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The most recent chapter in a decades-long series of Rohingya refugee crises, which erupted in August 2017, has reignited discussion over the policies and legal structures, or lack thereof, to protect the rights of refugees and asylum seekers in Asia. Policy and binding legal frameworks are essential means of protecting the rights of forced migrants. This article will explore the forced migration policy and legal context in the South-eastern and Southern regions of Asia[1]before moving on to examine the case of Bangladesh and propose future directions for domestic and regional policy.

GLOBAL AND REGIONAL REFUGEE POLICY

In August 2017, after decades of persecution and forcible expulsions, a military ‘crackdown’ on Rohingya Muslims resulted in the mass exodus of the minority to neighbouring countries, with a majority settling in Bangladesh.

The 1951 Convention Relating to the Status of Refugees (hereafter, ‘the Refugee Convention’) defines who is a refugee and outlines the rights of the displaced and the responsibilities of states to protect them. It accords refugees with numerous rights including access to courts of law, employment and primary education in the host country.[2] A core principle of the Refugee Convention is non-refoulement, which asserts that a refugee should not be returned to a country where they face threats to their life or freedom.[3] The Refugee Convention and its related protocols form the basis of the international protection regime for refugees and asylum seekers.

While there are 145 signatories worldwide to the Refugee Convention, Afghanistan, Cambodia, Philippines, and Timor-Leste are the only signatories to the Convention from South and Southeast Asia. While this does not in itself signify low levels of commitment to refugee and asylum seekers’ rights, it must be noted that most countries in the region also lack national legal frameworks to address forced migration. This often results in the neglect of refugees and asylum seekers. In Malaysia and Nepal, for example, there is no domestic refugee policy or refugee law that accords refugees the right to education, employment or healthcare; Indonesia does not have a national asylum system, meaning it does not conduct refugee assessments nor are there other pathways for refugees to attain permanent residency. Thailand has no legal system in place for refugees and there is little distinction in domestic law between refugees and illegal migrants. Similarly, India does not have a national policy or legal framework to address forced migration, and its legislation is vague about the differences between refugees, migrant workers and other foreigners. The lack of distinction in many of these countries between forced migrants and other migrants fails to recognise that refugees and asylum seekers are individuals who require special protection due to their vulnerability.[4] This situation is mirrored in many countries across the region.

The absence of international or domestic legal instruments in the region to enable the protection of refugees and asylum seekers suggests a significant role for regional organisations in institutionalising refugee protection norms. However, these organisations also appear reluctant to address forced migration, as it is predominantly viewed as a domestic matter or a bilateral issue concerning only the country of origin and the host country.

The Association of Southeast Asian Nations (ASEAN), the dominant multilateral body in the Southeast Asian region, plays a limited role in addressing forced migration issues. ASEAN’s fundamental principles, as laid out in the 1976 Treaty of Amity and Cooperation in Southeast Asia, include “[m]utual respect for the independence, sovereignty, equality, territorial integrity and national identity of all nations” and “non-interference in the internal affairs of one another.”[5] Like ASEAN, the South Asian Association for Cooperation (SAARC) emphasises non-interference. SAARC’s basic principles, as outlined in its Charter, include “respect for the principles of sovereign equality, territorial integrity, political independence, [and] non-interference in the internal affairs of other States.”[6] ASEAN and SAARC’s state-centric approaches suggest that, in the absence of the willingness of member states to address forced migration, there is limited potential for the organisations to establish a regional protection framework. Furthermore, SAARC’s Charter states that “[b]ilateral and contentious issues shall be excluded from the deliberations.”[7]

Thus, in the region, forced migration has been framed as a bilateral, rather than transnational or multilateral, issue. This is problematic because migration flows are rarely limited to only one host country. In the case of the Rohingya, refugees have sought shelter in multiple countries in the region, including Thailand, Malaysia, India, and Bangladesh, among others. While the number of refugee arrivals varies between countries, the involvement of numerous countries necessitates a regional, multilateral response to effectively address the situation. In terms of migration policy, ASEAN focuses primarily on issues related to economic migration. The 2012 ASEAN Human Rights Declaration discusses the inalienable rights of migrant workers[8] but leaves the rights of refugees and asylum seekers up to the laws of the host country.[9] The lack of attention given to forced migration is also evident in the Plan of Action for Cooperation on Immigration Matters. This plan was developed against the backdrop of increased regional integration. It aims to enhance and streamline region-wide immigration procedures and strengthen cooperation on immigration between South-eastern nations. However, as ASEAN has focused primarily on economic integration, the Plan of Action only concerns economic migration matters and makes no reference to the terms “forced migrant”, “refugee”, or “asylum seeker”.[10] Similarly, the South Asian Association for Regional Cooperation (SAARC) has no legal or policy framework for addressing forced migration issues.

