The State of a Stateless People: The Current Rohingya Crisis

Jessica Riley

Vol. 39 Associate Editor

They have been called “the world’s most persecuted people.”[1] They have been denied citizenship and basic human rights in the only country many have ever known.[2] They have been beaten, raped, and murdered.[3]  For many of the Rohingya people, this laundry list of abuses has recently reached an alarming crescendo of extreme violence causing more than 600,000 people to flee their homes in the Rakine state in an attempt to find safety outside of Myanmar.[4] However, this crisis that is currently being splashed across the news screens of the world is not an overnight disaster; rather, tragically, it has historical roots and has been “decades in the making.”[5]    While considered “undocumented immigrants” by Myanmar’s government, the Rohingya are a primarily Muslim minority who, despite deep historical roots in Myanmar, are effectively stateless.[6] While their presence in the country goes back centuries, tensions with the Buddhist majority in Rakine likewise have significant longevity.[7] These tensions have escalated particularly since World War II, when the allegiances of the Buddhist majority and the Rohingya were split with the former supporting Japan and the latter supporting the British.[8] Following the war, when Myanmar (Burma at the time) gained its independence in 1948, many of the Rohingya were considered citizens; however, changes occurred, and in 1962 a military junta came to power and began attacking the Rohingyas’ rights.[9] This culminated in a 1982 law being enacted which stripped most Rohingya of their citizenship.[10] Despite their unrecognized status, there were estimated to be over one million Rohingya living in Myanmar prior to the recent mass exodus.[11] The world has been watching the recent mass exodus of the Rohingya from Myanmar, but it is not enough to be mere observers; rather, it is imperative that the international community take appropriate action to protect these stateless individuals. Looking to international law for a starting point, with little effort, an inquirer would find two relevant treaties, drafted over fifty years ago, that provide specific protections for stateless peoples, namely the 1954 Convention Relating to the Convention on Stateless Persons and the 1961 Convention on the Reduction of Statelessness.[12] While these treaties provide significant protections to stateless individuals, arguably the biggest downside to their execution is the lack of state participation. In fact, there are only seventy parties to the Convention on the Reduction of Statelessness and eighty-nine to the Convention on Stateless Persons.[13] While this low number is problematic for a goal of widespread application, fortunately these conventions are not the only protections available to the exiting Rohingya. In the past, the United Nations (UN) had noted an “interconnectedness” between stateless populations and refugee populations, but when the drafters chose to craft protections for the groups, they chose to draft separate treaties.[14] However, even though the Rohingya are considered to be stateless—and statelessness does not automatically make a person a refugee—they are also able to seek protection under the 1951 Convention on the Status of Refugees and its 1967 Protocol.[15] This Convention defines a refugee as being one who

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protections of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.[16]

The key language that allows the Rohingya to claim refugee status under this convention is “habitual residence.”[17] Without this, their lack of a country of nationality would place them outside the textual limits of the definition which requires alienage, and they would be unable to claim asylum as refugees. So, in this case we see the idea of habitual residence acting as a sort of escape valve for people who could not otherwise be considered refugees under international law. But what exactly is habitual residence? Per Professor James Hathaway, habitual residence “is understood to give rise to a bond between the stateless individual and a state that approximates in critical respects the relationship between a citizen and her state.”[18] There is no one dispositive factor; rather, courts when determining what constitutes a habitual residence have been “purposive” and “flexible” in their considerations and have engaged in “a wide-ranging factual inquiry.”[19] By claiming that Myanmar is their habitual residence, an asylum seeking member of the Rohingya community could address this requirement of the refugee definition. Despite the existence of treaties designed particularly for stateless individuals, claiming asylum under the 1951 Refugee Convention and its 1967 Protocol is currently a more viable means for relief, given that worldwide protections for refugees have flourished over the past sixty years whereas the parallel system for stateless individuals has been lackluster.[20] The emphasis on refugee protection can be seen by the higher state participation in the Refugee Convention; in fact, there are currently 145 state participants to the Convention and 146 to the Protocol.[21] While not all states are parties to this treaty, some, such as Bangladesh, have endeavored to host refugees even without the affirmative treaty obligation.[22] While it is heartening to see international law addressing the current crisis at hand through the Refugee Convention, the underlying issues affecting stateless individuals such as the Rohingya require more international action to prevent future crises. This action must start with individual states. States have a tremendous amount of power in determining the future of stateless individuals. As Professor David Baluarte stated, “Their enjoyment of fundamental human rights depends on the good faith of host countries.”[23] While an empowered state protecting its stateless residents is to be desired, this same power is particularly troubling in the hands of states that are not safeguarding the rights of vulnerable stateless populations within their borders. Sadly, the case of the Rohingya is a tragic example of this. Not only has Myanmar’s government failed to take needed action to protect the Rohingya, but as the UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein asserts, the government has crossed over into ethnic cleansing.[24] He argues that “by denying Rohingya their political, civil, economic, and cultural rights, including the right to citizenship . . . the Government’s actions appear to be a cynical ploy to forcibly transfer large number of people without possibility of return.”[25] Bearing in mind these concerns, individual states and the international community should evaluate their policies regarding stateless individuals and refugees. More states could commit to joining the Statelessness Conventions; they could act to better support the UN’s mission to end statelessness by 2024 by working to identify, prevent, reduce, and protect stateless individuals.[26] States could follow the example of other countries such as France, Spain, and the UK that have taken initiative to construct their own apparatuses to protect stateless individuals.[27] The world must take heed from past shortcomings to ensure a better, safer future for vulnerable stateless populations. As the UN High Commissioner for Refugees Filippo Grandi succinctly stated, “Without the shared sense of purpose needed to prevent, stem and solve conflicts, the world will continue to face new refugee flows, and must reinforce its capacity to respond.”[28]

