*By Chandni Ghatak
In the past few months, the Indian subcontinent has witnessed a refugee problem due to alleged instances of ethnic cleansing of the Rohingya people in the Rakhine state of Myanmar. This has caused several thousand people to flee to neighbouring countries such as India and Bangladesh in seek of refuge. As usually witnessed in any crisis of this magnitude, the host countries are faced with providing an adequate amount of care and assistance for these displaced people. The Indian government awaits a decision by its Supreme Court on the legitimacy of deporting these people and refusing them the rights they are entitled to under international law as refugees. Bangladesh, however, presents a different aspect of this struggle.
With its geographical location, Bangladesh stands to be the closest and most easily accessible haven for the Rohingya. The country has witnessed more than 500,000 Rohingya enter its territory with more coming in almost every day.
While there have been reports of several Rohingya being prohibited by patrols at the borders from entering the country, those who have managed entry struggle due to the cramped spaces and limited quantities of food the camps have to offer. The Bangladeshi officials have been struggling with this sudden and large influx. Recently, as a scheme to tackle this current challenge of sustaining the over burdened camps, suggestions are being made to the Bangladeshi government to implement sterilisation programmes for the Rohingya. While this may seem an attractive offer to authorities, the appalling consequences it would have on shaping the discourse revolving the rights of refugees is frightening. The author argues that despite Bangladesh not being party to the Refugee Convention of 1951 [Convention] or its Protocol, such action could, from an international law and Constitutional law perspective, be challenged.
It is a recognised principle of refugee laws that the rights extended to refugees transcend those which merely ensure physical safety. Human rights law has expanded its ambit to ensure that these refugees may enjoy other basic freedoms which the host country grants to any other legally residing foreigner. [See Article 7 of the Refugee Convention 1951.]
The universal right to freedom from any type of arbitrary interference with one’s privacy and family is recognised in various human rights instruments, corroborating the notion that such rights are applicable to all, regardless of the underlying distinctions existing between citizens and refugees. This right stands to be violated in the current context mainly because the sterilisation programme, if implemented, would constitute an arbitrary interference not only with the privacy of the individual, but also as an extension on the collective right of the family ( i.e. husband and wife). This protection and preservation of the family as a collective unit was also a guiding principle for the UN Convention on Refugees, thereby exacerbating the grave consequences such action would entail.
Additionally, the recognition of principles of bodily privacy across jurisdictions, as well as the right of women to make their own reproductive choices in international instruments such as CEDAW etc; all demand that the State or any other force cannot interfere with a person’s sense of autonomy. Speaking from a constitutional law standpoint, Article 32 of the Constitution of Bangladesh guarantees the protection of personal liberty of any person, thereby extending its obligations even to refugees. This makes the launch of such a programme unconscionable from a domestic law perspective.
However, let us peruse the arguments from the side of the Bangladeshi Government. The strongest argument (second to its non-ratification of the Convention) to support its stance is the absence of explicit obligations in the Convention on how refugee camps are to be administered. Since the Government is not denying refugees basic amenities such as food, shelter etc; the ancillary aspects, such as the possible initiation of a sterilisation programme, could fall into the category of internal matters. However, in light of privacy being a universally accepted right, the argument does not entirely refute the assertions made against such a programme. Additionally, the duty to protect the human rights of refugees is generally absolute and not subject to the resources available to the State, barring cases of emergency.
Further, if such a programme is condoned in the international arena, it incentivises countries (possibly even India) to permit refugees within their territory not on the principle of respecting human life and dignity, but instead because of the option to manipulate policies in a manner suitable to national interests, which is what Bangladesh is trying to do.
The consequences of such actions are not limited to only the catastrophic effects it would have on the rights of the Rohingya people, but would also mark the decline of the persuasive power of the Refugee Convention. Despite countries not being party to the Convention, principles of non-refoulement and other related obligations have over the years obtained a jus cogens nature. Condoning such repressive measures fuels the decline of not only the aforementioned provisions, but also the general overriding character of international humanitarian law. While an official confirmation is still pending on the imposition of such a policy, its absence only comes as a short-lived instance of calm, rather than a permanent commitment and guarantee of a system that protects human rights.
Chandni Ghatak is a 4th year student at National Law University, Jodhpur. She’s currently pursuing her B.A LL.B with IPR honours, with an intent to later on build a career in litigation.