Loss of Refugee Status IRL Combine PDF

Loss of Refugee Status  Loss of Refugee Status  The status of refugee is not a permanent status. It might be loosed after the expiration of a certain time for diversified grounds.  The refugee status sustains as long as the fear of persecution of a person sustains.  W...

Loss of Refugee Status  Loss of Refugee Status  The status of refugee is not a permanent status. It might be loosed after the expiration of a certain time for diversified grounds.  The refugee status sustains as long as the fear of persecution of a person sustains.  Whenever the fear is removed the person becomes no more entitled to hold the status of refugee.  A person may lose refugee status when the circumstances in the country on which his fear of persecution was founded have ceased to exist. That change in circumstances must be of a significant and permanent nature.  The refugee status of a person may be loosed through the process of cancellation, cessation and revocation.  Loss of Refugee Status  The issue of cancellation of refugee status arises, where a person recognized as a refugee by a State under the 1951 Convention and its 1967 Protocol, is subsequently found not to have been entitled to the benefit of international protection under these instruments.  It may also affect persons who were determined to be refugees by the UNHCR under its 1950 Statute.  Ways of Loosing Refugee Status Cancellation Cancellation means the invalidation of a “positive refugee status determination” which should not have been made in the first place. Cancellation of refugee status refers to situations where circumstances come to light that indicate a person should never have been recognized as a refugee in the first place. Cancellation affects determinations that have become final, i.e., they are no more subject to appeal or review. It has the effect of rendering refugee status null and void from the date of the initial determination (ab initio from the start or from then).  Ways of Loosing Refugee Status Cessation  Cessation of refugee status refers to situations where, due to changes in the individual’s situation brought about by themselves, or due to changes in the country where persecution is feared, the individual ceases to be a refugee.  The ending of refugee status pursuant to Article 1(c) of the 1951 Convention because international protection is no longer necessary or justified on the basis of certain voluntary acts of the individual concerned or a fundamental change in the situation prevailing in the country of origin.  Cessation has effect for the future (ex nunc).  Ways of Loosing Refugee Status Revocation  Revocation of refugee status refers to situations where a refugee’s subsequent conduct is so serious that it warrants the revocation of their status.  Withdrawal of refugee status in situations where a person engages in conduct which comes within the scope of Article 1F(a) or 1F(c) of the 1951 Convention after having been recognized as a refugee.  Cancellation: Meaning  Cancellation means the invalidation of a positive refugee status determination which should not have been made in the first place.  It has the effect of rendering refugee status null and void from the time of the original decision (ab initio).  Cancellation of refugee status means a decision to invalidate a refugee status determination which should not have been granted in the first place.  It applies to determinations that have become final, that is, they are no longer subject to appeal or review.  Cancellation: Meaning  In principle, cancellation has the effect of rendering refugee status null and void from the date of the initial determination.  The issue of cancellation arises where a person recognized as a refugee by a State under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol is subsequently found not to have been entitled to Convention refugee status at the time of the positive determination.  Grounds for Cancellation 1.Substantial fraud on the part of the applicant with regard to core aspects relating to his or her eligibility for protection. 2.Other misconduct affecting eligibility by the applicant, such as for example threats or bribery. 3.Applicability of an exclusion clause, with or without fraud on the part of the applicant. 4.An error of law or fact by the determining authority, relating to inclusion or exclusion criteria. 1. Cancellation due to Fraud on the Part of the Applicant  Fraus omnia corrumpit, i.e., fraud tarnishes everything.  In most of the countries refugee status is liable to cancellation if it was obtained by fraud.  Sometimes, fraud is the only cancellation ground explicitly mentioned in refugee legislation  Cancellation of refugee status obtained through fraud is mandatory in some countries, subject to discretion in others.  State practice is consistent in requiring, for fraud as ground for cancellation, the presence of all three of the following elements: (i) Objectively incorrect statements by the interested party; (ii) Causality between these claims and the decision to grant refugee status by the authority; and (iii) Intention to mislead by the interested party.  2. Cancellation on the Basis of Other Misconduct by the Applicant  An administrative act may regularly be invalidated ab initio if it was obtained through threats or bribery. As with fraud, the applicant's conduct must have been material to the decision made.  Depending on the legal regime in place, officials who accept bribes will be liable to disciplinary sanctions as well as prosecution under applicable criminal law.  3. Cancellation due to Mistake on the Part of the Authority  The recognition as a refugee of a person who does not meet the criteria of the 1951 Convention may result from an error on the part of the determining authority.  The nature and seriousness of the mistake may justify cancellation of refugee status, including where the initial claim was presented in good faith, although it is in such situations that the legitimate interests, or acquired rights, of the person concerned may outweigh the public interest in rectifying a determination which was wrongly made in the first place.  4. Cancellation on the Basis of an Exclusion Provision of the 1951 Convention  National legislation in a number of countries provides explicitly for the cancellation of refugee status in circumstances where one of the exclusion clauses of the 1951 Convention would have applied at the time of the initial determination.  With regard to cancellation on the basis of Article 1 (F), in particular, this means that the authorities must not limit their examination to those elements which suggest that an exclusion clause would have applied. Principle of Non-refoulement  Principle of Non-refoulment  In the arena of international law, there is a principle of paramount importance, i.e., the principle of non- refoulement (non expulsion).  