NATIONALITY & STATELESSNESS:THE CASE OF ROHINGYA

    Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” –Universal Declaration of Human Rights [1]

    INTRODUCTION

    In these concise words, Article 15 of the Universal Declaration of Human Rights, 1948, bestows upon every individual, by virtue of their birth as human beings, the right to have a lawful relationship with the State. Right to Nationality is a fundamental human right. It implies the right of each national to obtain, switch and maintain his or her nationality. Nationality not just provides a sense of belonging and security to every individual, but also provides them with certain civil and political rights which are exclusive only to them. For example , civil and political rights such as contesting elections and the right to vote are available only to citizens or nationals of a sovereign state. Foreign nationals enjoy the protection of their fundamental human rights throughout the world, but do not have access to those civil and political rights reserved exclusively for individuals bearing the  nationality of a sovereign state. 

    While the terms nationality and citizenship are often used interchangeably, they are essentially different in their meaning, scope and treatment under the International Legal Framework. The need for demarcation of the same has been carefully chalked out by Weis in the following words,“ Conceptually and linguistically, the terms “nationality” and “citizenship” emphasize two different aspects of the same notion: State membership. Nationality stresses the international; citizenship, the national, municipal aspect.” [2]

    Citizenship applies, in particular, to all privileges and responsibilities assigned to nationals by their own State at the national level, and thus varies  from one State to another. Nationality, instead, concerns the foreign dimension which consists of a variety of human rights which are recognized by International law. Some of these rights include the right to enter their country, the right to be readmitted to their country, the right to consular access, etc. 

    While the Right to Nationality is widely recognized as a fundamental human right, its inclusion to the text of the UDHR was not without controversy. Majority of the states in favor of this right affirmed their commitment towards the protection of this human right, while some others were in disagreement, stating that nationality was a matter within the domestic jurisdiction of a state and  hence should be omitted from the text of this International Human Rights Document. Concurrently, the statute of the International Covenant of Civil and Political Rights, 1966,  which provides a detailed explanation of a majority of the civil and political rights proclaimed in the UDHR, does not affirm every individual’s Right to a Nationality and only provides for the ‘Right to a Nationality of children’ under Article 24(3).[3] Article 24(3) of the ICCPR and Article 15 of the UDHR does not impose clear obligations on the state parties. Nonetheless, under the Covenant the position of the State where a child is born is evidently different from that of the other State parties.[4] 

    This was further affirmed by the Human Rights Committee, in General Comment No 17, wherein it noted that: ‘..while the purpose of [Article 24(3) ICCPR] is to prevent a child from being afforded less protection by society and the State because he is stateless, it does not necessarily make it an obligation for States to give their nationality to every child born in their territory. However, States are required to adopt every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when he is born.’[5]

    The right to a nationality has been further affirmed in other International Human Rights instruments, including the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, the Convention on the Nationality of Married Women, the Convention on the Rights of Persons with Disabilities and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. The Convention on the Reduction of Statelessness, the Convention relating to the Status of Stateless Persons and the Convention relating to the Status of Refugees  has also dealt with the issue of Nationality significantly. 

    A clear and general prohibition on arbitrary denial of nationality can be found in a variety of international instruments. The first example in this regard was provided by Article 15(2) of the Universal Declaration of Human Rights, which expressly specified that ‘No one shall be arbitrarily deprived of his nationality.’ At the regional level, an equivalent ban was first affirmed by  the  United States of America, by the  American Convention on Human Rights(ACHR) [6], and subsequently in other regional instruments like the 1995 Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms[7].  Furthermore, in its resolution 50/152, the General Assembly has acknowledged the basic essence of the prohibition of arbitrary deprivation of nationality.[8] However, notwithstanding the availability of international legislation on the obtaining, denial or rejection of citizenship, millions of people around the world have been deprived of their nationality. 

