Although it falls beyond the scope of this report to describe each of those international
obligations in detail, it is worth noting a few key provisions of international human rights law that
have been interpreted to extend to non-citizens in need of international protection and have been
applied by refugee host states in a variety of contexts.
The rights enumerated above are well-established within international human rights mechanisms
and would apply in South and Southeast Asia states that have ratified them. However, as is the
case with the 1951 Refugee Convention, a number of the region’s states have not ratified these
instruments. As a result, advocating for and realizing refugee protections in the region generally
requires a distinct approach—involving asserting the broader international humanitarian and
human rights obligations of states, including those derived from customary international law norms.
Of primary importance is the norm of non-refoulement, which is found expressly in international
refugee law, international humanitarian law, and international human rights law, albeit with
different scopes and conditions of application. Under international refugee law, Article 33 of the
Refugee Convention and its Protocol prohibit the return of persons to territories where their life
or freedom would be threatened. This is particularly recognized where there is a risk of torture
and severe ill-treatment, arbitrary deprivation of life or of fundamental human rights, or other
form of persecution on account of race, religion, nationality, membership of a particular social
group, or political opinion. Additionally, a number of other grounds might be covered depending
on the treaties ratified by the states concerned. The prohibition against refoulement applies to
all refugees, regardless of whether their status has been formally recognized. Crucially, because
the core principle of non-refoulement has become customary international law, it binds all states
regardless of whether they are a party to the Refugee Convention.16
International and regional instruments and jurisprudence establish the obligations and guidance
necessary to prompt states to provide legal protection for non-citizen populations in precarious
legal situations, including those seeking asylum and stateless individuals. Precisely why states
act (or refuse to act) in defense of protection seekers is not easy to understand, though it is often
geopolitically determined. Supra-national rights regimes, however, can and do play an important
role in states’ decision-making processes.17 But, as emphasized in this report, efforts centered
around national-level commitments are often more impactful than those leveraging international
regimes in advancing rights and protections for refugees. It is on these efforts and the lessons
learned from them that this report will focus.
9
BE YOND REFU GE: ADVANCING LEG AL PROTECTIONS FOR ROHINGYA C OMMUNITIES IN BANGL ADESH