The principle of non-refoulement is seen by most in the international law, whether governments, NGOs or commentators, as basic to refugee law.  Since its expression in the Refugee Convention in 1951, it has been playing a key role in how states deal with the asylum seekers and refugees.  This principle is applicable to any refugee, asylum-seeker or alien who needs some form of shelter from the state whose control s/he is under.  It also applies when a person seeking asylum, i.e., prior to recognition of refugee status or until it is established that the applicant does not fulfill the refugee definition.  The significance of this is that even countries that are not party to the convention must respect this principle.  Prior to the 1930 the principle of non-refoulement did not exist in international law.  It was first expressed at international law in the 1933 Refugee Convention Relating to the Status of Refugees.  The non-refoulement principle means that states cannot return aliens to territories where they might be subjected to torture, inhumane or degrading treatment, or where their lives and freedoms might be at risk.  The principle of non-refoulement compels all States, even those that are not party to the 1951 Refugee Convention, to respect it from the very moment a person claims protection.  The principle of non-refoulement can be defined as the prohibition to expel or return a person to a place where he could face persecution, torture or inhuman treatment.  The term ‘non-refoulement’ originates from the French word ‘refouler’, meaning literally to drive back or to repel.  Refoulement refers to expulsion, deportation, removal, extradition, sending back, return or rejection of a person from a country to the frontiers of a territory where there exists a danger of ill-treatment, i.e., persecution, torture or inhumane treatment.  The keystone of refugee protection is the principle of non-refoulement, which provides that no refugee should be returned to any country where s/he is likely to face persecution on the grounds of race, religion, nationality, political opinion, or membership of a particular social group.  The 1951 Convention in its Article 33 (1) states as follows: “No contracting state shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”.  It was decided in a case that this principle is recognized as a non-derogable principle applicable in all circumstances, regardless of the nature of the activities the person concerned may have been engaged in, and relates not only to the State to which the person faces instant return but extends to “any other State where he runs a risk of being returned”. - Seid Mortesa Aemei vs. Switzerland [1997, The UN CAT, 29th May, 1997].  “The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened.” - Article 31(1).  “The Contracting States shall not expel a refugee lawfully in their territories save on grounds of national security or public order.” - Article 32(1).  Article 33(2) has two exceptions, i.e., for national security and for public order. This means in essence that refugees can exceptionally be returned on two grounds: (a) In case of threat to the national security of the host country; and (b) In case their proven criminal nature and record constitutes a danger to the community.  It is not very clear concerning what extent a person with a criminal record would form a danger to the community of a country where he seeks refuge.  The law is unclear and is still developing by state practice  Non-refoulement under Different International Instruments  The principle of non-refoulement has been incorporated in international treaties adopted at the regional and universal levels to which a large number of states have now been parties.  Refoulement is prohibited explicitly under Article of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.  Art. 45 (4) of the Fourth Geneva Convention, 1949.  Article 7 of the ICCPR, 1966.  Article 8 of the Declaration on the Protection of All Persons from Enforced Disappearance , 1992.  Principle 5 of the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions.  Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950.  Article 22 of the American Convention on Human Rights, 1969.  Article 11 (3) of the OAU Refugee Convention, 1969; and  Article 2 of the Cairo Declaration on the Protection of Refugees and Displaced Persons in the Arab World, 1992.  Article VII(1) of the 1967 Protocol. Non-refoulement obligations under international Law 1. The protection against refoulement under Article 33(1) applies to any person who is a refugee under the terms of the 1951 Convention, that is, anyone who meets the requirements of the refugee definition contained in Article 1A(2) of the 1951 Convention (the “inclusion” criteria) and does not come within the scope of one of its exclusion provisions. 2. The prohibition of refoulement to a danger of persecution under refugee law is applicable to any form of forcible removal, e.g., deportation, expulsion, extradition, informal transfer or “renditions”. This is evident from the wording of Article 33(1) of the 1951 Convention, which refers to expulsion or return (refoulement) “in any manner whatsoever” 3. Where States are not prepared to grant asylum to persons who are seeking global protection on their territory, they must adopt a course that does not result in their removal, directly or indirectly, to a place where their lives or freedom would be in danger on account of their race, religion, nationality, membership of a particular social group or political opinion. 4. The non-refoulement obligation under Article 33 of the 1951 Convention is binding on all organs of a State party to the 1951 Convention and the 1967 Protocol as well as any other person or entity acting on its behalf. 6. Exceptions to the principle of non-refoulement under the 1951 Convention are permitted only in the circumstances expressly provided for in Article 33(2), which stipulates that: “The benefit of [Article 33(1)] may not be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which s/he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” 7. The provisions of Art. 33(2) of the Convention do not affect the host State’s non-refoulement obligations under international human rights law, which permit no exceptions. Thus, the host State would be barred from removing a refugee if this would result in exposing him or her, for example, to a substantial risk of torture. 