The first step towards acquiring rights and having

The Rohingyas have been declared as one of the most persecuted ethnic groups in the world. The Rohingya Muslims, an ethnic minority residing in the Rakhine State of Myanmar have been forced to flee Myanmar due to the ethnic cleansing and Human Rights violations that they have been subjected to. They have been the victims of killings, shelling, and widespread arson conducted by the Government security forces in Myanmar.1 The reason behind being subjected to violence by the state in which they are presently residing is grounded in the denial of citizenship to the Rohingyas by Myanmar. Its basis lies in the Union Citizenship Act passed by Myanmar shortly after its independence in 1948 which defined which ethnic groups could gain citizenship. However, the Rohingyas were not included in the Act. In 1982, a new citizenship law was passed, which effectively rendered the Rohingya stateless. Under the law, Rohingya were again not recognised as one of the country’s 135 ethnic groups.2

The Rohingya crisis boils down to a problem of citizenship as even the human rights violations have their basis in the question of citizenship. States may deny responsibility of human rights violations or even go so far as to perpetrate them on account of a lack of citizenship of the individuals. Moreover, a state is only obligated to protect the rights of its citizens. Therefore, acquiring citizenship or being recognised as a citizen of a state is the first step towards acquiring rights and having those rights protected by the state.

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The right to a nationality is of paramount importance to the realization of other fundamental human rights. Consequently, the right to a nationality has been described as the “right to have rights.”34 Therefore, it can be said that having a nationality is equivalent to being accorded human rights.

In the case of the Rohingyas, being denied citizenship is the primary cause behind the atrocities that they are being subjected to. According to Article 15 of the Universal Declaration of Human Rights, everyone has the right to a nationality and no one shall be arbitrarily deprived of his nationality or denied the right to change his nationality.5 UDHR has been recognised as Customary International Law, however due to its unenforceable nature, is not followed to the full extent by the states. Hence, it is not mandatory for States to abide by the principles set out in the Universal Declaration of Human Rights, even though they lay down the basic rights that every human being is entitled to. Due to the lack enforceability, it remains merely as a set of moralistic principles that States can very conveniently choose to ignore.

So then, under what circumstances can Rohingyas be granted the citizenship that they are being vehemently denied? International law recognises two principles on the basis of which citizenship is granted- Jus Soli and Jus Sanguinis. Jus Solis or “right of the soil”, defines citizens as those born within the country, regardless of the citizenship of the parents. This means that the descent of the person plays little to no role in determining whether a person may be granted citizenship. Jus Sanguinis or “the right of blood”, pay importance to the descent and heritage of a person in determining questions of citizenship. Where people were born is not as important as if and how they can trace their ancestry back to the origin country. In case of people born outside the country or “foreigners”, they would have to meet the required criteria, such as showcasing language skills or knowledge of the culture and practices of the country.6 The citizenship laws of most countries are based on one of these two principles. If Myanmar follows the principle of Jus Soli, then Rohingyas should be granted citizenship immediately as they have the right to citizenship by virtue of being born in Myanmar. It becomes slightly more problematic to ascertain citizenship by following the Jus Sanguinis principle.  The Rohingya Muslims argue that their ancestry can be traced back to the Rakhine province of Myanmar. They claim to have lived in present day Myanmar since as early as the 12th century. 7 Even if these claims are not accepted, and they fall under the category of “foreigners”, they can be granted citizenship by showcasing knowledge of the culture and history of the country.  Thus, under both the principles, no matter which one is followed by Myanmar, Rohingyas are entitled to the protection of citizenship in Myanmar.

However, there is a lot of disparity between what should be the case, and what is happening in reality. Why is it so difficult to grant citizenship to the Rohingya? The problem lies in the series of Citizenship Acts passed in Myanmar after independence. Interestingly, there is a lot of disparity between subsequent citizenship acts. They seem to discriminate against the Rohingya by granting them citizenship or at least some semblance of it and taking it away in the very next Act.

The first act, the Union Citizenship Act, was passed in 1948 which did not grant citizenship to the Rohingyas. However, it did allow people whose families had lived in Myanmar for at least two generations to apply for identity cards. This effectively allowed them some rights and opportunities. Many Rohingyas even served in the Parliament. After the military coup of 1962, the Rohingyas were granted foreign identity cards rather than national registration cards given to citizens. Even at this point of time, while the opportunities provided to them was limited, it wasn’t non-existent. They might not have been placed on an equal footing as the citizens, but they were not entirely deprived of their rights. All of this changed for the worse after he Citizenship Act of 982 was passed. This law did not recognise the Rohingyas as citizens. It required proof to be given that the person’s family lived in Myanmar prior to 1948, as well as fluency in one of the national languages. This paperwork could not be provided by many people because it was either unavailable or denied to them. This effectively rendered them stateless. They were stripped of all of their rights, some of which had been granted to them through previous citizenship laws, overnight.

This type of arbitrariness in the citizenship laws can only be said to amount to discrimination. This discrimination is based entirely on ethnic grounds, which violates the International Convention on the Elimination of All Forms of Racial Discrimination. Article 5 of the Convention calls for all states to prohibit and eliminate racial discrimination in all its forms and to guarantee, inter alia, the right to nationality without discrimination as to race, colour or ethnic origin.8

Considering the fact that the Citizenship Act of 1982 has rendered the Rohingyas stateless, does that mean an absolute end to all of their rights? It has already been established that citizenship is the first step towards the acquisition of rights. Conversely, would it mean that those denied citizenship of any country would have no rights? Even in the case of stateless persons, there are certain rights set out in the Convention Relating to the Status of Stateless Persons that guarantees certain basic human rights and calls for states to facilitate the process of assimilation and naturalization of stateless persons. The Convention defines a stateless person as “someone who is not considered as a nation by any State under operation of its law.” 9The case of the Rohingyas fits the bill perfectly. They are not considered to be nationals of Myanmar and are considered to be migrants from Bangladesh. They are also not recognised as nationals of Bangladesh which considers it to be Myanmar’s problem.