[1] Rebecca Ratcliffe, Who Are the Rohingya and What is Happening in Myanmar?, Guardian, (Sept. 5, 2017), https://www.theguardian.com/global-development/2017/sep/06/who-are-the-rohingya-and-what-is-happening-in-myanmar. [2] See Hannah Beech, Across Myanmar, Denial of Ethnic Cleansing and Loathing of Rohingya, N.Y. Times (Oct. 24, 2017), https://www.nytimes.com/2017/10/24/world/asia/myanmar-rohingya-ethnic-cleansing.html. [3] See Jeffrey Gettleman, Rohingya Recount Atrocities:‘They Threw My Baby into a Fire,’ N.Y. Times (Oct. 11, 2017), https://www.nytimes.com/2017/10/11/world/asia/rohingya-myanmar-atrocities.html. [4] See Beech, supra note 2. [5] Crisis in Rakine ‘Decades in the Making’ and Reaches Beyond Myanmar’s Borders – UN Rights Experts, U.N. News Ctr. (Oct. 26, 2017), http://www.un.org/apps/news/story.asp?NewsID=57970#.WfepnWhSzIU. [6] Amanda Crews Slezak et al., Stateless and Fleeing Persecution: The Situation of the Rohingya in Thailand, 35 Child. Legal Rts. J. 44, 44 (2015), http://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1078&context=clrj. [7] Beech, supra note 2. [8] Id. [9] Id. [10] Id. [11] Megan Specia, The Rohingya in Myanmar: How Years of Strife Grew into a Crisis, N.Y. Times (Sept. 13, 2017), https://www.nytimes.com/2017/09/13/world/asia/myanmar-rohingya-muslim.html. [12] See Convention Relating to the Status of Stateless Persons, Sept. 28, 1954, 360 U.N.T.S. 5158; Convention on the Reduction of Statelessness, Aug. 30, 1961, 989 U.N.T.S. 175. [13] Status: Convention Relating to the Status of Stateless Persons, U.N. Treaty Collection, https://treaties.un.org/pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V-3&chapter=5&Temp=mtdsg2&clang=_en (last visited Nov. 14, 2017); Status: Convention on the Reduction of Statelessness, U.N. Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=V-4&chapter=5&lang=en (last visited Nov. 14, 2017). [14] David C. Baluarte, Life After Limbo: Stateless Persons in the United States and the Role of International Protection in Achieving a Legal Solution, 29 Geo. Immigr. L.J. 351, 355-56 (2016), http://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1508&context=wlufac. [15] See James C. Hathaway & Michelle Foster, The Law of Refugee Status 66 (2d ed. 2014). [16] Convention Relating to the Status of Refugees, Art. I(A)(2), Apr. 22, 1954, 189 U.N.T.S. 2545 (emphasis added). [17] See id. [18] Hathaway & Foster, supra note 15, at 67. [19] Id. at 68, 70. [20] See Baluarte, supra note 14, at 357. [21] Status: Protocol Relating to the Status of Refugees, U.N. Treaty Collection, https://treaties.un.org/pages/ShowMTDSGDetails.aspx?src=UNTSONLINE&tabid=2&mtdsg_no=V-5&chapter=5&lang=en (last visited Nov. 14, 2017); Status: Convention Relating to the Status of Refugees, U.N. Treaty Collection, https://treaties.un.org/pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V-2&chapter=5&Temp=mtdsg2&clang=_en (last visited Nov. 14, 2017). [22] Submission by United Nations High Commissioner for Refugees (UNHCR) for the Office of the High Commissioner for Human Rights’ Comparative Report – Universal Periodic Report: Bangladesh, RefWorld (Oct. 2012), http://www.refworld.org/publisher,UNHCR,COMP,BGD,508640242,0.html. [23] Baluarte, supra note 14, at 352. [24] Attacks Against Rohingya ‘A Ploy’ to Drive Them Away; Prevent Their Return – UN Rights Chief, U.N. News Ctr. (Oct. 11, 2017), http://www.un.org/apps/news/story.asp?NewsID=57856#.WgpYuWhSzIV. [25] Id. [26] How UNHCR Helps Stateless People, U.N. High Commissioner for Refugees, http://www.unhcr.org/en-us/how-unhcr-helps-stateless-people.html (last visited Nov. 13, 2017). [27] Baluarte, supra note 14, at 358. [28] World Must Step Up Protection for Refugees, Do More to Solve Conflicts – UN Agency Chief, U.N. News Ctr. (Oct. 2, 2017), http://www.un.org/apps/news/story.asp?NewsID=57793#.WgpZlmhSzIV.