An examination of the forced migration policy context in Asia demonstrates weak or non-existent policy and legal frameworks, on both national and regional levels. Countries are ill-prepared for large influxes of refugees and asylum seekers resulting in slow-moving and ad hoc policy responses, and ill-equipped governments unable to adequately address the needs of a vulnerable refugee population. This not only creates dissatisfaction with the government among the local population but is likely to result in greater discrimination towards refugees and asylum seekers. For example, the slow-moving registration of Rohingya refugees by the Government of Bangladesh has contributed to a market for fake Bangladeshi passports to enable refugees to have the same rights as Bangladeshi citizens, including the right to work and free movement.[11] The absence of a legal and policy framework creates legal uncertainty and increases the potential for arbitrary and discretionary decision-making. Without legally-binding frameworks, refugees and asylum seekers are likely to be treated as “illegal” migrants, leaving them vulnerable to detention or expulsion, and exploitative elements of the host country.[12]

The lack of a coherent framework may be beneficial for host governments as it allows national interests’ to be prioritised over the protection of refugees and asylum seekers, enabling push-back policies including detention and expulsion. Aside from the ethical responsibility and the repercussions from the international community for neglecting this situation, continued detention or expulsion is not a sustainable solution, especially to prolonged crises: it will not deter those individuals and communities who, facing violence and insecurity, have no choice but to seek refuge in another country.

THE CASE OF BANGLADESH

Refugee arrivals in Bangladesh are not a novel phenomenon. There were substantial refugee inflows to what was then known as East Bengal during the 1947 Partition of India. These refugees were primarily Muslims from central and eastern states of undivided India.[13] Since the 1970s the Rohingya, a minority ethnic group from Myanmar, have sought refuge in Bangladesh and other countries as a result of persecution in Myanmar.[14] As of 1 March 2018, there were a total of 865,230 Rohingya refugees in Bangladesh of which only 33,633 (4%) had been registered.[15] While the numbers entering the country have been increasing over the past few years, 81% of the total current refugee population arrived in Bangladesh between August and December 2017.[16]

Despite the prolonged and continued presence of refugees in Bangladesh, there is a reluctance to introduce legislature and institute policies related to the definition, regulation and protection of refugees and asylum seekers. Like other countries in the region, Bangladesh is not party to the 1951 Refugee Convention and its related protocols. No legal instruments or policy frameworks aimed specifically at refugees and asylum seekers have been established on a national level. The Constitution of Bangladesh enshrines fundamental rights, some of which are applicable to non-citizens;[17] however, there are no domestic laws that define who is a refugee and regulate what rights they may be accorded. Bangladesh is a signatory to other international human rights treaties, which indirectly protect the rights of certain groups of refugees and asylum seekers, such as the UN Convention on the Rights of the Child. However, these treaties are unlikely to be enforceable in domestic courts of law as they have not been incorporated into municipal laws nor have they been given effect through separate legislation.[18]

Current responses by the Bangladeshi government have focused on enabling transitory relief and push-back policies, including repatriation.[19] The issue has been mostly addressed by bilateral engagement, with the Governments of Bangladesh and Myanmar signing a repatriation deal in November 2017.The majority of protection-related assistance, including registration and needs assessments, has been provided by multilateral organisations, such as UNHCR and IOM, and international aid organisations.[20] The regional response from organisations such as ASEAN and SAARC have primarily been those of non-interference: aside from an informal meeting held in Yangon in December 2016, the involvement of ASEAN has been limited[21] and SAARC has not responded on the matter.[22]

