THE STATELESSNESS PROBLEM OF THE ROHINGYA MUSLIMS.

• Author: Awan, Shehmin

INTRODUCTION

After finding that approximately ten million people worldwide are stateless, the United Nations High Commissioner for Refugees ("UNHCR") launched the #IBelong Campaign, which seeks to end the global crisis of statelessness within a decade of its launch in November 2014, by identifying and protecting populations of stateless people and preventing further statelessness. (1) The UNHCR is working with other UN agencies, state governments, civil society, and regional organizations to carry out a ten-part Global Action Plan to End Statelessness ("GAP"). (2)

The #IBelong Campaign addresses the problem of statelessness by building off of the UN's previous efforts, which began in 1954 with the passage of the Convention Relating to the Status of Stateless Persons ("1954 Convention") and further developed in 1961 with the Convention on the Reduction of Statelessness ("1961 Convention") and in 1995 with the UNHCR's Global Mandate on Statelessness. (3) These measures, taken as a whole, attempt to reverse the significant challenges arising out of a stateless status, such as a lack of basic identity documentation; a diminished access to education, healthcare, and employment; and general exclusion, marginalization, discrimination, poverty, and fear. (4)

Of the estimated ten million people who the UNHCR has identified as stateless, 75% are from minority groups within the state in question. (5) One such minority is the Rohingya Muslims in the state of Myanmar (formerly Burma). (6) Although previously recognized as citizens, the Rohingya Muslims have been systematically denied citizenship and other rights since 1962, beginning under an anti-Muslim military regime and continuing under the current democratic regime. (7) Systematic oppression has resulted in the Rohingya refugee crisis, where more than 671,000 Rohingya Muslims have fled their homes in the Rakhine State since late August 2017 in an attempt to save themselves from ethnic cleansing, mass killings, and other crimes against humanity. (8)

First, this note will explain the UNHCR provisions and guidance on statelessness and the citizenship laws in Burma that create a stateless status for the Rohingya Muslims. Second, this note will discuss how Burma's state actions have resulted in a refugee crisis for the Rohingya Muslims. Finally, this note will propose possible remedies for the problem of statelessness for Rohingya Muslims in Burma and additional solutions for the current refugee crisis.

1. THE LEGAL FRAMEWORK AND BURMA'S HISTORY

   1. UNHCR Conventions and Global Mandate

      Following World Wars I and II, the United Nations established institutions and laws to protect stateless people due to the influx of refugees across the European continent. (9) The UNHCR provides guidance through conventions, protocols, and a global mandate, to States for dealing with both refugees and stateless persons. (10) These provisions lay out the basic principles and rights that refugees and stateless persons can expect from the international community. (11) Although Burma is not a signatory to any of these laws, the provisions are helpful in understanding how the international community may hold Burma accountable for its violations of the protections found in these conventions and protocols. (12)

      The first of these provisions is the 1951 Convention Relating to the Status of Refugees ("1951 Convention"), which holds that "[t]he Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin." (13) If a person falls within any of the exceptions listed in Article 1, Paragraphs C, D, E, or F, they may not be covered by the Convention Relating to the Status of Refugees. (14) The Rohingya Muslims do not fall in any of the exceptions because they have not voluntarily availed themselves of the protections or nationality of Burma, they are only receiving assistance from the UNHCR, have not received nationality in the countries that have taken them in, and have not committed any act that is contrary to the United Nation's purpose. (15) Therefore, the 1951 Convention would apply to the Rohingya Muslims.

