation of the Convention (e. g. it is relevant for persons who have become refugees as a result of events occurring prior to 1 January 1951). However, the years following 1951 showed that refugee movements were not merely the temporary results of the Second World War and its aftermath.
Throughout the late 1950s and 1960s, new refugee groups emerged, particularly in Africa. These refugees were in need of protection, which could not be granted to them under the 1951 Convention for its time- frame.
That is why through adoption of the 1967 Protocol, the application of the Convention to the situation of 'new refugees', was extended, i.e. persons who, while meeting the Convention definition, had become refugees as a result of events that took place after 1 January 1951.
The 1951 Convention is the basic document for the protection of refugees. It sets the minimum standards of treatment (for refugees), including the basic rights to which they are entitled. It also establishes the juridical status of refugees and contained provisions on their rights to gainful employment and welfare, on the issue of identity papers and travel document, on the applicability of fiscal charges, and on their right to transfer their assets to another country where they have been admitted for the purposes of resettlement.
The 1951 Convention prohibits the expulsion or forcible return of persons having refugee status. Its article 33 stipulates that "No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his/her life or freedom would be threatened on account of his/her race, religion, nationality, membership of a particular social group or political opinion." Article 34 concerns the naturalization and assimilation of refugees. Other provisions dealt with such rights as access to courts, education, social security, housing and freedom of movement.
As on 1 May 2005, the total number of State Parties to one or both instruments (e.g. the 1951 Convention and 1967 Protocol) was 145.
State obligation for Bangladesh to refugee protection
In this part of the article an attempt is made to find out existing legal provisions in Bangladesh, if any, which could be translated for the protection of asylum seekers (a person whose request or application for asylum/refugee status has not been finally decided on by a prospective country of refuge or UNHCR) and refugees.
Briefly speaking, like other South Asian States, Bangladesh is neither a State Party to the 1951 Convention nor its 1967 Protocol. It also does not have any domestic/national law, which covers the issue of asylum seekers and refugees. In practice, foreigners, irrespective of asylum seekers or simply visitors are treated here under some aged old laws (e.g. the Foreigners Act, 1946; Registration of Foreigners Act, 1939; Passport Act, 1920; Bangladesh Citizenship (Temporary Provisions) Order, 1972; Extradition Act, 1974; and Naturalization Act, 1926 etc.) which are inadequate to meet the need of the time.
However, during 1978 and 1991-92, the asylum seekers from Myanmar, mostly the Rohingyas from the Northern Rakhine state were provided refuge status by the Government of the People's Republic of Bangladesh under 'executive orders.' They were granted prima facie refugee status (on a group basis). Refugee law experts are of the opinion that these measures do not address the need of an individual asylum seeker/refugee and are also not consistent. This results in differences in authority's approaches- such as varying criteria for solutions and varying standards of treatment to the refugees.
Now, let us consider the international obligation of the State in terms of human rights, especially those are relevant to asylum seekers or refugees.
Bangladesh is a State Party to major international human rights instruments. Among them the significant ones are the Universal Declaration of Human Rights (UDHR); International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights; Convention on the Rights of the Child (CRC); Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); Convention Against Torture etc. Several provisions of all these international instruments oblige a State party to provide protection for asylum seekers and refugees. The country is also committed to the principle of non-refoulement being party to the above mentioned instruments.
Article 14 of the UDHR states that "Every one has the right to seek and to enjoy in other countries asylum from persecution."
The Declaration and Programme of Action of the World Conference on Human Rights also reaffirmed the right of every person to seek and enjoy asylum.
The CRC also obliges the State Party to take care of the interest and rights of the refugee children including their birth registration.
Now, let us proceed to the constitutional provisions of the State. The directive principles of the State Policy of Bangladesh are respectful to international law and the principles enunciated in the UN Charter.
Some of the existing constitutional provisions are also supportive of the protection of rights of the refugees. For example Article 27 of the Constitution provides equal protection of law for all. Article 31 provides that not only the citizens are entitled to have the protection of law but the foreigners (non-citizen) who for the time being are staying in the country are also entitled to have so. The Constitution also guarantees right to life and personal liberty; safeguards from arbitrary arrest and detention; prohibition of forced labour; right of fare trial; freedom of movement, assembly, association, profession or occupation, religion; right to property etc.
However, for the translation and execution of these legal provisions in favour of the interest of the refugees, needs comprehensive legal interpretations and pro-active initiatives from the government. Till now, there is no significant indication in this regard. Unlike India, Bangladesh lacks judicial activism in this regard.
