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Peaceful Resolution of the International Dispute is the Myth and Mirage: Critical Study

licensing followed as the practice grew in popularity, creating skilled, devoted mediators who
are trained professionals.

2.3 Conciliation
Conciliation is the process of resolving a disagreement by sending it to a specially appointed
body whose job it is to clarify the facts and make settlement suggestions to the parties
involved. The parties are allowed to accept or reject the conciliation offers, just like they are
free to do the same with mediators' proposals. Conciliators may meet with the parties
simultaneously or separately, just like in a mediation situation. The conciliation procedures
are typically initiated by the parties who agree to submit their dispute to an already
established body, commission, or single conciliator, who is appointed on a regular or as-
needed basis; third parties are not permitted to participate in the conciliation process.694

2.4 Mediation
The settlement of a dispute without arbitration or court action by the use of a trusted,
objective, and unbiased third party, frequently referred to as a conciliator or mediator. Instead
of having the power to compel acceptance of their decision, a mediator employs persuasion to
reach a resolution. During mediation, a dynamic, structured, interactive process, a neutral
third party assists opposing parties in resolving conflict by using specialised communication
and negotiation skills. Every participant needs to actively participate in the process.
Mediation is a party-centered procedure since it is primarily focused on the needs, rights, and
interests of the parties. To assist the parties and drive the mediation in a constructive
direction, the mediator uses a variety of tactics.

2.5 Method of Good Offices
It entails a variety of actions designed to promote discussions between the disputing parties.
Additionally, the offer of good offices does not meet with the disputants jointly but rather
separately with each of them, in contrast to the case of mediation or conciliation. The
mediator rarely, if ever, shows up to combined meetings with the disputing parties. When the
parties decide to begin or continue negotiations, the given good offices usually cease to exist.
The parties may, though, invite the offered to attend the negotiations. An offer of good
offices may be declined by one or both parties to a disagreement, just like in a mediation
situation. Utilising good offices, conciliation, and mediation has a lengthy past. Numerous
bilateral and multinational agreements have been made in relation to these techniques.
However, with the founding of the League of Nations, permanent bodies were established to
carry out the duties of these pacific dispute-resolution strategies. In this situation, the United
Nations Charter includes in Article 33(1) mediation and conciliation but not good offices as
potential peaceful dispute resolution options for the parties. Notably, the terms "mediation,"
"conciliation," and "good offices" have all been used in UN practice with notable looseness,
flexibility, and little attention to the differences that exist between them.695 Comparing
mediation and conciliation to other dispute resolution strategies, each has both benefits and
drawbacks. They have greater pliability than either judicial settlement or arbitration. They
provide more room for the disputants' desires and third-party initiatives. The outcome is still
in the hands of the disputants. They are free to conduct their business in private. But there are
drawbacks to conciliation and mediation. Without the permission, cooperation, and good faith
of the disputants, their proceedings cannot be initiated and cannot be effective. The suggested
agreement is merely a recommendation that has no legal effect on the parties to the dispute.

694 Goodrich, A. G. (1955). Albert G. Goodrich:
695 Artcle 33(1), UN Charter 1945

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III. ARBITRATIVE TECHNIQUES FOR DISPUTE RESOLUTION

3.1 Arbitration
By mutual consent, the parties may choose to resolve their differences through arbitration.
Instead of being decided by a national court of law, conflicts are decided by a person or
people acting in a judicial capacity in private during the arbitration. if the parties hadn't
agreed to exclude it, the law that would have jurisdiction would. An award is a common
name for the arbitral tribunal's judgment, the presentation of a dispute to an impartial third
party chosen by the parties involved, who have agreed in advance to abide by the decision
that will be made during a hearing when both parties will have an opportunity to be heard.696

3.2 Judicial Settlement
A dispute between States is resolved judicially by an international tribunal in conformity with
the principles of international law. Both the tribunal's structure and its purview reflect its
worldwide nature. Permanent tribunals, like the International Court of Justice, are a part of
international tribunals (ICJ)697, the International Tribunal for the law of the Sea (ITLOS),698
the European Court of Justice, the European Court of Human Rights699 and the Inter-
American Court of Human rights, and include ad hoc tribunals, such as the United Nations
Tribunal in Libya. The ICJ is the most significant international court due to its stature and
authority.

IV. PEACEFUL SETTLEMENT OF DISPUTE BY REGIONAL ORGANISATIONS
The use of international organisations for the resolution of international conflicts is a
component of institutional dispute resolution approaches. These techniques have been
developed as a result of the development of multinational organisations. The United Nations
and regional organisations like the European Union, the Organisation of American States, the
Arab league, and the African Union are the most prestigious organisations that offer methods
for resolving disputes between their member States.

4.1 World Organisation
One of the most significant functions of the United Nations is the resolution of international
disputes. It is the responsibility of the United Nations, according to the United Nations
Charter, "to bring about by peaceful means, and in line with the Adjustment or resolution of
international disputes or circumstances that could cause a breakdown of peace are all
examples of peace principles of justice and international law. In order to do this, the Charter
stipulates a system for the peaceful settlement or adjustment of international conflicts or
circumstances, under which the United Nations broad competence in this area is established
and the associated obligations of its members are enforced. Chapter VI of the Charter
primarily outlines this structure. The United Nations mechanism for the peaceful resolution
of disputes is found in Chapter VI of the Charter.700 The parties to a dispute are required by
Article 33 to resolve it if doing so would put the maintenance of international peace and
security at risk. Chapter VI of the Charter primarily outlines this structure. The United

696 Halsbury's laws of England: 2008 consolidated index. (2008).
697 "Home." Cour Internationale De Justice - International Court of Justice | International Court of Justice.
Accessed August 22, 2022. https://www.icj-cij.org/en.
698"International Tribunal for the Law of the Sea: Home." International Tribunal for the Law of the Sea.
Accessed September 22, 2022. https://www.itlos.org/en/.
699 Commission, European. European Commission of Human Rights: Decisions and Reports. Council of Europe,
1999.
700 (chapter VI) U.N. Charter 1945

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Nations' mechanism for the peaceful resolution of disputes is found in Chapter VI of the
Charter. A disagreement that is likely to jeopardise the maintenance of international peace
and security must be resolved by one of the peaceful ways listed in Article 33, or by any
other peaceful means of the parties choosing. The United Nations will step in to assess the
dispute and offer its recommendations on the issues when the parties fail to uphold their
duties or their efforts are unsuccessful.

4.2 The Security Council
According to the UN charter701 the Security Council is granted main duty in this regard.
According to the UN Charter's Article 11(3), it is permitted to intervene on its own initiative,
at the invitation of another member of the UN, at the invitation of the General Assembly, or
in response to a complaint from a disputing party. Three options are available to the Security
Council. It may first request that a disagreement be resolved peacefully by one of the
methods indicated in charter.702 Second, it may suggest to the parties suitable methods or
procedures for resolution.703 Third, it may suggest settlement conditions that it deems
suitable.704 The General Assembly is not prohibited from sustaining international peace and
security, even if the Security Council is assigned the primary responsibility for doing so
under the Charter. In accordance with Articles 11, 12, and 14, the General Assembly may
discuss and recommend steps to take to resolve any dispute or circumstance that has been
brought before it.705 The Security Council, any member of the UN, or any State party to the
dispute may bring the disputes or circumstances to the General Assembly.706

4.3 International Court of Justice
It serves as the main court system for the UN. The Statute of the Court includes all United
Nations members as parties by ipso facto. The United Nations appoints the judges of the ICJ,
not the disputing parties. The parties are unable to specify the rules to be followed by the ICJ;
rather, the norms and principles of international law of the Statute of the Court must be
implemented.707 The Court has jurisdiction over all disputes between States involving the
application of a treaty, any issue of international law, the presence of any fact constituting a
breach of an international agreement, and the type or amount of restitution that must be made
to be brought for the violation of an international agreement. "Arbitration" and "Judicial
settlement" are two means of peaceful resolution that States are urged to use in an effort to
resolve their international conflicts. Additionally, it directs the Security Council in Article
36(3) to “take into mind that legal disputes should, as a general rule, be brought to the
International Court of Justice by the parties”.708

V. PEACEFUL SETTLEMENT OF DISPUTE BY REGIONAL ORGANISATIONS
Any disagreement whose continuation is likely to jeopardise the preservation of international
peace and security must first be resolved by one of the peaceful means listed in Article 33(1)
of the United Nations Charter. "Resort to regional arrangements or agencies" is one of these
listed strategies. According to Article 52 of the Charter, regional organisations or agreements
may be established by UN members "for dealing with such concerns related to the

701 Ibid art. 24(1)
702 ibid, Art. 33 (1)(2)
703 Ibid art 36(1)
704 Ibid art 37(2)
705 Ibid art 11,12,14
706 Ibid art 35
707 Ibid art 38
708 Ibid art 33(1), 36(3)

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maintenance of international peace and security." The member States of regional
organisations or agencies are obligated under paragraph 2 of this Article to "make every
effort to ensure pacific settlement of local disputes through such regional organisations prior
to being referred to the Security Council by such regional agencies.

5.1 The Organisation of African Unity
The Organisation of African Unity (O.A.U.) was founded as a regional organisation of all
African states in 1963.709 Its name and the date of its founding tell a great deal about it. The
O.A.U. came into being as Africa was being decolonised. The independent states of the
continent were already numerous, but they were also poor, weak, and, in many respects,
dependent on the former metropolitan countries. The leaders of the continent felt that Africa
was still vulnerable to external pressure and aggression. They feared that a divided and weak
Africa would continue to be dominated by foreign powers. The independent states of Africa
concluded that a unification of the continent was essential to the progress of African peoples.
Formal political independence would not end foreign influence by itself; nor would it
guarantee peace and prosperity to a vast and fragmented continent. This point was driven
home in the three years after the Congo's accession to independence. The assassination of
Lumumba, the secession of Katanga, and the intervention of mercenaries and foreign powers
destroyed a nation and caused turmoil on the continent. After the Congo debacle, African
nations saw that unity was imperative.

However, the leaders of Africa had very different visions of the future. They were all,
of course, influenced by the great Pan-African dream, but they were divided over the
practical matter of devising a charter for African unity. Some leaders, forming a "radical
group" around Kwame Nkrumah of Ghana, Sekou Toure of Guinea, and others, believed in a
unified Africa with a continent.

5.2 European Convention for the Peaceful Settlement of Disputes
The Convention provides ways of to sinking by peaceful suggests that disputes. First, the
Parties conform to labor under the judgment of the International Court of Justice all
international legal disputes which can arise between them and concern the interpretation of a
accord, any question of jurisprudence, the existence of any truth constituting a breach of a
global obligation, and also the nature or extent of the reparation to be created for the breach
of a global obligation (Article 1).710 The Parties undertake to use the arbitration method to
resolve any issues that may arise between them that aren't coated by article one and haven't
been resolved by conciliation, either as a result of the Parties have united to not use it 1st or
as a result of it's unsuccessful (Chapter III).

The Committee of Ministers of the Council of Europe could also be appropriated by
one in every of the Parties to a dispute if the opposite Party doesn't go with its obligations
underneath a global Court of Justice call or a gift of associate arbitrational assembly. The
Committee of Ministers of the Council of Europe could then build recommendations with a
read to making sure compliance with the choice or award.

If the Parties have determined to submit a dispute to a different technique of peaceful
resolution, the provisions of this Convention don't apply. Parties shall refrain from
mistreatment agreements that don't give for a mechanism resulting in binding choices as
between themselves in relevancy disputes falling inside the reach of Article one of the
Convention.

709 About the Organisation of African Unity." Exploring Africa. Accessed September 22, 2022.
https://exploringafrica.matrix.msu.edu/about-the-organisation-of-african-unity
710 European Convention for the Peaceful Settlement of Disputes Strasbourg, 29.IV.1957

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For the settlement of alternative disputes or once Parties have united to submit them to
conciliation before recourse to judicial resolution, Parties conform to submit a dispute to a
Permanent Conciliation Commission or to a special Conciliation Commission (Chapter II).

5.3 The Organisation of Islamic Cooperation (OIC)711
The Organisation of Islamic Cooperation (OIC) is one of the largest inter-governmental
organisations after the UN, with a membership of 57 States spread over four continents. Te
Organisation endeavors to safeguard and protect the interests of the Muslim world in the
spirit of promoting international peace and harmony among various peoples of the global
community. Originally named the Organisation of the Islamic Conference, it was established
pursuant to a decision adopted at a summit in Rabat, Morocco, in 1969. The Organisation has
consultative and co-operative relations with the UN and other inter-governmental
organisations to protect the vital interests of the Muslims and to work for the settlement of
conflicts and disputes involving Member States.

VI. OBSTACLES IN THE WAY OF PEACEFUL SETTLEMENT
According to international law, parties are required to use peaceful measures to resolve
conflicts; nevertheless, unless they have specifically agreed differently, there is no
requirement to use a particular procedure. States have the option of using diplomatic or legal
methods. The first ones cover a wide range of techniques, with sometimes subtle distinctions
between them.

The report that may be generated at the end of the procedure has no legal force and has
the potential to take into account all the relevant factors, which distinguishes all diplomatic
measures. Although submitting to arbitration or a court of law is optional, once the tribunal
has issued its judgment, the decision is binding and must be followed. Diplomatic procedures
are by nature kinder and less combative than adjudication.

The International Court's procedures are undoubtedly more formal; international law
must be upheld, and the Statute and Rules of Procedure must be followed, but with the option
of choosing adjudication by a chamber, the parties have some control over the selection of the
judges who will hear their case. In some issues, international law can have a big impact.
Therefore, while acknowledging the limited role law plays in many disputes is necessary, we
must also be realistic and always advocate for the law's enormous potential of the settlement
methods.

Over the past few months, many of the UN’s 15 peacekeeping missions have taken a
turn for the worse. Peacekeepers are deployed in hostile terrain where they face asymmetrical
threats from rebel groups and terrorist organisations. 2017 was a very tough year for
peacekeeping, not only in terms of casualties but also due to political challenges, such as the
politicisation of troop contributions, the reluctance of host countries to cooperate with the
missions and the national interests of the Security Council members.

There are few examples through which we could analyse that due to above mentioned
reasons the efforts to resolve the issue through peaceful means goes in vein and the citizen
faced the lot of traumas occurred due to the war.

711 Pdf. Accessed September 22, 2022. https://OSCE_ThirdFourthMeetingRegOrgs_2016_0.pdf.

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VII. FEW EXAMPLES OF FAILURE OF PEACEFUL MECHANISM

7.1 Vietnam War: 1959 - April 30 1975
The Vietnam War was the prolonged struggle between nationalist forces attempting to unify
the country of Vietnam under a communist government and the United States (with the aid of
the South Vietnamese) attempting to prevent the spread of communism.712

Engaged in a war that many viewed as having no way to win, U.S. leaders lost the
American public's support for the war. Since the end of the war, the Vietnam War has
become a benchmark for what not to do in all future U.S. foreign conflicts.

7.2 Afghanistan War: 2001
In late 2001, the Security Council authorised the United States to overthrow the Taliban
government, as an offensive against the terrorist al-Qaeda organisation, said to be based in
the country. The Council also authorised the US and its NATO allies to set up the
International Security Assistance Force (ISAF) to provide military support for a newly-
established pro-Western government (the United States also continued to run a separate anti-
terrorist military operation). In March 2002 the Council established the United Nations
Assistance Mission for Afghanistan (UNAMA) to manage all UN humanitarian, relief,
recovery and reconstruction activities. Despite (or perhaps because of) these military-
centered initiatives, Afghanistan has remained a "failed state." The authority of President
Hamid Karzai, victor in the presidential election of October 2004, barely extends beyond
Kabul's suburbs, warlords have gained back control of most of the country, and opium is now
the principal agricultural crop.713

7.3 Russia Ukraine War: 2022
If we analyse the current Russian invasion of the Ukraine, it becomes clear that how this
small country with good resources was used as a pawn by the America and its western allies.
Ever since Ukraine became independent and showed a leaning towards the US and its
European allies, Russian President Vladimir Putin, a former KGB officer, vowed to bring
back the past glory of the Soviet era for the Russians. After he came to power, his popularity
soared from two percent to 45 percent following his role in annexing Chechnya-- which is
now known as Chechen, a constituent republic of Russia. In 2014 Russia invaded the
Crimean peninsula and annexed it and on March 18, 2014 it became a constituent republic of
Russia when President Vladimir Putin signed the accession. In retaliation the US and their
European partners signed several agreements with Ukraine and goaded it to join the NATO.
The US tried to encircle Russia and bring nuclear and weapon arsenals to Russian doors.714

Now let us examine the scenario. America and its partners have a history of bombing
the world all over like they did in Iraq, Vietnam and Afghanistan citing threat to international
peace but withdrawing without taking the affected countries and people into confidence.
America has bombed so far more than 30 countries and is responsible for blood baths and
ruination of lives of millions of people. The way they withdrew and left behind their weapons
in Afghanistan makes a mockery of the UN Charter. So far, the US has exercised the veto
power more than 80 times.

