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ABSTRACT

The human rights are guaranteed
by the State to its citizens. The refugees, being stateless people, have been
deprived of their basic human rights due to this shortcoming that they do not
belong to any State. To help the situation to improve, it is necessary that the
country in which they are residing must treat them equally and give them the
same rights irrespective of the fact that they are not a citizen of that
country. Statelessness should be no excuse for depriving any person of his/her
human rights and any deprivation is against rule of law in the respective
State. Also, measures must be taken by the International community to ensure
equal rights for the refugees or the stateless people. This paper aims to study
the human rights violations faced by the refugees with special focus on the
ongoing Rohingya crisis in Myanmar where this community has suffered with human
rights violations by the host country that have forced them to flee from
Myanmar to the neighboring countries of Bangladesh and India. An analysis of
the problem will be followed by suggested reforms, which must be made in the
International treaties relating to refugees. Also, the host country must be
obligated to protect the human rights of these people that would eliminate the
problems faced by the refugees as well as the stateless people.

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INTRODUCTION-
WHO ARE REFUGEES AND THE STATELESS?

 

“It is difficult for anyone who has never
been forcibly displaced to imagine what it is like to be a refugee.”

— Kofi
Annan

The
refugees are one of the most vulnerable sections of the society. They face
multiple problems on a daily basis that we as independent citizens cannot even
imagine of. The 1951 Convention is the major instrument relating to the
protection of rights of the refugees. A refugee, according to the Convention,
is someone who is unable or unwilling to return to their country of origin
owing to a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group, or political opinion. 1

A
stateless person is a person who does not own the citizenship of any State.
This means that a stateless person is deprived of the protection provided to
the citizens because according to statutory law there is no duty upon the State
to protect the rights of a stateless person. Therefore, the stateless persons
are prone to being subjected to a varied treatment as compared to the citizens
of the State they are residing in. The 1954 Convention relating to the Status of
Stateless Persons: defines the term “stateless person” as a
person who is not considered as a national by any State under the operation of
its law. It further prescribes the standards of treatment to be accorded to
stateless persons.2 The refugees and the stateless persons, being vulnerable groups of
the society are provided with international protection through Conventions. But,
the question arises that how effective are these conventions when the host
countries are not willing to provide equal rights and protection to these
people.

This paper will analyse
the challenges faced by these persons especially on the human rights front and
provides solutions to the above stated problem.

 

 

STATELESSNESS AS A JUSTIFICATION FOR VIOLATION OF HUMAN
RIGHTS

The Universal Declaration of Human Rights is the most important
instrument for safeguarding the human rights of a person. The rights that have
been provided in this instrument are a set of guidelines as to how a State
should deal with its subjects. The impartial courts upholding the rule of law
must follow these even against the State.3

Article 15 of the Universal Declaration of Human Rights lays down
that, “Everyone has the right to a nationality”. It is an
accepted belief by the international law scholars that States provide domestic
and international protection and access to rights only to their citizens that
means that a right to nationality is the right to have rights and therefore
stateless persons have no rights. But, the principles of human rights claim
that the being human itself means that no person can be deprived of their human
rights.4
This view has been forwarded in the 1954 and 1961 Convention on the rights of
the stateless. The 1961 Convention on
the Reduction of Statelessness states that a State party to this
Convention agrees to grant its nationality to a person born in its territory
who would otherwise be stateless. The State also agrees, subject to certain
conditions, not to deprive a person of his nationality if such deprivation
would render him stateless. The Convention specifies that a person or groups of
persons shall not be deprived of their nationality on racial, ethnic, religious
or political grounds.5

 

On the application of Article 15 of the Universal Declaration of
Human Rights alongwith the 1961 Convention it is clear that the Declaration is
being violated if the rule of law is applied to only the citizens of the State
and not the stateless residing in that State. This conclusion is supported by
the language which is stated in the Article 15 of the Declaration which states
that “Everyone” is entitled to the rights and freedoms listed in the
articles, and no distinction is to be made among people due to their national
or social origin, property, birth or other status. Therefore, an individual’s
claim to the enjoyment of human rights cannot be refused on the lack of
citizenship to that country. Human rights violations have been considered as a
major cause of mass exoduses that affect the peace and stability of the world.
Thus, it is important for all the States to protect the human rights of their
subjects whether they are citizens or non-citizens of that country. 6