The Government of Bangladesh’s reluctance to establish a refugee protection framework can be explained to some extent, by the domestic context and the complex nature of the Bangladesh-Myanmar border. Over the last decade, there has been limited political stability in the country. After the controversial 2014 general election in Bangladesh, the country experienced violent protests in 2015 because of a deadlock between the ruling Awami League (AL) and Bangladesh National Party (BNP) opposition. Nationwide strikes have also affected the country and its economy. Concerns regarding domestic economic performance appear to take precedence over humanitarian concerns. An official from the Ministry of Finance emphasised that the increased influx of refugees will not have a significant impact on Bangladesh’s economy and national budget.[23] With upcoming general elections in 2018, it is likely that domestic issues and national interest will continue to be prioritised. In addition, the border between Bangladesh and Myanmar is a significant route for trafficking of amphetamines from Myanmar.[24] Rohingya refugees have been blamed for the increase in the domestic drug trade and other crimes, as well as for damage to the local environment.[25] The Rohingya have thus been seen as a threat to national security and domestic law and order.

The absence of a national policy framework and any legally-binding structures to deal with refugees in Bangladesh has had several implications. Firstly, it has led to arbitrary and discretionary decision making. The previous waves of Rohingya migration to the country, in 1978, and between 1991 and 1992 were considered humanitarian crises. The Rohingya were registered and granted refugee status through an executive order from the government. Multilateral organisations, such as UNHCR, and other international organisations were also requested to provide assistance.[26] Nonetheless, in both instances the government quickly initiated negotiations with the government of Myanmar and engaged in forced repatriation of the Rohingya.[27] More recently, in 2012, after inter-communal violence erupted in Rakhine state,[28] Bangladesh engaged in push-back policies including arrests and deportations of Rohingya refugees attempting to enter the country.[29] The government also attempted to block international aid organisations from assisting Rohingya refugees because they were in the country “illegally’’ and aid would encourage greater numbers to cross the border.[30] Unsurprisingly, such policies have been ineffective; Rohingya refugees have continued to flee to Bangladesh over the last three years.

Secondly, the lack of a legally-binding framework has resulted in a failure to adequately address the needs of the refugee population. It has led to slow-moving and ad hoc policies. For example, the Government of Bangladesh only began to formulate a national strategy for addressing the mounting refugee crisis in October 2017. The absence of institutionalised legal and policy processes has created logistical hurdles. Officials recognised that there was a “huge backlog” in terms of conducting a census and registering refugees.[31] Bangladesh, thus far, has focused on providing transitory relief rather than enabling longer term integration into Bangladeshi society. Living conditions in camps are characterised by inadequate space, scarcity of potable water, and insufficient medical attention.[32] In addition, the absence of any opportunities for meaningful employment increases the potential for Rohingya refugees to be exploited and drawn into the shadow economy, resulting in a higher incidence of human and drug trafficking and other crimes.

Furthermore, in light of the continued threat of violence and the unwillingness of refugees to return to Myanmar, repatriation is a misguided approach to solving the refugee situation. While a repatriation deal between the Governments of Bangladesh and Myanmar was signed in November 2017, the deal is an ambitious one and little progress has been made. Myanmar agreed to accept 1500 refugees per week starting in January 2018, and the Bangladesh Foreign Ministry has said that they aim to repatriate all ‘eligible’ Rohingya in two years’ time. However, this bilateral agreement only covers refugees who arrived in Bangladesh from October 2016 onwards. A total of 793,751 refugees arrived in Bangladesh from October 2016 to March 2018,[33] meaning it would take more than ten years for all these refugees to be repatriated. Additionally, with hundreds of Rohingya villages burned down and transit camps still under construction, the deal is unlikely to progress according to schedule. In Myanmar, cash-for-work programs have been suggested as a solution, where Rohingya will be given cash to rebuild their own homes. This is undoubtedly problematic, most immediately because of the unwillingness of the Rohingya to return due to concerns over their safety.[34] Thus, when exactly the repatriation of Rohingya refugees from Bangladesh to Myanmar will begin, is now unclear after the date of commencement was postponed from the initially proposed 23 January 2018, amidst objections from the Rohingya, who have presented a list of demands that must be met before they agree to return.[35] Finally, the ad hoc nature of Bangladesh’s policy making regarding refugees entails ill-advised policy solutions. In May 2015, the government had suggested relocation of Rohingya refugees to Hatiya Island in the Bay of Bengal, in an effort to reduce the disruption to the tourism sector in Cox’s Bazaar.[36] While this plan was mooted by the government soon after it was proposed, similar plans emerged in 2017 to move refugees to Thengar Char, a low-lying island described by some government officials as “uninhabitable”.[37] Such proposals fail to offer durable solutions to the crisis.

