Analysing Bangladesh’s plan to relocate Rohingya refugees to Bhashan Char Island through the lens of International Law

Abstract

‘Rohingyas: A Muslim minority of Myanmar facing ethnic and religious persecution in the country for decades has been fleeing from Myanmar to Bangladesh and the nearby North-eastern countries in the vast majority since the 1990s. Rohingya’s tale of misery, persecution and statelessness has been on the forefront for the past decade raising pertinent questions about the international community’s stand on the resolution of this refugee crisis.

Since 2017, Bangladesh has seen a mass influx of Rohingyas in its Coz Bazar district situated on the Myanmar-Bangladesh border, which has resulted in several financial, humanitarian, political, and security concerns for the country. In 2021, Bangladesh has planned and even relocated Rohingyas to the Bhashan Char Island which is situated 24 miles from its mainland highlighting its incapability to accommodate these refugees whereas United Nations have opposed this move of the Bangladesh government on the ground of thrashing thousands of lives to cyclone and flood-prone island without conducting prior technical assessments.

This political move by the Bangladesh government triggers various questions about the violation of human rights and the safety of Rohingyas. The article aims to critically analyse the issues related to the Rohingya refuse crisis like political asylum, the policy of non-refoulment, violence against humanity and the impact of the Bangladesh government’s decision to the relocation of refugees on the rights of Rohingyas in light of the concepts involved in the international law. Further, this article also highlights the nitty-gritty involved in the resolution of the Rohingyas Refugees crisis at the international level.’

Keywords- Rohingyas, relocation of refugees, international law

 Introduction

Rohingya’s refugee crisis has been one of the major challenges faced by Bangladesh from the international law perspective. Rohingyas have faced years of discrimination and atrocities in the Rakhine State of Myanmar due to which they were seeking to take refuge in the nearby Buddhist countries. Bangladesh has seen a mass influx of this Muslim minority from Myanmar since 1978 however, the major violent attack on Rohingyas by Myanmar militants in the year 2017-2018 resulted in the fleeing of over 7,00,000 Rohingya Refugees to Bangladesh.[1]

Bangladesh has openly accommodated the incoming migrants Rohingyas and nearly 4,00,000 children and traumatized women have sought refuge in the Cox Bazar district of Bangladesh, making it the world’s largest refugee camp.[2] The Cox Bazar district was already an impoverished district suffering from population density, high rates of poverty, prone to natural disasters and climatic changes and the settlement of large masses of Rohingyas in this district have further aggravated the issues of environmental, social, economic and security concerns for Bangladesh in tackling this humanitarian crisis.[3]

From the international perspective, Bangladesh is not the permanent host of the Rohingyas refugees as Bangladesh is not party to the 1951 Refugees Convention and 1967 Protocol to the 1951 Refugee Convention which means Rohingyas are not accorded the status of refugees in Bangladesh and without refugee status, they are not guaranteed freedom of movement, access to public services such as education and health care, and access to livelihoods etc.[4]

Though Bangladesh is providing refuge to Rohingyas affected by religious persecution in Myanmar yet there are various legal aspects relating to provisions on Asylum, rights of Asylum Seekers, the principle of non-refoulment etc. attached to this refugee protection given to Rohingyas.

Recently, in November 2021, Bangladesh announced its plan to relocate Rohingyas accumulated in Cox Bazar to a slit island named ‘Bhasan Char Island’ a few kilometers away from mainland Bangladesh voluntarily however, reports suggest that Rohingyas refugee are coerced into registering for this relocation plan.[5] This move by Bangladeshi Government has been strongly opposed by the United Nations and other International Agencies on the ground that the relocation plan for refugees to the Island would result in thrashing thousands of lives to cyclone and flood-prone areas which does not have any prior technical assessments conducted by United Nations.[6]

There are serious allegations about the procedure adopted by the Bangladeshi Refugee camp in handling the relocating plan along with questions on the viability of the transferring refugees on an unhabituated island. This article aims to critically analyse the issues related to the Rohingya refuse crisis like political asylum, the policy of non-refoulment, violence against humanity and the impact of the Bangladesh government’s decision to the relocation of refugees on the rights of Rohingyas in light of the concepts involved in the international law.