      Another important provision of the 1951 Convention is its prohibition of refoulement, where a state cannot "expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." (16) This provision is especially important because countries, like Bangladesh, receiving the Rohingya Muslims in their refugee camps may prematurely send the Rohingya Muslims back to Burma, where they will likely continue to face mass killings, sexual violence, and other crimes against humanity on account of their ethnic and religious identities. (17) Although Bangladesh is not a signatory of the 1951 Convention, the country may still be subject to its provisions. (18) Under Article 56 of the 1945 United Nations Charter, every member State of the United Nations has a general obligation to cooperate with the United Nations and its agencies. (19) Thus, the duty to protect refugees is extended to all states, even if they have not signed the 1951 Convention, because they must adhere to the United Nations Charter. (20)

      The 1951 Convention was amended by the 1967 Protocol Relating to the Status of Refugees ("1967 Protocol"), which gave the 1951 Convention universal coverage to all refugees, replacing the original limitations that restricted the application of the 1951 Convention to only those refugees who were fleeing the consequences of World War II in Europe. (21) The change reflects the recognition that new refugee situations can arise anywhere in the world at any time and that refugees should be covered by the 1951 Convention equally. (22)

      Although the United Nations General Assembly convened a Conference of Plenipotentiaries in 1951 to draft an international treaty on the protection of both refugees and stateless persons, only the 1951 Convention providing protections for refugees was agreed to, so negotiations continued on the subject of stateless persons. (23) These negotiations resulted in the adoption of the 1954 Convention Relating to the Status of Stateless Persons ("1954 Convention"), which entered into force on June 6, 1960. (24) The 1954 Convention defined a stateless person as "a person who is not considered as a national by any State under the operation of its law." (25) States cannot discriminate against stateless persons "as to race, religion or country of origin." (26) However, there are some exceptions that apply, which are similar to the ones found in the 1951 Convention and 1967 Protocol. (27) The 1954 Convention requires States to afford stateless persons the same freedom of religion given to nationals, the same or greater right of association and right to wage-earning employment as that given to aliens in that country, and the same right to elementary education given to nationals and the same or greater right to higher education as that given to aliens in that country. (28)

      Of particular importance in the context of the Rohingya Muslims are the provisions related to the freedom of movement, right to identity papers and travel documents, and protection from expulsion. (29) Burmese authorities require the Rohingya Muslims to carry special documents and travel permits for internal movement, restrict them to movement within only five areas of the northern Rakhine State, and require prior approval for leaving the village of their residence. (30) These restrictions on movement limit both their access to higher education and employment. (31) To make matters worse, the Rohingya Muslims who leave Burma are not able to return to their residences because they arc given jail sentences for illegally entering the country. (32) Burma passed the Emergency Immigration Act in the mid-1970s, which required all citizens to possess National Registration Certificates; however, the Rohingya Muslims were only issued Foreign Registration Cards, and many schools and employers would not accept this form of identity documentation. (33) The Burmese government refuses to acknowledge the persecution of the Rohingya Muslims, and Burmese President Thein Sein even recommended "the mass expulsion of the Rohingya to 'third countries' or UNHCR camps" in response to the internal and external displacement of hundreds of thousands of Rohingya Muslims from the Rakhine State as a result of state violence. (34) These actions by the Burmese government directly violate the provisions of the 1954 Convention. (35)

      While the 1954 Convention laid out the basic principles for preventing statelessness, the 1961 Convention on the Reduction of Statelessness ("1961 Convention") sets rules for limiting situations where statelessness arises. (36) In doing so, the 1961 Convention gives effect to everyone's right to a nationality found in Article 15 of the Universal Declaration of Human Rights. (37) The 1961 Convention provides that "A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless. Such nationality shall be granted: (a) at birth, by operation of law, or (b) upon an application...." (38) Furthermore, "[a] Contracting State shall not deprive a person of its nationality if such deprivation would render him stateless." (39) Finally, "[a] Contracting State may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds." (40) Burma's citizenship law violates each of these provisions, thus rendering the Rohingya Muslims stateless according to the 1954 and 1961 Conventions. (41)

      Neither the 1954 Convention nor the 1961 Convention tasked any unit or agency to attend to the issue of stateless, possibly because the United Nations felt that statelessness would decrease on its own...