The Development of Statelessness in International Law

and

the Case of Rohingyas in Myanmar

Submitted

By

Hnin Yee Myint

(Student ID : 09ff990)

Academic Advisor

Professor YOO Hyuck-Soo

International Graduate School of Social Sciences

Yokohama National University

Japan

January 2011

Acknowledgement

First of all, I would like to express my sincere thanks to all those who have

assisted me in various ways during my study at the Yokohama National University and in

the writing of my Thesis for a Master’s Degree.

Particularly, I would like to convey my deep gratitude to my academic advisors

Professor YOO Hyuck-Soo and Professor ARAKI Ichiro, who have given scholarly

guidance, offered invaluable comments and provided superb supervision as well as kind

support and wonderful encouragement during the whole period of my academic study as

well as the preparation of my Thesis. Without them, it would be impossible for me to

produce this Thesis. My profound thanks also go to Mr. John B. Gage for his analytical

review and kind advice for the improvement of my work.

I am also very grateful to Professor IKEDA Tatsuhiko, Professor KOIKE Osamu,

Professor Nerida Rand and all the other Professors and faculty members as well as Ms.

SAKAMOTO Mariko, Ms. EMI Chie, and all the staff members from the LPP Office for

their interesting lectures, kind assistance, generous help and wonderful care given to me

during my study at Yokohama National University.

I would also like to convey my profound appreciation to the Japan International

Cooperation Agency (JICA) and the Japan International Cooperation Centre (JICE) for

the warm hospitality, remarkable guidance, heartfelt assistance, and tender care I have

received from them throughout my stay in Japan.

ii

I have also greatly benefited in the writing of my thesis from the wonderful advice

and kind support I had received from Professor Dr. Robert Taylor, currently Visiting

Professor in the Department of Asian and International Studies, City University of Hong

Kong; Professor Dr. Aye Chan from the Department of International Cultures, Kanda

University of International Studies, Chiba, Japan; and U Khin Maung Saw, former

Lecturer from the Department of Asian Studies, Humboldt University, Berlin, Germany.

They had also provided me with invaluable information and documents, especially

concerning questions of ethnicity in Myanmar, the Rohingya issue, and the problem of

statelessness in Europe. I would like to express my deep appreciation to them.

Last but not least, I would like to thank my parents for their support and

encouragement given to me throughout my study at Yokohama National University.

Thank you.

Hnin Yee Myint

January, 2011

iii

Abstract

The present Master’s Thesis endeavors to study the nationality claim of the

stateless Rohingyas in Myanmar and the status of their statelessness outside the country

based on the concepts of “nationality”, “ethnicity,” and “self-determination” as well as on

the basis of the concept of the “territorial integrity” of a state. The issues of “self-

determination” and “territorial integrity” are important both for the people and the state.

They are also complicated and complex concepts in the context of today’s developments

in the international arena.

Many ethnic groups raise the issue of the right to “self-determination”. Ethnic

conflicts normally arise when two or more ethnic groups within a state compete for

economic and political goods. Most of the ethnic conflicts may grow out of the

grievances. However, there are cases when the ethnic problems are created by the

leadership of the respective nationalities for their own personal interests. Sometimes, the

nationality claim of an ethnic group is not readily accepted by the people residing in that

state as their original ethnic group or nationality. A case in point is the nationality claim

of the so-called Rohingya in Myanmar. The research, therefore, is based on the historical

background while it studies the issue from the perspectives of domestic and international

laws as well as from the humanitarian aspect. The objective, however, is to present the

issue in a way the international community could appreciate it in an objective manner.