8. Within the framework of the 1951 Convention or 1967 Protocol, the principle of non-refoulement constitutes an essential and non-derogable component of global refugee protection. 9. The UNHCR is of view that the prohibition of refoulement of refugees constitutes a rule of customary international law and as such, it is binding on all States, including those which have not yet become party to the 1951 Convention and/or its 1967 Protocol.  Important Cases on Non- refoulement In the case of Soering v. United Kingdom (1989), it was argued that, “Article 3 of the ECHR, 1950 makes no provision for exceptions and no derogation from it is permissible under Article 15 of the ECHR in time of war or other national emergency”. This absolute prohibition of torture under the terms of the Convention shows that Art. 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe.  It was argued in the case Canada vs. Ward (1993) that, the test as to whether a state is unable to protect a national is bipartite: (1) The claimant must subjectively fear persecution; and (2) This fear must be well-founded in an objective sense. Again, in the case of Cruz Varas and Others v. Sweden (1991), it was argued that, “expulsion by a Contracting State of an asylum-seeker may give rise to an issue under Art.3 of the ECHR, 1950 and hence engage the responsibility of that State under that Convention”. Where substantial grounds have been shown for believing that the person concerned faced a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he was returned. Asylum of Refugees  Concept of Asylum  The concept of asylum has a long history. It has been in existence for at least 3,500 years and is found in the texts and traditions of many different ancient societies.  Asylum is a right in international law.  The right of the State to grant asylum and the right of a person to take asylum is recognized in international law.  A State has undoubtedly a right to push out aliens and at the same time a State has also a right to grant asylum to aliens.  But the question is whether an individual has a right to asylum opposable to the State’s right to expel? It is generally realized that there is no such right.  Concept of Asylum  Ian Martin, the former Secretary General of Amnesty International, recently observed, “Governments are more often motivated by self-interest than by considerations of humanity, and this provides a further reason for those seeking to combat human rights violations to insist upon the right of asylum.”  Asylum Defined  Asylum means basic protection i.e., no forceful return to the frontiers of territories where the life or freedom of people would be threatened for a temporary period, with the possibility of staying in the host country until a solution outside that country can be found.  The word “asylum” is the Latin counterpart of the Greek word “asylon,” which means freedom from seizure.  Historically, asylum has been regarded as a place of refuge where one could be free from the reach of a pursuer.  In ordinary sense, asylum means to provide shelter to an alien in the territory of a State which will also imply permitting him to enter the territory, if he has not already entered.  Asylum Defined  “Asylum is the protection which a State grants on its territory or in some other place under the control of certain of its organ to a person who comes to seek it.”- (Article 1 of the Resolution adopted by the Institute of International Law in September, 1950).  Article 14 (1) of the UDHR, 1948 lays down “Everyone has the right to seek and enjoy in the other countries asylum from persecution”.  The concept of asylum has also been elaborated in the Declaration on Territorial Asylum, 1967.  Asylum Defined  The granting of asylum is considered as a humanitarian act and it cannot be regarded as unfriendly by any other state. The state granting asylum is required to evaluate the grounds for the grant of asylum.  Asylum Defined  In the international law the concept of asylum involves two elements: 1. Shelter, which is more than merely temporary refuge; and 2.A degree of active protection on the part of the authorities in control of the territory of asylum. Though it is the discretion of each state to grant asylum for any person, it is also the responsibility of the granting state to give the protection of that person.  Asylum Defined  Indeed, the right of asylum has been said to comprise certain specific manifestations of state conduct: i. To admit a person to its territory. ii. To allow the person to stay there. iii. To refrain from expelling the person. iv. To refrain from extraditing the person, and v. To refrain from prosecuting, punishing or otherwise restricting the person’s liberty.  Nature and Form of Asylum  The concept of asylum in international law involves three elements: Firstly, the State admits the individual seeking refuge to its territory or other places under its control. Secondly, the State is prepared to provide a long-lasting sanctuary, i.e., its more than mere temporary refuge. Thirdly, it involves a degree of active protection, i.e., the State authorities are taking appropriate steps to ensure actual protection of the particular individual.  Classification of Asylum ❖Asylum may be classified mainly into two parts: i. Territorial asylum; and ii. Diplomatic or extra-territorial asylum.  Territorial asylum is granted within the territorial bounds of the state offering asylum and is an exception to the practice of extradition.  “A state’s liberty to grant asylum in its territory is of ancient origins, and extends not only to political, social or religious refugees, but also all persons from abroad, including criminal offenders; it is merely one aspect of a state’s general power of admission or exclusion from its territory.”- J. G. Starke.  Classification of Asylum  The ICJ has explained in Asylum case (Colombia vs. Peru, 1950) that the granting of territorial asylum is “normal exercise of the territorial sovereignty” as the “refugee is outside the territory of the State where the offence was committed.”  Territorial asylum is the right of a state within its own territory to grant shelter and protection to a non-national as an aspect of its sovereignty.  When a state gives the shelter and protection to an alien or a person of another state to its own territory then it is called territorial asylum.  Classification of Asylum  For instance, in the 1971 liberation war between Bangladesh and Pakistan, India has granted asylum to millions of refugees from Bangladesh who fled from their native land.  Likewise, Bangladesh has given shelter to thousands of refugees from Myanmar in 1978 and 1991 though it has not yet ratified or acceded to the 1951 Convention and its 1967 Protocol.  