Bangladesh and the international legal regime on refugees
The globally relevant legal instruments for regulating refugees are the Convention relating to the Status of Refugees (1951) and the Protocol thereunder.8 The
Convention, designed to become as universal as possible, constitutes codification of the law relating to the legal status of refugees.9 It defines refugees and creates obligation upon states to ensure their rights and obligations towards host country. Rights guaranteed under the Convention encompass the right not to be expelled except under certain conditions,10 right to housing,11 right to education,12 right not to be punished for illegal entry into the territory of a contracting state,13 right to public relief and assistance,14 right to work,15 and right to freedom of religion.16 The cornerstone principle enshrined in the Convention is the principle of non-refoulement, which prescribes that a refugee should not be returned to a country where the individual faces serious threats to his or her life or freedom.17 Conversely, the Convention requires refugees to conform to the laws and regulations of the host country as well as to abide by measures taken for the maintenance of public order.18
Bangladesh like most other South Asian nations has not ratified these two instruments.19 The reluctance can be attributed to several reasons which are quite common for all nations in the region.20 States have no mechanism to objectively assess individual applicants on a case-by-case basis under specific domestic law or in accordance with the standards of the 1951 Convention.21 They are concerned about being restricted in their freedom of action in case of compliance with the Convention.22 Therefore, the determination of the refugee status, provisions of shelter, and regulation of the repatriation process are managed between concerned states in the form of bilateral arrangements.23 A glaring example of avoiding multilateral commitments is the South Asian Association for Regional Co-operation (SAARC), where states deliberately excluded the issue of population movement-from its purview.24
The Bangkok Principles on the Status and Treatment of Refugees (1966) adopted by Asian African Legal Consultative Organisation (AALCO) is relevant for Bangladesh although it could not create much impact on members.25 Nonetheless, the statements and opinions of participatory states in such forums form evidence of customary international law (CIL).26 The instrument would be an aid to interpret several concepts pertinent to refugees in Bangladesh. The instrument was useful for Pakistan when it was explaining its policy towards refugees from Afghanistan in 1981.27
Apart from the refugee-specific international treaties, international human rights law instruments are pertinent for Bangladesh in extending protection to the refugees. Bangladesh as a member of the UN has obligation to respect the Charter, which articulates in its Preamble and Purpose commitments to ensuring dignity and guaranteeing fundamental freedom and human rights for all. The country has endorsed norms of the Universal Declaration of Human Rights (UDHR), ratified the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention Against Torture (CAT), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Child Rights Convention (CRC), and the Convention for Elimination of all forms of Racial Discrimination (CERD).28 The basic norms articulated in these instruments obligate Bangladesh to ensure basic human rights, including minimum standards of treatment to refugees.
Article 2 of the ICCPR obligates state parties to ensure rights articulated in the Covenant to all individuals regardless of their background. It further requires parties to take necessary steps to adopt such laws or other measures as may be necessary to give effect to the rights recognised in the Covenant. Individuals are guaranteed rights not to be tortured or treated with cruel or inhuman punishment, and also to seek asylum in another country to avoid such treatments.29 Protection of refugee children has been guaranteed in the CRC. Article 22 specifies that refugee children or children seeking refugee status in the host state shall receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights in this convention or in other human rights instruments to which the state is a party.30 As a signatory to the UN Declaration on Territorial Asylum, adopted by the General Assembly and containing non-refoulement obligation, Bangladesh signalled its intention to comply with the principle. It has also ratified the ILO Convention No. 118, which requires state parties to provide social security to refugees and stateless persons.31
Bangladesh’s treatment of refugees is regulated by bilateral mechanisms, be it with states or international organizations, as most instances indicate. A Memorandum of Understanding (MOU) was signed between the government and the United Nations High Commissioner for Refugees (UNHCR) in early 1993 in relation to Rohingya refugees.32 The memorandum defined UNHCR’s assistance role towards refugees in the camps, provided for increased access by the UNHCR to the camps and in refugee-impacted areas, and highlighted the responsibilities of various parties to provide protection to refugees. In order to regulate and resolve the existing Rohingya refugee crisis, Bangladesh has entered into a bilateral agreement with Myanmar on the repatriation of “displaced persons” from Rakhine State.33
Although there exists a wide range of relevant international instruments, albeit in the stark absence of the Refugee Convention, the pivotal issue is the nature and extent of the application of ratified instruments in Bangladesh. As it has been discussed in a number of previous chapters in this edited volume, given the country’s dualist approach to international law, international treaties are not automatically part of the domestic law unless they are incorporated in national legislation.34 This approach of Bangladesh has been reflected in the observation of the Supreme Court in the case of BNWLA v. Government of Bangladesh and Others (2009) as, “[o]ur courts will not enforce those Covenants as Treaties and Conventions even if ratified by the state, as they are not part of the corpus Juris of the state unless those are incorporated in the municipal legislation”.35 However, the court has further opined that in cases where there is a gap in the municipal law in addressing any issue, the courts may take recourse to international conventions and protocols on that issue for the purpose of formulating effective directives and guidelines to be followed by all concerned until national legislature enacts law in this regard.36 In this sense, human rights treaties ratified by Bangladesh offer usefill avenues to consider, determine, and assert legal status and entitlements of the Rohingya and other refugees in Bangladesh.
The approach of Bangladesh to CIL is pertinent in the context of the principle of non-refoulement which, according to substantial authority if not conclusive, has reached the status of CIL. Goodwin-Gill argues that the principle is binding upon all states regardless of specific assent.37 CIL, if not contrary to domestic law, is binding on Bangladesh and part of the law of the land.38 But where there is clear domestic legislation on the disputed issue, the courts give effect to the domestic law.39 As we have seen in Chapter 5, the Supreme Court in Bangladesh v. Unimarine S. A. Panama held that CIL is binding on states, and states generally give effect to rules and norms of CIL.40 No judgement is found where the principle of non-foulement was raised before the courts. In the case of Saiful Islam Dilder v. Government of Bangladesh, extradition of the applicant was contended as a violation of the customary principle of the right to self-determination, though it was denied by the court.41 Had the principle of non-refoulement been argued in that case, it would have been interesting to observe how the court responded to this customary principle in the absence of specific domestic law.