But promoting the Rohingyas' repatriation as the only possible solution to their displacement overlooks an internationally recognized norm of protection for those seeking refuge. This is the principle of non-refoulement. Basically, this principle prohibits nations from expelling or returning a refugee to a place where their freedom will be threatened or there is a risk of persecution.
This principle is recognized in the 1951 Convention Relating to the Status of Refugees, and applies to refugees that are formally recognized as well as those who lack an official status.
Although Bangladesh is not a party to the convention, the principle still applies because non-refoulement is an international custom. This means that the principle is a “general practice accepted as law” because it has fulfilled the two elements necessary to become customary international law: consistent State practice and opinio juris. The latter means it is a practice recognized by states as obligatory.
Having satisfied these requirements, the principle of non-refoulement is considered customary international law, and therefore, binding on all states regardless of their adoption of the 1951 Convention. Furthermore, the principle is defended in other treaties which Bangladesh has signed, such as the Convention Against Torture and the Covenant on Civil and Political Rights. This principle should protect the Rohingya from forced or coerced repatriation to Burma.
Foreign Minister Moni’s plan for Rohingya repatriation not only goes against customary international law but her request for the UN High Commissioner for Refugees to pursue socio-economic development in Burma also falls short.
The reason for the flight of the Rohingya into neighboring countries is not the result of a socio-economic problem. The root cause of their displacement is the lack of recognition of their citizenship rights in Burma.
Without these national rights, their other basic rights, such as freedom to travel or marry or practice their faith, are routinely violated, and the Rohingya are subject to other gross human rights abuses such as forced labor and property confiscation.
Although they should be protected from compulsory return to Burma, many Rohingya would be prepared to return to a Burma that recognizes them as citizens and provides them with the full protection of the law like other citizens.
However, even recognized citizens in Burma are fleeing across nearly every border to avoid wrongful detention and the lack of freedom of speech, press or association, among other more violent human rights violations. Without significant changes in Burma, the Rohingya cannot return. Repatriation can only occur when it is voluntary on the part of the persecuted.
While the Bangladesh foreign minister’s remarks can certainly be viewed as disregarding the internationally-recognized principle of non-refoulement, they should also be regarded as a request for assistance. Perhaps she should be heard as a plea for international, political action in Burma. Clearly Bangladesh and other Burmese refugee-hosting countries like Thailand cannot go this path alone indefinitely.
Resettlement of Rohingya refugees must continue in countries like the US, Canada, Ireland and New Zealand. Funding must also support local villagers living in the area surrounding the camps. This is necessary to change the local perception of the refugee camps from being a financial burden for the country to infusing the area with international aid and development.
While it is inappropriate for Foreign Minister Moni to suggest the repatriation of the Rohingya on any terms that are not voluntary, western states as well need to take political action in Burma for the sake of all Burmese people.
Kristy Crabtree qualified in international law from New York University, and has conducted field research with Rohingya refugees in the Kutupalong and Leda camps. Her research has been published in Forced Migration Review, Infinity Journal, the Journal for Muslim Mental Health and the Huffington Post. She worked as a US Peace Corps volunteer in Gazipur and Cox’s Bazar.
source: www.irrawaddy.org
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