 

WHO ARE THE ROHINGYA AND WHY ARE THEY STATELESS

Rohingyas are an ethnic and minority group of Muslims who reside
in the Arakan state of Myanmar. They have never been accepted as lawful
citizens of the country and have been designated as foreign residents. There
have been two opposing views in regard to the history of the Rohingya Muslims.
The Burmese military government claims that the Rohingyas have no historical
connection to the land on which they are residing and their arrival to this
place is a recent event due to which they cannot be accepted as citizens of
Myanmar. But the Rohingyas claim that they have a long history of their
attachment to the Arakan State. Their claim is that the they have been living
in the Northern Arakan State which was at that point of time independent of
Burma. They were promised of a separate land by the British which did not
happen. As a consequence, they formed an army and went to Pakistani leader
Mohammad Jinnah and requested him to include their land to Pakistan. This event
is the major reason that the Burmese Government is not sympathetic towards this
community because they believe that the Rohingyas have threatened the territorial
sovereignty of Myanmar.

The Rohingyas are deprived of their right of citizenship as well
as their freedom of movement, secondary education and employment opportunities.
They are also subjected to forced labour and arbitrary confiscation of
property. The atrocities upon these people have only been increasing by the
passing decades. They have been treated in a cruel manner and there have been
several human right abuses against them. But the biggest problem is that they
are not recognized as citizens of Myanmar which forces these stateless people
to leave their country and take refuge in neighbouring countries of Malaysia,
Bangladesh and India.7
They have been arbitrarily deprived of their citizenship due to the history
they have had with the Burmese government. 8
There has been international intervention in this regard but it can give no
results unless the Myanmar government agrees to recognize the Rohingyas as
citizens of their country.

 

TRACING THE HISTORY OF THE ROHINGYA CRISIS

There have been some major developments in Myanmar over the years
which prove an ever increasing plight of these Rohingya Muslims. The first of
these events was the Operation Nagamin which came into operation in the year
1978. The purpose of this operation was to take actions against the foreigners
who had illegally entered into the country. As a consequence of this operation
the documentations available with the Rohingyas were taken away. Then came the
1982 Citizenship Law that took away all rights of the Rohingyas including the
right to citizenship. Before this Act, the ethnicities were broadly defined but
after this law there was publication of a closed list of 135 ethnicities from
which the Rohingyas were excluded. For being able to apply for citizenship, the
Rohingyas had to trace their ancestry to the colonial period which was not
possible due to lack of documentation. 9

Finally, the latest development that happened was that Myanmar
from being a military country became a democracy after the election of Aung San
Suu Kyi led National League for Democracy in 1990 national elections.
Thereafter, the formation of a Constituent Assembly was announced to draft a
new constitution for the country so that new elections could take place. The
military government wanted to again gain power in its own hands and when it was
unable to do so due to protests they turned to the Rohingya for uniting the
people against them. There was an increase in human right violations against
the civilians that forced the Rohingyas to flee to other countries. These refugees
told of summary executions, rape, and other forms of torture which they had
witnessed or personally endured at the hands of the military.10 The growing human
right violations have been continuing since the year 1991. Since 1992,
successive U.N. Special Rapporteurs have documented patterns of human rights
violations against the Rohingyas. 11
In 2016, thousands of Rohingyas claimed that Myanmar’s soldiers, where villages
had been burned down, have subjected them to attacks.12
A recent incident reported in February 2017, where an entire family, including
elderly and disabled people were locked inside a house by the army of Rakhine
villagers, during the crackdown in the Rakhine State  and was on fire for all of them to die.13