Who are Rohingyas and why this refugee crisis?

Rohingyas represent the one million Muslim ethnic minority population who lived in the Rakhine State of Myanmar which shares borders with India and Bangladesh.[7] In the year 1982, Myanmar denied Rohingyas citizenship rights by enacting legislation and thereby, have denied this religious minority other rights associated with the citizenship. Rohingyas are not accorded citizenship rights, and they are not included in the list of the official ethnic groups of the country thereby being left in stateless conditions.[8]

As a result of the denial of various rights, Rohingyas have suffered decades of violence, and religious persecution with their women being raped and children are left traumatized due to the military operations of Myanmar.[9] Women and children suffer from injuries, abrasions, and gunshots and are left in impoverished conditions. Facing such atrocities and religious persecution in Myanmar, the Rohingyas started fleeing to Bangladesh, Indonesia and Philippines in 1978.

In the year 2017, following a series of military violence and crime against humanity, Rohingyas fled in large masses to Bangladesh and sought refuge in the Cox Bazar district of Bangladesh. The already impoverished region of Cox Bazar having bare minimum accommodation, health and livelihood facilities is overburdened with the task of accommodating large masses of refugees most of them being children.

Currently, around 1,295,000 Rohingyas need international assistance and care while Cox Bazar district still hosts over 8,60,000 Rohingya refugees,[10] who is living in deplorable conditions in the district in situations like sleeping outside houses, without sufficient food and clean drinking water and the children suffers the grave risk of exploitation and sexual abuse.[11]

Bangladesh is struggling hard to provide refugees to such a large mass of refugees and negotiating its way to transfer these refugees back to Myanmar however, no viable solution has come up to resolve the statelessness of Rohingyas in the batch of five years. Since no international platform has prompted any way to ease the struggle of Bangladesh in accommodating Rohingyas, the Bangladesh government has declared its plan to relocate Rohingyas masses to the Bhasan Char Island when the world is struggling with the Covid-19 pandemic.[12]

United Nations and other Specialized International bodies vehemently opposed this decision of the Bangladesh Government because the Bhasan Char Island has been uninhabited for the past years  and it is prone to floods and cyclones which raises serious concerns about the safety, security and livelihood of the Rohingyas[13] coupled with the fact that United Nations have not conducted technical assessments on the Island which identifies Bhasan Char Island to be habitable.

While the Bangladeshi Government declined such claims of International organizations on the ground that the Bangladeshi Navy has built embankments for protection from floods, schools, and hospitals in the Bhasan Char Island before relocating Rohingyas to ensure that they receive adequate means of livelihood and the overcrowded Cox Bazar district can be relieved.[14]

The International Principles underlying the Rohingya refugee Crisis

Under international law, the rights of the refugees are protected under the 1951 Status of Refugees also called the 1951 Refugee Convention along with the 1967 Protocol to the Refugee Convention which applies only to the State Parties’ signatory to the Convention and lays down the rights of the refugees and the legal obligations of the State parties towards the refugees seeking asylum in the State parties.[15] The 1951 Refugee Convention provides that the State Parties should strive towards granting minimum legal standards to the refugees seeking asylum as is accorded to non-citizens in the country and underlines the Principle of non-refoulement.

The principle of Non-Refoulement obligates States to refrain from expelling or re-fouling an asylee to the frontiers of the territories where his life or freedom would be threatened, on account of his nationality, membership of a particular social group or political opinion.[16]

This principle of non-refoulement has attained the status of customary international law,[17] and is considered a jus cogens norm from which no derogation is permitted,[18] which none of the States whether or not party to the 1951 Refugee Convention can retransfer the asylum seekers to the territory where they have fear of facing persecution. With respect to the Rohingyas, the Bangladeshi government has followed the principle of non-refoulement by not coercing the Rohingyas to transfer to Myanmar where they face the fear of religious persecution.