    According to statistical data obtained by the United Nations High Commissioner for Refugees (UNHCR), there are now 3.9 million stateless persons who were denied access to basic guarantees such as education, health care, employment, freedom of movement and personal liberty. The deprivation of these rights affects not only the people affected, but also society as a whole, in particular because the absence of an entire segment of the population will contribute to social tensions and seriously hinder economic and social growth. Approximately 67 percent or two-thirds of refugees globally come from five countries, based on the most recent UNHCR statistical data. These include Iraq, South Sudan, Afghanistan, Myanmar and Somalia.  These estimates are not all inclusive and there may be millions more who are not covered under the UNHCR mandate, including that of the 5.5 million Palestinian Refugees who are covered under the United Nations Relief and Works Agency (UNRWA) mandate [9].

    Not all refugees are stateless, and not all stateless citizens are refugees. Yet becoming stateless may be an act of repression, and one that makes it easier to impose and even excuse more persecution. Similarly, being displaced, particularly for many decades, raises the susceptibility to statelessness – especially for children born to refugee parents.[10] The Rohingya Ethnic community from Myanmar’s Rakhine state share such a fate. They have been rendered stateless due to systemic persecution since the 1970s.

    BACKGROUND OF THE HISTORIC INJUSTICE TOWARDS THE ROHINGYA ETHNIC COMMUNITY OF MYANMAR

    “To be stripped of citizenship is to be stripped of worldliness; it is like returning to a wilderness as cavemen or savages….A man who is nothing but a man has lost the very qualities which make it possible for other people to treat him as a fellow man… they could live and die without leaving any trace, without having contributed anything to the common world.”Hannah Arendt [11]

    The evolution from a barbarian to a civilized society requires the acceptance of human rights, first and foremost, the right to life. This is the priority of any government in all seriousness. However, it has been noted that, in most instances, the government itself becomes the infringer of this right. Authoritarian government practices and state-approved violence against the population such as torture, illegal detention, rape, forced sterilization, massacre and murder of civilians by the police forces or the army, often generate refugees seeking refuge in safer zones.  These refugees have been denied their basic right to life by their own governments, who have been tasked with the essential duty to protect this non-derogable right by various International covenants to this effect ,namely the UDHR, ICCPR, etc. A prominent example might be that of Myanmar’s Rohingya Muslims, who have been gradually and systematically eliminated by the Myanmar military since 2017 and even longer by the Government of Myanmar, since after the 1982 Citizenship Act. Till date, more than one million Rohingya refugees have sought shelter in the ramshackle camps of Southern Bangladesh. Cox Bazar in Bangladesh is said to house the world’s largest refugee settlement. 

    The Rohingya, a Muslim minority group in the Rakhine state, situated along the western coast of Myanmar, former Burma, have long been damned. Their plight has borne them the label of being “the most persecuted community in the world”. Ever since the emergence of the nefarious 1982 Citizenship Act,  nearly 1.3 million Rohingya have been denied citizenship and stripped of all their rights. The Rohingya community have been refused equal rights to citizenship. They have also been subjected to severe human rights violations by Myanmar officials, security forces, the police and local Rakhines (the Buddhist majority community in the Rakhine State). These state and non state actors have committed systematic violence against Rohingya over the years. The community have been victims of torture, arbitrary imprisonment, rape and other severe physical and mental injury. Both sides have clashed multiple times, claiming  thousands of lives.

    The United Nations has actively criticized the Myanmar Government for the creation of a de facto apartheid state.[12] Time and again, the UN has threated the Myanmar Government with the withdrawal of aid from the Rakhine state of Myanmar, which houses the internally displaced Rohingya Muslims in makeshift camps, who have been displaced since the violence of 2012. Whilst the IDP Camps were expected to be closed by 2017, violence continued to spread and the Myanmar government proceeded to construct more camps to accommodate these Rohingya. This has culminated in the mass exodus of Rohingya to Bangladesh, India and Cambodia. The people from the Rohingya community who have sought refuge in International borders have been rendered stateless. However, the international community has never made a significant and concerted attempt to end this tragedy.