The study also puts up a few humble recommendations that the researcher hopes

would assist in resolving the Rohingya issue in Myanmar, including the problem of their

statelessness status.

iv

Abbreviations

ARIF - Arakan Rohingya Islamic Front

ARNO - Arakan Rohingya National Organization

BDR - Bangladesh Border Security Forces

CRC - Convention of the Rights of the Child

ECHR - European Convention on Human Rights

ERRC - European Roma Rights Center

EU - European Union

HCNM - High Commissioner for National Minorities

INGO - International Non-governmental Organization

KNU - Karen National Union

MOU - Memorandum of Understanding

NGO - Non-governmental Organization

REF - Roma Education Fund

RSO - Rohingya Solidarity Organization

SPDC - State Peace and Development Council

TRC - Temporary Registration Cards

UAE - United Arab Emirates

UN - United Nations

UNHCR - United Nations High Commissioner for Refugees

USSR - Union of Soviet Socialist Republic

v

Table of Contents

1. INTRODUCTION ...................................................................................................... 1

1.1.Purpose ..................................................................................................................... 1

1.2. Structure ................................................................................................................... 3

1.3. Methodology and Sources ........................................................................................ 4

1.4. The Role of Ethnicity in Myanmar ........................................................................... 5

CHAPTER I - LEGAL FRAMEWORK OF NATIONALITY, SELF-

DETERMINATION AND TERRITORIAL INTEGRITY FROM THE

PERSPECTIVE OF INTERNTIONAL LAW ........................................................... 11

2.1. Relevant Terminology: Definitions, Concepts and the Scope ............................ 11

2.1.1. State ............................................................................................................... 11

2.1.2. Nationality, Citizenship and Nationalism ........................................................ 13

2.1.3. Ethnicity and Ethnic Conflicts ......................................................................... 18

2.1.4. Self-Determination, President Wilson’s 14 Point Program, and Groups’

Claims ........................................................................................................ 22

2.1.5. Territorial Integrity .......................................................................................... 28

2.2. Statelessness and Refugees .................................................................................... 29

2.2.1. Statelessness and International Jurisprudence on Statelessness ...................... 29

2.2.2. Refugees, Refugees defined in International Instruments, and Refugees and

the United Nations ..................................................................................... 33

CHAPTER II - CONCEPTS OF CITIZENSHIP IN DOMESTIC AND

INTERNAITONAL LAWS AND SECURITY OF THE STATE ............................... 36

3.1. A Brief Historical Background of the Evolution of the Rohingya Issue in

Myanmar 36

3.2. The Situation of Rohingyas in Myanmar ............................................................... 43

3.3. Domestic Laws ...................................................................................................... 46

3.3.1. 1947 Constitution ............................................................................................ 46

3.3.2. 1974 Constitution and 1982 Burma (Myanmar) Citizenship Law .................. 48

3.3.3. 2008 Constitution ............................................................................................ 52

3.3.4 Burma (Myanmar) Immigration Act ............................................................... 52

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3.3.5. Rohingya Issue and 1947, 1974 and 2008 Constitutions and Myanmar

Citizenship Laws ....................................................................................... 53

3.4. International Instruments ..................................................................................... 58

3.4.1. Citizenship or Nationality ............................................................................... 58

3.4.2. Ethnic Group and Ethnicity ............................................................................. 59

3.5. Statelessness, Refugees and Security of the State ................................................ 60

3.5.1. Statelessness ..................................................................................................... 60

3.5.2. Refugees ........................................................................................................... 61

3.5.3. Security of the State ........................................................................................ 62

CHAPTER III - A COMPARATIVE STUDY ON THE STATUS OF

STATELESSNESS: ROHINGYAS AND THE EXPERIENCES OF ROMA .......... 64

4.1. The Development of the Rohingya Issue and Perspectives of the Interested Parties

64

4.1.1. Perspective of Myanmar .................................................................................. 64

4.1.2. Perspective of Bangladesh .............................................................................. 65

4.1.3. Perspective of Rohingyas ................................................................................. 67

4.1.4. Perspectives of UNHCR and NGOs ................................................................ 70

4.2. Roma and the Development of Statelessness in Europe ...................................... 71

4.2.1. Roma in Europe ............................................................................................ 71

4.2.2. The Situations of Roma in Europe and the EU Position .................................. 76

4.3. The International Responses on the Statelessness in Europe ............................... 80

4.3.1. United Nations High Commissioner for Refugees (UNHCR) ......................... 80

4.3.2. International Non-Governmental Organizations (INGOs) .............................. 82

4.4. A Comparative Study of the Status of Statelessness: Rohingyas and the Roma ... 84

5. CONCLUSION AND RECOMMENDATION ......................................................... 91

5.1. Conflict of Interests between the Recognition of the Claim of Rohingyas and the

Territorial Integrity of the State ........................................................................................ 91