STATELESS TO REFUGEES

Due to increasing number of attacks on the Rohingyas they have
fled to the other countries for refuge. Being a refugee is another complicated
problem faced by the stateless Rohingyas. The refugees are supposed to be
provided with permanent shelter after they have become a refugee but this is
not always possible. A refugee situation, which goes on for a considerable
period of time, is known as the protracted refugee situation that is no less
dreadful than being stateless. In this situation, the temporary shelter
provided to these refugees continues for a period of time without having the
rights to move and work thus living in a state of limbo. Though the risks
to their lives may be radically reduced in comparison to the situation from
which they fled, their lives remain physically and psychologically insecure,
oftentimes more insecure than they would be if they returned home. 14

 

SUGGESTED SOLUTIONS

 Due to the above reasons it
becomes imperative that a permanent solution should be resorted to deal with
the Rohingya crisis. The suggested solutions are enumerated below: –

·     
Since the Refugee Conventions are not enforceable without the
ratification of the concerned States, the international community could
consider implementing the UN Security Council Resolution 1674 (UNSC 1674),
a reaffirmation of the ‘Responsibility to Protect’ (R2P) populations who
suffer from extreme human rights abuses and lack of protection from their own
governments. This would be an effective way to curb the atrocities that the
Rohingyas are being subjected to by the Myanmar Government provided that all
the five countries of the United Nations Security Council adopt such a
Resolution.

·     
The protracted refugees should be allowed to establish their own
livelihoods and must be provided with opportunities to become self-reliant in
the country of refuge. Even if the country is not capable of providing such
opportunities to the refugees it will become problematic for their country as
they may get involved in criminal activities to sustain themselves. Many
Rohingyas living as a refugee in Bangladesh who want to travel to other
countries as migrant worker must be allowed to do so and special travel
documents could be provided by the Government which could also be beneficial
for their own economy. 15

·     
The present rate at which the Rohingyas are leaving Myanmar and
settling in neighbouring countries is an evidence of the attempt of the Burmese
Government to commit crimes against humanity. This can be brought into check
through the Rome Statute. Even a non State Party such as Myanmar can be brought
within the purview of the Rome Statute through Article 13(b) and (c). The
United Nations Security Council (UNSC) may refer the situation in Myanmar to
the ICC under Article 13(b) of the Rome Statute. This is a long-term legal
option that the world community could consider to end the plight of the Rohingyas.16

·     
A political solution can to be made with the support of the
neighboring countries and Association of Southeast Asian Nations (ASEAN) and
the international community. The ASEAN Intergovernmental Commission on Human
Rights (AICHR) is responsible for the promotion and protection of human rights
in the Asian region. 17The
ASEAN Human Rights Declaration also entails the right of all persons to
equality and non-discrimination. This right of equality is also available to
the Rohingya regardless of the status of their nationality.18

·     
The most simple solution is that the Myanmar Government agrees to
give citizenship to the Rohingya Muslims. This would lead to a stable and
peaceful environment for the entire International community. This can be made
possible by the application of the doctrine of genuine and effective link which
says that a person should be eligible to receive citizenship from states with
which she or he has a substantial connection or a genuine and effective link. This
must be obligated upon the Myanmar Government and must be applied as a
customary International Law that does not require any ratification by the
States.19

·     
It is believed that all Rohingya born in Burma and their children
have a right to Burmese citizenship. By denial of this citizenship, Burma is
violating international law. It is thus forcing its neighbors to bear the
burden of its actions. The international community must put pressure on Burma
to provide full citizenship and accompanying rights to its Rohingya population.
The right to nationality without arbitrary deprivation is now recognized as a
basic human right under international law, which, through legal instruments and
the practice of many states, imposes the general duty on states not to create
statelessness. Though Myanmar is not a party to these conventions, but the
general principles are to be complied by all the States. The discrimination and
human right abuses faced by the Rohingya would be curbed to a large extent if
they are given the right of citizenship.20

·     
Human Rights Watch has persistently called for the Myanmar
government to amend the 1982 Citizenship Law in line with recommendations made
by the U.N. Special Rapporteur dealing with Myanmar, and to grant Rohingya full
citizenship and other rights. The special rapporteur has called on the Myanmar government to
“abolish its over-burdensome requirements for citizens in a manner which
has discriminatory effects on racial or ethnic minorities.”21

