Legal Respite for Refugees in Southeast Asia : The Rohingya Quandary

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Title: Legal Respite for Refugees in Southeast Asia : The Rohingya Quandary
Author: Bhattacharjee, Atreyi
Contributor: University of Helsinki, Faculty of Law
Publisher: Helsingin yliopisto
Date: 2016
Thesis level: master's thesis
Abstract: Tiivistelmä – Referat – Abstract In August 2017, the decades-long tension between Myanmar and its most vulnerable stateless ethnic minority group, the Rohingya, came to a head after a small faction of Rohingya militants attacked 30 police barracks along the Myanmar-Bangladesh border. In response, the Myanmar army retaliated with unmatched ferocity, systematically organising and executing a pogrom against the Rohingya and their villages. It has been estimated that within a year, approximately 1.1 million Rohingya were forced out of Northern Rakhine State to seek refuge in other countries in the region, primarily in Bangladesh, where the vast majority of whom remain to this day in squalid, under-resourced, and overpopulated refugee camps. Meanwhile, the international refugee law regime is made up of a multitude of constituent elements, ranging from international and regional instruments and organisations to bilateral agreements between states. This thesis is concerned with the extent to which the international refugee law regime is able to protect the Rohingya. The Rohingya are stranded as refugees in a region that has historically rejected the cornerstone protectionary instrument of the regime, namely, the 1951 Refugee Convention. None of the states that are currently hosting the Rohingya subscribe to the Convention. In such a stark legal vacuum, this thesis tests the reach of the regime in providing protection to the Rohingya. This thesis first studies the development of the international refugee law regime at large, underscoring the main organisations and instruments responsible for the management of refugee crises. In particular, the thesis highlights the politically motivated resettlement programmes coordinated by refugee management organisations during the latter half of its evolution, just before the establishment of the UNHCR. Here, the thesis also introduces the principle of non-refoulement as a pivotal feature of the regime, both as codified in treaty law as well as the customary international law status it enjoys generally. Next, the thesis turns to contextualising the origins of the Rohingya refugee crisis. The Rohingya share an especially volatile relationship with Burma. Thus, the thesis provides an overview of the political history of Burma, particularly emphasising the Rohingya’s steady descent into statelessness. Over the past three decades, the Rohingya’s claim to Burmese citizenship (or lack thereof) has been leveraged by Burma to justify increasingly brutal pogroms against them. Finally, the thesis examines the application of non-refoulement in the context of the 2017 Rohingya crisis. First, the thesis considers the customary law status of the principle in greater detail, and establishes the fulfilment of state practice and opinio juris. Then, the thesis examines the form and extent to which non-refoulement is applied in the context of the 2017 Rohingya refugee crisis. Having established that there is indeed a customary law of non-refoulement, the thesis confirms that the rule is binding the states in Southeast Asia, even though they are not party to any refugee convention. Finally, the thesis turns to examining scholarly contributions on the topic of refugee protection in Southeast Asia. Majority of legal scholarship tends to emphasise the availability of alternative regulatory frameworks that extend some degree of protection to refugees. However, this thesis concludes by arguing that although these alternatives offer complementary protection as part of the international refugee law regime, it is necessary to develop a bespoke regional instrument that addresses a broad spectrum of rights that protect vulnerable refugees.
Subject: International refugee law
Southeast Asia
1951 Refugee Convention
Discipline: Kansainvälinen oikeus
International law

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