Facebook 
Twitter 
Soundcloud 
Youtube 
Rss 
Persons rendered stateless enjoy far fewer protections than refugees under international law, but the UN could be empowered to come to their defence, Farhaan Uddin Ahmed writes.
According to the United Nations High Commissioner for Refugees, there are over 10 million people around the world who are stateless due to denial of nationality by their home states. As a result of their lack of nationality, they are, in most cases, denied access to education, healthcare, employment, social security, and other basic social structures.
In many cases, not only are they denied nationality and the benefits of citizenship, they are also actively persecuted by the various governments within whose territories they reside. Since a vast majority of the UN member states (104 out of 193) are not signatories to the Convention relating to the Status of Stateless Persons, 1954 and the Convention on the Reduction of Statelessness, 1961; they have no legal responsibility to provide basic rights and benefits to the ‘stateless’ people residing within their territories. Therefore, the ‘stateless’ are neither treated as aliens nor granted certain basic rights that are assured to a refugee.
One example where this issue has been elaborately illustrated is in the plight of the Rohingya in Myanmar. The Rohingya are an ethnic group predominantly living in Myanmar’s Rakhine State. In 1982, the then newly enacted nationality law of Myanmar denied citizenship to the Rohingya, thereby technically making them stateless.
The Rohingya have been and are still being subjected to persecution by the government of Myanmar, which has led many of them to attempt to leave Myanmar and take refuge in neighbouring Bangladesh and other Southeast Asian countries. Most of the countries have been quite apprehensive about accepting the Rohingya as refugees and have not treated them well.
With the rise in violence in the Rakhine region, the plight of this minority group is a great cause for concern. Those who are able to leave Myanmar and seek asylum abroad automatically become refugees and are protected as such under international law, thereby granting them certain basic human rights and legal protections. However, the same cannot be said about the ‘stateless’ Rohingya still living in the Rakhine State as they are being actively persecuted by the government of Myanmar. Since Myanmar is not a signatory to the UN’s conventions on statelessness it has no responsibility to provide basic rights and benefits to the ‘stateless’ Rohingya. Therefore, the Rohingya are neither treated as aliens nor are granted certain basic rights as refugees under the Convention Relating to the Status of Refugees, 1951.
The international law with regard to the treatment and protection of refugees is quite strong and is generally adhered to by states. However, the same cannot be said about the international law with regard to the treatment and protection of the stateless. The two UN Conventions and most of the international law in this regard are largely ineffective and non-existent.
Nonetheless, Article 15 of the Universal Declaration of Human Rights provides everyone with the right to a nationality and protects against arbitrary deprival of the same. With this in mind, it is evident that a new and effective mechanism is required to protect the rights and freedoms of these stateless communities.
One possible solution to the problem could be the establishment of a mechanism where the United Nations can directly or through one of its agencies intervene by exercising diplomatic protection in case of stateless individuals or groups as and when it is required. The adoption of the Articles on Diplomatic Protection submitted by the International Law Commission (ILC) to the General Assembly with an amendment to Article 8(1) to add the UN alongside a state can be one of the means of legitimising the UN’s exercise of diplomatic protection.
If the United Nations or one of its authorised agencies were allowed to provide diplomatic protection in case of the ‘stateless’, it would ensure proper treatment of these people within the territory of any state and could consequently incentivise a nation to treat these people in accordance with the international law for the treatment of aliens.
Furthermore, through the exercise of diplomatic protection, the UN would also be able to seek reparations in case of injury on behalf of the ‘stateless’ in various national and international legal fora. All of this would lead to the fair and equitable treatment of the ‘stateless’ communities across the world and provide them with an avenue to seek relief and respite from their plight.
It is entirely logical that states will protect their own citizens against the arbitrary acts of another state. However, in the case of the stateless, there is no such entity that protects them against mistreatment. The opportunity, and need, is there for the United Nations, a world organisation, to step in to fill this vacuum and protect these people. Because, fundamentally, even if they are not citizens of any particular state they are nonetheless citizens of the world.
Farhaan Uddin Ahmed is a Lecturer in Law at the School of Law, BRAC University; specialising in International Law and Jurisprudence.
This article is a collaboration with Policy Forum — Asia and the Pacific’s leading platform for policy analysis and debate.
The problem with the 1982 Citizenship Law is not that it “denied citizenship to the Rohingya, thereby technically making them stateless”, but that it was not implemented in a timely and sensible manner.
Had the Law been promptly administered in accordance with the 1983 Citizenship Rules (available in Burmese only), all Arakan Muslims who had previously merited full citizenship, many holding valid NRCs, would have had no difficulty in exchanging their old IDs for new IDs under the entitlement provided by Article 6 of the Law. That would have covered almost two-thirds of the community. Another 80-90,000 applications for citizenship outstanding from the 1948 regulations would then have been granted “associate” citizenship, and by now their grandchildren would already have acquired full citizenship, even though they did not belong to one of the “national races”. That would have left maybe 200-250,000 in limbo because they were suspected of being illegal post-1948 migrants; but not 1.1 million, as today.
This is what the Law provided, but it didn’t happen. The government at the time denied Arakan Muslims their rights under the 1982 Law, insisting instead that in Arakan, alone of all States and Divisions, no new IDs should be issued to Muslims until entitlement and the authenticity of old IDs had been checked. This resulted in the delayed issue of so-called temporary ‘White Cards’ – and the rest is history.
My point is that it was not the Law which made them stateless, but the failure to apply the Law. That is why Arakan Muslims who were able to move to Yangon, or already lived there, had no problem in exchanging their old IDs for new IDs.
It could then be argued, and indeed should be argued, that it is not the Law, despite the blatant discrimination of some of its provisions, which is at fault, but the chicanery and obstructiveness of national and especially local officialdom, which needs to be challenged. This could open up new vistas for international protection. So one of the first questions to be asked is: are today’s Rohingya stateless de jure or only de facto – as Nick Cheesman has recently pointed out? And if our conclusion is only de facto, how should this influence the international response? In this context, the ideas discussed by the author, and especially the notion of reparations, are most relevant and apposite.
.
0
0
Thank you Dave for that enlightening insight. It is indeed an interesting perspective. I will definitely explore it further.
0
0
Thanks. Let’s see what happens in the HRC this afternoon when there is expected to be a vote on the revised and expanded ‘kitchen-sink and all’ Western draft Resolution which includes a Fact Finding Mission. Kofi Annan favours an independent and impartial investigation, as do I, but formal HRC FMMs are a bit like sanctions – applied by rich countries from the moral high ground against poor countries, but never the other way round.
0
0