712GovInfo | U.S. Government Publishing Office. Accessed September 22, 2022.
https://www.govinfo.gov/content/pkg/CHRG-92shrg83605/pdf/CHRG-92shrg83605.pdf.
713 Timeline: U.S. War in Afghanistan." Council on Foreign Relations. Last modified May 1, 2017.
https://www.cfr.org/timeline/us-war-afghanistan.
714 Russia-Ukraine War." Encyclopedia Britannica. Accessed September 22, 2022.
https://www.britannica.com/event/2022-Russian-invasion-of-Ukraine.

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VIII. REASONS OF FAILURE OF PEACEFUL MEANS
Though we have adopted the mechanism on regional and international level to resolve the
issues but it is clearly evident that these organisations lagged behind to achieve the goals of
peace keeping. There are numerous reasons behind it. Some of the reasons are mentioned
below.

8.1 Failure of Regional Organisations715
Difference in the common values: Political divisions develop within regional organisations
due to a lack of shared principles. The contrast between democratic and authoritarian
administrations is the most visible. A coordinated approach is also hampered by disparities in
religion, ethnicity, and culture.

Sovereignty of the States: State sovereignty is contested, and even non-military
involvement is in opposition to the rule of non-intervention and the idea of state sovereignty.
Many governments are against giving power to a regional body. The power of the nation state
is closely preserved.

Cross-cutting responsibilities: The missions and geographic scope of regional and sub-
regional organisations vary and are frequently in competition with one another. What is
meant by the term “region” is still up for debate.

Lack of Capacity: Many regional organisations lack the necessary institutions,
protocols, and capacity (human, material and financial). Because of this, it is challenging to
carry out decisions and apply sanctions.

Dominant regional powers: Most regions exhibit certain asymmetries in terms of their
economies' and armies' sizes. Neighbours may become anxious as a result. Numerous areas
have also been impacted by outside forces.

Regional organisations continue to be made up of nation states with little influence over
conflict resolution or peacekeeping. They have proven to be almost as awkward and rigid as
the UN; practical solutions frequently fall short due to a lack of political consensus. These
flaws have consequences for the global community:

The duty of intervening has been given to coalitions of the willing rather than
ineffective regional organisations. East Timor and Iraq, which were both under no UN
mandate, are examples of this (with a UN mandate).

When regional organisations cannot come to an agreement, these alliances might fill the
gap. However, they can only be created "ad hoc." Long-term commitments are either
challenging or unattainable. When there are concerns in the region, it further complicates the
issue of establishing legitimacy for a peace force.

Without taking into account the many values held by regional organisations, donor
organisations have prioritised the lack of regional capability. This is not how it should be.
Policies to strengthen capability for mediation and peacekeeping will have little influence
unless there is agreement on how to behave in violent situations.

8.2 Failure of the UN
The United Nations has failed to prevent war and fulfill peacekeeping duties many times
throughout its history. Millions of people around the world have been killed and displaced
since the UN was founded in 1945. Today, UN demonstrates its inefficiency when it comes
to the regional conflicts resolutions as well as international issues. There are a number of
cases demonstrating the success and failure of UN in the conflicts resolutions and an

715 The Role of Regional Organisations in Conflict Prevention and Resolution." GSDRC. Last modified
September 4, 2015. https://gsdrc.org/document-library/the-role-of-regional-organisations-in-conflict-prevention-
and-resolution

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efficiency of UN, on the example of the several issues that took place and are continuing
nowadays, should be analysed.

The uneven distribution of powers- According to article 25 of the UN Charter, the
Security Council is the only body at the global level with the authority to pass resolutions that
are legally enforceable in an effort to uphold international peace and security716 unlike the
General Assembly which is entrust with the advisory powers in maximum matters.

Misuse of Veto Powers: The United Nations was greatly influenced by the Allies and
the victorious nations of World War II, and this is still evident in the current permanent
membership of the Security Council. In a broader sense, the post-World War II global order
was to be founded on the idea that all peaceful states are sovereignty equal, as demonstrated
by the ideas of "one state, one vote" and significant powers had a responsibility to uphold
world peace. The P5 allies should take the lead in preserving international peace. They would
back efforts that really used force to mediate peace. Therefore, the P5 holds a veto over UN
Security. Council decisions are final, and no member may vote against them.

Manipulation of USA: As the largest financial contributor in the UNO: USA is the
largest financial contributor of UNO. It is but obvious that tyranny of the USA must be there
and it will influence the decision of the UNO especially in the Security Council. The current
contributions scale, valid for 2019 to 2021, was adopted by the UN General Assembly in
December 2018. The four largest contributors to the United Nations – the US (22% of the UN
budget), China (12.005%), Japan (8.564%) and Germany (6.090%) – together finance some
49% of the entire UN budget.717

Different Ideologies of the Super Powers: since the antiquity every State has their own
ideology and working towards the same. States are propagating their own ideology and trying
to relinquish the opposite ideology of the State. World War II is the quite evident of the same.
The differentiation of the ideologies still remaining and clearly visible in the act of the States.
States do not render their support to those states, following the opposite ideology. This is the
root cause of failure of peaceful mechanism to resolve the disputes.

Varied Interest of the Countries: The States have their own varied interest and they all
follow the policy to fulfill their national interest on priority basis. All the states have reflected
this behavior during the war of Russia and Ukraine, No State was ready to support Ukraine
due to their own self govern interest.

IX. SUGGESTIONS AND CONCLUSION
If we really want to establish peace in the world, than we need to bring certain reforms in the
UN Structure. The membership of UNSC should be revised and either makes the veto power
redundant or categories the use of this power. It means there should be limited use of veto
power and that too in the limited matters.

It is but obvious that whenever you will conclude any conflict both the parties cannot
be on the same footing. So whoever will be in the lower side will resist against the decision.
So, the unanimous decision against the dispute should be obligatory to the parties concerned.
The members of the Security Council are the representative of the different States and
protecting and preserving the interest of their native country. We should change this in the
pattern of the International Court of Justice. It means when the members serving to the
Security Council that time they are no more representative of their own country, rather they
are accountable towards the UNO for the peace keeping operations. All the regional

716 United-Nations (1945) Charter of the United Nations and Statute of International Court of Justice.
717 Amt, Auswärtiges. "Background Information: Contributions to the United Nations Budget." German Federal
Foreign Office. Accessed September 22, 2022. https://www.auswaertiges-amt.de/en/aussenpolitik/
internationale-organisationen/vereintenationen/-/281336.

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organisations must be backed by the UNO. The decisions taken by the regional organisations
need to be supported by the UNO and the Security Council.

As per the opinion of the author, if these changes will be adopted by the UNO and
supported by the Super powers than definitely disputes will be resolved peacefully in near
future and UNO will achieve the aim and objectives of their charter to resolve conflicts
through the peaceful means.

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22 October 2022
E-ISBN 978-967-491-267-3

p. 185-194

15. SOUTH CHINA SEA DISPUTE: PEACE
INITIATIVES

Medhavi Judevi
LLB Student, Manipal University Jaipur, India

Email: [email protected]

ABSTRACT
South China Sea has a three-dimensional dispute that affects arenas of
international relations concerning the economic, political, and consequently,
strategic interests of China, the USA, and Japan. The dispute revolves around the
question of International trade routes, oil & natural gas deposits, and henceforth,
security concerns for these three economy mammoths. Like any other conflict in
history, the regional claimants-China, Vietnam, Brunei, Malaysia, Philippines,
and Taiwan have more deep-seated national and sovereign sentiments attached to
them. Maritime territorial overlap of 12 nautical miles of these countries and the
question of Spratly and Paracel Islands have made this situation complex.
Nevertheless, successful attempts have been made to decrease the agility of the
matter at hand. After discussing the brief history from different standpoints, this
paper discusses the peace measures-Confidence Building Measures (CBM),
UNCLOS' Declaration of Code of Conduct 1982, ASEAN Regional Forum, South
China Sea Peace Initiative (SCSPI), Treaty of Amity and Corporation (TAC),
Convention on the International Regulations for Preventing Collisions at Sea
(COLREGS) under the UN's International Maritime Organisation have been taken
to contain the repercussions of the dispute through the means of crisis
management, conventions, treaties, diplomacy, application of legal principles,
bilateral and multilateral relations, etc. The culminating statement will be centered
on why compelling arbitration and mediation are important and effective in
resolving conflict, why it is a go-to choice for stakeholders in a capitalist and
multipolar global order, and how they can be achieved.

Keywords: Mediation, Diplomacy, Treaties, International Trade.

I. INTRODUCTION
The South China Sea dispute has been based on two claims, namely, legal and historical
claims by the contending parties (China, Vietnam, Philippines, Taiwan, Malaysia, Indonesia,
and Brunei) for maritime territory along with its seabed fishery resources, oil and gas
reserves. The primary conflict remains between China and Vietnam, and between China and
the Philippines718. China holds historical claims over the entire SCS for its discovery and

718 Munmun Majumdar (2015) The ASEAN Way of Conflict Management in the South China Sea, Strategic
Analysis, 39:1, 73-87.

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occupation. Vietnam let that claim by China be unattended only till the 1970s and taking the
opportunity of the United Nations Convention on Law of the Sea (UNCLOS) in 1982, began
the dispute to claim sovereign rights and then went about extending it to historical rights. The
Philippines, on the other hand, maintains similar claims as China but also is concerned with
the territorial parameters laid down by UNCLOS. However, the source of the South China
Seas dispute is traceable to the 1951 San Francisco Treaty, which failed to stipulate
possession of the Spratly islands when Japan lost its title to them after its defeat in the Second
World War. The history of this contention can be divided into the following timeline.

Phase I: Commencement of Conflict (1970-1990)
Chinese government laid down 9 marks to claim almost the entire area of SCS in 1947 which
was unopposed and non-conflictual. But soon in the 1960s, oil and gas reserves worth $2.5
trillion were discovered. China then took military action to push Vietnam out of the Paracel
Islands in 1974 which was well within Vietnam’s occupation by the virtue of “continuous and
effective acts of occupation” (used before the UNCLOS declaration in 1982 to demarcate
maritime territories and Exclusive Economic Zone). Vietnam continued to oppose the fishing
bans imposed by China in Paracel waters. In 1988, China clashed with Vietnam over Fiery
Coral Reef in the Spratly Islands chains. Being able to repress Vietnam easily, China’s
territorial ambitions heightened and it occupied 6 more features in the Spratly Islands by
1989. Repercussions were far-reaching for two reasons – (1) This occupation was
unprecedented for China and it established its image as the regional power in Southeast Asia,
(2) it alarmed other key players in the region to race for establishing their sovereign rights
over maritime territory by seizing unoccupied islands. This phase experienced heightened
military conflict and aggressive occupation of territories.

Phase II: Reduced Military Action (1990-2002)
This period was initiated by a Chinese proposal to set the dispute aside and build on mutual
trust and cooperation. China and Vietnam were ready to put off their dispute over land
borders, the Gulf of Tonkin, and SCS in 1991, and military actions in the region were
drastically reduced but claimants did not cease to conquer territories. In 1995, the Philippines
was faced with the complexity of China’s advancement by building structures for fishermen
on Mischief Island which is 690 miles away from Hainan island of China and 150 miles away
from Palawan island of the Philippines. The Philippines resisted taking any action which was
an encouragement for China to proceed with its developments. China again disrespected the
Philippines' territorial claims in 1998 by the same advancement in Scarborough Island, 125
miles away from Luzon, the main island of the Philippines. These actions were not tolerated
by the Philippines and thus, it ended up signing Visiting Force Agreement with the USA in
1998 to balance off China’s derogatory actions.

Phase III: Relative Stability (2002-2009)
The third phase was a period of relative stability and association via the medium of treaties,
agreements, and joint projects. China and ASEAN signed the Declaration of Code of parties
in SCS (DOC) 2002. A series of agreements took place during this period. A few notable
agreements are—China joining the Treaty of Amity and Cooperation 2003, the Maritime
Boundary Agreement & Fisheries Cooperation Agreement for the Gulf of Tonkin 2004, and
the 2005 Tripartite Agreement for joint marine seismic undertaking in agreement area in SCS
between national oil companies of China, Vietnam, and the Philippines.

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Phase IV: Revival of Conflict (2009-2013)
The dispute refreshed itself in 2009 with China’s submission of the nine-dash line forming a
‘U’ shape to the UNCLOS Conference of State Parties 2009. Other claimants had ambitions
to submit for extending their continental shelves beyond 200 nautical miles and resented
China’s audacity to present with nine-dash w potentially squat over their territory in case
given the permit. Nationalist movements were flaring up in Vietnam against China which was
further intensified by China’s firing on Vietnamese fishery vessels in 2011.
Phase V: Towards 50-50 (2013-present)
The Philippines moved to the Permanent Court of Arbitration in The Hague to pursue Annex
VII of UNCLOS, asking them to rule on whether China’s “nine-dash line” is a legitimate
claim or not. On 29 October 2015, the tribunal affirmed its jurisdiction and delivered a ruling
in 2016 but China remained persistent with its historical claim over the territory to defy the
rulings based on legal principles of UNCLOS. In August 2019, China’s president Xi Jinping
announced that China will not recognise the ruling delivered by international arbitration, and
earlier on July 22 of the very year, China issued a White Paper declaring that international
strategic issues are on the rise. Especially since the USA is advancing to adjust its national
security, defense strategy, and unilateral policies, it has provoked and intensified competition
between countries, it reads. In addition, a blueprint for the Code of Conduct discussed at DoC
has been successfully agreed upon and detailed negotiations are currently underway.

Figure: Overlapping Claims in the South China Sea
II. POSITION OF EXTRA-REGIONAL POWERS
Long dominant global power USA has a neutral stance over the situation in SCS and
maintains its position on resolving the dispute on basis of legal principles which is quite
contrary to what regionally rising China aspires to do. China perceives this as interference by
the USA in its region and pushes for not internationalising the dispute. While the USA has
been pivoting with its diplomatic and strategic tool of Freedom of Navigation Operations and
joint military exercises with many ASEAN countries. The USA has by far signed an MoU

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“Joint Vision Statement” with Vietnam, an agreement “Visiting Force Agreement” &
“Enhanced Defense Cooperation Agreement” with the Philippines and has conducted 23
FONOPs since 2015 to legitimise its presence in the region which China sees as a threat to its
sovereignty and security. USA’s export reached $86.2 billion in the region in the year 2018
amounting to 5.2% of the overall export while its import from the Southeast Asian region was
worth $185.8 billion amounting to 7.3% of overall imports. The USA seems to ensure its
economic gains from the region by preventing any outbreak of a catastrophe by taking
deterrence as well as diplomatic measures. Moreover, The United States has three strategic
objectives for the Asia-Pacific Region: One, enhanced stability and security; two, facilitating
trade and commerce through an open and transparent system; and three, ensuring respect for
universal rights and freedoms. Additionally, the United States has security alliances with
Japan, South Korea, Australia, and the Philippines, and is attempting to strengthen those.

Japan has long depended on its regional neighbors for the supply of raw materials to be
pumped into indigenous industries. In exchange for affinity, ASEAN countries have also
been served with industrial goods, services, funds, and technology. A significant step was
taken by Japan to further deepen its cooperation with its ASEAN counterparts by signing the
Treaty of Amity of Cooperation (TAC) in 2004. Hence, the free passage in SCS to continue
maintaining the relationships and trade is a concern of utmost importance for Japan.
Previously Japan’s pacifist constitution held any act of military aggression excluding self-
defense against the external force as unconstitutional. New legislation in 2016 broadened the
scope of self-defense in instances of armed attack on allied forces, this enabled Japan to act in
furtherance of collective self-defense. It indicates its attempts to increase Japan's Self-
Defense Forces deployment in SCS.

For a collective response to any activity in SCS, USA and Japan have a quid pro
understanding in which the USA without Japan’s assistance and cooperation with military
bases, support facilities, fuel, and ammunition, will be difficult to maintain its presence in the
region. While Japan’s strategic strike capacity is a result of the cooperation they receive from
the USA.

III. EASING TENSION IN SCS: SUCCESSFUL AND UNSUCCESSFUL ATTEMPTS
A multitude of peace initiatives has taken place to contain as well as deter the situation in
SCS. Different initiatives have served different purposes such as preventing maritime
terrorism, piracy, and territory squatters as well as broad issues like reducing environmental
pollution and distrust. These initiatives have been broadly categorised into the following: (1)
Legal Principle Based Initiatives, (2) Joint Development Agreements, (3) Multitrack
Diplomatic Dialogues, (4) Bilateral and Multilateral Treaties, (5) Preventive Diplomatic
Strategy, (6) Mutual Cooperation Agreements, (7) Peace Building, etc. A few notable peace
initiatives that have taken place to ease tension in the region are discussed below.