    The inability to accept statelessness has played a role in the early talks and negotiations between Bangladesh and Myanmar, as well as Myanmar and the United Nations, on the repatriation of the Rohingya from this most recent influx. The support received by the Government of Myanmar from the international community in regards to this issue is symptomatic of how much world forces would like to see this issue vanish in the history of time. The application filed by the Republic of Gambia before the world court seeks to end this vicious cycle. 

    THE INSTRUMENTS AVAILABLE UNDER INTERNATIONAL LAW TOWARDS THE PROTECTION OF STATELESS PERSONS

    Historically, both refugees and stateless people have received protection and support from  the international refugee agencies that preceded the United Nations High Commissioner for Refugees(UNHCR). The draft Protocol on Statelessness was sought out to represent this connection between refugees and stateless people. However, the immediate needs of refugees and the eventual collapse of the International Refugee Organization meant that there was not enough time for a thorough study of the condition of stateless people at the 1951 conference which marked the adoption of the Convention relating to the Status of Refugees. The adoption of the protocol addressing the status of stateless persons was left for further deliberation on a later date. The Protocol on Stateless Persons, which was drawn up as an addendum to the 1951 Convention on Refugees, became a Convention of its own right in 1954.

    The Rohingya Community of Myanmar’s Rakhine state has often been described as the world’s largest stateless group of people. While dealing with the protections available to the Rohingya community under International law, various state and non-state actors have sought the provisions enshrined under the Convention on the Prevention and Punishment of the Crime of Genocide, 1948.[13] The 1954 Convention on the Status of Stateless Persons[14], which is the cornerstone of the International legal framework for stateless persons and hence, by extension, applies to the  Rohingya community as well, has been significantly ignored in this regard. This is largely due to the fact that the Convention on the Prevention and Punishment of the Crime of Genocide , 1948, concerns with the crime of genocide which is a peremptory norm of jus cogens and hence allows for no derogation under International Law. Sovereign states are bound to follow these principles of International Law even if they are not signatories to the 1948 Genocide Convention. An application to this effect citing the violation of the 1948 Genocide Convention by the Government of Myanmar has been filed before the International Court of Justice by the Republic of Gambia in January 2020[15]. Provisional measures have been issued for by the International Court of Justice in this landmark case while it is currently under adjudication.

    https://legalreadings.com/education-fundamental-right-and-rte-2009/

    The Convention relating to the Status of Stateless Persons, 1954, establishes a framework for the international protection of stateless persons and is the most comprehensive codification of the rights of stateless persons yet attempted at the international level.  The 1954 Convention sets out the concept of a stateless individual and sets out basic conditions of care for stateless individuals with regard to a range of rights. These include, but are not limited to, the right to schooling, jobs and housing. The 1954 Convention also grants the right of stateless individuals to identification, travel papers and administrative assistance.[16] The most important contribution to International law by the 1954 Convention on the Status of Stateless Persons is its definition of the  term “stateless person” as someone “who is not considered as a national by any State under operation of its law.” 

    For those that identify as stateless individuals, the 1954 Convention lays out some basic standards of treatment. It allows stateless people to have the same rights as other people with regard to the freedom of religion and education of their children. It allows for a variety of other rights with a cap that in case of certain other rights like that concerning the right to freedom of association, the right to work and the right to shelter, stateless people should receive, in the least, the same treatment that is accorded to other non-nationals.

    Clear responsibilities pertaining to the prevention and mitigation of statelessness have also been set down in the 1961 Convention on the Reduction of Statelessness.[17] The Convention of 1961  provides that the States should provide for protections in their laws  to address statelessness which may occur at birth or later on in life. Additionally, it sets out significant protections to prevent statelessness which may arise due to various reasons ranging from the loss or renunciation of nationality to state succession. The 1961 Convention on the Reduction of Statelessness guarantees that those who find themselves stateless do not have to be entrusted to a life without dignity and protection.