Further, under the Universal Declaration on Human Rights [“UDHR”] every person has the right to seek and enjoy asylum in any other Nation-State apart from the State where such a person suffers from persecution.[19] A Nation-State can grant asylum in the exercise of its sovereignty to any person who is entitled under Article 14 of the UDHR to receive so and it should be respected by all the other states.[20]

It is a matter of State sovereignty to decide the grant of asylum but once a State has given an individual the asylum, such an individual secures all the right to fully enjoy that asylum which cannot be disputed by other States.[21] Under the general rule of customary international law that a State has the freedom to offer and grant asylum in its territory to any individual at its discretion.[22]

The customary international law recognizes the right of the State granting asylum, to evaluate the grounds of granting asylum.[23] Some of the significant factors for evaluating the granted asylum are the fear of persecution for holding a political opinion, violation of basic human rights and unwillingness to return to a country due to fear of persecution or violence.[24]

The refusal to return or avail of the protection of the native country by the asylee is an important fact to determine the fear of persecution in his mind by the State granting such asylum.[25] The Nation-State granting asylum can provide the reasons for granting asylum to the asylum seekers however, it cannot refrain asylum seekers to take refugees as it is the universal human right of refugees to seek asylum.

Along with the right of asylum seekers to seek asylum, the human rights activists or Nation States affected by the asylum seekers have the right to refer their dispute to the International Court of Justice for resolution. After the Rohingya crisis, Bangladesh and other Muslim majority countries have accused Myanmar of genocide and crime against humanity and a case was instituted before the International Court of Justice which has ordered Myanmar to take emergent steps to ensure that the Rohingyas are protected and to stop further persecution against the Rohingyas staying back in Myanmar.[26]

In light of the Rohingyas refugee crisis, the Bangladeshi government being non-signatory to the 1951 Refugee Convention and its 1967 Protocol does not accord ‘refugee’ status to the Rohingyas,[27] however, following the customary international law of the principle of non-refoulement and the Universal Declaration of Human Rights [“UDHR”], Bangladesh can neither refrain the asylum seekers from seeking refuge in its Cox Bazar District nor can it transfer the Rohingyas back to the Myanmar where they have fear of suffering religious persecution.

Further, the international law principles are silent on the right of a Nation-State to relocate the asylum seekers to any distant place where the asylee does not have fear of persecution. Under such prevailing circumstances, it cannot be said that the decision of Bangladesh to relocate Rohingyas to Bhasan Char Island is entirely unlawful or against any international principle.

Bangladesh’s plan on relocation of Rohingyas: The problems underlying

Considering the problems of habitation associated with the overcrowded Cox Bazar district of Bangladesh, the relocation plan for Rohingyas by Bangladeshi Government is quite obvious as the international community has only been considerate towards Rohingyas over the years but no effective step has been taken by international forums to resolve this Rohingya crisis. But the relocation of Rohingyas to Bhasan Char Island has aggravated another debate on the International footing because several international agencies have questioned the viability of peaceful human existence on the Bhasan Char island. Reports suggest that Bhasen Char Island has been prone to floods, cyclones and soil erosions which pose severe risks to the lives, stocks and agricultural produce of the habitats of the Island.[28]

Though the Bangladeshi government claims to have built a housing complex and other infrastructure worth $350 million capable of accommodating more than one lakh Rohingyas on the Island along with constructing flood securing embankments, hospitals and schools for providing sustainable living conditions for Rohingyas,[29] yet the Island suffers from its inherent disadvantages like environmental concerns, livelihood conditions and the ultimate problem of Statelessness by Rohingyas.

