The new EU Pact on Migration and Asylum and the Rohingya refugee situation

Forum on the new EU Pact on Migration and Asylum in light of the UN GCR

Contribution by M Sanjeeb Hossain
Post Doctoral Fellow at the Norwegian Centre for Human Rights, University of Oslo
10 December 2020

Introduction

On October 15, 2020, a press release issued by the EU Mission to ASEAN stated that there was a “a significant funding gap in the international response” to the Rohingya refugee situation this year and that the US, UK, EU and the United Nations High Commissioner for Refugees (UNHCR) was set to co-host an online donor conference to bridge this gap. The conference, marked by Myanmar’s absence, was held a week later on October 22, where donors pledged USD 600 million to aid the Rohingya. It was at this conference Md Shahriar Alam the Bangladeshi State Minister for Foreign Affairs communicated that Bangladesh was no longer in a position to bear the burden caused by the refugee situation and that the Rohingya would have to return to Myanmar at the earliest opportunity. On the evening of the donor conference, the Chinese Foreign Minister during a telephonic conversation with his counterpart in Bangladesh indicated that a foreign minister-level tripartite meeting between Bangladesh, China and Myanmar would be held soon and that Myanmar had assured China it would take back the Rohingya.

The new EU Pact on Migration and Asylum (EU Pact) “conditioned by the United Nations Global Compact on Refugees (UN GCR) and the EU Treaties” was proposed, in the words of the European Commission, to build “a system that manages and normalises migration for the long term” and is “fully grounded in European values and international law”. This contribution to the ASILE Forum strives to shed some light on the EU’s potential role in the coming days in alleviating the plight of the Rohingya with particular reference to the EU Pact. It is written in light of two realities. First of all, the European Union (EU) has played a pivotal role in mobilizing funds to alleviate the plight of Rohingya refugees. Secondly, despite the humanitarian assistance, developmental and conflict prevention support extended by the EU, the Bangladesh Government – instead of relying solely on the diplomatic assistance of the EU or utilizing UN-sponsored mechanisms – actively solicited the involvement and help of China to resolve the Rohingya refugee situation. It is worth recalling that China has in the past, refused to condemn Myanmar for its atrocities against the Rohingya, and along with Russia did not take part in the Rohingya Conference despite being invited.

Bearing these realities in mind, this contribution briefly traces the historical evolution of the Rohingya refugee situation and Bangladesh’s engagement in it. It then goes on to describe how the EU can take inspiration from its new Pact in the collective global pursuit of ending the Rohingya refugee situation. In many ways, this contribution consciously asks more questions than it answers because its purpose is to offer a new starting point for further debates on the EU’s role towards the Rohingya refugee situation.

In retrospect – the plight of the Rohingya

In “one of the first major Western surveys of the languages of Burma” Francis Buchanan in 1799 noted the Rooinga as Mohammedans who had long settled in Arakan. Despite this and a range of sources documenting the presence of the Rohingya dating back centuries,[i] they have remained unrecognized as one of the 135 national ‘races’ living in Myanmar. Excluded from the nation-building process since independence, the Rohingya were rendered ‘stateless’ through the passage of the Citizenship Law of 1982. Over the years, an unholy combination of general racism and hostile armed forces has played a central role in stripping the rights of the Rohingya in Myanmar. An array of accusations ranging from being “illegal Bengali immigrants” who settled in Myanmar during the period of British colonization to being “militants” have been put forth to justify their continued persecution for decades. This is why, on the morning of 5 December 2017, when Pramila Patten, the United Nations Special Representative on Sexual Violence in Conflict described the Rohingya of Myanmar as the “most persecuted minority in the world”, none of the remaining attendees of the Special Session of the Human Rights Council perceived her categorization as hyperbole.

To survive the onslaught of the Myanmar Army, the Rohingya fled to neighboring Bangladesh in waves. The earliest one was recorded in 1948 when Myanmar became an independent state, followed by two more in the late 1970s and the early 1990s. The most recent wave began in August 2017 after a ruthless crackdown by Myanmar’s Army. As of today, roughly one million Rohingya are residing in 34 refugee camps located at the southern tip of Bangladesh.