FUTURE DIRECTIONS FOR POLICY

In order to effectively address the current crisis, Bangladesh should cease aggressive push-back policies and attempts to initiate immediate repatriation. There must be a shift in focus towards providing Rohingya refugees with more than transitory relief. Legal routes to seek refuge and asylum must be established, and policies to enable refugees and asylum seekers to access education, healthcare, and employment must be designed and implemented. Creating these opportunities for the Rohingya would increase the potential for longer-term integration and would address legitimate domestic concerns over human and drug trafficking across the Bangladesh-Myanmar border. Establishing these legal structures and institutionalising these policies will certainly constitute a challenge for Bangladesh, especially considering the nation’s domestic context and its limited resources. However, Bangladesh must work with local, regional and international actors, including multilateral bodies, aid organisations, civil society and forced migration experts from academia and elsewhere, to develop lasting and ethical solutions to the crisis.

There needs to be more regional cooperation to address the current crisis. The principle of non-interference cannot be applied by regional organisations in the context of such humanitarian situations. ASEAN and SAARC must become more active participants to ensure that these organisations constitute something more than just a sum of their sovereign member states. While significant effort is required to improve SAARC’s effectiveness on the whole, ASEAN has, to a certain extent, begun to overcome non-interference to cooperate in certain humanitarian contexts. For example, in 2008, ASEAN worked to compel Myanmar into a more powerful humanitarian response to the impact of Cyclone Nargis. Individual member states will need to play a more significant role in facilitating this regional cooperation. Malaysia and Indonesia, having already expressed concern for the plight of the Rohingya and their desire for constructive engagement through ASEAN to solve the crisis, demonstrate a pathway for individual states to lead a more coordinated regional response.

Finally, it is also crucial that regional organisations and Asian states learn from the current crisis and develop legal and policy frameworks, at both regional and national levels, that define, regulate, and protect refugees and asylum seekers. Establishing national and regional frameworks will play a vital role in reducing uncertainty and enabling quicker and more effectual responses to future crises. For this to occur, the tension between competing national interests and transnational policy issues must be addressed. Forced migration must cease to be framed as a national security issue and instead needs to be recognized as a transnational and humanitarian issue requiring a transnational and humanitarian response.

REFERENCES

[1] South-eastern Asia comprising of Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, Timor-Leste, and Vietnam; and Southern Asia comprising of Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, and Sri Lanka.

[2] The 1951 Convention Relating to the Status of Refugees, Article 16, 17, 18, 19, 22.

[3] ibid., Article 33

[4] Grech, O. (2014) Migrants’ and refugees’ rights: a brief international law perspective in O. Grech & M. Wohlfeld (eds.) Migration in the Mediterranean: human rights, security and development perspectives. MEDAC: Malta, Ch.4.

[5] Treaty of Amity and Cooperation in Southeast Asia (1976), Article 2.

[6] Charter of the South Asian Association for Regional Cooperation (1985), Article II.

[7] ibid., Article X.

[8] ASEAN Human Rights Declaration (2012), Article 4.

[9] ASEAN Human Rights Declaration (2012), Article 16.

[10] ASEAN Plan of Action for Cooperation on Immigration Matters (2012)

[11] Al Imran H.F. & Mian M.N. (2014) The Rohingya Refugees in Bangladesh: A Vulnerable Group in Law and Policy. Journal of Studies in Social Sciences (8)2 pp.226-253

[12] Das, K.N. (2017) Stateless Rohingya refugees sucked into booming Bangladesh drug trade. Reuters, 28 February 2017; Glinski, S. (2017) Clandestine sex industry booms in Rohingya refugee camps. Reuters, 24 October 2017; Perria, S. (2017) Rohingya Muslim refugees face fresh misery as Bangladesh welcome runs out. The Independent, 30 December 2017.