5.1.1. The Conflicting Implications of the Concepts of Self-determination of

Ethnicity and the Territorial Integrity of the State .................................... 91

5.1.2. Applicability of the General International Law Concept of Ethnic Self-

Determination to the Rohingya Case ......................................................... 94

vii

5.2. Resolving the Issue ............................................................................................... 96

5.2.1. Consequences of accepting or denying the claims of Rohingyas on the Unity

and Integrity of the Multi-ethnic State of Myanmar ................................. 96

5.2.2. Concluding Remarks ........................................................................................ 98

5.3. Recommendation for Way Forward ..................................................................... 100

viii

1. INTRODUCTION

1.1. Purpose

The theme of this research is to examine the nationality claims of the Rohingya

people and the issue of their statelessness on the basis of the concepts of nationality, self-

determination and territorial integrity in international law. The historical aspects of the

Rohingyas’ nationality claim, the relevance of current international law, and the interests

of the state is also considered in the process.

Since the end of World War I, and more recently, with the end of the Cold War,

the world has witnessed a series of profound changes. One prominent trend within this

period has been the rapid disintegration of countries. In Europe, by the end of 1991, the

Union of Soviet Socialist Republics had been replaced by 15 independent states.

Yugoslavia, a federation of six separate republics – Slovenia, Serbia, Croatia, Bosnia and

Herzegovina, Macedonia and Montenegro, which comprised several ethnic groups also

collapsed in 1991. The course of ethnic conflicts began to emerge in Eastern Europe and

later proliferated and erupted in many other parts of the world.

It is difficult to define the term ethnicity. Its meaning is not fully racial or cultural

or religious and many scholars have defined the term from their different points of view.

It is therefore a complicated issue but it is also an important one as it can break a nation,

especially when a country is composed of many nationalities. Therefore, to reach a fair

judgment, it is important to give a very careful consideration of the unique characteristics

1

of the country as well as the prevailing conditions in the state when the ethnicity issue of

that state is considered from the perspective of international law.

The right of peoples to self-determination and the right of states to territorial

integrity are the fundamental principles of international law. However, these principles

are apparently in conflict. Many ethnic groups raise the issue of the right to “self-

determination”. Ethnic conflicts normally arise when two or more ethnic groups within a

state compete for economic and political goods, which may include territory, political

power and offices, or access to resources controlled by the state. In extreme cases, ethnic

conflict manifests itself as a demand by an ethnic group for a state of its own. These

claims are likely to be challenging politically and legally for the sovereignty of a state.

More commonly though, ethnic groups make lesser demands, which may range from

insistence on participation in the political life of the state on terms of equality with other

groups to affirmative measures, such as special language and education rights, to

demands for limited autonomy within the state.1

The issues of “self-determination” and “territorial integrity” are important for

both the peoples and the state. Though these concepts are important, they are also

complicated. They are important because without territorial integrity, a state would not be

able to survive, and without self-determination, the peoples would not feel free or

independent in promoting their individual characteristics. They are complicated because

territorial integrity could be implied for the state where all her peoples reside as well as

for a part of the state where one of its nationalities may reside.