Classification of Asylum  In the light of recent events it has been claimed that territorial asylum should be sub-classified into: 1. Political asylum, e.g., for so called defectors; 2. Refugee asylum, for refugees with a well-founded fear of persecution in their own country; and 3. General asylum, i.e., for persons who have fled from their country to seek economic betterment, but do not have the status of immigrants. Extra-territorial or Diplomatic Asylum  This kind of asylum is not universally accepted.  The term “extra-territorial asylum” or “Diplomatic asylum” is used to indicate “asylum” given within the territory of the state from which refuge is sought.  In such kind of asylum, the persecuted person is not crossing the border of his country; rather he is seeking the asylum to the diplomatic mission or embassy of another state situated in his own country.  Diplomatic asylum is mainly the shelter given in embassies and legations to persons seeking refuge from the state in which they are situated in case of actual danger. Extra-territorial Asylum or Diplomatic Asylum  Extra-territorial asylum may arise in diplomatic premises but there is no right to grant such asylum unless the fugitive is an imminent physical danger.  Once the danger has abated, there is a duty to surrender even though the premises are immune from local jurisdiction in the event of non-surrender.  Who is an Asylum Seeker?  An asylum-seeker is a person who is seeking protection as a refugee and is still waiting to have his or her claim succeed.  When people flee their own country and seek sanctuary in another country, they apply for asylum, i.e., the right to be recognized as a refugee and receive legal protection and material assistance.  An asylum seeker must demonstrate that his or her fear of persecution in his or her home country is well-founded.  The term “asylum-seeker” is used generally for all persons seeking shelter in other countries because they are forced to leave the country of origin for a variety of reasons.  Who is an Asylum Seeker?  All asylum seekers being first with claims of refugee status but some are successful and some are not in terms of the definition of the 1951 Convention.  An asylum seeker is a person who has applied for asylum under the 1951 Convention on the ground that if he is returned to his country of origin he has a well-founded fear of persecution.  He remains an asylum seeker so long as his application or an appeal against refusal of his application is pending.  Asylum seeker is a person who has not yet received a decision on his or her claim for refugee status.  Who is an Asylum seeker?  Not every asylum seeker will ultimately be recognized as a refugee, but many will.  Until a claim is examined fairly, the asylum seeker is entitled not to be returned as per the principle of non- refoulement, and to benefit from humanitarian standard of treatment. Asylum Seeker and Refugee: Distinctions  Unfortunately “asylum-seekers” and “refugees” are frequently conflated, giving rise to much confusion.  Asylum seeker and refugee are often confused: an asylum seeker is someone who says he or she is a refugee, but whose claim has not yet been definitively evaluated.  Asylum seeker means a person who has applied for asylum under the 1951 Convention on the ground that if he is returned to his country of origin he has a well- founded fear of persecution.  He remains an asylum seeker so long as his application or an appeal against refusal of his application is pending.  Asylum Seeker and Refugee: Distinctions  On the other hand “refugee” in this context means an asylum seeker whose application has been successful.  Refugee refers to a person who seeks shelter in a country outside the country of his origin due to fear of persecution.  In case of refugee well-founded fear of persecution is to be established on account of race, religion, nationality, membership of a particular social group.  While in the case of asylum seeker, the reasons for his or her escape could be much wider.  the term “asylum seeker” is much wider than that of a refugee. Asylum Seeker and Refugee: Distinctions  An asylum seeker could be a refugee if he or she satisfies the criteria of 1951 Refugee Convention.  An asylum seeker may include persons who could not satisfy the strict criteria described in the 1951 Convention.  So, the difference between a refugee and an asylum seeker appears to be that of circumstances which led the person to flee from the country of his origin. Three Faces of the Right of Asylum Right of a State to grant asylum Right of an Individual to Seek Asylum Right of an Individual to be granted Asylum  Three Faces of the Right of Asylum 1. The Right of a State to Grant Asylum 2. The Right of an Individual to Seek Asylum 3. The Right of an Individual to be granted Asylum  1. Right of a State to Grant Asylum  The right of a state to grant asylum is well established in international law.  It follows that, every sovereign state has the exclusive control over its territory and persons present in its territory.  Every sovereign state has the right to grant or deny asylum to persons located within its boundaries.  There is a little dispute as to this principle that the right of asylum has been viewed as the right of a state, rather than the right of an individual.  1. Right of a State to Grant Asylum  But, it is confirmed in the international and regional instruments and in state practice.  Firstly, the UDHR provides in Art.14(1) the right of each individual to “enjoy in other countries asylum from persecution”.  Secondly, the UN Declaration on Territorial Asylum, 1967 provides in Art.1(1) that, “asylum granted by a state, in the exercise of its sovereignty, to persons entitled to invoke Article 14 of the UDHR, shall be respected by all other states.”  Similarly, the Convention on Territorial Asylum, 1954 states in Art.1 that, “every state has the right, in the exercise of its sovereignty, to admit into its territory such persons as it deems advisable, without, through the exercise of this right, giving rise to complaint by any other state.”  2. Right of an Individual to Seek Asylum  This is an individual right that an asylum seeker has vis-a- vis his state of origin.  It is the right of an individual to leave his country of residence in pursuit of asylum.  The basis for this right is the principle that “a state may not claim to ‘own’ its nationals or residence.”  Art.13(2) of the UDHR, 1948 proclaims that, “everyone has the right to leave any country, including his own.”  Article 12(2) of the Covenant states that, “everyone shall be free to leave any country, including his own.”  