Some of the major concerns underlying Bangladesh’s plan to the relocation of Rohingyas to the remote Island is the Environmental concern. Reports suggest the Bhasan Char consists of large masses of sediments and slits which makes it extremely vulnerable to floods and cyclones and Bhasan Char remains at the highest risk of Tsunami worst hit due to its low-lying location which might cause humungous destruction of life and livestock.[30]

Another major concern associated with this relocation plan, is the access to livelihood facilities since the island has been unhabituated for the last 20 years and now the only recourse for the Rohingyas for sustaining their livelihood are the agriculture activities, fishing or poultry but the conduct of these activities also remain dicey because of the flood-prone region to which the Island belongs.[31]

Apart from the above-mentioned concerns, the issue of ‘Statelessness’ of Rohingya still persists as they are neither accorded the citizenship rights by any country nor they are granted the ‘refugee’ status by the Bangladeshi Government. Along with this, there is a persistent fear of affliction of persecution or military attacks on the Rohingyas group while they are relocated to the Bhasan Char Island.

Conclusions & Suggestions

The international response to any refugee crisis has always been passive which further aggravates the issue of the refugee crisis and leaves the State granting refuge to the asylum seekers under the pool of liabilities and obligations. Rohingyas Refugee crisis and their tale of misery and persecution have been one of the prominent issues hovering over the international arena for decades and has not seen any viable resolution from any international forum.

Bangladesh, while accommodating large masses of the Rohingya population within its territory has confirmed and even executed its plan to relocate Rohingyas to a distant island which seems to be triggering a new debate on the rights and obligation of the Nation-State while dealing with asylum seekers and to ensure the preservation of rights of the refugees.

On one hand, Bangladesh’s plan for ‘voluntary relocation of Rohingyas seems to be a sensible and viable decision considering the impoverished and over population density problem of the Cox Bazar district while on the other hand, the questions on the unsustainable livelihood facilities and the environmental concerns associated with the Bhasan Char Island signifies that this step of Bangladesh might prove destructive for the ‘stateless’ Rohingyas who have already suffered violence and persecution.

The international community has also opposed the recent relocation move of the Bangladeshi government citing the non-availability of habitable living conditions on the Island but none of the Nation-State have come forwards to resolve the Rohingya refugee’s crisis faced by Bangladesh.

In light of such hovering international concerns regarding the rights of refugees, it becomes necessary that the international community show some political and financial aid to the Bangladeshi government in resolving the Rohingyas crisis and assist Bangladesh in ensuring the protection of human rights of Rohingyas refugees along with baring countries like Myanmar in conducting ethnic cleansing and committing human rights violations. In the current emergent situation, it becomes crucial that international forums like United Nations, World Bank etc join hands along with Bangladeshi and Myanmar governments to resolve the Rohingyas related issue and work towards ensuring a viable action plan to accommodate the ‘Stateless’ Rohingyas in this global map.

Along with this, Bangladesh can enter into some Bilateral Treaties with other Nations-States who can help and assist Bangladesh in tackling the Refugee Crisis with financial and political aid. While these steps or recommendations may seem feasible only in the long run, presently, it is important that the international agencies conduct the assessment of Bhasan Char Island before resettlement of Rohingyas and ensure that the Rohingyas refugees are not left in deplorable and inhumane conditions in the future.

The article has been contributed by Priyanka Bajpai, student at Institute of Law, Nirma University.

End Notes

[1] Veronique Barbelet & Marcus Skinner, Rohingya refugees’ perspectives on their displacement in Bangladesh Uncertain futures Humanitarian Policy Group (HPG) 4 (June 2019).

[2] OCHA (United Nations Office for the Coordination of Humanitarian Affairs), Rohingyas Refugee Crisis, https://www.unocha.org/rohingya-refugee-crisis.

[3] The Rohingya Amongst Us: Bangladeshi Perspectives on the Rohingya Crisis Survey, OCHA Relief Web (Aug 29, 2018).

[4] “Bangladesh Is Not My Country” The Plight of Rohingya Refugees from Myanmar, Human Rights Watch 41 (Aug 2018).