1 David Wippman, ed., International Law and Ethnic Conflict (Ithaca and London: Cornell University, 1998) 5.

2

However, there are cases when the nationality claim of an ethnic group is not

readily accepted by the peoples residing in that state as their original ethnic group or

nationality. Whatever the case, when the conflicts that arise in connection with these

demands call into question the legitimacy of states and governments, they go to the heart

of international law.2

Most ethnic conflicts have their roots in objective conditions such as economic

deprivation, discrimination, loss of political or cultural autonomy and these conditions

create grievances that are exploited by ethnic entrepreneurs to mobilize ethnic groups for

political action. Whatever the causes of ethnic issues, ethnic conflict is often violent,

protracted, and resistant to settlement.3 In the case of the Rohingyas, the bone of

contention is the question of nationality or citizenship as they seemed to have lost their

original citizenship and become stateless people since a long time ago in the past when

they left their original places.

1.2. Structure

The structure of this thesis consists of Five Parts. Part One will be an introduction

of the relevant concepts of international law, a brief historical background and current

status of the ethnic composition of Myanmar (INTRODUCTION). Next, Chapter One

will discuss the legal instruments of international law which will apply to state,

nationality, self-determination and territorial integrity. Certain types of definitions and

concepts of relevant international instruments and the status of statelessness will also be

included (CHAPTER ONE: LEGAL FRAMEWORK OF NATIONALITY, SELF-

2 Ibid. 2.3 Ibid. 5.

3

DETERMINATION AND TERRITORIAL INTEGRITY FROM THE

PERSPECTIVE OF INTERNTIONAL LAW). Based on the existing domestic,

regional and international norms, Chapter Two, will evaluate how such norms have been

applied in practice (CHAPTER TWO: CONCEPTS OF CITIZENSHIP IN

DOMESTIC AND INTERNATIONAL LAWS AND SECURITY OF THE STATE).

Following, Chapter Three will evaluate the Rohingya issue and the international

responses on the issue of statelessness will be studied and compared with statelessness in

Europe (CHAPTER THREE: A COMPARATIVE STUDY ON THE STATUS OF

STATELESSNESS: THE ROHINGYAS AND THE EXPERIENCES OF ROMA).

And finally, in the Conclusion, comments will be made on the conflicting nature of the

concepts of self-determination and territorial integrity; the conflicting interests existing

between the ethnic groups as well as between the state and the ethnic group which claims

the citizenship of the state. After making comments, possible scenarios for resolving the

conflicting views and interests will be suggested (CONCLUSION AND

RECOMMENDATIONS).

1.3. Methodology and Sources

On the overall approach to considering the concepts of nationality, self-

determination, and territorial integrity in this Thesis, there will be a focus on describing

the law as it is. On the Stateless Rohingya Issue, political consideration will be made. It

will also be pointed out that international law is neither created nor applied in a vacuum

and that the role of power cannot be ignored. The research would look into the history of

the development of some of the ideas as well, particularly concerning ethnicity, such as

4

how the nineteenth century Western intellectuals saw this issue of ethnicity, how it had

become a prominent issue at the end of the First World War with the US President

Woodrow Wilson’s fourteen-point declaration4and look into whether these doctrines are

still relevant to the international situation developed since the onslaught of globalization.

In carrying out my research, I will seek to use qualitative data that was provided

from the United Nations High Commissioner for Refugees (UNHCR), and domestic laws

and other sources from both Myanmar and other countries. Firstly, I will rely on official

documents, news and reports, and relevant internet websites including that of the

UNHCR as the primary sources, together with the secondary sources, such as books and

articles from relevant journals which provide necessary information related to the overall

topic of my research. I will also focus on other countries’ experiences on nationality and

self-determination as well as the experiences of the groups claiming the nationality or

citizenship, and will make use of them for comparison. Through this research, I will try to

touch all the issues which are related to my research and will also study the related legal

perspective of my country.

1.4. The Role of Ethnicity in Myanmar

Before moving to the actual discussions and basic arguments of the related

research on the development of the stateless Rohingya issue in Myanmar, I would like to

provide a brief historical background on the issue of the nationalities (or) ethnicity in

Myanmar.