American Convention on Human Rights, 1969 stipulates in Art. 22(2) that, “every person has the right to leave any country freely, including his own.”  3. Right of Individuals to be granted Asylum  The OAU Convention provides in its Art. II (1), “Member states shall use their best endeavors consistent with their respective legislations to receive refugees.”  Similarly, American Convention on Human Rights provides at Art.22(7), “Every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions.”  Bangladesh Perspective “I was born in Burma, but the Burmese government says I don’t belong there. I grew up in Bangladesh, but the Bangladesh government says I cannot stay here. As a Rohingya, I feel I am caught between a crocodile and a snake.”– A 19-year-old refugee, Nayapara camp  “Though Bangladesh has not yet acceded to the two major international instruments on refugee law, it has an international obligation towards the refugees residing within its territory under its constitutional framework and other international instruments of the world.”  Despite Bangladesh is not a state party to the 1951 Refugee Convention and its 1967 Protocol, under the principle of non-refoulement (Article 33 of 1951 Refugee Convention) as a peremptory norm and customary international law, it is obliged to give the protection to the refugees of other states and in no way it can avert this responsibility.  Rohingya refugee problem was created in the course of numerous historical trajectories.  After the first Rohingya influx in 1978 the Rohingya problem has been a burning issue in the Bangladesh concerns.  It has become a bone of contention between Bangladesh and Myanmar and is affecting the bilateral issues severely.  In response to humanitarian appeal, Bangladesh has been generous enough in couple of times to extend help but recently decided not to allow further entry of them.  The stateless Rohingyas of Myanmar have suffered from extreme persecution and discrimination for decades. Despite this, neighboring Bangladesh is not allowing them to enter to seek refuge.  History of Rohingya Refugees in Bangladesh  The historical exclusion and contemporary marginalization of Rohingya, an ethnic Muslim minority group is an age old dichotomy.  Who were the Rohingyas?  There are controversies regarding the origin of the Rohingya Muslim community and the term “Rohingya” itself  The word” Rohingya” is derived from “Rohang”, the ancient name of the Arakan province of Myanmar.  The Rohingya are Muslim minority community living in the Northern Machine state in Western Myanmar.  Around 40% percent of the populations are Muslims in the province.  The Burmese treated the Rohingya people differently, terming them as foreigners and sometimes as illegal immigrants.  Bangladesh has given shelter to refugees from Myanmar in 1978 and 1991.  In 1978, about 200,000 Rohingya refugees took shelter in Chittagong and its adjoining areas.  Ultimately they were sent back in accordance with 1978 Agreement between Bangladesh and Myanmar.  In 1991 another flow of refugees numbering about 270,000 came to Bangladesh and sent back to Myanmar.  It is now hosting around 500,000 documented and undocumented Rohingya refugees and is embittered of the adverse economic, social and environmental consequences now and in the near future. Legal Status of Ruhingya Refugees  It has been verified that the Rohingyas are both stateless and refugees.  Both Myanmar and Bangladesh have signed the UN Charter 1945, thereby pledging to achieve "the promotion of universal respect for and observance of human rights and fundamental freedoms" as set forth in the UDHR.  But neither state has signed the two Conventions that further detail the UDHR principles.  Several international documents contain terms that pertain to the rights of refugees, such as the Convention on the Elimination of All Forms of Discrimination Against Women (1979), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), the Body of Principles for the Protection of All Persons Under Any Form of Detention (1988), and the Convention on the Rights of the Child (1989).  Neither Myanmar nor Bangladeshi authorities, however, have signed most of these international treaties. But the protection under the UN charter and Universal declaration of human rights 1948 are applicable to Rohingya refugees. Legal Obligations of Myanmar under International Law The Government of Myanmar and the Rakhine State authorities to take immediate steps to: 1. Stop the violence; 2. Stop the arbitrary arrest of Rohingya and abused by security forces against them; 3. Allow unhindered humanitarian access to assist all those in need as a result of the crisis, including internally displaced persons staying outside camps and those hosting them; 4. Allow the displaced to return to their homes once it is safe and they feel safe to return, and ensure that a situation of protracted displacement is avoided; 5. Allow an international inquiry into the abuses committed since June 2012 in Rakhine State.  Legal Obligations of Bangladesh under International Law The government of Bangladesh should: 1.Respect the international principle of non-refoulement by ceasing the forced return of Rohingya, who face serious human rights violations in Myanmar; 2.Develop a comprehensive refugee policy that facilitates protection, assistance, resettlement, voluntary repatriation and local integration when appropriate; 3.Commence registration of undocumented Rohingya refugees and ensure that they and their host communities receive sufficient humanitarian assistance; 4.Identify opportunities for self reliance among registered refugees and progressively replace food distribution with food vouchers that provide refugees with more flexibility and give a direct boost to economically distressed villages in need of revival.  