    CONCLUSION AND SUGGESTIONS

    International cooperation is of utmost significance to reduce the occurrence of statelessness. To address the perilous predicament of the Rohingya community, in addition to the rights enshrined under the 1948 Convention relating to the Status of Refugees, harmonizing national legislation in compliance with the International Conventions for the Protection of Stateless People and for the Reduction of Statelessness would go a long way towards addressing the rights and guarantees applicable in this regard.

    At the national stage,  the amalgamation of the the 1954 and 1961 Conferences on Statelessness with domestic legislations would: 

    (a)strengthen the protection of human rights and the dignity of individuals;

    (b)show appreciation of a genuine and effective link between the citizen and the State; 

    (c)strengthen the sense of security and legal status of people in circumstances of statelessness; 

    (d)allow people access to national security, all duties and rights; and,

    (e)Strengthens national unity, solidarity and prosperity.

    Similarly, at the international stage, acceding to the 1954 and 1961 Conferences on Statelessness would: 

    (a)reflect a commitment to collaborate with the international community to minimise and eradicate statelessness;

    (b)increase worldwide bans on human or mass expulsions;

    (c)strengthen foreign ties and stability; 

    (d) show a commitment towards the safeguarding of human rights and humanitarian standards; 

    (e)help prevent displacement by addressing its root causes;

    (f)help establish international legislation towards the acquisition of nationality and the protection and maintenance of an effective nationality;

    (g)allow the UNHCR to rally foreign support to conform with the standards set forth in the Conventions; and,

    (h) help settle issues related to nationality.[18]

     

    REFERENCES

    [1] The Universal Declaration of Human Rights, 1948, art. 15.

    [2] P. Weis, Nationality and Statelessness in International Law 4-5(2nd  edn., 1979).

    [3]UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, art 24(3) , U.N. T.S. 999, p. 171.

    [4]S.Forlati and A. Annoni, The Changing Role of Nationality in International Law 22 (1st edn., 2013).

    [5] UN Human Rights Committee (HRC), CCPR General Comment No 17: Article 24 (Rights of the Child),April 7, 1989.

    [6]UN General Assembly, Office of the United Nations High Commissioner for Refugees, Feb. 9, 1996, A/RES/50/152.

    [7]The American Convention on Human Rights, “Pact of San Jose”,  1969.

    [8]Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms, 1995,art. 24(2).

    [9]UNHCR, Statistical Yearbooks (2019), available at: https://www.unhcr.org/figures-at-a-glance.html (last visited on Nov. 10, 2020). 

    [10]Chickera, A.: ‘Statelessness and identity in the Rohingya refugee crisis’ Humanitarian Practice Network,October2018, available at:

    https://odihpn.org/magazine/statelessness-identity-rohingya-refugee-crisis/  (last visited on Nov. 10, 2020).

    [11H. Arendt, The Origins of Totalitarianism (3rd edn., 1967).

    [12]McCarthy, Joe: ‘UN Accuses Myanmar of Creating Apartheid State and Threatens to Withhold Aid’ The Global Citizen, 17 June 2019, available at: https://www.globalcitizen.org/en/content/rohingya-myanmarapartheid/ (last visited on 10 November 2020).

    [13]UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, United Nations, Treaty Series, vol. 78, p. 277.

    [14]UN General Assembly, Convention Relating to the Status of Stateless Persons, 28 September 1954, United Nations, Treaty Series, vol. 360, p. 117.

    [15]The Gambia v. Myanmar 23 January 2020.

    [16]UNHCR, What is Statelessness?, available at:

    https://www.unhcr.org/ibelong/wp-content/uploads/UNHCR-Statelessness-2pager-ENG.pdf (last visited on Nov. 9, 2020).

    [17]UN General Assembly, Convention on the Reduction of Statelessness, 30 August 1961, United Nations, Treaty Series, vol. 989, p. 175.

    [18]UNHCR,Nationality and Statelessness:A Handbook for Parliamentarians (2005), available at: https://www.un.org/ruleoflaw/files/Nationality%20and%20Statelessness.pdf (last visited on Nov. 9, 2020).


    BY SUDIPTA ROY CHOUDHWRY | AMITY UNIVERSITY, NOIDA

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