[13] Kamaluddin A.F.M. (1985) Refugee Problems in Bangladesh. In: Kosiński L.A., Elahi K.M. (eds) Population Redistribution and Development in South Asia. GeoJournal Library, vol 3. Springer, Dordrecht.

[14] See Xchange’s The Rohingya Survey 2017 for historical background of the Rohingya refugee situation and timeline leading up to the current crisis. Available at: xchange.org/rohingya-survey-2017/

[15] UNHCR (2018) Bangladesh Refugee Emergency – Population Infographic (updated 1st March 2018)

[16] UNHCR (2018) Bangladesh Refugee Emergency – Population Infographic (updated 1st March 2018)

[17] Mohammad N. (2012) Refugee Protection Under the Constitution of Bangladesh: A Brief Overview. Refugee Watch (39) pp. 141-156.

[18] ibid.

[19] Yesmin S. (2016) Policy Towards Rohingya Refugees: A Comparative Analysis of Bangladesh, Malaysia and Thailand. Journal of the Asiatic Society of Bangladesh (61)1 pp.71-100.

[20] Xchange Foundation (2018) Rohingya Repatriation Survey. Available at: xchange.org/rohingya-repatriation-survey/

[21] Shivakoti, R. (2017) ASEAN’s Role in the Rohingya Refugee Crisis. Forced Migration Review, 56, pp.75-77.

[22] Khan, A.R. (2015) Impediments to the Success of SAARC. South Asian Studies, 30(1), pp.291-302.

[23] Kallol A.S. & Miazee M. (2017) Bangladesh to formulate national strategy for Rohingya refugees. Dhaka Tribune, 3 October 2017.

[24] Ganguly S. & Miliate B. (2015) Refugees and Neighbours: Rohingya in Bangladesh. The Diplomat, October 14, 2015; Das K.N. (2017) Stateless Rohingya refugees sucked into booming Bangladesh drug trade. Reuters, 28 February 2017.

[25] Al Imran H.F. & Mian M.N. (2014) The Rohingya Refugees in Bangladesh: A Vulnerable Group in Law and Policy. Journal of Studies in Social Sciences (8)2 pp.226-253; Yesmin S. (2016) Policy Towards Rohingya Refugees: A Comparative Analysis of Bangladesh, Malaysia and Thailand. Journal of the Asiatic Society of Bangladesh (61)1 pp.71-100.

[26] Mohammad N. (2012) Refugee Protection Under the Constitution of Bangladesh: A Brief Overview. Refugee Watch (39) pp. 141-156.

[27] Human Rights Watch (2000) Burmese Refugees in Bangladesh: Still No Durable Solution, May 2000.

[28] UNHCR, (2013) Briefing Notes, < http://www.unhcr.org/news/briefing/2013/6/51b1af0b6/year-displacement-rakhine-state-myanmar.html>

[29] Yesmin S. (2016) Policy Towards Rohingya Refugees: A Comparative Analysis of Bangladesh, Malaysia and Thailand. Journal of the Asiatic Society of Bangladesh (61)1 pp.71-100.

[30] BBC (2012) Bangladesh orders charities to stop aid to Rohingyas, 2 August 2012.

[31] Kallol A.S. & Miazee M. (2017) Bangladesh to formulate national strategy for Rohingya refugees. Dhaka Tribune, 3 October 2017.

[32] Milton A.S. et al. (2017) Trapped in Statelessness: Rohingya refugees in Bangladesh. International Journal of Environmental Research and Public Health (14).

[33] UNHCR (2018) Bangladesh Refugee Emergency – Population Infographic (updated 1st March 2018)

[34] Xchange Foundation (2018) Rohingya Repatriation Survey. Available at: xchange.org/rohingya-repatriation-survey/

[35] Siddiqui, Z. (2018) Exclusive: Rohingya refugee leaders draw up demands ahead of repatriation, Reuters, 19 January 2018.

[36] The Guardian (2015) Bangladesh plans to move refugees to island in the south, 28 May 2015.

[37] The Guardian (2017) Plan to move Rohingya to remote island prompts fears of human catastrophe, 2 February 2017.