Issues for Non-accession of Bangladesh to 1951 Convention 1.The purpose of the 1951 Convention is considered as a Euro-centric and for serving the purpose of the developed states; 2.The definition of ‘refugee’, which is again considered as a Euro-centric contained in the 1951 Convention is confined to the violation of civil and political rights, and does not extend to social, economic and cultural rights; 3.UNHCR is an agency, which reportedly act on the behest of western donor countries; 4.No country in the SAARC region (except Afghanistan) has so far acceded to the 1951 Convention and its 1967 Protocol; 5.No national refugee legislation has been enacted in any country of South Asia; 6.New dynamics of peoples’ movement, i.e., smuggling, human trafficking, economic migrants and climate refugees has emerged which the 1951 Convention does cover; 7.Contemporary human mobility is caused more for economic reasons rather than for persecution; 8.Developed countries are now a day’s reluctant to comply with the very principle of the 1951 Convention and eager to impose restrictions on their borders; 9.Many governments of the world are now willing to accede to it; 10.Some experts in the region are concerned with the various limitations of the 1951 Convention, i.e., definition of refugees, principle of burden sharing etc; 11.The 1951 Convention is silent about internal displacement caused by civil war and puts more emphasis on individual persecution; 12.The inequality between camp refugees and mandate refugees has not been properly addressed in the 1951 Convention; 13.There is an understanding that existing constitutional provisions and relevant domestic legislation could be used for protection of refugees; 14.Mindset of few governments is against acceding to the 1951 Refugee Convention because presently it is not in the priority agenda to them; 15.Setting up of administrative and legal machinery for dealing with asylum seekers and refugee issue is not a priority in South Asia because it requires huge amount of resources.  Introduction  Total population of Myanmar is around 55 million of which 3.5 millions are Rohingyas (including both at home and the places of refugee) of Arakan.  There are around one hundred and forty (140) ethnic races and Rohingya is one of them.  Rohingyas are the people with distinct culture and civilization of their own.  Their ancestry is trace to Arabs, Moors, Pathans, Moghuls, Bengalis and some Indo-Mongoloid people.  They settled in Arakan in 7th century AD. They are ethnically also related to the Bengali people living in neighbouring country Bangladesh's Chittagong district.  Rohingyas were systematically deprived of their political rights after the military take over the country.  The military power adopted a new, most controversial and discriminatory citizenship law in 1982.  In the 1982 citizenship law declared that the Rohingyas are as "Non-National" or "foreign residents“.  The military power insisted to the Rohingyas to de- Islamization. They also did the "physical extermination through genocide and ethnic cleansing of Rohingya Muslims of Arakan and cultural assimilation of Muslims living in other parts of Burma“.  The main objective of the military Junta was to turn strategic Muslim Arakan into a Burmanised Buddhist region by reducing the Muslims.  The Rohingya Muslims are now facing genocide campaign by the Rakhaine terrorists.  According to the Burma Campaign UK, “There is a reliable body of evidence pointing to acts constituting a widespread or systematic attack against the Rohingya civilian population….These appear to satisfy the requirements under international criminal law for the perpetration of crimes against humanity.  Arbitrary arrests, torture, custodial killings, rape, forced marriage, dishonouring of women, restriction on the socio-cultural and religious activities of the Rohingyas is very common in Myanmar.  As a result of this kind of physical extermination, ethnic cleansing operation, torture etc; the Rohingyas are started to cross the international boarder and millions of Rohingyas has taken the refugee status in many countries including Bangladesh, India, Pakistan etc.  Status of Rohingyas under International Refugee Law  The 1951 convention "is both a status and rights-based instrument and is underpinned by a number of fundamental principles, most notably non- discrimination, non-penalization and non-refoulement  According to the 1951 Refugee Convention, a refugee is a person who flees to a foreign country or power to escape danger or persecution "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality  Mainly two system follows to Refugee Status determination:" Subjective test" and Objective test".  Rohingyas must be established the " fear of persecution" which called the subjective test and also be established the fear is well founded which called the objective test.  In case of Rohingya issue, the elements of Refugee are exists that is well founded fear of persecution on the basis of religion.  Present Situation of the Rohingya Refugees in Bangladesh  According to the UNHCR, total number of the Rohingya Refugees in Bangladesh is-200,000  Bangladesh claims 300,000-500,000  According to the Arakan Rohingya National Organisation(ARNO) the number is 600,000  A large number of "unregistered Rohingyas are not recognized as refugees and are often labelled economic or illegal migrants  Two Rohingya refugee camp is there which housing 26,317 refugees till may 2007 without freedom of movement, permission to work or access to education.  Rape is also prevalent both within and outside the refugee camps with Majees ( unelected refugee leaders), local villagers and police as the most common perpetrators.  Polygamy is practiced in the camps, resulting in a high level of female heads of households who are vulnerable to sexual exploitation and abuse  Food shortage and attendant malnutrition also there in the camps.  Health care is the another problem in the refugee camps. There is no sufficient medical stuff and also a serious shortage of female health care stuff. The harassment of the women refugees by the male health stuff is reported.  There is a prohibition of the refugee children from accessing formal education and Refugees do not have the right to own moveable or immovable property.  Resettlement of the Rohingya refugees is absence because Bangladesh is not interested to resettle the Rohingya Refugees to fear of increase of Rohingya refugees.  Bangladesh only prefer the voluntary repatriation as a durable solution.  Since 2012 another major problem facing by the Rohingya refugees in Bangladesh border that is the refoulement.  Border guard of Bangladesh is not allowing the Rohingyas to enter into Bangladesh and "push back" them to Myanmar. But the problem is if they go back to Myanmar there is mere possibility to fear of persecution.  Principle of Non-Refoulement as a Peremptory norm of International Law  Non-Refoulement is considered as the most fundamental principle of international refugee law.  Non-refoulement shall be considered as peremptory norm.  In the Rohingya issue, Bangladesh forcefully refoule the Rohingyas to Myanmar where is the high possibility of persecution or crime against humanity against the Rohingyas by the Myanmar security forces or its citizens.  According to Sir Elihu Lauterpacht and Daniel Bethlehem, Non-refoulement is a concept which prohibits States from returning a refugee or asylum seeker to territories where there is a risk that his/her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion.  