Necessity of national legislation on refugees
The international communities and others have considered the track records of Bangladesh in dealing with refugees as satisfactory to some extend. Both in 1978 and during 1991- 92 it allowed asylum seekers to enter the country and provided refuge and assistance. During the large-scale refugee influx for the second time, the government invited the international refugee agency, UNHCR in 1992 to launch their assistance activities in Bangladesh. Accordingly, UNHCR started its operation in Bangladesh in 1992. The government also allowed NGOs, both national and international in the refugee operations.
However, given the experiences of past practices in the refugee operations, there are some criticisms regarding serious omissions and major departure from customary international and international humanitarian laws by the authority in dealing with the refugees. For some cases, potential asylum seekers were barred from entering the country. In other cases, those enjoying refugee status were subjected to improper treatment in camps, which included torture, arbitrary arrest and detention, seizer of the Family Book, splitting of families, by the authority. The issue has also been raised in international levels. Over the years, UNHCR has intervened several occasions with the authority to stop forced repatriation.
The concerned experts observe that the above mentioned 'wrong doings' are happening in the absence of a well-defined legislation on refugee protection. A formal law would also help to bring about administrative efficiency. In reality, the absence of such a law leads to confusion, ad hocism and bureaucratic red-tapism.
In fact, a set of law with clear distribution of authority would establish a proper status determination procedure. It will also provide a guideline regarding rights and obligations of refugees. If there is a specific guideline in the form of law it will empower the authorities even to withdraw refugee status if it is found that one has fled the country of origin for escaping prosecution (for any criminal activity) or if there is a significant development in the country of origin.
The powers to grant refugee status should not be vested with any administrative body without any legal sanction. Now, in Bangladesh, those who use to make decisions to declare a group as refugees during an influx and to do other activities are not guided by any mechanism of determination. This leads to administrative arbitrariness and lack of consistencies in actions. For example, about 20,000 Myanmarese, the remaining caseloads of the 1991- 92 influxes that were registered then and are living in inside the camps are considered as refugees. However, an estimated 200,000 Myanmar nationals (also Rohingyas) who are not registered as 'refugees' by the government have been living out side the camps without any status. They are considered as 'illegal foreigners' and 'economic migrants.' The problems are further confounded in the case of an individual asylum seeker as there is a lack of an official or judicial body to establish the specific purpose of receiving asylum claims and determination thereof.
In fact, a national law on refugees is also a major instrument for the protection of the legitimate interests of the State. Given the existence of the Rule of Law in the country and guarantees of fundamental rights in the Constitution, it is appropriate to establish a uniform refugee determination and protection strategies through adoption of law. This will be helpful to have a coordination among different agencies and concerting search durable solution for a group of refugees.
It will also be helpful in conducting our foreign relations. Given the example of granting of refugee status to a national of another country will constitute a legal obligation for the host country based on international humanitarian law. So, there will be no scope of misunderstanding such an act as 'unfriendly' by the State whose national is accorded the refugee status.
In formulating a national legislation, the Model National Law for Refugees developed by a civil society group, Eminent Persons Group (EPG) is the best guidelines not only for Bangladesh but also for other South Asian Countries. The Model Law, incorporating some of the basic principles of international humanitarian law, provides a general guideline and framework for refugee protection and administration. The government should consider this as a priority issue. They should also consider the point of accession to the Convention. Following are the positive aspects of accession to the Convention:
1. Accession constitutes and undertakes to apply the minimum humanitarian standards of treatment in respect of refugees. These standards are elaborated in the Convention which is endorsed by a large number of States.
2. Accession contributes to improvement of relations between and among States, i.e. country of origin and country of asylum of a refugee. Tensions between States in connection of granting of asylum could be eased where the country of asylum is seen to be acting in accordance with its obligations under the international instrument. Particularly, as this instrument underline the peaceful and humanitarian nature of asylum.
3. Accession underlines the importance attached by the acceding State to co-operate with the international community and UNHCR in their efforts to find a solution to the refugee problem.
4. Accession facilitates UNHCR's task to mobilize international support to address a refugee situation that may arise in any country.
5. Accession to the Convention further serves to: manifest the profound concern of States for the plight of refugees, and their desire that solutions be found to the problem of refugees, and acknowledge and strengthen the universal character of international refugee law, in recognition of the universal character of the refugee problem and the search for solutions have assumed.
There are some misconceptions that establishment of a refugee protection regime will be for providing a permanent asylum to refugees and it will be encouraging asylum seekers to enter the country on a large scale. However, existing experiences and evidences do not support this. It is also not to protect criminals and terrorists. In fact, certain categories like persons having committed crimes against peace, a war crime, crimes against humanity or serious non-political crime out side the country of refuge are deemed not be deserving of protection.
The author is the National Protection Officer for UNHCR Bangladesh.
