Reviewing the views
Rohingya Repatriation: An International Law Discourse
Voluntary repatriation is one of the three key durable solutions to the refugee problems which mainly requires appropriate measures to ensure that any choice concerning return made by the refugees is voluntary, free from coercion, as well as based on objective information since the principle of voluntariness is a basis for global protection with regard to the return of all refugees. According to the UNHCR, voluntary repatriation is generally considered as the most preferred long-term solution by the refugees themselves as well as by the world community.
As a matter of fact, the right of refugees to return to their country of origin or former habitual residence is fully recognized in international law e.g. Article 13(2) of the UDHR (1948) provides that, "Everyone has the right to leave any country, including his own, and to return to his country." Though the UDHR (1948) is merely a UNGA Resolution and thus a non-binding instrument, it sets a code of conduct that serves as a point of reference for all international and regional human rights law instruments subsequently adopted, e.g. Article 12(4) of the ICCPR (1966), Article 5(d)(ii) of the International Convention on the Elimination of All Forms of Racial Discrimination (1965), Article 10(2) of the Convention on the Rights of the Child (1989), Article 12(2) of the African Charter on Human and People's Rights (1981) and Article 22(5) of the American Convention on Human Rights (1969).
Furthermore, the UNHCR Statute (1950) in its Article 8(c) provides, "The High Commissioner shall provide for the protection of refugees falling under the competence of his Office by assisting governmental and private efforts to promote voluntary repatriation or assimilation within new national communities". Some other instruments, from which UNHCR's mandate for voluntary repatriation is derived, e.g. the Refugee Convention (1951) though does not directly address the question of voluntary repatriation, contains in its Article 33 the principle of non-refoulement that prohibits a State from expelling a refugee in any manner whatsoever to the frontiers of territories where s/he would be exposed to persecution, have the force of customary international law and are binding upon all of its member States due to its jus cogens character.
Others, e.g. relevant UNGA Resolutions and Ex-Com Conclusions belong to the category of "soft law", though not legally binding, signify a global consensus. For instance, Ex-Com of the UNHCR program first examined the matter of voluntary repatriation in 1980 and recognized in its Conclusion 18 the desirability for UNHCR to be involved in establishing the voluntary nature of repatriation. Again in 1985 the Ex-Com adopted Conclusion 40 on the same subject and developed a doctrine on voluntary repatriation by a clear reiteration of basic protection principles and outlining in some detail practical means of promoting this solution, and of making it durable by rehabilitation assistance. Reaffirming the above Conclusions, in 1994 the Ex-Com underlined "the leading role of UNHCR in promoting, facilitating, and coordinating voluntary repatriation" in Conclusion 74.
Recently on 23rd November, 2017, the Government of Bangladesh has entered into an agreement with the Myanmar Government to repatriate 6, 00,000 Rohingya refugees to Myanmar amid profound concerns and pressure by the world community as well as different human rights bodies over the lack of a congenial atmosphere of their repatriation. This is the third major repatriation agreement between the two-country governments while the earlier two were entered into in 1978 and 1992 respectively.
In Bangladesh the UNHCR has been working to repatriate Rohingyas to Myanmar freely, safely and with dignity though the organization is not kept a party to the repatriation agreement of 2017. The UNHCR argued that situations in Myanmar are not in place to enable the voluntary and sustainable returns of Rohingyas since the Myanmar Government has excluded Rohingyas from the Myanmar Citizenship Act of 1982. Different international analysts also apprehend that, though Bangladesh and Myanmar have entered into a repatriation agreement in order to commence a repatriation process, there are numerous obstacles to get over before the repatriation to start.
In spite of the fact that neither Bangladesh nor Myanmar has acceded to the major international refugee law instruments (i.e. 1951 Convention and 1967 Protocol thereto), they are under an obligation to settle the Rohingya refugee crisis in a peaceful manner through invoking any of the key durable solutions (voluntary repatriation, local integration, and resettlement) as well as through complying with the broader mandate of the United Nations, which can never be averted by them.
Arif Ahmed is a Senior Lecturer in Law, Southeast University and an Advocate at the Supreme Court of Bangladesh