Bangladesh has a long history of collaborating with the EU, UNHCR, International Organization for Migration (IOM), as well as other charities and NGOs, in assisting the Rohingya inside these camps. It should be emphasized that a substantial amount of the efforts of the Bangladesh Government, UNHCR and other partners target the ‘visible’ Rohingya, the majority of whom are officially registered as ‘Forcibly Displaced Myanmar Nationals’ while only a small number are acknowledged as ‘refugees’..[ii] They form only a part of the overall refugee situation, and the attention they receive casts a dark shadow on the plight of Rohingya who over the years have fled across the border and integrated themselves into local communities because the Bangladesh Government, concerned that assisting unregistered refugees would create a ‘pull factor’, chose not to recognize them. Living outside formal camps, several hundred thousand ‘invisible’ or unregistered Rohingya live in dire conditions devoid of formal access to food, shelter or work permits.[iii]

Although Bangladesh is not a State Party to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol and does not have any national laws addressing asylum and refugee matters, it is not entirely devoid of a framework geared towards protecting refugees.[iv] Much has changed since Pia Prytz Phiri described the administrative decisions taken by Bangladeshi authorities to protect and support the Rohingya as “ad hoc, arbitrary and discretionary”. There is scope to argue that many of the Rohingya refugees do not “feel like deer caught between two tigers” as was once portrayed by Eileen Pittaway.[v]

In recent times, Bangladesh has received praise for keeping her borders open to the fleeing Rohingya and actively striving to meet their humanitarian needs. In 2017, the High Court Division of the Supreme Court of Bangladesh held that the 1951 Refugee Convention had “become a part of customary international law which is binding upon all the countries of the world, irrespective of whether a particular country has formally signed, acceded to or ratified the Convention or not.” In the absence of any constitutional provision clearly depicting the status of ‘customary international law’ in the legal order of Bangladesh, it remains a generally accepted principle that customary international law is binding as long as it does not contradict domestic law.[vi] Earlier this year, the Bangladesh Government’s decision to grant Rohingya children the access to education was widely welcomed.

Unfortunately, this does not negate the reality that there remain many gaps in the refugee protection regime. Instead of focusing on protecting and enhancing their rights, the discussion and discourse around the Rohingya refugee situation has veered towards overcoming the challenge of how to return them to Myanmar. A Memorandum of Understanding (MoU) was signed between Bangladesh and Myanmar in November 2017 for the purposes of repatriating the Rohingya who fled from the atrocities of the Myanmar Army.[vii] The European Parliament, at the time, insisted on the “direct implementation of the MoU and for the right of the Rohingya to voluntary, safe and dignified return to their places of origin […]” and expressed a note of alarm that the Rohingya may “not be repatriated back to their villages, but to refugee/prison camps in Myanmar”. Another MoU between Myanmar and UN Agencies was signed in June 2018 to allow for UNDP and UNHCR to assist the Myanmar Government to implement the MoU between Bangladesh and Myanmar.[viii] In this MoU, the Myanmar Government agreed that it was “responsible for the safety, reception and reintegration of the returnees” and would “work for a comprehensive and durable solution to the displacement of persons in and from Rakhine State” in line with the recommendations of the Advisory Commission on Rakhine State.

Following the recent remarks of Md Shahriar Alam and the assurances given by China, it appears that Sheikh Hasina, the Prime Minister of Bangladesh who once said “we have the ability to feed 160 million people of Bangladesh and we have enough food security to feed the 700,000 refugees”, is running out of patience with the international community in helping Bangladesh resolve the Rohingya refugee situation. One wonders whether, on the not so distant horizon, the Rohingya will be repatriated to Myanmar at the expense of non-refoulement, a principle Bangladesh has so far upheld.

In this context, the following section discusses how the EU drawing on its own Pact on Migration and Asylum can positively shape the outcome of the Rohingya refugee situation.

The EU Pact’s potential impact on the Rohingya refugee situation

In the official Q&A relating to the EU Pact, there are two questions on refugees, namely, 1) “What funding is available to support refugees and address migration issues outside the EU?”; and 2) “What is the EU doing to help other third countries hosting large numbers of refugees?”

The answers to these questions are straightforward. First of all, the Neighbourhood, Development and International Cooperation Instrument (NDICI) proposed at €79,462 billion envisions funding in support of refugees outside the EU. Furthermore, the proposed flexible nature of EU financial instruments will allow responding to “unforeseen circumstances” or crises related to migration and refugees. Secondly, the EU already has an existing track record of extending a helping hand to refugees in need through a range of dedicated instruments, such as the EU’s Facility for Refugees in Turkey, or other initiatives such as the Global Refugee Forum.