The Convention provides important minimum standards of treatment. It upholds the right to freedom of movement within the territory. It also prohibits expulsion of people who are lawfully on the territory. It also provides for the same treatment for stateless persons when it comes to freedom of religion, education of children and employment. However, Myanmar is not party to this convention and is therefore not bound to abide by it. Even if Myanmar is not bound by the convention, these are some of the most basic rights that even stateless persons should be entitled to.  Freedom of movement within the territory can be considered to be the most basic right and is of utmost importance. However, Myanmar’s actions in this respect have been inhumane. The Burmese government restricts Rohingya from traveling within Arakan, to other parts of the country, and abroad. There have been reports of the laying down of land mines along the border with Bangladesh in order to restrict movement.10

It can be argued that Myanmar, not being a party to either of these conventions, is not bound to abide by them. However, the treatment meted out to the Rohingyas violates the most basic standards of treatment and violates the most basic human rights that should be available to every human being, irrespective of International Conventions and Agreements. At the very least, heed should be paid to the Universal Declaration of Human Rights, which is considered to be a part of Customary International Law.

Perhaps worst affected in this situation are the children born into the conflict or forced to grow up and survive in this situation. The question of their citizenship also remains unanswered. According to the 1982 Citizenship Law, Burmese citizenship is de facto denied to children born to those considered non-citizens. In order for a child to attain Burmese citizenship, at least one parent must already hold one of the three types of Burmese citizenship. However, this is in conflict with the Burmese government’s obligation under Article 7 of  the U.N. Convention on the Rights of the Child, which states, “The child shall be registered immediately after birth and shall have the right to a name, the right to acquire a nationality…States Parties shall ensure implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.” 11The Burmese government ratified the convention in 1991 and is obliged to grant citizenship to children born in Burma who would otherwise be stateless.12

However, this is far from the case. Not only are they being denied citizenship, and thus subsequent human rights, they are being subjected to brutal sub-humane conditions. What they’re being subjected to is akin to a genocide. It has been termed by the U.N. as an ethnic cleansing by the military forces in Myanmar.

The only way to grant access to human rights to the Rohingyas is by concretely determining the question of their citizenship. The present tactic of passing the buck from one government to the other that is being employed by the government of the stakeholders is only delaying their access to the most basic rights that every human should be entitled to. Citizen or not, they do not deserve being subjected to an animalistic existence, void of any rights or opportunities. Acquiring this citizenship of a state is the first step towards this, as this entitles them to the protection of their rights as well. Considering the fact that everyone is entitled to a nationality, the question of their nationality needs to be determined at the earliest. Having granted certain basic rights to the community earlier, Myanmar is in a favourable position to amend its citizenship laws and at least accord the same status to the Rohingyas as had been granted earlier. International Conventions and laws also point in this general direction. Only then would the position of the Rohingyas be elevated from a sub-human one and only then would there be a plausible end to the atrocities being inflicted upon them.

1 Rohingya Crisis , HUMAN RIGHTS WATCH. Available at https://www.hrw.org/tag/rohingya-crisis. (Last accessed on Dec 22, 2017).

2 Myanmar: Who are the Rohingya?, AL JAZEERA, Nov 30, 2017. Available at http://www.aljazeera.com/indepth/features/2017/08/rohingya-muslims-170831065142812.html. (Last accessed on Dec 20, 2017).

3 Trop v. Dulles, 356 U.S. 86, 101-102.

4 Citizenship and Nationality, INTERNATIONAL JUSTICE RESOURCE CENTER. Available at http://www.ijrcenter.org/thematic-research-guides/nationality-citizenship/. (Last accessed on Dec 22, 2017).

5 Universal Declaration of Human Rights art. 15, Dec 10, 1948, 217 A (III). Available at http://www.un.org/en/universal-declaration-human-rights/.

6 Citizenship, UNESCO.ORG. Available at http://www.unesco.org/new/en/social-and-human-sciences/themes/international-migration/glossary/citizenship/. (last accessed on Dec 22, 2017).

7 Supra Note 2.

8 International Convention on the Elimination of All Forms of Racial Discrimination, art. 5, Dec 21, 1965, 1144 U.N.T.S. 143. Available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx.

9 Convention Relating to the Status of Stateless Persons art. 5, Apr 22, 1954, 189 U.N.T.S. 150. Available at http://www.unhcr.org/protection/statelessness/3bbb25729/convention-relating-status-stateless-persons.html.

10 Sarah Wildman, The World’s Fastest Growing Refugee Crisis is Taking Place in Myanmar: Here’s Why, VOX, Sep 18, 2017. Available at https://www.vox.com/world/2017/9/18/16312054/rohingya-muslims-myanmar-refugees-violence. ( last accessed on Dec 22, 2017).

11 Convention on the Rights of the Child art. 7, Sep 2, 1990, 1577 U.N.T.S. 3. Available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx.

12 Discrimination in Arakan, HUMAN RIGHTS WATCH. Available at https://www.hrw.org/reports/2000/burma/burm005-02.htm. ( last accessed on Dec 22, 2017).