[5] Bangladesh: Plan to relocate hundreds of Rohingya to remote island must be dropped, Amenty International (Nov 20, 2020), https://www.amnesty.org/en/latest/news/2020/11/bangladesh-plan-to-relocate-hundreds-of-rohingya-to-remote-island-must-be-dropped/.

[6] Bangladesh Rohingya relocation to isolated island criticized by rights groups, The Indian Express (Dec 29, 2020), https://indianexpress.com/article/world/bangladesh-rohingya-relocation-to-isolated-island-criticized-by-rights-groups-7092867/.

[7] Kathryn Reid, Rohingya refugee crisis: Facts, FAQs, and how to help, World Vision (June 12, 2020).

[8] The facts: Rohingya refugee crisis, Mercycorps (May 02, 2019), https://www.mercycorps.org/blog/rohingya-refugee-crisis-facts#who-are-rohingya.

[9] UN News, Rohingya Refugee Crisis, https://news.un.org/en/focus/rohingya-refugee-crisis.

[10] UNICEF, Rohingya crisis, https://www.unicef.org/emergencies/rohingya-crisis.

[11] The Rohingya Crisis: Explained, Save the Children, Save The Children, https://www.savethechildren.org/us/what-we-do/emergency-response/rohingya-crisis.

[12] Deutsche Welle, Bangladesh Rohingya relocation to isolated island criticized by rights groups, The Indian Express (Dec 29, 2020).

[13] Julhas Alam, Bangladesh Begins Relocating Rohingya Refugees to Island, The Diplomat (Dec 04, 2020).

[14] Id.

[15] UNHCR The UN Refugee Agency, The 1951 Refugee Convention, https://www.unhcr.org/1951-refugee-convention.html.

[16] Convention Relating to the Status of Refugees, Art. 33, July 28, 1951, 189 U.N.T.S. 137.

[17] Kay Hailbronner & Jana Gogolin, Asylum, Territorial, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW, 757 (2013).

[18] General Conclusion No. 25 (XXXIII) of Executive Committee of UNHRC on “International Protection General Conclusion on International Protection,” No. 12A (A/37/12/Add.1) (1982).

[19] G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 14 (Dec. 10, 1948).

[20] G. A. Res. 2312 (XXII), Declaration on Territorial Asylum, art. 1 (Dec. 14, 1967).

[21] GUY S. GOODWIN-GILL & JANE MCADAM, THE REFUGEE IN INTERNATIONAL LAW 358 (3rd ed. 2007).

[22] Kay Hailbronner & Jana Gogolin, Asylum, Territorial, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW, 757 (2013).

[23] G. A. Res. 2312 (XXII), Declaration on Territorial Asylum, art. 1(3) (Dec. 14, 1967).

[24] PAUL WEIS, THE REFUGEE CONVENTION: THE TRAVAUX PREPARATOIRES ANALYSED WITH A COMMENTARY (United Nations High Commissioner for Refugees, 1951).

[25] Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, United Nations Human Rights Commisssion ¶ 83 (Jan. 1992).

[26] Myanmar Rohingya: What you need to know about the crisis, BBC News (Jan 23, 2020).

[27] supra note 4.

[28]  Nirupama Subramanian, This is where Rohingya are being sent: a newly surfaced island in Bay of Bengal, The Indian Express (Dec 7, 2020).

[29] A day on Bhasan Char, Bangladesh’s Remote Island for Rohingya, Hindustan Times (Jan 04, 2021), https://www.hindustantimes.com/photos/world-news/photos-a-day-on-bhasan-char-bangladesh-s-remote-island-for-rohingya/photo-8dDpC6FR8mSUwhNgw3ACRJ.html.

[30] Sreeparna Banerjee, From Cox’s Bazar to Bhasan Char: An Assessment of Bangladesh’s Relocation Plan for Rohingya Refugees, Observer Research Foundation (May 2020).

[31] Id.