3.1 United Nations Convention on Law of the Sea (UNCLOS 1982)
UNCLOS sections the oceans, splitting marine areas into five main zones, each with different
legal status: Internal Waters (low-water line), Territorial Sea (12 nautical miles), Contiguous
Zone (24 nautical miles from baseline), Exclusive Economic Zone (EEZ is between territorial
sea and high seas to the max. extent of 200 miles), and the High Seas (beyond 200 miles). It
provides the backbone for offshore governance by coastal states and those navigating the
oceans. It not only zones coastal states’ offshore areas but provides specific guidance for
states’ rights and responsibilities in the five concentric zones. The issues lie behind China’s
non-compliance with the legal principle and being reluctant on enforcing its historical rights
of the territory for its discovery and occupation during the times of the Han and Qing
dynasties as per the Chinese government documents.

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3.2 Declaration of Code of Conduct of Parties in SCS (DoC 2002)
In 2002, ASEAN-China established the Declaration on the Conduct of Parties in the South
China Sea—a) Parties reaffirm their respect for the freedom of navigation in and over-flight
above the SCS, as provided for by the universally recognised principles of international law
and the UNCLOS. b) Parties resolve to address their territorial and jurisdictional disputes by
peaceful means, following the universally recognised principles of international law,
including the 1982 UNCLOS. c) Parties undertake to exercise self-restraint in the conduct of
activities that would complicate or escalate disputes including refraining from the action of
inhabiting the uninhabited islands, reefs, etc., and handle their differences constructively.
(Setiabudi, W. 2017). DoC has stood the test of time and holds its position on promoting
cooperation and dialogues on subject matters of marine scientific research, protection of the
marine environment, the safety of navigation and communication at sea, search and rescue
operations, humane treatment of all persons in danger or distress, fight against transnational
crimes as well as cooperation among military officials.719720

3.3 Treaty of Amity and Cooperation (TAC 2003)
The TAC was signed in 1976 and ever since it has worked in the way that the ASEAN
leaders had wanted. Member countries enjoy mutual peace, and they experience economic
development and growth. TAC has become more or less, a necessary condition for joining
ASEAN. In addition to that, ASEAN had already been asking countries outside the region
that had expressed a desire to accede to the TAC to strengthen cooperative relations with
ASEAN. Firstly, China and India acceded in October 2003, followed by Japan and Pakistan
in July 2004, and then Korea and Russia in November 2004, making it a common platform
for successfully discussing the mutual stakes of the member states. In the early 2000s, it
seemed natural for member states to look for a further objective in economic
cooperation/integration because the ASEAN Free Trade Area (AFTA) would realise in 2003
for the original six countries. As a result, the idea of an ASEAN economic community was
launched and gained support. TAC has been a promising tool to make this region a cohesive,
peaceful, and resilient region with shared responsibility for comprehensive security. ASEAN
is moving further with a new blueprint for the period up to 2025. In the document, the TAC
was referred to as a key element to respecting the principles of independence, sovereignty,
equality, territorial integrity, non-interference, and national identity.

3.4 Gulf of Tonkin Agreement (GTA 2004)
This agreement can be traced back to the ratification of the Sino-Vietnam Boundary
Delimitation Agreement and Fishery Agreement in the Gulf of Tonkin on June 30, 2004. Fast
pacing global development made China and Vietnam realise the importance of establishing
boundaries in the Gulf of Tonkin on the principles of equality based on the international law
of the sea and international practices of negotiating delimitation to reach a solution. 721As a
result of the agreement, new marine legal order was established in the Gulf of Tonkin, a long-
standing bone of contention, based on UNCLOS. It is a landmark agreement in itself because
it is the first time China made a trade-off in the territory of dispute that it claims. It greatly
reflects upon China’s readiness to deal with the dispute in a just and peaceful manner and
promote friendly and neighboring relations.

719 "Recent Developments in the Law of the Sea and China,” Brill, 2006.
720 CHEN, Haibo. "Maintaining Maritime Safety in Southeast Asia: Regional Cooperation,” ChinaAsean
Relations - Economic and Legal Dimensions, 2006.
721 John Knauss. "The Sino-Vietnamese Agreement on Maritime Boundary Delimitation in the Gulf of Tonkin,"
Ocean Development & International Law, 2/16/2005.

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3.5 China-Philippine-Vietnam Joint Seismic Undertaking Agreement (2005)
At its outset, the agreement was signed between the Chines oil company and the Philippines
National Oil Company for undertaking seismic work in Sino-philippine disputed area in SCS
in 2003722. In march 2005, Vietnam also joined the agreement, making it a tripartite
agreement for joint marine seismic undertakings in areas decided by a joint committee.723 All
the survey and research-related activity took place only with the mutual agreement of these
three parties for three years. This experiment like a joint agreement greatly reflected all the
parties’ resolve and determination to maintain peace, stability, cooperation, and development
in SCS. This imparts much ambition for peace-building researchers and scholars to hope for a
stable future in SCS.

3.6 Freedom of Navigation Operations
Signalled by the statement from then-Secretary of State Hillary Clinton at the ASEAN
Regional Forum (ARF) in 2009, for the first time, stated that the USA has an interest in open
access to Asia’s maritime commons, freedom of navigation, respect for international law in
the SCS and opposes the use of threat or force by any contesting claimants. China’s rejection
of the verdict at The Hague and concerns over excessive maritime claims have prompted the
USA to conduct FONOPs that aim to send a clear message that all nations are obliged to obey
the International Law of the Sea as codified in UNCLOS, as well as asserts its rights to
traverse the waters aligned with international law. The USA maintains that it does not take a
position on which nation has sovereignty over each feature in the Spratlys and that the
operation was not intended to challenge any country’s claims of sovereignty over land
features. While China insists that it supports the Freedom of Navigation operations, President
Xi Jinping stated, "There has been no problem with maritime navigation or overland flights,
nor will there ever be in the future.” However, earlier this year, the USA conducted its
FONOP by sending USA guided-missile destroyers to the area. China opposed this mission
and demanded that Washington stop what Beijing perceives as a provocative action.

3.7 South China Sea Peace Initiative (SCSPI 2015)
Taiwan’s president Ma Ying-jeuo put forward the South China Peace Initiative in May 2015
which is modeled after it East China Sea Peace Initiative of 2012 to resolve its dispute with
Japan over the Diaoyu/Senkaku islands.724 The principles behind the initiative were first
introduced by Ma in his 2008 presidential campaign and they are - safeguarding sovereignty,
shelving disputes, pursuing peace, reciprocity, and promoting joint development.

SCSPI calls disputing parties to a) Exercise restraint, safeguard peace and stability and
refrain from taking any unilateral action that might escalate tension; b) Respect the principles
and spirit of international law, including the Charter of the UN and UNCLOS, and to
peacefully settle disputes through dialogue and jointly uphold the freedom and safety of
navigation and overflight; c) Ensure that all parties concerned participate in the maritime
cooperation and shared codes of conduct to enhance peace and prosperity; d) Shelves
sovereignty disputes and establish a regional cooperation mechanism for the development of
resources under integrated planning; e) Coordinate and cooperate on non-traditional security
issues such as environmental protection, scientific research, maritime crime fighting,
humanitarian assistance, and disaster management.

This module of SCSPI is quite wholesome and goes beyond traditional methods to
incorporate questions of environmental issues, scientific research, and maritime crimefighting

722 Asian Yearbook of International Law, Volume 22 (2016)," Brill, 2019.
723 Xuechan Ma. "The Spratly Islands and International Law," Brill, 2022.
724 "Recent Developments in the Law of the Sea and China,” Brill, 2006.

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which is quintessential in itself. But the loop in the applicability of this module lies in
Taiwan’s take on not cooperating with China on any matter related to SCS.

IV. WHAT IS THE FUTURE FOR SCS?
There could be two ways forward for resolving SCS disputes according to John Galtung’s
theory of Negative and Positive approaches to Violence, Peace, and Peace Research. The
conflict can either be resolved by using Positive Approach or be made precarious by using
the Negative Approach. Methods like imposing trade sanctions for misconduct, military
strikes, encroachment of disputed islands, and usage of force to dominate the territory fall in
the category of a negative approach to peacebuilding, and any type of coercion can further
deteriorate the stable atmosphere of SCS. Hence, a positive approach of rewarding the parties
for showing good behavior in maintaining peace in the region can prove to be far more
promising to uphold the peace and create a conducive environment for all to grow through
economic prosperity, advancement, and sovereign rights. Positive peacebuilding demands
equal efforts from each party’s side to benefit from the resources and opportunities that this
rich region has to offer. China along with ASEAN has projected great spirit to maintain
friendliness and strategic partnership with each other and now apparent evidence of their
maturing relationship is the blueprint of the Code of Conduct undergoing the stage of detailed
article-by-article discussion for its finalisation. The success of the Gulf of Tonkin Agreement
and China-Philippine Joint Development programs has also been positive indicators for peace
and stability in the region. However, the military competition between USA and China seems
to be reversing the situation but this further can be contained by the increased involvement of
more and more extra-regional parties in the region of SCS to clear off the name of the USA
from ill-intentioned dominator and prevent China to go rogue. The challenge here is to
exclude every conceivable probability of skepticism among the various stakeholders.

V. CONCLUSION
The traditional conflict resolution tools taken up by the parties have not been able to serve the
ultimate goal in their full capacity. They were taken up with the hope of establishing peace in
the region but couldn’t succeed for long because of a lack of patience in claimants and the
tendency of not compromising upon their narrow self-interests. The parties need to go beyond
the traditional methods to resolve this age-old conflict with something more viable to build
on mutual respect. In a globalised world, the parties need peace-building as well as conflict
resolution measures. It is also essential to note that building upon mutual respect is only
possible by keeping a positive approach to conflict resolution in mind, while anything within
the scope of negative peace such as naval strikes, military aggression, or trade sanctions are
likely to set the parties at the edge of their seat to take temperamental steps. Mutual
agreement on any alteration and activity is imperative at this stage to set an example of
compliance and build trust among the parties. A few of those peace-building measures to
achieve a state of mutual respect are suggested as follows.

There are many international and regional treaties and agreements that deal with
maritime territorial disputes and regulation of waters like UNCLOS, Declaration of Conduct
of Parties (DoC), Treaty of Amity and Cooperation (TAC) so on and so forth. All the
claimant states of SCS are signatories of most of these treaties but there has been a tendency
of disregarding the provisions laid down under these treaties by South Eastern countries.
These countries should do away with this tendency and exercise self-restraint, as laid out in
DoC. Article 301 of UNCLOS deals with peaceful usage of the ocean whereas article 300
declares that states should also exercise good faith and avoid abusing the rights of other
states. Article 123 of the same talks about three aspects of cooperation which include the
exploitation and exploration of living resources, protection and preservation of the maritime

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environment, and coordination of scientific research in the region. Parties must refrain from
interfering with the navigation of the vessels or aircraft of others. Provisions of Safety of Life
at Sea (SOLAS) and The International Regulations for Preventing Collisions at Sea 1972
(COLREGS) which also define ‘the right of way’ are important to be upheld in this regard.
Claimants should not control the airspace above the features they occupy and respectfully
abide by the intentional legal principles.

Confidence among parties is the key to peace and stability in the region. Lack of
confidence and trust causes strife that results in instability in the region. All the claimants
should perceive the concerned marine ecosystem as a whole. For the management of fisheries
and the environment in the SCS, a Secretariat should be established to further elaborate the
rules of conduct. To de-escalating tensions between countries in the region, claimants should
halt further reclamation and militarisation of features in SCS. Increasing military presence
must also be halted. To obviate dangerous military encounters in SCS, China and ASEAN
must recall their commitment to the Code for Unplanned Encounter at Seas (CUES 2014) to
reduce the chances of incidents at sea between the countries in an agreement and if such face-
offs happen, the parties should refer to the Convention on the International Regulations for

Preventing Collisions at Sea (COLREGs): Enforcement of such international laws
would de-escalate the situations. To build up confidence and trust, China and ASEAN should
promote multilateral joint exercises. Both parties should also focus on non-traditional
challenges such as environmental protection, fighting piracy, and marine terrorism.

Diplomatic tools used to prevent disputes from arising between parties and to prevent
existing disputes from escalating are known as preventive diplomacy. To use this tool in the
SCS region, CUES can be a possible method. Currently, CUES applies only to naval forces.
It should be extended to civilian coast guards because coastal guards' vessels were involved
in two-thirds of 45 major incidents in SCS between 2010-16. By doing so, there will be a
regulated communication procedure during an unplanned encounter.

Hotlines should be set up to serve the purpose of solving disputes through direct and
quick response phone calls between two parties to prevent accidents. In 2015 hotlines were
set up between defense and foreign ministers of China and ASEAN. This mechanism could
be further improved by installing hotlines between Navy chiefs so that the communication
could be effective rather than going through ministers. Elimination of language barrier
between on-ground operational level personnel of claimants could be effective for any
communication.

Bilateral and multilateral joint projects and exercises could also be a way to achieve
mutual affinity. Experience gained through these joint exercises would be handy in real-time
crises. These joint exercises can be categorised into two types- (1) Joint Naval Exercises, and
(2) Non-Military Exercises. Both these measures are less explored. China and ASEAN do
conduct joint naval exercises but once a year. This should be done annually to build up a
mutual understanding among claimants. It would reduce frequent naval face-offs in the
region. Cooperation in non-military areas could be a potential key to a peaceful and stable
SCS. The scope of non-military projects is too wide. Search and Rescue Cooperation (SARC)
is one of these. China and ASEAN should frequently perform SARC drills in which various
maritime organisations would coordinate for quick response during emergencies like
preparedness for oil spills in SCS. Claimants should conduct joint research projects regarding
aquatic species, maritime ecosystems,s, etc. and share results with others as well. Joint
exploitation and exploration projects for the sustainable usage of resources in the region
should be undertaken. All these projects would soothe the tensions in the region and enhance
trust, friendship, and confidence between ASEAN countries and China.

The balance of power in South East Asia especially in SCS seems to be tilted towards
China. Being a regional giant China dominates over this region. Military strength and

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economic prosperity wise, the rest of the claimants stand in a weaker position in front of
China. For neutralising China in the region ASEAN countries should make more and more
strategic partnerships and agreements with other global Giants like the USA, Japan, and
India. This would bring a balance of power. USA conducts Freedom of Navigation
Operations (FONOPs) in SCS on regular basis but China has never dared to interfere with
these FONOPs because it seeks to avoid a military confrontation with the USA. Taking this
into account ASEAN countries should allow US Navy and Air Force to use their bases in this
region. India’s INS Airavat military vessel has also marked its presence in SCS for a friendly
visit. India has also been collaborating with Vietnam for military exercises as well as oil
exploration. Moreover, the USA, Japan, India, and ASEAN countries should jointly conduct
military exercises in SCS to deter China but also keep the agility of the region in cognizance
to not surpass the threshold of tolerance for foreign presence in the region.

There’s a lot of potential in successfully resolving the SCS dispute but keeping the
realist school of International Relations, we must be prepared to face escalations in a region
as delicate as SCS. We must acknowledge the fact that having no superior authority over
states, they have a sovereign status to act on their whims and fancies. Nevertheless,
globalisation and liberal policies of the post-modern era have compelled states to rather act in
good faith and co-dependency.

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22 October 2022
E-ISBN 978-967-491-267-3

p. 195-204

16. THE IMPACT OF THE ROHINGYA
REFUGEES ON BANGLADESH

Md. Zahidul Islam
Assistant Professor, Ahmad Ibrahi Kulliyyah of Laws,

International Islamic University Malaysia
Email: [email protected]

ABSTRACT
The Rohingya are an ethnic Muslim minority group who are denied basic human
rights and citizenship by the Myanmar government. Since the 1970s, the
Rohingya have been forced to flee across the border to Bangladesh in significant
numbers from northern Rakhine State due to religious, cultural and political
persecution. Bangladesh has faced an ongoing refugee crisis ever since. The aim
of this paper is to identify the crisis for the Rohingya refugees presence on the
local community of Bangladesh. It will be a qualitative research. The paper
concludes that the adverse implications of the crisis are greater than the positive
impacts, resulting in local instability and conflicts. The pressure is on the
Bangladeshi Government to formulate strategies in partnership with the
international community to force the Myanmar Government to begin repatriation
and guarantee that the human rights and safety of the Rohingya will be respected.

Keywords: Social Impact; Rohingya; Refugees; Bangladesh.