4 Derek Heater, National Self-Determination: Woodrow Wilson and his Legacy (Great Britain: Macmillan, 1994) 28-47.

5

Asia has a huge population, including over 1.3 billion5 of Chinese and 1.15

billion6 of Indians. It has a long history and suffered from the destruction of wars and

from the Western colonization even before the World War I as well as from other

regional conflicts. In this vast and over populated continent, Myanmar lies between

Asia’s two largest populated countries – China and India. In fact, they are also the

world’s two largest populated countries.

Ethnographically, Myanmar which is situated in Southeast Asia and bordered on

the north and northeast by China, on the east and southeast by Laos and Thailand, on the

south by the Andaman Sea and the Bay of Bengal and on the west by Bangladesh and

India, is one of the most diverse countries in the world which covers an area of 677,000

square kilometers (261,228 square miles). The length of the contiguous frontier is 6,159

kilometers. The total length of Myanmar-Bangladesh boundary is 271 kilometers (168.7

miles); Myanmar-China boundary is 2,204 kilometers (1,370 miles); Myanmar-Thailand

2,107 kilometers (1,309 miles); Myanmar-India 1,338 kilometers (831.8 miles); and

Myanmar-Laos 238 kilometers (147.9 miles).

5 “China’s Population”, About.com: Geography. 14 Jun 2010, 16 Jun 2010. <http://geography.about.com/od/populationgeography/a/chinapopulation.htm>.6 “India’s Population”, About.com: Geography. 27 Jul. 2009, 16 Jun 2010.

<http://geography.about.com/od/obtainpopulationdata/a/indiapopulation.htm>.

6

Map 1. Map of Myanmar7

7 Myanmar, map (UNHCR Country Profile – Myanmar)

7

The immigrants from Central Asia were thought to be the ancestors of the present

day Myanmar people. Anthropologists have classified Myanmar nationalities into three

major groups on the line of linguistic and cultural affinities: (1) Tibeto-Burman, (2) Mon-

Khmer, and (3) Tai-Shans. They are speaking over one hundred languages and each of

these nationalities belongs to one of the above stated three major racial groups. However,

in Myanmar, the term “ethnic” is not common and instead, “nationality” is normally used

to describe the peoples living in different parts of the country. One noted Myanmar

historian observed that ‘their main difference is in language or dialect, and in tradition

and way of life, they are not dissimilar’.8

Historians generally agree that the earliest inhabitants of modern Myanmar still

recognizable today are the Mons of Lower Myanmar. Some historians thought that they

are the descendents of Austro-Asiatic (Mon-Khmer) peoples who once occupied much of

South-East Asia. When looking back to the history of Myanmar starting from the arrival

of the Mons until the fall of its last king, King Thibaw, the peoples of Myanmar had lived

in peace and unity under a feudal form of administration. Though dynasties and names of

offices might have changed from time to time, the feudal form of administration had

remained intact throughout Myanmar’s dynastic history. Moreover, peaceful and

harmonious relationships had also been established among the different races or

nationalities.

The first Anglo-Myanmar War broke out in 1824 and as a result the provinces of

Rakhine and Tanitnharyi had to be surrender to the British. In 1852, the second war broke

8 Khin Maung Nyunt, “Balance between Tradition and Modernity in Myanamr History”, Uta Gärdner and Jens Lrenz eds. Tradition and Modernity in Myanmar (Munster, Hamburg: Lit, 1994) 6-7.

8

out again between Myanmar and British and during this time the whole lower Myanmar

fell under the British. The third and the last war between Myanmar and the British broke

out in 1885. This war was decisive and Myanmar became a part of the British Empire.

Subsequently, Myanmar was administered as a province of the British India. The British

rule brought many changes to Myanmar. As Myanmar came piecemeal under the British

rule in three stages as mentioned above, the colonial administration in Myanmar also

developed through several stages and its form differed from one region to another. Thus

the British government by adopting different systems of administration for Myanmar

proper and the hilly regions was putting into practice its policy of “divide and rule”.

While negotiations with the British were underway after World War II for

Myanmar’s independence, spokesmen for minority, ethnic, cultural or “national”

communities within its borders, advanced or were encouraged to advance demands for

separate rights, opportunities and powers to protect and enhance their particular positions.

