Hurdles in protection of refugees: National legislations and International frameworks

Legal hurdles in protection of refugees: National legislations and International frameworks

Human Security Components

Two key components of Human Security
(Source: Developed by author, adapted from 1994 Human Development Reports)

The UNHCR has urged Bangladesh to adopt a national refugee and asylum system since the early 2000s. In 2013, Bangladesh responded by adopting the “National Strategy on Myanmar Refugees and Undocumented Myanmar Nationals” (NSMRUMN) (Cortinovis & Rorro, 2021). It was a unique ‘strategy’ that aimed at addressing the needs of refugees in the camps. The Government of Bangladesh (GoB) was further urged to create a national refugee law, as it made the situation of refugees in its territory unstable, which violated one of the main aspects of HS- protection from ‘sudden and hurtful disruption in daily patterns of life’ (Ewan, 2007).

The beneficial impacts of the strategy was however, provision of basic protection, although as passive recipients of aid. Nalil Khairriah et al. labelled this the negative dimension of human security (Khairiah et al., 2021).

1.2.2 ANALYSIS OF BANGLADESH’S NATIONAL LEGAL FRAMEWORKS FOR ROHINGYA REFUGEE

Bangladesh’s national legal instruments ensure fundamental rights for all persons, including non-citizens (Cortinovis & Rorro, 2021). However, in practice, they are not interpreted to be applicable to Rohingya refugees. As a result, the 1946 Foreigners Act governs the treatment of Rohingya refugees in Bangladesh, as there is currently no established legal framework (UNHCR, 2007). Under this act, they are subject to detention and arrest if found outside the camps. This directly impedes their access to justice, as they cannot seek justice for violence perpetrated against them.

Although many national legislations should apply to anyone inside Bangladeshi territory, reality is very different. My interview with refugees suggests that Rohingya are willing to go to the police but are deterred by the fear of factions within the refugee community who oppose police involvement. A significant percentage of those residing in refugee camps are women and children, and many Bangladeshi policies and legal instruments ensure their rights. However, these instruments are occasionally implemented at the insistence of humanitarian actors.

Table 1-1 : Application of National Legal Instruments for Refugees (Source: Developed by Author) (Note: This table is adopted from various UN and other reports, and the markings is based on my judgment drawn from these reports and reviews.)

National Legal Instruments Application in theory for refugees Application in Actuality for refugees Human Security Perspective
The Constitution of Bangladesh The provision of fundamental rights to all individuals, irrespective of their citizenship status, encompasses the entitlements to life, liberty (Article 32), equality, and due process (Article 33). Vary for the refugees (UNHCR, 2020) 🗴🗴
1946 Foreigners Act - - 🗴🗴🗴
Muslim Family Ordinance (1961) Applies Excluded (UNHCR, 2020) 🗴🗴🗴
Prevention of Oppression against Women and Children (2003) Applies Gaps in implementation (Cortinovis & Rorro, 2021) ✓
Child Marriage Restraint Act (2017) Applies Gaps in implementation (Cortinovis & Rorro, 2021) ✓
Prevention and Suppression of Human Trafficking Act (2017) Applies Gaps in implementation (UNHCR, 2020) ✓

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