I. INTRODUCTION
The Rohingya are a Muslim ethnic minority group who have lived for centuries in
predominantly Buddhist Myanmar - formerly known as Burma. Despite living in Myanmar
for many generations, the Rohingya are not recognized as an official ethnic group and have
been denied citizenship since 1982, making them the world’s largest stateless population.
Bangladesh has started experiencing the problems of the issues of Refugees since 1978;
almost 200,000 refugees came into Bangladesh and took shelter. These refugees fled from
Myanmar and known as “Rohingya”. Again in 1991-92 approximately 250,000 refugees fled
from Myanmar‟s western Rakhine state and this ethnic, linguistic and religious minority of
the Myanmar community started living in the south east district of Cox‟s Bazaar. That was
just the beginning of the journey of the refugees and it is still proceeding unabated. But this
Rohingya issue has now assumed an alarming proportion in Bangladesh which being a
densely populated state faces various social and economic difficulties while giving them the
needed refuge. In fact, legally Bangladesh is not bound to be the final sanctuary for the
refugees from Myanmar or from any other state. As with many other countries in Asia,

Proceedings: International Conference on Peace and Conflict Resolution (ICPCR) 2022
International Peace and Security: The Achievement of the United Nations and the Way Forward

Bangladesh is not a party to the 1951 Refugee Convention or its 1967 Protocol. Neither is it a
party to the 1954 and 1961 Statelessness Conventions.725

Even though Bangladesh is not a member of the 1951 Refugee Convention, yet
Bangladesh has quite often widely opened its arms to welcome theses refugees only on
humanitarian ground, and no more no less. But the reality of the scenario is that Bangladesh
still has not the luxury to afford these refugees the political neither the economic comfort of
accommodation as a political asylum. In the absence of any strict domestic law, to save its
image in the international arena, Bangladesh is struggling very hard indeed to overcome this
refugee issue.726 The vision of this write-up is to highlight the problems of Rohingya refugees
and also to recommend the framing of a strict domestic law to specifically handle this
situation.727

II. Definition of Refugee
The United Nations High Commissioner for Refugees, the Office of the (UNHCR), was
established on Dec. 14, 1950 by the General Assembly which is also known as The UN
Refugee Agency. Since its establishment till now the UNHCR is one of the specialized
organs of the United Nations which deals with the refugee issues. It seeks permanent
solutions to the refugee problems, offers international protection to refugees, coordinates the
activities of voluntary agencies, and assists the most needy refugee groups, particularly, in
their voluntary repatriation, local integration or resettlement to a third country. The UNHCR
is a voluntary organization of the United Nations that works all over the world.728

In July 1951, a diplomatic conference in Geneva adopted the Convention relating to the
Status of Refugees which was later amended by the 1967 Protocol. The 1951 Convention
Relating to the Status of Refugees is the key legal document in defining who are termed as
the refugees, their rights and legal obligations of states.5 Initially, the 1951 Convention was
more or less limited to protecting European refugees in the aftermath of World War II, but
the 1967 Protocol expanded its scope as the problem of population displacement spread
around the world.6 The 1967 Protocol removed the geographical and temporal restrictions
from the convention.729

The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol has
become the preliminary instruments in the development of international refugee law. At
present, there are 148 countries that subscribe to one or both of these instruments, expressing
a worldwide consensus on the definition of the terms refugee and the fundamental rights to be
granted to the refugees.8 According to the 1951 Refugee Convention, a refugee is defined as
a person who:

Owing to a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is outside the
country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself
of the protection of that country or to return there because there is a fear of persecution...730

725 Al Imran, Hassan Faruk, and Nannu Mian. "The Rohingya refugees in Bangladesh: A vulnerable group in
law and policy." Journal of Studies in Social Sciences 8, no. 2 (2014).
726 Milton, Abul Hasnat, Mijanur Rahman, Sumaira Hussain, Charulata Jindal, Sushmita Choudhury, Shahnaz
Akter, Shahana Ferdousi, Tafzila Akter Mouly, John Hall, and Jimmy T. Efird. "Trapped in statelessness:
Rohingya refugees in Bangladesh." International journal of environmental research and public health 14, no. 8
(2017): 942.
727 Ullah, Akm Ahsan. "Rohingya refugees to Bangladesh: Historical exclusions and contemporary
marginalization." Journal of Immigrant & Refugee Studies 9, no. 2 (2011): 139-161.
728 Kuhlman, Tom. "Towards a definition of refugees." (1990).
729 Kuhlman, Tom. "Towards a definition of refugees." Refugee Studies Centre (1991).
730 Fitzpatrick, Joan. "Revitalizing the 1951 refugee convention." Harv. Hum. Rts. J. 9 (1996): 229.

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The reasons of persecution must be one of the five grounds listed in article 1 A(2) of
the Refugee Convention, namely: race, religion, nationality, membership of a particular
social group or political opinion. Persecution based on any other ground will not be
considered as this is the limitation of the definition. Lately, it has been observed that other
numerous reasons cause or, to be exact, force the person to flee due to the existence of critical
situational circumstances, such as, civil war, natural disaster, unmitigibable poverty, mass
unemployment and multifarious other causes which need additional inclusion under the
definition of a refugee.10 According to the definition, certain person will not get the status of
refugees if he/she- a) has a record to commit a crime against humanity or any other crime
defined under international instruments; b) has committed a non-political crime; c) or has
connectivity or allegation to commit any other crime which is contradictory with the
provision of the United Nations.731

A refugee has to prove four elements of situational circumstances according to the
definition of Article 1A(2) of the 1951 Refugee Convention, i.e., i) “well founded fear of
persecution”, ii) “flee across the border of one's country”, iii) “discriminations based on race,
sex, and religion” and iv) “unwilling to return to one's country unless safety is guaranteed”.
Firstly, the term well founded fear of persecution usually indicates a state of mind which
means there must be a reason of fear to be persecuted and of course with the reality of its
existence. This implies that it is not only the fear of the person seeking the status of a refugee
but this fear must be supported by an objective situation. Secondly, the refugees flee from
their own nationality or from the place they are residing to seek refuge in another country,
i.e., one must cross the border of the state from which he/she fled. Thirdly, the refugees are
forced to flee because they are being unfairly discriminated on the basis of his/her race, sex,
religion or membership in a social or political group. And finally, the refugees are not willing
to return until and unless they get an assurance of the ending of that unrest situation which
makes them bound to flee from their own place until it is satisfied by the UNHCR that there
exists a reasonableness in the situation which makes it possible for theses refugees to go back
to their own state.732

III. REFUGES IMPACT ON BANGLADESH

3.1 Social Impact of Rohingya Refugees
Overcrowding from the recent population boom at Bangladesh's Rohingya refugee camps has
placed a strain on its infrastructure. The refugees lack access to services, education, food,
clean water, and proper sanitation; they are also vulnerable to natural disasters and infectious
disease transmission. Several NGO workers have noted that the Rohingyas have little
awareness of family planning, and the population of Rohingya is likely to increase in the
camps. In the near future, it will put additional pressure on food, jobs, health, and other basic
needs. Moreover, it is a matter of great concern that childbirths are not registered in the
Rohingya camps. They are living there for now, but no one knows how long they will have to
stay there without any citizenship. Social impact encompasses health issues, law and order
situations, and considers how the local population perceives Rohingya refugees. Bangladesh
was already facing challenges from previous refugee influx when additional pressure was
exerted on social and economic structure after August 2017. Unexpected refugee presence
can be a threat to inter communal harmony and create challenges for vital social values, such
as culture, religion, and language structure, of local people (OCHA 2018). The total area of

731 White, Benjamin Thomas. "Refugees and the Definition of Syria, 1920–1939." Past & Present 235, no. 1
(2017): 141-178.
732 Krause, Ulrike. "Colonial roots of the 1951 Refugee Convention and its effects on the global refugee
regime." Journal of International Relations and Development 24, no. 3 (2021): 599-626.

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Ukhiya and Teknaf, where most of the camps are situated in Bangladesh, is 651 sq.
kilometres and has about half a million inhabitants.733 In addition to the local population, an
estimated one million Rohingya refugees are now living in those two areas. The birth rate
among Rohingya refugees is higher than among Bangladeshi people. Humanitarian aid
observers predict that Rohingya women in the camps will give birth to an estimated 48,000
babies in 2018, which will create further pressure on local population.734

Recent studies have demonstrated that, while the focus of aid relief is on Rohingya
refugees, there is dissatisfaction among poor local Bangladeshis who are also affected by this
crisis but are receiving little assistance from aid agencies. This social effect is causing a
breakdown in the relationships and in the level of animosity directed at the refugees. In
addition, Rohingya influx has been generating a number of other social difficulties, such as
their involvement in arms and drug trafficking, human trafficking, criminal activities, and
prostitution in Cox’s Bazar region.735 It has been alleged that Rohingya women are involved
in drug trafficking and prostitution as an easy means of earning money, and these illegal
activities are having adverse effect on Bangladesh.

Furthermore, both local people and Rohingyas are also in competition for employment
opportunity, education, welfare, and health facilities, which can be reason for conflict to arise
between two groups. The Inter-Agency Working Group on Reproductive Health in Crises
(IAWG) has requested that the international community guarantee sexual and reproductive
health (SRH) for Rohingya women and girls. Without immediate initiatives for improved
maternal health care and control of sexually transmitted disease (STD), mortality of mothers
and new-borns will increase. Due to the rape and violence, many Rohingya women were
forced to endure in Myanmar before they fled to Bangladesh, significant numbers have been
infected with disease and are suffering malnutrition. Therefore, the spread of STDs among
Rohingya in the camps and local people also is likely to present challenges for health
professionals and lead to worsening of circumstances for all.

Another social problem that affects the life of local people is the socio-cultural aspect.
For example, some Rohingya women want to marry local Bangladeshi men, but the
government has prohibited marriage between Bangladeshi and Rohingya refugees. Thus,
intermarriage and integration between the two groups is being prevented under law, and there
are instances where police are engaged in apprehending individuals who have married
secretly and hoped to avoid detection. These heavy-handed attempts by the government to
contain the situation in the refugee camps may result in further animosity, mistrust, and
discrimination towards the Rohingya. Consequently, the law and order situation and
environment in Cox’s Bazar has deteriorated noticeably, which is a view that is shared by
district administration officials and law enforcement agencies.736

3.2 Gender-based Violence among the Rohingya
There is a tendency in local Bangladesh communities to regard the Rohingya as being
uneducated, rough, potentially criminal, and prone to aggression. Gender violence is an
example of how this aggression may be seen to be reflected and reinforced by the stereotypes
and inequalities within Rohingya society. Gender-based violence as ‘violence targeted to a

733 Al Imran, Hassan Faruk, and Nannu Mian. "The Rohingya refugees in Bangladesh: A vulnerable group in
law and policy." Journal of Studies in Social Sciences 8, no. 2 (2014).
734 Myat, Lily. "The Rohingya refugee crisis: Social, economic and environmental implications for the local
community in Bangladesh." PhD diss., Flinders University, College of Humanities, Arts and Social Sciences.,
2018.
735 Alam, Faridul. "Rohingya Refugee in Bangladesh: Humanitarian Assistance, Internal Disturbances and The
Role of External Factors." To Host or To Hurt: Counter-Narratives on Rohingya Issue in Bangladesh, Institute
of Culture and Development Research (ICDR), Dhaka (2012).
736 Shyamol, N. "Rohingyas allegedly involved in crimes in Chittagong." Asian Age 30 (2017).

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person because of their gender that affects them because of their special roles or
responsibilities in society’.737 Young Rohingya women often face sexual harassment and
even violence from their own community members within the refugee camps. Moreover,
early and forced marriage is a concerning issue for girls among Rohingya refugees. Refugee
camp women and children often face the risk of sexual abuse while using toilets and
collecting water, which may be far away from the safety of their shelter. The authors also
describe how Rohingya men’s experiences of conflict, oppression, and frustration may be
expressed through domestic violence against their wives or other family members. Rohingya
men are often prevented from seeking gainful employment due to restrictions on their
movement away from the camps, together with limited opportunities for unskilled work.738
By necessity, Rohingya women may become the income earners in the family, which can
result in dysfunctional relationships and disharmony in families where there are fixed gender
stereotype expectations.739 Apart from domestic violence that the women face, there are also
risks of harassment and exploitation where they work due to their low socio-economic
status.740

3.3 Political Impact of Rohingya Refugees
Since the early beginnings of the Rohingya crisis, Bangladesh has been a somewhat unwilling
partner in accepting refugees at their border and allowing refugee camps to be set up. Urged
by international pressure and the promises of support in the form of humanitarian aid, the
government has shown remarkable sympathy and tolerance for refugees. There have been
numerous diplomatic attempts to resolve the crisis on its border, but little progress has been
made. On the contrary, the crisis has worsened in past year, since August 2017, leaving many
commentators to conclude that there is no resolution in sight. Bangladesh is unable to
establish the international diplomatic assistance, which is required to end the crisis.741
However, Bangladesh and Myanmar have signed a bilateral agreement on 23 November 2017
to repatriate the refugees, and Bangladesh wants to complete the repatriation within two
years. This plan seems unlikely to succeed, since the security for Rohingya in Myanmar has
not improved, there has been no talk of allowing citizenship and human rights for them, and
voluntary repatriation is unlikely to be a course that many refugees would choose given the
risks they would be returning to.742

Generally, there is public support for the government’s decision to allow asylum for
Rohingya refugees and this decision may have an impact on next national election in early
2019 depending on how the refugee crisis evolves. Local legislature and politicians often use
Rohingya refugees to further their own political interests, which can be a significant concern
for Bangladesh. The refugee crisis has caused Bangladesh to lose the political and economic

737 Akhter, Shamima, and Kyoko Kusakabe. "Gender-based violence among documented Rohingya refugees in
Bangladesh." Indian Journal of Gender Studies 21, no. 2 (2014): 225-246.
738 Hossain, Md Mahbub, Abida Sultana, and Arindam Das. "Gender-based violence among Rohingya refugees
in Bangladesh: a public health challenge." Indian journal of medical ethics (2018): 1-2.
739 Myat, Lily. "The Rohingya refugee crisis: Social, economic and environmental implications for the local
community in Bangladesh." PhD diss., Flinders University, College of Humanities, Arts and Social Sciences.,
2018.
740 Priddy, Grace, Zoe Doman, Emily Berry, and Saleh Ahmed. "Gender-based violence in a complex
humanitarian context: Unpacking the human sufferings among stateless Rohingya women." Ethnicities 22, no. 2
(2022): 215-232.
741 Parmar, Parveen K., Rowen O. Jin, Meredith Walsh, and Jennifer Scott. "Mortality in Rohingya refugee
camps in Bangladesh: historical, social, and political context." Sexual and reproductive health matters 27, no. 2
(2019): 39-49.
742 Alchatib, Satria Rizaldi. "The Political and Economic Impacts of Rohingya Refugee Crisis: Challenges and
Opportunities of Humanitarian Intervention in Post-Conflict Space." Insignia: Journal of International Relations
(2021): 88-101.

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support of two of its closest allies, India and China, because both have sided with Myanmar
and have enormous economic and strategic interest there. As a result, a new diplomatic
alignment is taking place in this region that can have negative impact on Bangladesh.743

3.4. Economic Impact of Rohingya Refugees
Bangladesh is facing unemployment problem, especially in Teknaf and Cox's Bazaar. The
number of day labors is increasing due to Rohingya influx, and they agree to do work with
lower wage. As a result, the native people are losing their job. The sustainability of economic
markets is accomplished through continual balancing of supply and demand - between
worker and accessibility of work. Rohingya crisis could interrupt the consistency in society
and more challenges might ascend when vast numbers of unemployed refugees pursue
livelihood opportunity. It is quite understandable that the refugees will go outside the refugee
camp seeking employment and come into confrontations with local community, creating
instability in society. Most refugee camps are in remote areas where majority of inhabitants
are poor and depend on daily wages earned through unskilled labour.744 However, the authors
found that Rohingya refugees are now competing for the available jobs and will undercut
local workers.745 For daily work, local Bangladeshi labour demands 500 takas ($6), while
Rohingya labourers are available at 300 takas, resulting in the employer engaging the cheaper
Rohingya labourer. This is causing a grave deterioration of livelihood opportunity for the
already poor local community who subsist day to day on their meager earnings. Bangladesh
is a small country that has a delicate economy with limited resources, overpopulation and
limited agricultural land.746 Consequently, Bangladesh’s economic development can be
seriously hindered by huge Rohingya influx combined with it’s over population and high
birth rate. The overall cost to the government for refugee settlement areas, is a burden for
national economy. Cox’s Bazar is one of the key tourist destination points in Bangladesh, but
the huge refugee influx has had an adverse impact on tourism income. Due to the ongoing
situation of unrest, the number of tourist travelling to the region has decreased. Tour
operators claim that they will lose more than half million tourists in this season. The cross-
border trade with Myanmar and fishing in the Naf River have also deteriorated due to the
restrictions by the government which has had a disproportionate economic impact on
Bangladesh.747

3.5. Security Impacts of Rohingya Refugees
The forced migration of the Rohingya people is not only a humanitarian crisis but also a
threat to regional peace and security, as Myanmar is geographically connected to other
countries in the South Asian and Southeast Asian region. The Rohingya refugee crisis is no
longer a simple humanitarian issue but now poses a potential threat to internal security and
stability of Bangladesh and may represent a wider threat to transnational security in the

743 Myat, Lily. "The Rohingya refugee crisis: Social, economic and environmental implications for the local
community in Bangladesh." PhD diss., Flinders University, College of Humanities, Arts and Social Sciences.,
2018.
744 Ahmad, Syed Magfur, and Nasruzzaman Naeem. "Adverse economic impact by Rohingya refugees on
Bangladesh: Some way forwards." International Journal of Social, Political and Economic Research 7, no. 1
(2020): 1-14.
745 Idris, Iffat. "Rohingya refugee crisis: impact on Bangladeshi politics." (2017).
746 Alchatib, Satria Rizaldi. "The Political and Economic Impacts of Rohingya Refugee Crisis: Challenges and
Opportunities of Humanitarian Intervention in Post-Conflict Space." Insignia: Journal of International Relations
(2021): 88-101.
747 Myat, Lily. "The Rohingya refugee crisis: Social, economic and environmental implications for the local
community in Bangladesh." PhD diss., Flinders University, College of Humanities, Arts and Social Sciences.,
2018.

