The Rohingya Dilemma — A Legal Perspective

 

In order to understand the Rohingya crisis better, it is important to look at the legal definition of “refugee” first. This is because some of the irregular migrants who arrived in Indonesia are Bangladeshi nationals who had wanted to find jobs illegally in Malaysia.

Under Article 1(A)(2) of the 1951 UN Convention Relating to the Status of Refugees, as amended by its 1967 Protocol, a refugee is defined, in essence, as someone who is outside his/her country of origin and is unable or unwilling to return to that country because of “well-founded fear of being persecuted” on account of prohibited grounds such as “race, religion, nationality, membership of a particular social group or political opinion.”

“Persecution” is nowhere defined under the Convention. But pursuant to the UN agency’s (UNHCR) policy, it is interpreted as, among other things, “a threat to life or freedom” for reasons of the prohibited grounds mentioned above.

The 1951 Convention and the 1967 Protocol provide refugees with a wide range of rights — subject to certain limitations — such as the rights to employment, property, housing, and education. In spite of these rights, only states which have signed and ratified or acceded to the Convention and its Protocol are obliged to ensure the fulfillment of the rights protected under those instruments.

In Southeast Asia, only three countries are parties to the Convention and Protocol: Cambodia, the Philippines and Timor-Leste. Other state parties near the region include China and Australia.

The three countries the Rohingya have attempted to enter most frequently over the past several years — Indonesia, Malaysia, and Thailand — are not parties to the Convention and Protocol.

In Indonesia, asylum seekers who arrive without permits are normally registered by the UNHCR. The UNHCR then assesses their claim for refugee status in a procedure called Refugee Status Determination (RSD).

Once an asylum seeker is granted the refugee status, the UNHCR will help them find a durable solution. The solution is usually one of the following three options: local integration with the country where they arrive, resettlement to a third country or voluntary repatriation to their home country.

Local integration, in most cases, is not possible where the country in which the refugees have arrived is not a state party to the Convention and the Protocol, or does not have laws allowing for local integration. Indonesia is an example of these countries.

Voluntary repatriation is sometimes possible in cases where the asylum seekers/refugees voluntarily consent to be repatriated to their country of origin.

But in most cases, it is highly unlikely that they are willing to return to that country because they fear for their lives or freedom.

In resettling Rohingya refugees to another country, states parties to the 1951 Convention and the 1967 Protocol are most likely on the priority list of countries that will be asked to take them in.

Unfortunately, Australia announced last year that it would no longer accept refugees who have registered with the UNHCR in Indonesia after July 1, 2014. It also transferred many refugees to Cambodia, instead of allowing them to resettle in Australia.

On 21 May, Prime Minister Tony Abbott expressed his country’s firm stance against admitting the Rohingya people.

This stands in stark contrast to the position of another State Party to the Convention and Protocol, the Gambia, whose president, Yahya Jammeh announced that his country would take all of the Rohingya refugees for resettlement.

The government of Turkey has also shown keen interest in assisting the Rohingya people.

The authors applaud the decision of the Indonesian government to temporarily admit the Rohingyas for up to one year, since it is absolutely necessary to save their lives and provide medical assistance to those in need.

However, Indonesia is not in a position to allow them to remain permanently in the country. Besides the fact that it is not a State Party to the 1951 Convention and 1967 Protocol and does not have laws permitting local integration, it is also still struggling with a wide range of domestic socio-economic problems, including overpopulation, poverty, and high rate of unemployment.

Since Myanmar is widely perceived as the root of the problem, the international community and international organizations, such as the United Nations should demand the government of Myanmar to take the Rohingya issue seriously.

As a member of the Association of Southeast Asian Nations, Myanmar has the obligation to observe and strengthen the rule of law, protect human rights, and enhance the well-being and livelihood of the people domestically.

These obligations are embodied under Articles 1(7), 1(11), 2(2)(h), and 2(2)(i) of the Asean Charter.

Furthermore, as the Rohingya issue has become a matter of common concern to Asean, the government of Myanmar should consult with other Asean member states. Myanmar has an obligation to do so under Article 2(2)(g) of the Charter, which requires member states to enhance consultations on matters seriously affecting the common interest of Asean.

Therefore, at a special meeting on “irregular migration in the Indian Ocean” to be held in Bangkok on Friday, Indonesia, Malaysia and Thailand should persuade Myanmar to take effective actions to eliminate persecution against the Rohingyas and protect their rights, and request for periodic reports from the government of Myanmar on the measures it has taken to deal with the crisis.

At the next Asean Summit, scheduled to be held on Nov. 18-22, member states should also put the Rohingya issue at the top of the agenda, in order to bring an end to this humanitarian crisis.

Hikmahanto Juwana is a professor of international law at the University of Indonesia (UI). Hadyu Ikrami is an independent researcher who obtained his master’s degree from Harvard Law School.