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Hurdles in protection of refugees: National legislations and International frameworks

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




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

From a 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 (as stated in Article 32), equality, and due process of law (as outlined in 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 and its 2003 amendment

Applies

Gaps in implementation (Cortinovis & Rorro, 2021)

 

✓

Child Marriage Restraint Act (2017)

Applies

Gaps in implementation (Cortinovis & Rorro, 2021)

✓

The Prevention and Suppression of Human Trafficking Act, together with its accompanying 2017 Rules

Applies

Gaps in implementation (UNHCR, 2020)

✓✓

The Prevention of Violence Against Women and Children Act of 2000

Applies

Gaps in implementation (UNHCR, 2020)

✓✓

Domestic Violence Act (2010)

Applies

Gaps in implementation (UNHCR, 2020)

✓✓

 

1.2.3 RELEVANT HUMAN RIGHTS AND OTHER FRAMEWORKS AND INSTRUMENTS

Bangladesh has officially ratified numerous fundamental human rights and refugee frameworks. Furthermore, the constitution of Bangladesh also has provisions that are drawn from the UDHR that protect the basic human rights of all people in its territory. However, as previously noted, these are non-binding and interpreted not to include refugees within the national legislation (Hasan et al., 2022). Furthermore, many international legal frameworks regarding torture, the rights of women and children, and some non-binding legal instruments are incorporated into national legislation and implemented by the government with support from humanitarian actors in the refugee camps. The table below shows the list of legal frameworks and instruments.

Table 1-2 : International Legal Regimes and their application (Source: Developed by Author)
(Note: This table is adopted from various UN and other reports and the markings is based on authors judgement drawn from the reports and reviews. )


Observation on the implementation 

Political Security

🗴🗴🗴

Economic Security

✓✓

Food Security

✓✓

Health Security

✓✓

Environmental Security

🗴

Personal Security

🗴

Community Security

🗴🗴

The Rohingya are unable to earn livelihoods outside camps because of the temporary nature of their stay, which relates to the economic aspect of human security. UNHCR and IOM run some income-generating activities, such as tailoring, embroidery, gardening, recycling, and product manufacturing, for Rohingya women through programmes such as  SAFEPlus, although these are limited in nature for the Rohingya and are more inclined toward the locals. Moreover, there are restrictions on providing cash in exchange for training and work in the camps, which impact the hiring process for the Rohingya people (UNDP, 2021). In actuality, despite being legally prohibited from going outside the camp, many find ways to do so illegally. Literature on the subject suggests that refugees who are barred from working find illicit ways to find employment (Edwards, 2009). According to IOM 2017 data, most of the refugees are able to secure their livelihoods at a minimal level, but it doesn’t mention the source (IOM, 2017). This supports Jacobsen’s suggestion in her study on livelihoods in refugee camps that cash is sometimes a better alternative than other humanitarian support and that the support provided is not sufficient.

Furthermore, being outside the designated zone risks their security. Very often, they are exploited, discriminated against, sexually abused, tortured, and persecuted because of their vulnerable situation, but they cannot seek legal redress as Rohingyas could be prosecuted if found outside the designated boundary (the 1946 Foreigners Act).

IOM and UNHCR reports also show that Rohingya receive food from international organizations. Although commendable, these overlook the fact that the empowerment of refugees is a feature of human security. Many humanitarian actors developed the Learning Competency Framework and Approach (LCFA) in 2018, but it does not provide education beyond 9th grade (Cortinovis & Rorro, 2021). One of the refugees from the author’s interview received education until 7th grade in Buthidaung, Myanmar, and up to 9th grade in the Balukhali refugee camp in Bangladesh.

The humanitarian actors are working with the Bangladesh government to provide Rohingya access to health services. Furthermore, the Rohingyas were also included in the national COVID response plan, but to be a truly human security project, the disadvantaged people should be given special attention.

Furthermore, the Rohingya refugees are confined to a life inside the camps, which are severely overcrowded. Since the major influx of 2017, the population of Cox’s Bazar has increased by a third, which has resulted in environmental degradation (UNHCR, 2020). This doesn’t only threaten the Rohingya but also the local population, which is particularly stressed by many in Bangladeshis as the refugee crisis has caused deforestation, soil erosion, water pollution, and biodiversity loss in the Refugee Hosting Areas. 

As the overall regulations indicate, the Rohingya refugees in the camps have no legal status or citizenship rights. They lack freedom of movement and expression and have a limited say in the policies that affect them in the camps. The author's interview with a refugee suggests that the fear of groupings within the camps bars their participation and representation in decision-making processes.

 On the personal security dimension, the Rohingya refugees are further exposed to various forms of violence and abuse. The interviewee claims that these incidents rarely get reported outside the camps. Moreover, on the community security dimension, Rohingyas face legal and social exclusion from both the host communities and from the factional groups they are not part of.

 

Based on the above legal instruments and the dimensions of HS, the key measures are expressed through the four key characteristics in the table.

Table 3: Key Characteristics of HS 

Key Characteristics of Human Security

Implication

Universality

Legally and Normatively Applicable for Rohingya (✓)

Empirically (🗴)

People-Centrism

(🗴) basis National interest and national security, limited Empowerment and Agency

Interdependency

(🗴) Incoherence in National and International Instruments

Early Prevention

-

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