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Southeast Asian region.748 The ARSA militant group has already shown its ability to recruit
Rohingya jihad soldiers from refugee camps for cross-border fighting and smuggling of small
arms and drugs, which jeopardise law and order and threaten security claims that the radical
Islamist group al-Qaeda recently made an online appeal asking Bangladeshi Muslims to
support Rohingya by conducting extremist activities against Myanmar.749 A number of
radical groups, including Rohingya Solidarity Organisation (RSO), Arakan Islamic Front, and
Rohingya Patriotic Front that are active in border areas between Bangladesh and Myanmar,
include Rohingya in their activities.750 There are claims Harkat-ul-Jihad-i-Islami (HuJI) and
Jamat-i-Islam has been active in funding Rohingya refugees to undertake illegal activities,
within Bangladesh and along the border. As much of the threat to security posed by the
Rohingya and extremist groups is covert and unlikely to be readily detected, it seems that
there is likely to be a great deal more activity taking place than is known about, which
suggests that the security dilemma has yet to be fully realised or measured.751

3.6 Environmental Impacts of Rohingya Refugees
Among the most significant problems associated with refugee-affected areas are
deforestation, soil erosion, and depletion and pollution of water resources. Bangladesh is
already facing the challenges of environmental degradation due to refugee influx for decades,
but the recent refugee influx has been far more influential. Some of the key environmental
impacts arising from the Rohingya presence are in relation to natural disasters lack of supply
of drinking water and proper waste management. Additional refugee influx to existing local
population generates excessive demand for natural resources with long-term challenges for a
sustainable environment. According to Bangladesh forestry department, the Rohingya
presence has caused the stripping away of 4,000 acres of forest areas.752 Tekanf Wildlife
Sanctuary (TWS) is a reserve forest area of 28,688 acres of land, which is at risk due to
overexploitation of forest resources by local population and Rohingya refugee. The effect of
deforestation has a serious impact on the livelihoods of local population because they are
deprived of natural resources and adequate, water supply.753 The refugee crisis has become a
matter of genuine apprehension for Bangladesh due to the rising pressures on the
environment which is hampering the conservation and protection of the limited bio-diversity
in natural areas. The removal of natural forest cover by the overburden of human population
in those refugee camp areas sets in motion a cascade of environmental effects that will result
in complete degradation of the whole eco-system needed to support life.754 Consequently, the
aid group Doctors Without Borders has reported that “in Hakimpara refugee camp, a quarter

748 Ghoshal, Anushree. "Refugees and Human Security-A Study of the Rohingya Refugee Crisis." IMPACT:
International Journal of Research in Humanities, Arts and Literature (IMPACT: IJRHAL) 8 (2020): 1-8.
749 Rahman, Utpala. "The Rohingya refugee: A security dilemma for Bangladesh." Journal of Immigrant &
Refugee Studies 8, no. 2 (2010): 233-239.
750 Akhter, Mehereen, Sayed Mohammad Nazim Uddin, Nazifa Rafa, Sanjida Marium Hridi, Chad Staddon, and
Wayne Powell. "Drinking water security challenges in rohingya refugee camps of cox’s bazar, Bangladesh."
Sustainability 12, no. 18 (2020): 7325.
751 Hossain, Md Ismail, Isahaque Ali, Azlinda Azman, Iftakhar Ahmad, and Nafiul Mehedi. "The Rohingya
refugee crisis: A threat to peace and security in South Asia." The International Journal of Community and Social
Development 3, no. 4 (2021): 353-371.
752 Hammer, Leonard, and Saleh Ahmed. "Environmental responsibility and Rohingya refugees: potential
grounds for justice." Local Environment 25, no. 11-12 (2020): 1021-1031.
753 Myat, Lily. "The Rohingya refugee crisis: Social, economic and environmental implications for the local
community in Bangladesh." PhD diss., Flinders University, College of Humanities, Arts and Social Sciences.,
2018.
754 Hossain, Faruk, and Md Moniruzzaman. "Environmental change detection through remote sensing technique:
A study of Rohingya refugee camp area (Ukhia and Teknaf sub-district), Cox's Bazar, Bangladesh."
Environmental Challenges 2 (2021): 100024.

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of shallow tube wells have dried up” because deforestation has resulted in rainfall runoff to
the sea rather than recharging the underground aquafers. In addition, the WHO warns that
inappropriate construction of latrines near to tube wells have polluted the ground water and
threatened the health of people with diseases, such as dysentery and cholera. Thus, it can be
seen that the refugee crisis is seriously affecting the environment in Bangladesh, which
already faces many other challenges.755

3.7 Health Impact of Rohingya Refugees
More than 50,000 Rohingya refugee women were pregnant, however, a significant portion of
pregnant women did not have access to quality antenatal care. Mental health problems like
post-traumatic stress disorder (PTSD), depression, and suicidal thoughts were also commonly
prevailing in the Rohingya community. As the crisis has unfolded in Bangladesh,
international healthcare organisations have expressed increasing concern about health
conditions and transmittable diseases in refugee camps, which may become widespread
among refugees and local population due to lack of access to medical care and adequate
hygiene.756 The Rohingya refugees who are suffering from diseases are not registered and
may be carrying several communicable diseases, such as hepatitis B, tuberculosis, HIV, skin
diseases, and malaria. Bangladesh Institute of Peace and Security Studies, is concerned that
the infectious diseases could devastate the health support in refugee camps, as well as the
possibility of being spread among local people due to the movement of Rohingyas from one
place to another place for work.757

A number of authors and organisations have commented on health dilemma of
environmental degradation in camp areas and unhygienic conditions, which pose
considerable risk of affecting the local community.758 They are particularly concerned about
the primitive toilet facilities that create contaminated water and environs, as dysentery and
other gastro-intestinal diseases are a significant cause of illness and death, especially in
children. Reproductive issues in refugee camps, especially lack of awareness regarding
family planning, which increase birth and infant mortality rate, early marriage and other
health challenges, and the problem of sexual transmitted diseases.759 Furthermore, the
seriousness of drug addiction and related diseases, such as HIV and hepatitis, that have
rapidly increased due to Rohingya involvement in drug smuggling.760

3.8 Drug and Arms Trafficking
Bangladesh Government estimates that more than 500,000 undocumented Rohingyas are
distributed through Cox’s Bazar and Chittagong district. Many are facing extreme poverty
and may become involved in criminal activities just to survive. Bangladesh law enforcement
agency sources are aware of the illegal activities of Rohingyas, some of whom are involved

755 Hossain, Mohammad Pizuar. "The Rohingya refugee crisis: analysing the international law implications of its
environmental impacts on Bangladesh." The International Journal of Human Rights (2022): 1-20.
756 Islam, Mohammad Mainul, and Tasmiah Nuzhath. "Health risks of Rohingya refugee population in
Bangladesh: a call for global attention." Journal of global health 8, no. 2 (2018).
757 Joarder, Taufique, Ipsita Sutradhar, Md Imran Hasan, and Md Mafizul I. Bulbul. "A record review on the
health status of Rohingya refugees in Bangladesh." Cureus 12, no. 8 (2020).
758 Riley, Andrew, Yasmin Akther, Mohammed Noor, Rahmat Ali, and Courtney Welton-Mitchell. "Systematic
human rights violations, traumatic events, daily stressors and mental health of Rohingya refugees in
Bangladesh." Conflict and health 14, no. 1 (2020): 1-14.
759 Prodip, Mahbub Alam. "Health and educational status of Rohingya refugee children in Bangladesh." Journal
of Population and Social Studies [JPSS] 25, no. 2 (2017): 135-146.
760 Jeffries, Rosanna, Hassan Abdi, Mohammad Ali, Abu Toha Md Rezuanul Haque Bhuiyan, Mohamed El
Shazly, Sandra Harlass, Asm Ishtiak et al. "The health response to the Rohingya refugee crisis post August
2017: reflections from two years of health sector coordination in Cox’s Bazar, Bangladesh." PLoS One 16, no. 6
(2021): e0253013.

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in the trafficking of ‘Yabba’, which is a highly addictive mix of methamphetamine and
caffeine mostly produced in Myanmar, medicines, and wine smuggling in Chittagong and
Cox’s Bazar.761 The geographical proximity of the Golden Triangle, the opium producing
area where Thailand, Laos and Myanmar boundaries join, and the even more important
opium producing area of the Golden Crescent, covering the Afghanistan, Iran, and Pakistan
border area, make Bangladesh’s location perfect for heroin smuggling and international trade
in illicit drugs. Thus, these Rohingya are generating an internal security threat for Bangladesh
through their connections with arms smuggling, trafficking in drugs, and other criminal
activities.762 Bangladesh military security forces and police are very alert to these crimes and
frequently conduct operations to detect and arrest criminals; however, the task is daunting
and is hampered by lack of border control and widespread corruption.763

IV. CONCLUSION
There is a consensus in the assessments by government authorities, humanitarian aid
agencies, health professionals, environmental authorities, and law enforcement agencies that
the presence of Rohingya refugees in Bangladesh is leading to numerous impacts there that
are having serious, long-term negative effects on society, the nation and region. Rohingya
crisis is a wicked problem and a complex challenge for Bangladesh. The concluding
argument in the case of the Rohingya is that the unequal access to resources and opportunities
is the main cause of conflict between local people and refugees. However, it is clear that the
effects of the crisis in Bangladesh are more complex and widespread, reaching far beyond the
local communities where refugee camps exist, to the national, regional, and even
international levels. Therefore, an immediate strategy and comprehensive solution should be
sought to deal with Rohingya crisis and to protect the local population and Bangladesh from
threat.

761 Parnini, Syeda Naushin, Mohammad Redzuan Othman, and Amer Saifude Ghazali. "The Rohingya refugee
crisis and Bangladesh-Myanmar relations." Asian and Pacific Migration Journal 22, no. 1 (2013): 133-146.
762 Taufiq, Hossain Ahmed. "Rohingya refugee crisis and the state of insecurity in Bangladesh." arXiv preprint
arXiv:2107.12080 (2021).
763 Taufiq, Hossain Ahmed. "Rohingya refugee crisis and the state of insecurity in Bangladesh." arXiv preprint
arXiv:2107.12080 (2021).

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22 October 2022
E-ISBN 978-967-491-267-3

p. 205-214

17. REFUGEE, MIGRANT AND STATELESS
PERSON IN BANGLADESH: PROBLEMS AND

LEGAL PERSPECTIVE

Kaniz Tania Bint-E-Basar
Senior Lecturer; Department of Law,

Bangladesh University
Email: [email protected]

Kazi Sonia Tasnim
Senior Lecturer; Department of Law,

Bangladesh University
Email: [email protected]

ABSTRACT
This article presents a current issue of Rohingya, stateless and migrant people
who faced various problems in Bangladesh and state also faced problems to
maintain them. In this regard this paper will provide some solution to over these
problems. Bangladesh is currently hosting a large number of stateless people
namely Rohingya from August 2017. Beside this the liberation war of Bangladesh
in 1971 the Biharis were left behind are also treated as stateless and unprotected
persons. At present all these people have suffered decades of violence,
discrimination and persecution in a massive wave of violence broke out in
Myanmar Rakhine State. About a million of Rohingya people, more than half of
them are children, have fled violence in Myanmar to seek refuge across the border
in Bangladesh and suffered lack of basic demands. Bangladesh’s economy spends
an estimated $1.21 billion a year supporting the Rohingya and also unemployed
crisis and also involved in criminal activities like Yaba drug smuggling. Natural
disaster like flooding, fires and Covid-19 has created also fresh challenges for
Rohingya refugees in Bangladesh. The global pandemic, flooding and heavy
monsoon rains triggered flooding and landslides at Rohingya refugee camps in
Coxes Bazar has also creating a lot of sufferings. This paper will pave a way to
overcome these challenges. It will be qualitative research. The information will be
taken from many readings, articles, newspapers and books.

Key words: Refugee and Stateless, legal obligation, International Crisis

I. INTRODUCTION
Refugees are persons who are outside their country of origin for reasons of feared
persecution, conflict, generalised violence, or other circumstances that have seriously
disturbed public order and, as a result, require international protection. Refugees are people

Proceedings: International Conference on Peace and Conflict Resolution (ICPCR) 2022
International Peace and Security: The Achievement of the United Nations and the Way Forward

who have fled war, violence, conflict or persecution and have crossed an international border
to find safety in another country.764 A stateless person is someone who is not a citizen of any
country. Citizenship is the legal bond between a government and an individual, and allows
for certain political, economic, social and other rights of the individual, as well as the
responsibilities of both government and citizen.765 At present time Bangladesh faces
Refugees and stateless persons problems. Bangladesh is the over populated country so
Refugees entry has also created a lot of burden on this country. Additional people need
additional food, cloths, shelter, education and medical services which also create sufferings
both Refugees and the state. These issues must come to an end though effective solution.
Bangladesh is not signatory state to the 1951 Refugee Convention and its 1967 Protocol766 so
refugees have no legal rights and state has no legal obligations to accommodate all these
refugees. In Bangladesh Rohingya has created a lot of issues and crises on the security
perspective. As a result, the refugees and stateless people face a lot of problems as well as the
Bangladesh government can’t afford their basic demand. So, it is an emergency that how the
state less person stay in this situation. Every person has the right to a nationality and no one
shall be arbitrarily deprived of his nationality.767 A citizen is legally protected civil, political,
or social rights as the state that ensures those rights and international laws ensure the right to
nationality but statelessness cannot enjoy civil and political rights besides, they create a
global problem. The Rohingya causes the problem, of human security, the health crisis,
humanitarian crisis, citizenship, systematic dispossession, occupation, destruction of an
ethnic health, mental health and trauma, foreign policy of the host nation etc.

II. METHODOLOGY
This research is based on a socio legal study is an inter-disciplinary approach to analyse the
law, legal phenomenon, and relationships between these and wider society. Both theoretical
and empirical work is included, and perspective and methodologies are drawn from the
humanities as well as social sciences. Legal materials are authorised statements of law issued
by a branch of government. They include statutes, cases, and regulations –the law itself.
Secondary legal materials provide commentary and interpretation of the law and include such
materials as law reviewed articles, legal encyclopedias, and treaties.

This research is mainly based on quantitative method. Both primary and secondary
source have been applied for this research article, Books, articles, journals, enacted laws,
newspaper, media, national and international organisational functions and activities are also
helped to interpret and data analyses for this research articles.

III. HISTORICAL BACKGROUND OF THE ROHINGYA PEOPLE
Myanmar denies citizenship to the Rohingyas and the Rohingya people have lived in the
Arakan State of Myanmar for generations, which is called the historic home of Muslim
Rohingyas 768 The Rohingya people are assumed to have been present in the region since the
arrival of Arab traders through the Bay of Bengal in the eighth century and the majority
Buddhist communities who consider the Rohingyas to be illegal immigrants from
Bangladesh. The Rohingya are excluded from freedom of movement, and freedom of access
to education and employment, and were subject to the arbitrary confiscation of property and

764 https://www.unhcr.org/what-is-a-refugee.html.
765 Ibid.
766 UNHCR 1951.
767 Universal Declaration of Human Rights, 1948, Arti.15; UN 1998.
768 Citizenship Act, 1982.

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forced labor.769 The violation of citizens’ rights and forced labor are heard in the voice of this
Rohingya woman: I had to go and break stones that would be used for the road surface. The
army did not pay us or give us any food. I had to work in seven- to fifteen-day shifts from
seven in the morning until eight in the evening. I couldn't go home, so I had to sleep in the
army camp. Each time, the army would come to collect twenty to forty villagers to go work.
The village headman made the lists, and if we did not go, we could be arrested. I worked on
this project from 1997 to early 1998. Just before I left, I was working for the state-owned
Sukrasa Sugar Mill in Kaung Daung. I had to cut sugar cane and then carry it to the trucks.
Here, again, I worked seven- to fifteen-day shifts with no pay or food provided. 770 The
UNHCR also assessed that over 800,000 persons remained stateless/without citizenship in the
northern part of Rakhine State 771with most of the population forced to migrate to Bangladesh
due to the large-scale killings, rapes and human rights violations performed by state
authorities. As estimated by the UNHCR 907,199 persons have been forced to migrate to
Bangladesh.772

In the year 2017, about 700,000 people fled to Bangladesh to save their lives beside
these human rights violations, including rape, gang rape, and other forms of sexual violence
against women and girls, murder, torture, looting and the burning of homes and villages”773.
It is estimated that approximately 25,000 Rohingyas were murdered and 19,000 Rohingya
women and adolescents were raped during the conflict 774 with 392 Rohingya villages
demolished by torching all settlements to the ground. 775

Bangladesh and Myanmar signed an “agreement” to repatriate Rohingya refugees to
their native Rakhine State within two months, but without consulting either the UNHCR or
any Rohingya refugee communities failed due to Myanmar’s insincerity in meeting the core
demand of granting recognition to the Rohingyas 776.