 

CONCLUSION

The refugees and the stateless undergo tough lives though they are
protected under several International Conventions. The reason is that they are
not accepted by the nation to which they belong. It is the primary responsibility
of the host country not to create such conditions so as to force these people
to migrate from one country to another to lead a normal and healthy life. The
Rohingya crisis can be peacefully solved by the intervention made by the
International community and specially the powerful United Nations Security
Council to exert pressure on the Myanmar Government to safeguard the interests
of these Rohingya Muslims who have long suffered from discrimination and violation
of their human rights. This can only be made possible when all the five
countries of UNSC realize the magnitude of this problem and are willing to take
appropriate action against the Myanmar Government. Once such a resolution is
made, it will remain permanent and thus, a stable and peaceful life can be
expected for the present and the future Rohingyas and the ones who have been
refugees can also return back to their home and enjoy the rights of citizenship
which are complemented by all other fundamental rights.

 

 

 

 

 

1 United Nations Convention Relating to the Status of
Refugees, 189 U.N.T.S. 150, 1951.

2 United Nations Convention Relating to the Status of
Stateless Persons, 360 U.N.T.S. 117, 1954, Article 1(1).

3 UN Office of the High Commissioner for Human Rights
(OHCHR), Fact Sheet No. 20, Human Rights and Refugees, July 1993, No.
20, available at:
http://www.refworld.org/docid/4794773f0.html accessed 4 January 2018.

4 David Weissbrodt and Clay Collins, e Human Rights
of Stateless Persons, 28 Hum. Rts. Q. 245 (2006), available at h9p://scholarship.law.umn.edu/faculty_articles/412.

5
Supra note 2.

6 Supra note
4.

7
Human Rights Watch, Living in Limbo: Burmese Rohingyas in
Malaysia, 1 July 2000, Vol. 12, No. 4, (C), available at:
http://www.refworld.org/docid/3ae6a8743.html accessed 4 January 2018

8
Equal Rights Trust (ERT) in partnership with the
Institute of Human Rights and Peace Studies, Mahidol University. Equal Only
in Name: The Human Rights of Stateless Rohingya in Malaysia. London: ERT,
2014.

 

 

9
Ibid.

10
Supra note 7.

11 United Nations High
Commissioner for Human Rights. (2016). Situation of human rights of Rohingya
Muslims and other minorities in Myanmar, above n 42.?

12 Kentish, B. (2016, December
16). Burmese government is ‘renewing attacks on Rohingya Muslims,’ rights group
claims. Retrieved 2017, from The Independent:
http://www.independent.co.uk/news/world/asia/burma-government-attack-rohingya-muslims-minority-
myanmar-islam-a7477741.html.

13 Bulman, M. (2017, February
3). Burma: Rohingya Muslim babies and children ‘being slaughtered with knives’,
UN warns. Retrieved from The Independent: http://www.independent.co.uk/news/world/asia/burma-rohingya-muslim-babies-children-slaughtered-
knives-massacre-genocide-un-warns-a7561711.html.?

14 Ashraful Azad & Fareha Jasmin, Durable Solutions To The Protracted Refugee Situation: The Case Of
Rohingyas In Bangladesh, Journal of Indian Research  Vol.1, No.4, October-December, 2013, 25-35.

15 Ibid.

16 A. K. M. Ahsan Ullah, Rohingya Crisis in Myanmar: Seeking Justice for the “Stateless”, Journal
of Contemporary Criminal Justice 2016, Vol. 32(3) 285–301.

17 Kimberly Ramos Gamez, EXAMINING THE ASEAN
INTERGOVERNMENTAL COMMISSION ON HUMAN RIGHTS (AICHR): THE CASE STUDY OF THE
ROHINGYA CRISIS, June 2017.

18 Supra note
8.

 

19 Supra note 4.

20 Supra note
7.

21 Ibid. 

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