Although touted by the European Commission as “a new paradigm in the EU’s engagement with external partners”, the text of the EU Pact on Migration and Asylum explicitly mentions refugees and their host communities in Turkey, Lebanon, Jordan and Iraq, but surprisingly says nothing about the Rohingya. Bangladesh, alongside Afghanistan, Iran, Iraq, and Pakistan, is listed as a ‘partner country’ in a footnote. One cannot ignore the possibility that the EU is concerned more about refugees on and near its borders than refugees from ‘faraway’ lands. Nevertheless, keeping in mind the answers to the questions relating to refugees, there is scope to consider the potential of the new EU Pact to positively impact the Rohingya refugee situation.

The EU Pact intends to deepen cooperation with partner countries by devising “tailor-made” approaches that take into account their unique situations. These approaches will rely on a range of aspects which include, among others, the protection of refugees and support to refugee-host countries, as well as addressing the root causes of irregular migration. To date the EU’s response to the Rohingya refugee situation has been an amalgamation of extending financial aid and enforcing sanctions. Since 2017, the EU has furnished humanitarian and development aid in the form of “food assistance, shelter, health care, water and sanitation support, nutrition assistance, education, and protection services” valued at over €226 million as a response to the plight of the Rohingya. In April 2020, the European Council renewed the existing sanctions regime against Myanmar for another year.

This does not imply, however, that the EU does not share a ‘relationship’ with Myanmar. After China and Thailand, the EU is Myanmar’s “third biggest trade partner”. Furthermore, although the EU is also one of the key partners in Myanmar’s transition to democracy, the mVoter 2020 application launched before the general elections held on 8 November 2020, is one of those things that stand out like a sore thumb. Funded by the EU’s STEP Democracy Project, the app was launched to assist Myanmar’s democratic transition. Despite many positives, this app has also ended up “validating Myanmar’s systemic discrimination and exclusion” of the Rohingya by listing at least two Rohingya candidates as ‘Bengalis’, in other words implying that they are immigrants from Bangladesh. The EU’s strong calls to the Myanmar authorities to remove such controversial data which are very likely to exacerbate ethnic tensions were ignored. The end result has been the exclusion of about 2.6 million ethnic-minority voters, including Rohingya from the general elections. As of now, the several hundred thousand Rohingya remaining within Myanmar are confined in camps and villages with limited access to health care and the right to move.

In realpolitik, it is not uncommon for compromises to be made during the long and arduous journey towards democratic rule. However, in light of the above, one wonders to what extent the EU is effectively following through on its commitment to supporting “the voluntary, safe, sustainable and dignified return of Rohingya people to their places of origin, with the full involvement of UNHCR, in compliance with international law.” If the EU’s tailor-made approach of the future based on the EU Pact is to be effective, it needs to ensure that its funded projects do not end up “validating Myanmar’s systemic discrimination and exclusion”. How the EU shall achieve this while simultaneously continuing to lend much-needed support to Myanmar in its transition to democracy will be tricky. This should not, however, be a reason for the EU to shy away from rethinking its approach to solving a problem as complex as the Rohingya refugee situation, which has been affecting millions of lives for decades.

Concluding thoughts

In his speech at the recently concluded online donor conference, Md Shahriar Alam critiqued the international community’s “business as usual approach” and efforts to appease Myanmar “through increased bilateral trade, investment and development assistance”. One cannot help but speculate whether Alam was referring to, among other things, the EU’s existing relationship with Myanmar. Perhaps the most telling remark by Alam came at the very end of his speech when he said: “The role of the United Nations in saving ‘humanity from hell’ is also not visible in its policy actions towards Myanmar.” There is no way to interpret this as an off-the-cuff remark. Instead, it may well be a clear reflection of Bangladesh’s eroding confidence in the UN and the specifically UNHCR’s ability to resolve the Rohingya refugee situation. It is worth noting that the Bangladesh Government has already begun the relocation of Rohingya refugees to Bhasan Char, an island in the Bay of Bengal, without the involvement of the UN “in preparations for the movement of refugees […], or in selecting or deciding which families would be moving.” According to the Ministry of Foreign Affairs, the Bangladesh Government did not include UN agencies because of their “negative campaign, unrealistic conditions and static position” with regards to the relocation drive. Rensje Teerink, the EU Ambassador to Bangladesh, refrained from commenting on the ‘relocation’ drive before UN technical and humanitarian protection teams had been to Bhashan Char.