IV. PROBLEMS FOR REFUGEES AND STATELESS PERSON IN BANGLADESH
(1) Stateless persons create a number of problems in a country like shelter and
humanitarian support as well as security problems.
(2) Sovereignty of Bangladesh is largely affected though the refugee and stateless
person as the government of Bangladesh has no control of incoming refugee or
stateless person.
(3) Though the issue has humanitarian appeal but the long-term stateless person
creates any other problems like political and socio-economical imbalance.
(4) As the economic and resource of a country are limited to meet the demand for her
own population. So, refugee and stateless person are additional burden of that
country.
(5) It is also violation of sovereignty of a state.
(6) Rohingya people have limited work right and freedom of movement.

769 Human Rights Watch, 2000 Human Rights Watch (2000a) Historical background.;
https://www.hrw.org/reports/2000/burma/burm005-01.htm.
770 Ibid.
771 UNHCR, 2015.
772 UNHCR, 2018.
773 UN, 2018.
774 The Daily Star 2018, The Daily Star (2018) Killing of Rohingyas: Death toll could be up to 25,000. The
Daily Star. https://www.thedailystar.net/news/frontpage/killing-rohingyas-death-toll-could-be-over-10000-
1622392.
775 Human Rights Watch, 2019.
776 The Daily Star, 2019.

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(7) Bangladesh is over populated country and her property and resources are also
limited so the country faces a lot of problems to achieve food security and ensure
human development goals.

(8) Bangladesh Government has already spent Bangladeshi taka (BDT) 2500 crores
and labor sectors are frusted though The Rohingya influx has reportedly caused a
14.3% wage reduction for all laborer’s among the host community in Teknaf,
Cox’s Bazar.777

(9) About 5500 acres of reserved forests and 1500 hectares of wildlife habitat have
been destroyed due to the pressure of such a large population. The cost of
environmental damage to 2018 was assessed as approximately BDT 1865 crores
(approximately US$215 million).778

(10) Refugees involved in the criminal activities in the Chittagong region like illegal
small arms trade, a flourishing business along the border, Yaba business, theft
and looting, are also noticeable among the community. To date, 31 refugees have
been killed in different clashes. At the same time, 1088 persons have been
accused in 471 cases, with 368 cases related to narcotics.779

(11) Young female refugees have been used of sex trafficking, with many ending up in
the sex markets of India and different Middle Eastern countries by using
Bangladeshi passport.780

(12) Human trafficking is one of the strong networks with many corrupt government
officials for passport and relevant documents.781

(13) Bangladesh government has given shelter Rohingyas in the Bhasan Char, 18,334
refugees have been shifted to the island in six phases, with the refugees
expressing their satisfaction about the camp facilities to foreign envoys who
visited the island on 3 April 2021.782

(14) The COVID-19 pandemic creates a humanitarian disaster in the Cox’s Bazar area

783

(15) Statelessness and Rohingyas from Myanmar to Bangladesh creates security crisis
in the state and the Rohingya refugee are also suffering miserable life as their
basic demand are not fulfilled adequately.

(16) The stateless and Rohingya are not only national problem, it is also an
international crisis as the Universal Declaration on Human Rights creates an
international obligation of right to nationality.

(17) Bangladesh has given shelter Statelessness and Rohingyas mostly on
humanitarian grounds, and Myanmar is not a signatory of the 1951 Refugee
Convention or of its 1967 Protocol, so it has failed to exert pressure on Myanmar
through legal procedures.

(18) It is the international claim of the stateless Rohingyas to repatriate to their
homeland. Bangladesh is not legally bound to give shelter stateless Rohingya
refugees and the state must file a suit for reparation against Myanmar on the

777 Ibid.
778 Ibid.
779 Ibid.
780 Rahman, 2010.
781 pers. communication, 14 September 2019.
782 Dhaka Tribune, 2021; Dhaka Tribune (2021) Rohingyas want to return to Myanmar; happy with Bhasan
Char facilities. Dhaka Tribune. https://www.dhakatribune.com/bangladesh/foreign-
affairs/2021/04/03/rohingyas-want-to-return-to-myanmar-happy-with-bhasan-char-facilities.
783 Al Jazeera, 2020, Al Jazeera (2020) First Rohingya refugee dies from coronavirus in Bangladesh. Al Jazeera.
https://www.aljazeera.com/news/2020/06/rohingya-refugee-dies-coronavirus-bangladesh-camps-
200602095409310.html.

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ground of environment pollution. International arbitration can be a useful
instrument,784 for rapid solution of human rights treaties to overcome refugee
stateless problems like the International Covenant on Civil and Political Rights,
the Convention on the Rights of the Child, the Convention on the Elimination of
All Forms of Discrimination against Women, the Convention on the Nationality
of Married Women etc.
(19) During COVID-19 many impoverished communities face a precarious existence
in crowded environments, making them particularly vulnerable and densely
populated urban and slum areas and Rohingya refugees are stuck in cramped,
squalid shelters, with up to 10 family members to a room. The heavy monsoon
rains in the coming month means the risk of outbreaks of water-borne diseases,
such as cholera, will escalate. Keeping the water and sanitation infrastructure
running for such a large camp population is an even greater challenge within the
current restrictions.785

V. INTERNATIONAL TREATY ON THE RIGHTS OF REFUGEE AND
STATELESS PERSON
The 1951 Geneva Convention is the main international instrument of refugee law. The
Convention clearly spells out who a refugee is and the kind of legal protection, other
assistance and social rights he or she should receive from the countries who have signed the
document. The Convention also defines a refugee’s obligations to host governments and
certain categories or people, such as war criminals, who do not qualify for refugee status. The
Convention was limited to protecting mainly European refugees in the aftermath of World
War II, but another document, the 1967 Protocol, expanded the scope of the Convention as
the problem of displacement spread around the world.786 The 1951 Convention Relating to
the Status of Refugees defines who is a refugee and outlines the rights of the displaced and
the responsibilities of states to protect them. It accords refugees with numerous rights
including access to courts of law, employment and primary education in the host country.787
Bangladesh is a signatory state of the United Nations Charter and the International Covenant
on Civil and Political Rights which creates a legal and ethical obligation on the state.
According to the ICCPR - Each State Party ... undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognised in the
present covenant.788 Another International Charter ensures that the state parties shall secure to
everyone within their jurisdiction the rights and freedoms defined for the Refugee.789 The...
Parties undertake to respect the rights and freedoms recognised herein and to ensure to all
persons subject to their jurisdiction free and full exercise.790 There are another regional treaty
SAARC’s basic principles, as outlined in its Charter, include “respect for the principles of
sovereign equality, territorial integrity, political independence, non-interference in the
internal affairs of other States.” 791It was as often difficult to define the reasons which could
be regarded as constituting good cause for the illegal entry into, or presence in, the territory

784 United News of Bangladesh [UNB] 2019.
785 https://www.googleadservices.com/pagead/aclk?sa=L&ai=DChcSEwjk5LHmiLD6AhUjmGYCHXYS
CpwYABAGGgJzbQ&ohost=www.google.com&cid=CAASJeRo6NlNQAyPAByTnOSKIWmXXOVMj-
9REdNLbFKmXLrfmv5_N4I&sig=AOD64_0pA8FOEBMOnzWlMswvWjjkdibknw&q&adurl&ved=2ahUKE
wj2yKrmiLD6AhU77TgGHXSTAksQ0Qx6BAgGEAE available at the date 25th Sept. 2022.
786 https://www.unrefugees.org/refugee-facts/what-is-a-refugee/.
787 The 1951 Convention Relating to the Status of Refugees, Article 16, 17, 18, 19, 22.
788 Covenant on Civil and Political Rights 1966, Art. 2(1).
789 European Convention 1950, Art. 1.
790 American Convention 1969, Art. 1.
791 Charter of the South Asian Association for Regional Cooperation (1985), Article II.

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of a State of refugees. But it was precisely on account of that difficulty that it was necessary
to make more explicit to admit without any reservation that a refugee who had settled
temporarily in a receiving country was free to enter another, would be to grant him a right of
immigration which might be exercised for reasons of mere personal convenience.792

VI. STEPS TAKEN BY THE BANGLADESH GOVERNMENT FOR REFUGEES
AND STATELESS PERSONS
Bangladesh aims to eventually relocate around 100,000 Rohingya refugees to the previously
uninhabited Bhashan Char to ease overcrowding in the sprawling network of refugee camps
near Cox's Bazar. Bangladesh has provided shelter the massive 1.1 million Rohingyas by
housing them in 34 camps at Cox's Bazar. Bangladesh's Rohingya asylum policy is
undoubtedly one of the most significant humanitarian efforts in recent history. The vast
majority live in 34 extremely congested camps, including the largest single site, the
Kutupalong-Balukhali Expansion Site, which is host to approximately 626,500 Rohingya
refugees. Despite persistent concerns and criticism expressed by international human rights
organisations, the Bangladeshi government has relocated nearly 20,000 Rohingya refugees to
Bhasan Char since December 2020.

IDA (International Development Association – World Bank Group) reiterated its
engagement in refugee situations through IDA19 Window for Host communities and
Refugees (IDA19 WHR) with an initial US$ 2.2 billion package to support low-income
countries hosting large numbers of refugees. The aim of IDA Deputies is to use WHR
financing to contribute to policy change enabling the socio-economic inclusion of refugees
and host communities and a commitment was made by the Bank to "conduct a systematic
review of refugee policy and institutional environments in countries eligible for the WHR
since their initial eligibility, to inform further support for the creation of socio-economic
development opportunities for refugee and host communities in these countries."793

VII. BANGLADESH PERSPECTIVE
There were substantial refugee inflows to what was then known as East Bengal during the
1947 Partition of India. These refugees were primarily Muslims from central and eastern
states of undivided India.794Since the 1970s the Rohingya, a minority ethnic group from
Myanmar, have sought refuge in Bangladesh and other countries as a result of persecution in
Myanmar. 795 Bangladesh is not party to the 1951 Refugee Convention and its related
protocols. No legal instruments or policy frameworks aimed specifically at refugees and
asylum seekers have been established on a national level. The Constitution of Bangladesh
enshrines fundamental rights, some of which are applicable to non-citizens796 In Bangladesh
there are no domestic laws that define who is a refugee and regulate what rights they may be
accorded. Bangladesh is a signatory to other international human rights treaties, which
indirectly protect the rights of certain groups of refugees and asylum seekers, such as the UN
Convention on the Rights of the Child. However, these treaties are unlikely to be enforceable
in domestic courts of law as they have not been incorporated into municipal laws nor have,
they been given effect through separate legislation. The issue has been mostly addressed by

792 Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Summary.
Records: UN doc. A/CONF.2/SR.14 (M. Colemar, France).
793 Bangladesh: Refugee Policy Review Framework Country Summary as at 30 June 2020 (March 2022).
794 Kamaluddin A.F.M. (1985) Refugee Problems in Bangladesh. In: Kosiński L.A., Elahi K.M. (eds) Population
Redistribution and Development in South Asia. Geo Journal Library, vol 3. Springer, Dordrecht.
795 See Xchange’s The Rohingya Survey 2017 for historical background of the Rohingya refugee situation and
timeline leading up to the current crisis. Available at: xchange.org/rohingya-survey-2017.
796 Mohammad N. (2012) Refugee Protection under the Constitution of Bangladesh: A Brief Overview. Refugee
Watch (39) pp. 141-156.

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bilateral engagement, with the Governments of Bangladesh and Myanmar signing a
repatriation deal in November 2017.The majority of protection-related assistance, including
registration and needs assessments, has been provided by multilateral organisations, such as
UNHCR and IOM, and international aid organisations.797The Government of Bangladesh’s
reluctance to establish a refugee protection framework can be explained to some extent, by
the domestic context and the complex nature of the Bangladesh-Myanmar border. Rohingya
refugees have been blamed for the increase in the domestic drug trade and other crimes, as
well as for damage to the local environment.798 The Rohingya have thus been seen as a threat
to national security and domestic law and order. The absence of a national policy framework
and any legally-binding structures to deal with refugees in Bangladesh has had several
implications. Firstly, it has led to arbitrary and discretionary decision making. of the
Rohingya.799

Secondly, the lack of a legally-binding framework has resulted in a failure to
adequately address the needs of the refugee population. It has led to slow-moving and ad hoc
policies. For example, the absence of institutionalised legal and policy processes has created
logistical hurdles. Bangladesh, thus far, has focused on providing transitory relief rather than
enabling longer term integration into Bangladeshi society. Living conditions in camps are
characterised by inadequate space, scarcity of potable water, and insufficient medical
attention.800In addition, the absence of any opportunities for meaningful employment
increases the potential for Rohingya refugees to be exploited and drawn into the shadow
economy, resulting in a higher incidence of human and drug trafficking and other crimes.

VIII. RECOMMENDATIONS
(1) To seek refuge and asylum must be established, and policies to enable refugees
and asylum seekers to access education, healthcare, and employment must be
designed and implemented.
(2) Creating these opportunities for the Rohingya would increase the potential for
longer-term integration and would address legitimate domestic concerns over
human and drug trafficking across the Bangladesh-Myanmar border.
(3) Establishing these legal structures and institutionalising these policies will
certainly constitute a challenge for Bangladesh, especially considering the
nation’s domestic context and its limited resources.
(4) Bangladesh must work with local, regional and international actors, including
multilateral bodies, aid organisations, civil society and forced migration experts
from academia and elsewhere, to develop lasting and ethical solutions to the
crisis.
(5) ASEAN and SAARC must become more active participants to ensure that these
organisations constitute something more than just a sum of their sovereign
member states. While significant effort is required to improve SAARC’s
effectiveness on the whole, ASEAN has, to a certain extent, begun to overcome
non-interference to cooperate in certain humanitarian contexts. For example, in
2008, ASEAN worked to compel Myanmar into a more powerful humanitarian

797 Xchange Foundation (2018) Rohingya Repatriation Survey. Available at: xchange.org/rohingya-repatriation-
survey/.
798 Al Imran H.F. & Mian M.N. (2014) The Rohingya Refugees in Bangladesh: A Vulnerable Group in Law and
Policy. Journal of Studies in Social Sciences (8)2 pp.226-253; Yesmin S. (2016) Policy Towards Rohingya
Refugees: A Comparative Analysis of Bangladesh, Malaysia and Thailand. Journal of the Asiatic Society of
Bangladesh (61)1 pp.71-100.
799 Human Rights Watch (2000) Burmese Refugees in Bangladesh: Still No Durable Solution, May 2000.
800 Milton A.S. et al. (2017) Trapped in Statelessness: Rohingya refugees in Bangladesh. International Journal of
Environmental Research and Public Health (14).

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response to the impact of Cyclone Nargis. Individual member states will need to
play a more significant role in facilitating this regional cooperation. Malaysia and
Indonesia, having already expressed concern for the plight of the Rohingya and
their desire for constructive engagement through ASEAN to solve the crisis,
demonstrate a pathway for individual states to lead a more coordinated regional
response.
(6) Regional organisations and Asian states learn from the current crisis and develop
legal and policy frameworks, at both regional and national levels, that define,
regulate, and protect refugees and asylum seekers.
(7) Establishing national and regional frameworks will play a vital role in reducing
uncertainty and enabling quicker and more effectual responses to future crises.
(8) National interests and transnational policy issues must be addressed.
(9) Forced migration must cease to be framed as a national security issue and instead
needs to be recognised as a transnational and humanitarian issue requiring a
transnational and humanitarian response.

IX. LEGAL REMEDIES FOR REFUGEE ISSUE
Refugee problems can only be solved in three different ways: - through voluntary
repatriation, through resettlement overseas and through integration either in the country of
present residence or in combination with intra-European migration. States are entitled to
exercise jurisdiction at their international borders, but they must do so in light of their human
rights obligations. This intended to inform the work of States, international organisations and
other stakeholders with an interest in human rights-based border governance.