These demands were all made vis-à-vis the central state and in the nation-state’s mode of

discourse. When these ethnically conceived demands were put in terms appropriate to the

state system, they then became phrased as “national” demands. However, the British

requirement that leaders of the ‘hill tribes’ and the Shan States indicate their willingness

to join with the government in Yangon in an independent Myanmar, culminating in the

1947 Panglong Agreement,9 meant that ethnicity became part of the independence

process itself. However, in several ways, individuals sought to put themselves forward as

ethnic leaders in order to increase their influence in the government. Thus, additional

9 An agreement signed at “Panglong” (Shan State) on 12 February 1947 between General Aung San and leaders and representatives of Shan, Kachin and Chin States. Today, on every 12 th February, it is celebrated as Union Day in Myanmar.

9

politically organized ethnic movements emerged during the next fourteen years,

threatening the disintegration of the state and a reversion to the politically dispersed

‘Myanmar’.

The new ethnic politics emerged from a series of ceasefire agreements reached

between the government which took power in 1988 and the ethnically designated

insurgent groups. The first ceasefire agreements were reached with the Kokang and Wa

troops from the northern Shan State, pledging not to secede from the Union. Today, the

State Peace and Development Council (SPDC) have officially maintained ceasefires with

seventeen out of eighteen armed ethnic groups since 1997. The KNU (Karen National

Union) is the only major armed group which has not yet entered ceasefire agreement with

the SPDC. As a result, parts which have been under control by the armed groups

previously have achieved improvements in education, health care, trade and in other

areas. The ceasefires have also allowed for the development of civil organizations in

ethnic areas.

A country needs peace for development. However, peace also can be achieved

when there is development in sight. If there is peace, economic development and

prosperity will definitely be achieved. On the other hand, if progress and prosperity could

be achieved to some extent, all the nationalities will be eager to preserve it and that

would become an incentive to reaching agreements on the issues concerning ethnicity.

10

CHAPTER I - LEGAL FRAMEWORK OF NATIONALITY,

SELF-DETERMINATION AND TERRITORIAL INTEGRITY

FROM THE PERSPECTIVE OF INTERNTIONAL LAW

This chapter forms a central part of this thesis since the definitions and concepts

of relevant international instruments which apply to state, nationality, ethnicity, self-

determination and territorial integrity are studied in this chapter. The study was made

with the purpose of finding out the ways to resolving the Rohingya issue in Myanmar

applying the relevant concepts of international law. In the process, this chapter analyses

these international law concepts and see whether they are still applicable or whether they

need reformulation to be applicable in the context of the prevailing international political

environment. The literature in this chapter serves as a guide when the background history

of the stateless Rohingyas is discussed in Chapter Two, and the status of statelessness is

examined in Chapter Three. Therefore, the literature in this chapter naturally has great

influence on the writings of other chapters.

2.1. Relevant Terminology: Definitions, Concepts and the Scope

2.1.1. State

With the rise of globalization, the number of actors and participants in the

international legal system has dramatically increased. However, states remain by far the

most important legal persons and retain their attraction as the primary focus for the social

activity of humankind and thus for international law. Then, what is a state?

11

Art. 1 of the Montevideo Convention states that, “The state as a person of

international law should possess the following qualifications: (a) a permanent population;

(b) a defined territory; (c) government; and (d) capacity to enter into relations with other

states.”10

The Arbitration Commission of the European Conference on Yugoslavia in

Opinion No. 1 declared that, “The state is commonly defined as a community which

consists of a territory and a population subject to an organized political authority” and

that “such a state is characterized by sovereignty”.11

Such provisions are neither exhaustive nor immutable. Other factors may also be

relevant, including self-determination and recognition, while the relative weight given to

such criteria in particular situations may very well vary. What is clear, however, is that

the relevant framework revolves essentially around territorial effectiveness.12

The term “State” or “Nation” often means the same for ethnic or racial groups that

share the common culture, ethnicity and language. These groups might have different

languages, cultures, religions, histories and also different identities of their own but the

fact of living together in a particular territory or region can be defined simply as a

“nationality” or “citizen” of a respective state or nation. In a sense, the meaning of

“national” and “citizenship” can be the same. The terms “nationality”, “citizenship” and

“ethnicity” have many meanings in political theory, law, and sociology and become an

important and complex issue in this age of globalization.

