Rohingya Inflow: Bangladesh’s Right to Claim Compensation from Myanmar
Bangladesh is directly affected by the atrocities of Myanmar security forces committed in Rakhine State against the Rohingya community, the most persecuted one in the world. Though the Rohingya minority group has been living in Rakhine State for ages, they have apparently been stateless since the military government passed the 1982 Citizenship Act denying their equal access to citizenship. According to United Nations High Commissioner for Refugees (UNHCR), the horrific campaign of violence by the Myanmar Army has forced over 500,000 Rohingya to flee their homes into Bangladesh.
Such a much inflow of Rohingya is causing grave damage to Bangladesh by exerting the huge negative impact on its economy and environment particularly, the effect on the southern part of Bangladesh along the border with Myanmar is devastating.
Considering the humanitarian grounds, Bangladesh has extended all-out assistance towards the Rohingya driven by the cruel, sadistic Myanmar army and is providing them with the protection and other provisions of life. Now what Bangladesh should do is to create international pressure on Myanmar for repatriating the Rohingya, that is being done by the government and to claim compensation from Myanmar for the damage caused on its economy, society and natural resources. Bangladesh can base its claim on two grounds. Firstly, Myanmar is responsible for the sufferings of the Rohingya as the problem is created by it through the discriminatory policy regarding the status of Rohingya community and consequently failed to perform its obligation under international law to protect its own citizen which amounts to internationally wrongful acts. According to Articles l and 2 of the United Nations Draft Articles on Responsibility of States for Internationally Wrongful Acts, a state is responsible for its internationally wrongful acts. As per Article 33 of the Convention Relating to the Status of Refugees, 1951, a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group amounts to 'persecution.' So, the huge number of Rohingya fleeing in Bangladesh fearing rape, killing as well as arson on their villages by the Myanmar army is sufficient to prove genocide, persecution and ethnic cleansing.
Secondly, it must make good to Bangladesh for the burden upon the society and economy of Bangladesh due to the much influx of Rohingya. The core objective of the Convention Relating to the Status of Refugees is that for the better protection of refuges, the burden of the state granting asylum shall be shared through international co-operation but Myanmar has totally failed to co-operate with Bangladesh in sharing the burden of maintaining the large number of Myanmar citizen taking shelter within Bangladesh territory. The burden of more than 500,000 Rohingya upon the society and economy of Bangladesh is due to the atrocities committed in Rakhaine state and Myanmar is responsible for this situation. According to the maxim propounded by Hogu Grotious that De Jure Belli ac Pacis meaning 'fault creates the obligation to make good the loss' Myanmar must pay compensation to Bangladesh. According to Article 31 read with Article 42 of the United Nations Draft Articles on Responsibility of States for Internationally Wrongful Acts, the responsible state is under an obligation to make full reparation for the injury caused by its internationally wrongful acts. It was held in Chorzow Factory case (Germany vs. Polland, PCIJ, 1928) by Permanent Court of International Justice that every violation of law generates an automatic obligation on the wrongdoing state to remedy the breach. In LaGrand case (Germany v. the United States of America, ICJ, 2001), the International Court of Justice observed that the obligation placed on the responsible State by article 31 is to make "full reparation". In the case concerning Reparation for Lost Palestinian Property inside Israel, the duty of states to make reparation for violations of international law was laid out by the ICJ as a general principle of law.
However, in the absence of a pragmatic procedure in International Law, it is very difficult for Bangladesh to realize the loss incurred by it due to the huge inrush of Rohingya. According to Article 36 of Statute of International Court of Justice (ICJ), the ICJ has the jurisdiction to adjudge the existence of any fact which, if established, would constitute a breach of an international obligation and the nature or extent of the reparation to be made for the breach of such international obligation. As Myanmar is liable for its internationally wrongful acts that ensues harmful consequences in Bangladesh, so ICJ has the jurisdiction over the present Rohingya crisis to determine the nature and extent of reparation that Myanmar should make to Bangladesh. A dispute may be placed before ICJ in one of the three ways namely by a special agreement between two states or under a clause in a treaty or by virtue of a unilateral declaration by a state. But neither an agreement nor a treaty exists between Bangladesh and Myanmar under which the dispute may be referred to ICJ. But still, there is a good diplomatic relation between these two countries that is evident through the visits of the high officials.
What Bangladesh can do is to assess the damage in monetary value with the assistance of UNHCR, ICRC and other international organizations working on the issue and raise the claim against Myanmar in different bilateral meetings with Myanmar. There is scope for Bangladesh to create international pressure on Myanmar by raising the issue in different international forums and involving the influential countries so that Myanmar becomes compelled to solemnize a bilateral agreement to refer the issue to International Court of Justice.
Md. Ayub Ali is an Advocate of Supreme Court of Bangladesh & Senior Lecturer in Law at Southeast University.