Non-Refoulement is a non-derrogable right of the refugees. It's ensured by the 1951 refugee Convention. Article 42(1) of the 1951 refugee convention specifically provides that the States can not make reservation on article 33 which deals with the principle of Non- Refoulement.  Article III(5) of the Cartagena Declaration 1984, provides that the principle of non-refoulement as a "cornerstone of the international protection of refugees” and stated that "this principle is imperative in regard to refugees and in the present state of international law should be acknowledged as jus cogens.”  General Conclusion of the Executive Committee on the International Protection of the refugee "reaffirmed the importance of the basic principles of international protection and in particular the principle of non- refoulement which was progressively acquiring the character of a peremptory rule of international law"  Article 53 of the Vienna Convention on the Law of the Treaties 1969 states that, a treaty is void if it conflicts with peremptory norm. Whether a state is a party to a convention or not that is immaterial in case of the peremptory norm.  Non-Refoulement and Obligation of Bangladesh Under International Law  In Bangladesh, there is no direct law regarding the refugee issue. The constitution of Bangladesh contains some general provision to respect the international law and to promote international peace.  Article 25 of the constitution of Bangladesh provides that, the obligation ‘base its international relations on the principles and respect for international law and the principles enunciated in the UN Charter.  Article 32 of the Constitution stated that, "No person shall be deprived of life or personal liberty save in accordance with law".  Article 18(1) of the Constitution also provides that, the primary duty of the state is rising of the level of nutrition and the improvement of public health. So, constitutionally Bangladesh can not deny to protect the rights of the Rohingya Refugees in the camp by the virtue of the article 18(1), 32 of the constitution.  Bangladesh is not the signatory of the 1951 Refugee Convention and its Additional Protocol 1967. So, Bangladesh has no obligation under this Convention and Protocol.  But Bangladesh can not deny its obligation under various international human rights convention and under various treaties.  Article 14(1) of the UDHR provides that, "Everyone has the right to seek and to enjoy in other countries asylum from persecution.”  Article 6(1) of the ICCPR ensures that every human being has the inherent right to life and the states shall be protected this right by law. No one shall be arbitrarily deprived of his life.  Article 7 of the ICCPR also provides that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." As a member of the ICCPR Bangladesh should respect the rules of the ICCPR Article 6(1) of the International Covenant of the Civil and Political Rights (ICCPR)  Principle-5 of the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions also provides that " No one shall be involuntarily returned or extradited to a country where there are substantial grounds for believing that he or she may become a victim of extra-legal, arbitrary or summary execution in that country.“  Article 3 of the Convention Against Torture Provides that, the member states shall not "expel, return or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture."  Article 22(1) of the Convention on the Rights of the Childs provides that, “States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall......receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.”  Conclusion  The Rohingya refugees are most vulnerable in position in Myanmar. They are facing the fear of persecution in Myanmar because of their religious belief.  Bangladesh should respect the international law and fulfil its international obligations under various international instruments to protect the Rohingya refugees in its territory and its border. Bangladesh can expel Rohingyas if there is a threat to state security and peace and also if there is an allegation against Rohingyas under Article 1(F) of the 1951 Refugee Convention.  Bangladesh should not refoule the Rohingyas if there is no security threat on it or if there is no allegation against Rohingyas under Article 1(F) of the 1951 Refugee Convention  The international community should take measures to protect Rohingyas. Myanmar is a member of the United Nations. Myanmar is violating the principles of the U.N Charter by torturing and forcefully displacing the Rohingyas from the Country.  According to the preamble of the U.N Charter, the member states of the United Nations determined to "faith in fundamental human rights, in the dignity and worth of the human person“  The Special Rapporteurs or special bodies of the UN Commission can intervene with the Government concerned to prevent refugees, asylum- seekers or internally displaced persons from being subjected to imminent human rights abuses or in response to allegations of the existence of such abuses. UNHCR  What is UNHCR? **The United Nations High Commissioner for Refugees (UNHCR) is called the guardian of UN Convention Relating to the Status of Refugees 1951 and its 1967 Protocol. **UNHCR, the UN Refugee Agency, is a UN program with the mandate to protect refugees, IDPs and stateless people, and assist in their voluntary repatriation, local integration or resettlement to a third safe country. **This agency was created on 14th December, 1950 by the UNGA and began its work in 1951, initially aiding more than 1 million European refugees in the aftermath of the World War II. **Its headquarters are in Geneva and it is a member of the UN Development Group. UNHCR has won two Nobel Peace Prizes, once in 1954 and again in 1981. **UNHCR is one of the world’s principal humanitarian agencies, helping 20.8 million people in over 100 countries. **UNHCR promotes int’l refugee agreements and monitors government compliance with the international refugee law. **UNHCR extends its helping hands all over the world in the protection and promotion of the rights of the refugees and asylum seeking people. **Wherever there is gross violation of human rights due to civil war, liberation war, conflict among different groups the prompt assistance of UNHCR is reached there without any delay. **The UNHCR is playing a key role in case of protection of the victims of the war worldwide by giving shelter, resettlement, repatriation and rehabilitation. **UNHCR is the only organization which gives the guidelines and directions to the governments of the state parties of the UN to resolve the problems within or beyond the territory of their respective states in diplomatic way. **UNHCR is committed to materialize the aims of the UN by giving protection to the refugees and stateless around the globe. **UNHCR is not a “development agency” nor does it have a mandate regarding int’l migration. **Its primary mandate is to provide protection and find durable solutions for refugees as defined in the 1951 Convention and its 1967 Protocol. **The work of the High Commissioner is of non-political character and the High commissioner will follow the directives of the UNGA or the ECOSOC. **The UNHCR is a subsidiary organ of the UNGA and will discharge its duties under the guidance of the ECOSOC. **The UNHCR also assists the governments to seek permanent solution to the global refugee problems.  