Even a cursory reading of the new EU Pact on Migration and Asylum shows how significantly it draws from the UN Global Compact on Refugees. It has been said that the UN GCR shall achieve its core objectives through the “mobilization of political will”. One of the four core objectives of the UN GCR is to “support conditions in countries of origin for return in safety and dignity”. Bangladesh’s crisis of faith may stem from the belief that its partners (including the EU and UNHCR) have been focusing primarily on alleviating the plight of the Rohingya inside Bangladesh on an ad hoc basis, but have been doing so at the cost of “pushing for any real change within Myanmar”.

The EU would benefit from paying attention to critics who have voiced their concerns about how it has engaged with the Rohingya refugee situation so far. Echoing Mohammad Shahabuddin, lending support to “a model of low-intensity democracy” that ultimately exacerbates ethnic tensions is not the way forward. A genuinely tailor-made policy towards the Rohingya refugee situation – the kind of policy that is envisioned in the new EU Pact and reflects the ethos of the UN GCR – must strive for two complementary goals. First of all, the EU should work with Bangladesh so that it gives voice to and enhances the rights of the Rohingya and respects the principle of non-refoulement – something the EU can do effectively if it acknowledges that Bangladesh is very likely suffering from a ‘crisis of faith’. And secondly, the EU must prioritize creating conditions to ensure the voluntary, safe, sustainable and dignified return of the Rohingya to Myanmar by addressing the ‘root causes’ of their plight. This will catalyze the process of Bangladesh regaining its faith in the international community that has eroded over time.

Acknowledgments: I thank Maja Janmyr, Lewis Turner, Sergio Carrera and the Editor of ASILE Forum for helpful comments while writing this contribution.

[i] See, Mihir Shekhar Bhonsale, ‘Evolution of the Arakan ‘Problem’ in Burma’ [2015] 76 Proceedings of the Indian History Congress 631-636; Moshe Yegar, The Muslims of Burma: a study of a minority group (Schriftenreihe des Südasian-Instituts der Universität Heidelberg 1972) and Mohammad Shahabuddin, ‘Post-colonial Boundaries, International Law, and the Making of the Rohingya Crisis’ [2019] 9(2) Asian Journal of International Law 334-358.

[ii] According to the UNHCR, as of September 30, 2020, there are 861,545 Rohingya residing in 34 refugee camps in Bangladesh. By August 2019, over 500,000 Rohingya were ‘registered’ not as ‘refugees’ but as Forcibly Displaced Myanmar Nationals (FDMN) and issued smart ID cards through the Biometric Identity Management System (BIMS), a program jointly administered by the Bangladesh Government and the UNHCR.

[iii] Sabyasachi Basu Ray Chaudhury and Ranbir Samaddar, ‘Introduction’ in Sabyasachi Basu Ray Chaudhury and Ranbir Samaddar (eds) The Rohingya in South Asia: People Without a State (Routledge 2018) 4

[iv] The Foreigners Act 1946 remains one of the key pieces of legislation shaping the status of refugees in Bangladesh.

[v] Eileen Pittaway, ‘The Rohingya Refugees in Bangladesh: A Failure of the International Protection Regime’ in Howard Adelman (ed) Protracted Displacement in Asia: No Place to Call Home (Routledge 2008) 83

[vi] Bianca Karim and Tirza Theunissen, ‘Bangladesh’ in Dinah Shelton (ed) International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion (Oxford University Press 2012) 8

[vii] The text of the MoU (Arrangement of Return of Displaced Persons from Rakhine State) could not be accessed at the time of drafting this contribution. However, it was possible to access the text of a subsequent arrangement titled ‘Physical Arrangement for Repatriation of Displaced Myanmar Residents from Bangladesh Under the Arrangement on Return of Displaced Persons from Rakhine State’. In this document, the Myanmar authorities

state that returnees will not be “settled in temporary places for a long period of time” and the transit camps in Myanmar will not become camps for ‘Internally Displaced Persons’. See here.

[viii] In May 2020, the MoU was extended to June 2021. See here.