International Court of Justice can play vital role to solve the Refugee issue. 801From
February 21 to 28, 2022, the International Court of Justice (ICJ) in The Hague, Netherlands,
will hold public hearings in the Case of The Gambia v. Myanmar concerning Myanmar’s
alleged violations of the Genocide Convention against the ethnic Rohingya population in
Myanmar’s northern Rakhine State.802

A bilateral treaty is a treaty strictly between two state entities. It made an agreement by
negotiations between two parties, established in writing and signed by representatives of the
parties.803 Bilateral treaty paved the way of Refugee and stateless problem.

(1) Adopt a comprehensive approach to finding appropriate durable solutions for
persons recognised as refugees or others in need of international protection.

(2) Undertake activities to facilitate voluntary repatriation and sustainable
reintegration, in cooperation with relevant partners, as well as post-return
monitoring.

(3) Explore local integration options such as leave to remain and naturalisation for
certain groups.

(4) Explore resettlement options and quotas for specific groups, use resettlement
strategically and coordinate resettlement needs with a view to adopting a region-
wide approach.

(5) Explore opportunities within migration frameworks as a complementary avenue
for refugees.

801 https://doi.org/10.1093/acprof:oso/9780198262350.003.0058 access on the September 30, 2022.
802 The Gambia v. Myanmar, 2019,ICJ.
803 https://en.wikipedia.org/wiki/Bilateral_treaty#:~:text=A%20bilateral%20treaty%20(also%20called,by%20
representatives%20of%20the%20parties.

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9.1. Voluntary Repatriation
Voluntary repatriation, where and when feasible, is one of the three durable solutions
forrefugees.804 It generally requires appropriate measures to ensure that any choice regarding
return made by refugees is voluntary, free from coercion, and based on objective information.
Support for the return of refugees to conditions of physical, legal and material safety, with
full restoration of national protection as the ultimate end, ensures that return takes place in
safety and with dignity and that it is sustainable. Involvement of all stakeholders, including
returnees, host and origin countries, UNHCR, other international organisations, and partner
NGOs, is an important element in successful repatriation exercises. Cooperation
arrangements ensure that an appropriate framework for sustainable return is established both
in the host country, through the provision of information, documentation and financial
support, and in the country of origin through legal guarantees for amnesties, property
restitution and reintegration projects.805

9.2. Obligations of the UN and the UNHCR
The United Nations High Commissioner for Refugees (UNHCR), a non-political,
humanitarian agency, was created by the United Nations General Assembly in December
1950 and began operations on 1 January 1951. Its mandate is to provide international
protection to refugees and promote durable solutions to their problems. UNHCR's role is “to
lead and coordinate international action for the world-wide protection of refugees and the
resolution of refugee problems.” To achieve this, it oversees registration, protection and
assistance to specific groups of refugees in 115 countries; monitors compliance with
international refugee law. Besides these various remedies which have been sought by states
from the ICJ have included mere declarations of a breach, the designation of a boundary line,
restitution, the award of damages, and performance. Though, UNHCR works to support the
Government of Bangladesh to provide essential services and meet the protection needs of
refugees, including special services for women, children and persons with disabilities. The
High Commissioner reminded that international support was vital, “including flexible
funding to protect Rohingya refugees until they can safely return home. So, active role of the
UNHCR must be ensuring as long as the remedies of the Refugees crisis come to a permanent
solution.

X. CONCLUSION
The Refugee people are one of the most persecuted minority groups in the world and they are
forced to live life on the margins of society or in confined camps which causes sexual
violence, repeated infectious diseases, child or bonded labor, arbitrary arrest, detention, or
even forced deportation. It is not only national crisis but also international problem regarding
violation of Human Rights. The Refugee crisis also causes of violation of state sovereignty
which is very important any independent state. The Host state and the Refugee suffer years
after years which is a continuous suffering in every sector. This is a serious violation of
human rights for the Refugee people and they lead an unsecured life in every moment. The
problem can be removed through Bilateral international treaties, which specifically regulate
relations between two particular states which will play principal role for the refugee and
stateless crisis and which shall solve substance and complexity, regarding a wide variety of
matters, such as refugee and stateless crisis. Next step can be The International court of

804 https://reporting.unhcr.org/node/11482 available at the date of September 30, 2022.
805 UNHCR, Executive Committee Conclusion on Legal Safety Issues in the Context of Voluntary
Repatriation of Refugees, No. 101 (LV), 2004, available at:
http://www.unhcr.org/refworld/docid/417527674.html.

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Justice which will settle refugee disputes between states in accordance with international law
and gives advisory opinions on refugee issues. The International Court of Justice (ICJ) may
give a remedy for a violation of international law. This is because the ICJ can only deal with
disputes between states. ICJ’s jurisdiction is based on the consent of the parties. The
International Organisation like United Nations and others organisations like UNHCR,
ASEAN, SAARC, National and International NGOs should play an effective role to solve the
Refugees and the stateless person’s problems. Not only one policy but also various policies
taken by the government and the international organisations may solve the Refugees and
stateless persons crisis.

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22 October 2022
E-ISBN 978-967-491-267-3

p. 215-230

18. PROTECTION OF THE RIGHTS OF
MIGRANT WORKERS UNDER BANGLADESH

EMPLOYMENT LAWS

Mohammad Dulal Miah
PhD Candidate, Ahmad Ibrahim Kulliyyah of Laws,

International Islamic University Malaysia
Email: [email protected]

Muhamad Hassan Ahmad
Assistant Professor, Ahmad Ibrahim Kulliyyah of Laws,

International Islamic University Malaysia
Email: [email protected]

ABSTRACT
In the last few decades, migrant workers have played a vital role in the
development of the Bangladesh economy and contributed to increasing the
national GDP by sending foreign remittances. According to an ILO report, more
than 400,000 Bangladeshi migrant workers travel abroad yearly for overseas
employment. In this regard, the protection of the rights of migrant workers is
essential to maintaining economic growth and GDP. In addition, human
trafficking is one of the most terrible crimes and severe ownership violations in
the contemporary world. The absence of national employment rules and
regulations has also put Bangladeshi migrant workers in a precarious position.
However, in recent years, Bangladesh has taken some important steps to protect
against human trafficking and amended the national labour law to protect the
rights of migrant workers. This paper examines Bangladesh's legal framework for
the employment of migrant workers and discusses domestic labour law and the
ways to protect the rights of migrant workers. Although Bangladesh's labour
legislation is considered to be comprehensive, it also advises the establishment of
laws that are strict and fair in order to combat the trafficking of migrant workers
and secure their rights. This paper also used analytical approaches as a
methodology to achieve its objectives.

Keywords: Protection, Rights, Migrant Workers, Bangladesh Labour Laws.

I. INTRODUCTION
Nowadays, labour migration is a major global issue that mostly affects the labour market.
Bangladesh is one of the major labour-sending countries in the world. A significant number
of Bangladeshi migrant workers leave the country voluntarily every year for long-term and

Proceedings: International Conference on Peace and Conflict Resolution (ICPCR) 2022
International Peace and Security: The Achievement of the United Nations and the Way Forward

short-term employment and to send remittances to their families in Bangladesh.806 Labour
migration is a significant factor in the development of the national economy. Over a half
million Bangladeshi leave, the country each year for long-term and short-term employment
abroad; this trend began in the 1970s, accelerated through the 1980s and 2000s, and has
recently experienced a sharp increase in 2005.807 According to the Bangladesh government
records, 6087 Bangladeshis left the country for the first time in 1976 in search of jobs outside
the country after independence on 16 December 1971. In 2017, over a million migrant
workers legally crossed the country's border.808 However, human trafficking is a horrible
form of organised crime that affects every country around the globe, including Bangladesh.
Migrant workers from Bangladesh are also susceptible to becoming victims of this crime. It
presents humanity with a tragic and hopeless aspect. In mid-2015, The mass grave containing
the bodies of victims of human trafficking from Bangladesh was discovered in the jungles of
Thailand and Malaysia, making headlines worldwide.809 According to the IOM report, around
12.5 million Bangladeshi migrant labourers are currently employed in 165 countries.810 Most
Bangladeshi migrant workers look for a job in industrialised nations where there is a large
demand for unskilled or semi-skilled labor in order to improve their life and escape
poverty.811 These persons are referred to as "migrant workers" because they work or have
worked in remunerated activities at a location where they do not hold the nationality of the
country where they work. Alternatively, these individuals are considered foreign workers
because they are not citizens of the nation in which they are employed. In Malaysia, migrant
labourers have been one of the most significant contributors to the country's economic growth
for the past several decades due to the country's bright employment future.

In the early 1990s, successive governments in Bangladesh acknowledged the
significance of labour migration to the country's overall economy. A significant number of
Bangladeshi professionals, students, and workers have established homes in more than 162
nations around the world since the middle of the 1970s, where they pursue further education
and find employment, according to the Population Division, Department of Economic and
Social Affairs, United Nations report about "International Migration Stock 2017".
Bangladesh is now widely recognised across the globe due to the vast number of its citizens
who have sought employment in other countries as labour migrants.812 Under the Universal
Declaration of Human Rights ("UDHR") 1948, migrant workers are genuinely entitled to
certain safeguards and rights as human beings since they are in a vulnerable position.813
However, they are frequently exploited and subjected to trafficking and frequently subjected
to disparities in the labour market. They also have very little protection..814 The dawning of

806 Siddiqui, Tasneem. "International labour migration from Bangladesh: A decent work perspective." Policy
Integration Department Working Paper 66 (2005).
807 See, http://www.bmet.gov.bd/ (last visit on August, 12, 2022).
808 Ibbl
809 'Engaging Youth to Fight Human Trafficking', Commonwealth Blog 'YourCommonwealth', viewed from <
http://www.yourcommonwealth.org/social-development/human-rights/engaging-youth-to-fight-
humantrafficking/> on 10 September 2022.
810 Policy Brief - The Implementation of Bangladesh's Overseas Employment and Migrants Act of 2013 and the
Prevention and Suppression of Human Trafficking Act of 2012 (https://publications.iom.int/books/policy-brief-
implementation-bangladeshs-overseas-employment-and-migrants-act-2013).
811 ILO, International Labour Standards on Migrant workers, available at http://www.ilo.org/
global/standards/subjectscovered-by-international-labour standards/migrant-workers/lang--en/index.htm (last
visited on September, 12, 2022).
812 Gröschl, J., & Steinwachs, T. (2017). Do natural hazards cause international migration?. CESifo Economic
Studies, 63(4), 445-480.
813 See The People's Movement for Human Rights Education, available at https://www.pdhre.org/
rights/migrants.html (last visited on September, 12, 2022).
814 Supra note 1.

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such an understanding had led to the establishment of some significant legislative and
institutional measures that, among other things, resulted in the creation of a distinct Ministry
of Expatriates' Welfare and Overseas Employment; the formation of the Wage Earners'
Welfare Fund; and the establishment of several other organisations. The design of the
framework for the Overseas Employment Policy; the Overseas Employment and Migration
Act of 2013, and the “Probashi Kallayan Bank” (PKB- Migrants' Welfare Bank) were
established, and the 1991 UN Convention on Migrant Workers and Members of Their
Families was ratified, restrictions on female labour migration were gradually lifted,
microfinance institutions were permitted to act as the final stop for remittance transfers, and
the “Probashi Kallayan Bank” (PKB- Migrants' Welfare Bank) was established.815
Bangladeshi migrants workers are entitled to the protection of their rights under the
Bangladesh employment/ labour laws, which include the Overseas Employment and Migrants
Act 2013 (Act No. 48 of 2013) (hereafter the OEMA), The Prevention and Suppression of
Human Trafficking Act 2012 (hereafter "the PHSA) and the Constitution of the People's
Republic of Bangladesh.

While Bangladesh has passed some essential legislation to protect the rights of migrant
workers and prevent human trafficking, these laws are not fully effective due to legal and
practical hurdles. To better understand the challenges that survivors of human trafficking
confront daily, this article will examine the current legal system of Bangladesh's
Employment/Labour Act and assess the extent to which it protects the rights of migrant
workers. The paper has also tried to provide a path forward that avoids the aforementioned
legal hurdles.

II. DEFINITION OF MIGRANT WORKERS
Migration has been a part of human history since the beginning. It continues to transform
countries, civilisations, and the way a significant number of people all around the world live
their lives. In a broad sense, human migration can be defined as the movement of people
away from the location of their birth to a new location, typically with the goals of finding
work, settling down permanently or temporarily, or both. Migration can either be domestic or
international in scope. Migration across international borders has developed into a common
problem throughout the world. Migration is becoming more widely understood to be a tool
for both the nations of origin and the countries to which migrants are moving rather than just
the movement of people from one place to another. According to the findings of the World
Migration Report 2018, it was estimated that there were 244 million international migrants in
the world in 2015. It represents 3.3% of the total population.816 A "migrant worker" is defined
by Bangladesh labour legislation as any citizen of Bangladesh who, in exchange for wages,
(a) is preparing to migrate for work or is abandoning for any foreign country to work; (b) is
employed in a trade or profession in any foreign country, or (c) has returned to Bangladesh at
the end of the employment term or without having completed the employment term from a
previous employer.817

According to the International Labour Organisation (ILO), a "migrant worker" is
someone who moves from one country to another to work for someone other than
themselves. This definition also encompasses any person who is regularly admitted, as a
migrant, for employment. In 1949, while the ILO Convention was being written, several
groups of workers were specifically excluded from the definition of the migrant worker. It

815 See, C R Abrar, 'Reviewing Initiatives for Migrant Well-being', the Daily Star, 25th Anniversary Special Part
- 5, February 05, 2016.
816 McAuliffe, M., & Ruhs, M. (2017). World migration report 2018. Geneva: International Organization for
Migration.
817 Section 2 (3), The Overseas Employment and Migrants Act, 2013

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was done to reflect the prevalent migration patterns at the time. The following types of
workers are not included:818 Workers who enter a country illegally, frontier workers, artists,
and members of liberal professions who arrive for a brief amount of time, seafarers, self-
employed people, people coming mainly for training or education, people on a specific
business or assignment for their organisation in another country for a limited or specified
time, and who are compelled to depart the country upon fulfilment of their responsibilities or
duty. The United Nations Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families, which was approved in 2000, presently contains the bulk of
these categories. It represents the most current knowledge of migration patterns from the
perspectives of both the exporting nations and the receiving countries. "Included are the
following categories of workers:819 Traveling employees, immigrants recruited for a
particular project, frontier employees who reside in a neighbouring State and visit there daily
or at least once per week, seasonal employees, seafarers working on ships registered in
another State than their own, employees on offshore facilities under the authority of another
State than their own, and self-employed individuals are all examples of workers.

III. SAFE MIGRATION AND HUMAN TRAFFICKING CASES
The protection of migrant workers faces a significant obstacle in the form of human
trafficking as there is a connection between labour migration and human trafficking. The
relationship between an employer and an employee and the risk of injury and danger inherent
in the workplace are factors in most cases of labour trafficking. Since there is a connection
between labour migration and human trafficking, the protection of migrant workers faces a
significant obstacle in the form of human trafficking. Most instances of labour trafficking
involve the relationship between an employer and an employee, in addition to the danger and
threat that can be found in the working environment.820 In recent decades, the practice of
human trafficking, often known as slavery in its modern guise, has been characterised in
connection to working and living situations degrading to human dignity.821 In this context,
the Forced Labour Convention 1930 (No. 29) of the International Labour Organisation (ILO)
defines forced or compelled labour as "any works or services exacted from any person under
the fear of a penalty and for which the individual has not volunteered themself voluntarily.

Additionally, the Forced Labor Protocol's Article 1 (3) explicitly reaffirms the
definition by adding three crucial components: (a) work or service, which refers to all forms
of work performed in any activity, industry, or sector, including the informal economy; (b)
threat of any penalty, which refers to a variety of penalties used to compel someone to work;
and (c) involuntariness, which refers to false promises that induce an employee to accept the
obligation to work.822 The relationship between labour migration and trafficking, according to
the International Labour Organisation (ILO), has long been recognised. The International
Labor Organisation's Migrant Workers Convention (No. 143) was the first international law
to establish measures to prevent human trafficking in 1975. The ILO Convention No. 29 on
Forced Labor, adopted in 1930, was most recently updated at the 2014 International Labour
Conference (ILC) with the adoption of a new Forced Labour Protocol to address issues

818 ILO, above n 2, Article 11 (2).
819 UN, International Convention on the Protection of the Rights of All Migrant Workers and Members of their
Families, 2000, Article 2 (2).
820 M. Ajis, K. Askandar & S. Awang, International Migration and Human Trafficking in Malaysia: A Study on
Illegal Immigrants, 11:25 ASIAN SOCIAL SCI. 125 (2015).
821 LO, General Survey on the fundamental Conventions concerning rights at work in light of the ILO
Declaration on Social Justice for a Fair Globalization, Report of the Committee of Experts on the Application of
Conventions and Recommendations (2012), available at https://www.ilo.org/ilc/ILCSessions/
101stSession/reports/reports-submitted/WCMS_174846/lang--en/index.htm (last visited on August, 10, 2022).
822 Id.