Functions of the UNHCR **In accordance with the Statute, the work of the High Commissioner is humanitarian and social and of an entirely non-political character. **The functions of the High Commissioner are defined in the UNHCR Statute and in various Resolutions subsequently adopted by the UNGA. **UNHCR functions various activities in the world for the protection and promotion of the rights of the refugees, asylum seekers and IDPs. **For instance, determination of refugee status (RSD), emergency assistance, care and maintenance, voluntary repatriation, local integration and resettlement of refugees are the main activities of the UNHCR. **Article 8 to Article 12 of the UNHCR Statute (1950) contain the functions of the High Commissioner which states that, the High Commissioner shall provide for the protection of refugees falling under the competence of his Office by: (a) Promoting the conclusion and ratification of int’l conventions for the protection of refugees, supervising their application and proposing amendments thereto; (b) Promoting through special agreements with Governments the execution of any measures calculated to improve the situation of refugees and to reduce the number requiring protection; (c) Assisting governmental and private efforts to promote voluntary repatriation or assimilation within new national communities; (d) Promoting the admission of refugees, not excluding those in the most destitute categories, to the territories of States; (e) Endeavoring to obtain permission for refugees to transfer their assets and especially those necessary for their resettlement; (f) Obtaining from Governments information concerning the number and conditions of refugees in their territories and the laws and regulations concerning them; (g) Keeping in close touch with the Governments and intergovernmental organizations concerned; (h) Establishing contact in such manner as he may think best with private organizations dealing with refugee questions; (i) Facilitating the co-ordination of the efforts of private organizations concerned with the welfare of refugees. **Article 9: The High Commissioner shall engage in such additional activities, including repatriation and resettlement, as the UNGA may determine, within the limits of the resources placed at his disposal. **Article 10: “the High Commissioner shall administer any funds, public or private, which he receives for assistance to refugees, and shall distribute them among the private and, as appropriate, public agencies which he deems best qualified to administer such assistance”. **Finally, Articles 11 and 12 provide that, the High Commissioner shall be entitled to present his views before the UNGA, the ECOSOC and their subsidiary bodies. **If we scrutinize the above mentioned provisions of the UNHCR Statute, then we find it out that, the UNHCR’s efforts are twofold: a. Preventive; and b. Global approach to resettlement of refugees and asylum seekers.  Original Mandate of UNHCR  The Office of the UNHCR was established by the UNGA as a subsidiary organization to be concerned with refugee protection.  The main role of UNHCR, as outlined in the UNHCR Statute (1950) is to provide “int’l protection” for refugees and “to seek permanent solutions to the problem of refugees by assisting governments, in cooperation with the NGOs and other int’l organizations, to facilitate voluntary repatriation of refugees, or their assimilation within a new national communities.  In fact, according to general principles of int’l law, States are obliged to protect all individuals living within their national boundaries.  The prime responsibility for the protection of refugees thus lies with the country in which the refugees are present.  The role of the UNHCR is complementary to the protection that States are supposed to accord to the refugees involved.  Though the principal mandate of the UNHCR is to provide int’l protection, it can expand to in-country protection as well.  This is particularly true when the UNHCR becomes involved in the voluntary repatriation of refugees or when it assists refugee groups, where there are also mixed populations or people who are in refugee-like conditions.  Normally the traditional mandate of UNHCR is limited to refugees as defined by the 1951 Convention and does not extend to IDPs or other displaced people that do not fall within the definition of refugee.  However, the role of UNHCR, in accordance with paragraph 9 of the UNHCR Statute (1950), may be expanded by the UNGA and the ECOSOC.  Core Mandate of UNHCR  UNHCR’s core mandate has been originally set out in its Statute, annexed to Resolution 428 (V) of the UNGA of 1950.  It has been subsequently broadened by the resolutions of UNGA and ECOSOC.  UNHCR’s mandate is to provide, on a non-political and humanitarian basis, int’l protection to refugees and to seek permanent solutions for them.  People who were already receiving assistance from other organs of the UN when the UNHCR Statute (1950) was adopted were excluded from UNHCR’s mandate.  It was the intention of the UNGA to ensure that the High Commissioner, supported by his Office, “would enjoy a special status within the UN….possessing the degree of independence and the prestige which would seem to be required for the effective performance of his functions”.  The roles and responsibilities outlined in the Statute of the Office are vested in the High Commissioner from which his particular authority is derived.  The Statute stipulates that the High Commissioner “acting under the authority of the UNGA, shall assume the function of providing int’l protection … and of seeking permanent solutions for the problem of refugees”.  The UNHCR Statute (1950) is, however, not the only source of law of the mandate of the High Commissioner and his Office.  From time to time, the mandate of the High Commissioner and his Office has also been extended via “good offices” arrangements.  As for the nature of the mandate of the High Commissioner, in line with paragraph 2 of the Statute, the position is non-political, i.e. impartial, humanitarian and social in character.