10 Rebecca M.M. Wallace, International Law (London, 2002) 58.11 Robert Jennings, Malcolm N. Shaw QC, International Law, 6th ed. (Cambridge: Cambridge University, 2008) 198.12 Ibid. 198-99.

12

2.1.2. Nationality, Citizenship and Nationalism

Nationality

Nationality is simply defined as a people who have common origins and

traditions. In her article, Orentlicher expressed that, “[N]ationality, is a legal bond having

as its basis a social fact of attachment, a genuine connection of existence, interests and

sentiments, together with the existence of reciprocal rights and duties. …”.13 Nationality,

in fact, establishes prima facie the link between a state and the persons forming it.

Nationality, therefore, is of basic importance for any state, as it defines its population,

one of the three constituent elements of statehood, the other two being territory and

effective government. Consequently, states pay special attention to the rules of

acquisition and loss of nationality, as well as to the effects of nationality in municipal and

international law. In addition, nationality has always been seen in the context of

sovereignty and regarded as falling within the domestic jurisdiction of states. 14

According to Lord Bryce, “A nationality is a population held together by certain

ties, as for example, language and literature, ideas, customs and traditions in such a way

as to feel itself a coherent unity distinct from other populations similarly held together by

like ties of their own.”15

13 Diane F. Orentlicher, International Law and Ethnic Conflict , ed. David Wippman (Ithaca and London: Cornell University, 1998) 318.14 Michael Reiterer, “The Regulation of Nationality in International Law”, rev. of The American Society of International Law by Ruth Donner, The American Journal of International Law (October 1987): 2. Downloaded from Lexis Nexis.15 “Nation and Nationality”, Political Science for + 2 Stage, vol.2, 2.<www.newagepublishers.com/samplechapter/000601.pdf>.

13

The nature of nationality is normally described either as an individual’s

membership in a state or in a nation. “Allegiance”, flowing from the former membership,

according to the Anglo-Saxon concept of nationality, gives rise to a framework of

reciprocal rights and duties. Its destruction causes legal consequences in the international

environment such as refugeehood or statelessness. Thus, nationality has an internal

aspect because it defines the above-mentioned framework and an international one

because it provides the main link between the individual or juristic person and

international law.16

Citizenship: The term citizenship has many meanings in sociology, political theory, and

law. It can denote a relationship to a polity, a social status, an activity, a package of

rights, or a package of responsibilities. Consequently, “the scope of a theory of

citizenship is potentially limitless.” For international lawyers, concerned with the state

system and with phenomena that transcend state borders, the most salient version of

citizenship is nationality, membership in a state.17

Zilbershats, in his article “Reconsidering the Concept of Citizenship”, states that,

citizenship is the embodiment of the strongest link between the individual and the State, a

link which is reflected by the fact that the citizen is entitled to all the rights which the

States grants and is subject to all the duties which it imposes. However, the fall of the

former Soviet Union has led to the birth of States founded on ethnic-nationalist

organization, associated with which is the issue to what extent an ethnic population may

16 Ibid. 3.17 Gerald L. Neuman, “Citizenship Today: Global Perspectives and Practices”. ed. Richard B. Hilder, American Journal of International Law, The American Society of International Law (April 2002): 1-2. Downloaded from Lexis Nexis.