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including human trafficking. The relationship between migration and human trafficking, as
well as migratory workers, is specifically addressed in the Protocol. Principle 11 of the ILO
Multilateral Framework on Labour Migration details the connection between labour
migration and human trafficking. Before 2000, various definitions of human trafficking took
regional and geographic contexts into account.823 In 2000, the United Nations adopted a
protocol to end the practice of human trafficking worldwide to standardise the many regional
definitions. This treaty, which entered into force in December of 2003, intends to suppress,
punish, and prevent the trafficking of women and children worldwide.824

Bangladesh is a significant country for labour migration overseas. The movement of
persons searching for work from their home state to another state is called "labour
migration." With this migration, human trafficking is a possibility. There is a chance of
becoming involved in human trafficking. Bangladesh has become a more and more lucrative
location for people trafficking due to labour migration. A significant number of Bangladeshi
migrant workers are victims of fraudulent recruitment practices (for example, the receiving of
money from migrant workers), and a significant number of migrant men and women have
been coerced into exploitative practices that are analogous to human trafficking. A significant
number of these victims have been subjected to physical or sexual violence, threats, restricted
movement, or non-payment of salaries while residing in another country. According to the
2016 Trafficking in Persons Report (TIP) from the United States Department of State's Office
to Monitor and Combat Trafficking in Persons, Bangladesh is both a source and transit nation
for victims of human trafficking, including those who are coerced into labour or
prostitution.825 Some Bangladeshi workers in the Middle East, Southern and East Africa,
South and Southeast Asia, Europe, and the United States work in conditions consistent with
forced labour. Many migrant workers risk debt bondage because they take on debt to pay
high recruitment fees before leaving their home country. These fees are levied legally by
agencies members of the Bangladesh Association of International Recruiting Agencies
(BAIRA) and illegally by unlicensed sub-agents. Contract swapping is a form of recruitment
fraud in which an agency or agent misleads a candidate by promising one set of working
conditions and then delivering something entirely different once the candidate has started
working for the company.826

IV. PROTECTION OF THE RIGHTS OF MIGRANT WORKERS UNDER THE
BANGLADESH CONSTITUTION
The Bangladeshi Constitution explicitly or implicitly recognises the fundamental civil and
political rights of migrant workers and members of their families. It is abundantly plain in the
Preamble to the Constitution that the state's mission is to create a society that is "free from
exploitation," based on the rule of law, and sustained by respect for "fundamental human
rights and freedoms."Equal opportunity is guaranteed in Article 19, and respect for one's
labour is acknowledged as a right, a duty, and a matter of honors in Article 20 of the
Constitution. In more concrete terms, article 27 of the Bangladeshi Constitution, which is
located in Part III and which enshrines the fundamental rights that are enforceable, guarantees
for equality before the law, but article 28 of the same constitution outlaws discrimination.
Forced labour is forbidden by Article 34, which also makes it a crime under the law as it

823 Rahman, M. A. (2011). Human Trafficking in the era of Globalization: The case of Trafficking in the Global
Market Economy. Transcience Journal, 2(1), 54-71.
824 Ibid.
825 Bangladesh". Trafficking in Persons Report 2010. U.S. Department of State (June 14, 2010). This article
incorporates text from this source, which is in the public domain.
826 TIP report 2018 of the U.S. Department of State Office to Monitor and Combat Trafficking in Persons, p.88,
viewed from < https://www.state.gov/documents/organization/258876.pdf > (accessed on 21 September 2022).

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stands. The Supreme Court's High Court Division is authorised to apply the Constitution's
Article 44 to legally enforce fundamental rights in accordance with Article 102, Clause 1. (1).
The rights granted by the Bangladeshi Constitution appear to comply with the requirements
and core principles of the 1990 International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families (MWC). However, just because a right
is guaranteed by the Constitution does not automatically mean that it will be upheld and
maintained.

V. PROTECTION OF THE RIGHTS OF MIGRANT WORKERS UNDER
NATIONAL LAWS
The issue of human trafficking is of concern on a global scale. In response to this problem,
several jurisdictions have passed laws that specifically criminalise the practice of human
trafficking. Bangladesh has also passed several legislation to combat the course of human
trafficking. The law both defines and protects the rights of individuals and groups. It gives
authority to act against cruelty, restricts access to share economic, political, and social
resources, provides the foundation for institutions, and expresses a society's core values and
beliefs. Consideration of human trafficking in Bangladesh reveals two fundamental truths:
first, it is a common crime that involves severe violations of human rights, and second, it
results in victims who need to be rescued and protected. Three dimensions are commonly
used to combat this crime. The first has to do with efforts made by the criminal justice system
to find, charge, and punish traffickers. The second focuses on compensating trafficked
individuals through care and support and realistic, sustainable livelihood possibilities. The
third is stopping trafficking at its source by dealing with its underlying causes.

5.1 The Overseas Employment and Migrants Act 2013 (Act No. 48 of 2013)
According to section 3 of the act, the government of Bangladesh or its delegated authorities
are responsible for exercising control over any actions related to the recruitment and
departure of migrant workers from Bangladesh to find employment outside of Bangladesh.
As a result, no citizen shall migrate or encourage other citizens' migration to obtain
employment overseas unless they do so in conformity with the terms of this act.827 Due to a
citizen's migration, additional documents must be submitted in addition to the clearance
issued under Section 20. A letter of appointment for an overseas job, a work permit, or a no
objection certificate issued by any authorities of the nation are among the additional
documents. Also included are (a) proof of recruitment for overseas employment by a person,
organisation, or entity authorised by the government under an agreement reached with any
country or (b) proof of employment by recruitment. These might be employed as protection
and surveillance tools to watch over migrant workers and guard against their exploitation as
human trafficking victims.

5.2 Application of the Principle of Equality
No one shall be subjected to discrimination because of their gender, language, birth, colour,
age, ethnicity or national origin, political opinions, religion, ideology, family, marital status,
social identity, or regional affiliation in connection with employment of migrant workers
abroad, their return, the provision of services, or the performance of any other action under
this agreement.828 The port or location, as may be defined by the government by the
announcement in the Official Gazette, will serve as the departure point for employment
overseas.829

827 Section 4, The Overseas Employment and Migrants Act, 2013.
828 Ibid, Section 6.
829 Ibid, Section 7.

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5.3 Restrictions relating to Migration
(1) The state may restrict migration to a country by order if the government
determines that doing so will be against the public interest or state interest or will
put Bangladeshi residents' health and safety in danger.830
(2) The government may temporarily impose restrictions on the movement of a
person or a group of citizens in the public interest or to protect human
resources.831

5.4 Recruitment Agents and License
The details about recruitment agencies, licenses, and other relevant topics are discussed in
Sections 9-18 of the Overseas Employment and Migration Act 2013.832 According to section
9(1) of this act, no one is allowed to engage in any activity that is related to recruitment
unless they have been awarded a licence.833

The recruitment agent must carry out their separate responsibilities for protecting
migrant workers by Section 15 of the Act. The provision requires the recruitment agent to
carry out the following tasks: protecting the interests of migrant workers; producing, as
necessary, the migrant worker for registration under section 19; obtaining migration
clearance; hiring the migrant worker for the position offered; providing wages and other
benefits; ensuring a positive work environment by the terms and conditions of the
employment contract; and maintaining communication with the migrant worker. All of these
responsibilities must be fulfilled by the terms and conditions.834

Section 18 makes a reasonable provision for getting compensation from a recruiting
firm. The surety money may be used to cover compensation for any affected migrant workers
or the recruitment agent's expense of repatriating a worker who was transferred abroad. The
government may order the concerned recruitment agent to pay suitable compensation if the
money from the confiscated surety is insufficient to cover the affected migrant worker's
damages or to assure their return or repatriation from abroad. The government may use the
Public Demands Recovery Act of 1913's provisions to pursue a recruitment agent who
refuses to pay the money required under subsection (3).835

5.5 Registration of Migrant Workers and Migration Clearance
According to Section 19 (1), any person or migrant worker who intends to immigrate by this
act must register with the Bureau and record their trade or profession. The Bureau is also
required to keep total records of all workers registered in the manner specified and, if
necessary, to enter those records into registers. (2) The worker is allowed to register at any
time in Bangladesh or with the Bangladesh Mission in the country where they are employed
and have the appropriate trade and profession documented if they have not done so by the
deadline specified in paragraph (3) Employers must choose employees at random from a
computerised database maintained by the Bureau, any other government-created organisation
or company, and the recruiting firms from among those registered according to trade or
profession under paragraph.836

Workers may be hired through open advertisements in the newspapers with the
government's prior approval or the authorities with delegated authority, provided that

830 Ibid, Section 8.
831 Ibid.
832 Section 9, The Overseas Employment and Migrants Act, 2013.
833 Ibid.
834 Ibid, Section 15.
835 Ibid, Section 18.
836 Ibid, Section 19.

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qualified workers are not already in the database. In this case, the advertisement must state
that no fee or money will be charged until and unless the worker has been hired.837 To
safeguard migrant workers from human trafficking, migrant clearance is crucial. According
to section 20, the Bureau must stamp every person registered under section 19's passport with
a seal bearing the registration number and issue a migration clearance electronic card bearing
the thumb impression and necessary information regarding migration, including the
concerned migrant worker's biometric data.838

5.6 Employment Contract
Overseas Employment and Migration Act 2013 includes the following provision in section
22: (1) The recruitment agent is responsible for ensuring that both the worker and the
employer sign an employment contract. This contract must include information regarding the
worker's income, housing, term of employment, compensation amount in the event of death
or injury, cost of transferring to and from the foreign nation, and other relevant details.839 (2)
The recruiting agent will be considered the overseas employer's representative for the
contract described in subsection (1). The employer and the recruitment agent will be equally
and severally accountable for any obligations resulting from the contract.840 This act's attempt
to include employment contracts is a commendable one. The employment contract between
the employer and the hired worker must be signed by Section 22 of the Act. It must include
information about the worker's pay, living conditions, length of employment, compensation
for death or injury, and the cost of emigrating to and returning from a foreign country, among
other things. The recruitment agent must submit a copy of the signed contract to both the
Bureau and the Bangladesh Mission in the host country. When sending employees overseas,
the Bureau or any government-established organisation, business, or corporation must
arrange for the completion of an employment contract between the employer and the
employee and provide a copy of this document to the Bangladesh Mission in the destination
country.841

5.7 Labour Welfare Wing and Bilateral Agreements on Migration
Suppose it is determined that establishing a Labour Welfare Wing inside the Bangladesh
Mission in the foreign nation in question is required to either improve access to the labour
market there or defend the rights of migrant workers. In that case, the government of
Bangladesh may choose to do so. The Wing will carry out the responsibilities described in
this act and its Rules.842 In the country in question, an authorised employee of the Labour
Welfare Wing is tasked with inspecting the place of employment where Bangladeshi migrant
workers are to be employed and conducting meetings with the respective employers, as
required.843 In December of each year, after completing the routine inspections required by
Subsection (1), the authorised officer of the Labour Welfare Wing shall submit to the
government a comprehensive annual report detailing the status of Bangladeshi migrant
workers in the host country, as well as any necessary recommendations for improving their
living and working conditions.844 The government may enter into a memorandum of
understanding or an agreement with another country better to facilitate the migration of

837 Section 19, The Overseas Employment and Migrants Act, 2013.
838 Ibid, Section 20.
839 Ibid, Section 22.
840 Ibid.
841 Ibid.
842 Ibid, Section 23.
843 Ibid, Section 24.
844 Section 24, The Overseas Employment and Migrants Act, 2013.

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Bangladeshi citizens for overseas employment, improve the management of labour migration,
to facilitate the repatriation and reintegration of the migrant workers in the home country, and
to safeguard the welfare and rights of migrant workers and their families.845 Any MOU or
arrangement that is reached by paragraph (1) is required to ensure, among other things, (a)
the rights, safety, and human dignity of all migrant workers both at home and abroad; (b) the
protection of the labour and other human rights of Bangladeshi migrant workers in the
concerned country, and the assurance that their working conditions are in line with
international standards; and (c) the assurance that is migrating workers have the right to
return to Bangladesh.846

5.8 Provisions for the Protection of the Rights of Migrant Workers
Right to information— Before departing from their place of origin, migrant workers have the
legal right to information on the immigration procedure, the employment agreement, or the
terms and circumstances of the job abroad, as well as information regarding their legal
rights.847

Legal aid: Workers who have migrated from other countries and fallen victim to scams
perpetrated in the name of migration have the right to access legal assistance within
reasonable means.848

Right to file a civil suit: A migrant worker who has been harmed by a breach of any
provision of this act or the employment contract may initiate a civil suit for compensation
without waiving the ability to seek criminal prosecution for any infringement under this
act.849

Right to return home: (1) It is the policy of Bangladesh that any migrant worker who is
arrested, trapped, or otherwise in a state of hardship abroad has the right to request
repatriation to Bangladesh and to receive any aid they may need from the Bangladesh
Mission in that nation.850 The government may order a recruitment agency to pay for the
repatriation of a migrant worker who has become stranded abroad due to the agency's
incompetence or illegal behaviour.851

Financial and other welfare programmes: The government might construct or make it
easier for migrant employees and members of their families to access bank loans, tax
incentives, savings programmes, investment opportunities, and other facilities to promote the
welfare and development of migrant workers and their families.852

5.9 Offence and Punishment under the Act
Penalties for sending migrant workers overseas in an unlawful manner, and for charging
unlawful amounts of fees, and such others: Anyone, including a staffing agency, who
knowingly and intentionally causes another person to (a) violate the provisions of this act or
the Rules by sending or helping to send a person overseas for employment or entering into a
contract on behalf of another person; (b) receive or attempt to receive any amount of money
or a payment in any other form by providing a person with a false undertaking to provide
overseas employment; (c) details, without a party's consent, without the party's consent; or
(d) A person may be coerced into fraudulently migrating or convinced to enter into a contract

845 Ibid, Section 25.
846 Ibid.
847 Ibid, Section 26.
848 Ibid, Section 27.
849 Ibid, Section 28.
850 Ibid, Section 29.
851 Ibid.
852 Ibid, Section 30.

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for migration if they are offered falsely high salaries, benefits, and facilities, or if any other
fraudulent action regarding a migrant worker is engaged in. If found guilty of this crime, the
offender or the recruiting agent might face a prison sentence of up to five years and a fine of
at least one lakh Bangladeshi Taka. In addition, they could lose their licence to practice as a
recruitment agent.853

Penalty for publishing un-authorised advertisements: Suppose a person or recruitment
agent publishes an advertisement for the purpose of recruiting for overseas employment or
migration without first receiving approval from the government or the Bureau. In that case,
the act is deemed unlawful, and the person or recruitment agent is subject to punishment for
that offence, which includes up to one year in prison and a fine of at least 50,000 Bangladeshi
Taka.854

Penalty for using unlawful means for collecting demand notes, visas or work-permit for
overseas employment, or trading in such documents: Anyone who obtains a demand note,
visa, or work permit from a foreign employer or country via dishonest or unlawful means or
who resells these documents inside of Bangladesh, commits a crime that is punishable by up
to seven years in jail and a fine of at least 3 lac Bangladeshi taka.855

Penalty for arranging for departure through places other than the specified place of
departure: Any individual or recruitment agency that facilitates a worker's departure from
Bangladesh through a point other than the authorised point of departure shall be guilty of an
offence and subject to the maximum punishment of 10 years in jail and a fine of no less than
five lac Bangladeshi taka.856

Penalty for other offences: Let's say someone violates one of this act's provisions in a
way for which there is no mention of a particular punishment. Depending on the breach's
seriousness, the offender might face up to six months in jail, a fine of up to 50,000
Bangladeshi Taka, or both of those punishments together.857

Penalty for abetting or instigating an offence, and such others: If a person or
recruitment agent knowingly and willfully aids or instigates the commission of an offence
under this act, whether directly or indirectly. The offence is committed as a result of such aid
or instigation; the aiding or inciting person or recruitment agent shall be subject to the same
penalties as the person or recruitment agency that committed the offence.858

Offences committed by a company: Suppose a director, executive, manager, secretary,
or other company employee is directly involved in violating this act on the company's part. In
that case, that individual will be held criminally liable for the offence unless they can prove
that they had no knowledge of the violation and took all necessary precautions to prevent
it.859

5.10 Trial
This act increases the speed of the trial. Despite everything else that may be included in the
Code of Criminal Procedure 1898 (Act No. V of 1898), offences that fall under the purview
of this act are to be tried by the Judicial Magistrate of First Class or, depending on the
circumstances, the Metropolitan Magistrate. For cases tried under this act, the entire process
must be wrapped up in no more than four months from the date charges were first filed. If the
trial doesn't wrap up in that time, the Magistrate in order can request an extension from the

853 Section 31, The Overseas Employment and Migrants Act, 2013.
854 Ibid, Section 32.
855 Ibid, Section 33.
856 Ibid, Section 34.
857 Section 35, The Overseas Employment and Migrants Act, 2013.
858 Ibid, Section 36.
859 Ibid, Section 37.

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