14

legitimately be split to justify separate political organization, a problem which can be

seen in all its severity in the former Yugoslavia. On the other hand, opposing the

processes of ethnicity and division are broad world trends of globalization which are

sweeping away the borders between the various States and cultures and which are

transforming the world into a single global village, in which many issues are regulated by

international bodies that are either multinational or supranational.18

A society of people which lives in a State undertakes to live in accordance with

governing principles set out in a social charter which they have created, a charter which is

generally formulated as a constitution. The full affiliation of a person to a State is

determined by his consent to live in the present and in the future in accordance with the

principles which have been established in the constitution and not by virtue of a cultural

link which was created in the past. The former is a link which is less nationalistic and to a

certain extent more utilitarian.

A nationalist nexus to the past or the more utilitarian nexus to the present and

future are expressed in the earlier stage of immigration to the State. The laws of

immigration are an important element in the issue of citizenship. Using the laws of

immigration, a State may shape the character of its society of citizens and decide whether

it prefers admittance for the purpose of settling and receiving citizenship of persons who

are connected to each other through some nexus to the past or whether it prefers

immigration on the utilitarian basis of nexus to the present and future.

18 Yaffa Zilbershats, “Reconsidering the Concept of Citizenship”, Texas International Law Journal, University of Texas at Austin School of Law (Summer 2001): 2.

15

Nationalism

Human beings can only truly flourish in communities that have some more or less

secure existence. People need community to develop the kind of personal ties that lead to

familial and romantic love, professional satisfaction, friendship, intellectual stimulation,

and creative fulfillment. Shared practices and cultural traditions shape our identities and

give us a sense of belonging. Thus, it is natural for us to want to draw together into more

or less distinct communities with some historical continuity and with the ability to

differentiate our fellow members from outsiders.

Community sentiment translates into national sentiment because only certain sorts

of political entities have the power to shape their destiny. If national sentiment includes a

strong desire that one’s nation have a state of its own (and this is commonly thought to be

an identifying characteristic of nationalist thought), then this desire can be explained in

terms of the fact that, without the international recognition that states are given, the

community cannot maintain its distinctiveness. . . The desire for community therefore

finds natural expression in the desire for a state with internationally acknowledged status

and a state power equal to what other nations have. National sentiment is justifiable in

terms of promotion of the value of community, which is central to fulfilling human life.19

According to one theory, nationalism – the principle of homogeneous cultural

units as the foundations of political life, and of the obligatory cultural unity of rulers and

ruled – is indeed inscribed neither in the nature of things, nor in the hearts of men, nor in

the pre-conditions of social life in general, and the contention that it is so inscribed is a

19 Lea Brilmayer, International Law and Ethnic Conflict, ed. David Wippman (Ithaca and London: Cornell University, 1998) 61-62.

16

falsehood which nationalist doctrine has succeeded in presenting as self-evident. But

nationalism as a phenomenon, not as a doctrine, presented by nationalists, is inherent in a

certain set of social conditions; and those conditions, it so happens, are the conditions of

our time.20

According to Snyder and Ballentine, the most widely accepted doctrine for

“nationalism” is that the state and the nation should be congruent. Nationalism holds that

legitimate rule is based on the sovereignty of a culturally or historically distinctive people

in a polity that expresses and protects those distinctive characteristics.21

Berman observes that a “veritable international law of nationalism” is emerging in

the post-cold war period, a body of theory and practice that has an uneasy relationship to

its own deeply trouble history. A vast amount of work has gone into the reestablishment

of this field of international law: theoretical clarification of legal terms designating the

protagonists of national conflicts (such as “nations”, “peoples”, and “minorities”),

doctrinal specification of rights like self-determination and cultural autonomy, drafting of

innovative general conventions, deployment of policy packages on particular conflicts,

and philosophical debate about nationalism’s cultural meaning. At the same time, a sense

of historical déjà- vu seems pervasive: the past few years have seen the striking

resurgence of forgotten nationalist conflicts as well as legal notions that once seem

relegated to subordinate status, such as international minority rights.22

20 Hurst Hannum, Self-Determination: International Perspectives, eds. Donald Clark and Robert Williamson (Great Britain: Macmillan, 1996) 12.21 Jack Snyder and Karen Ballentine, Nationalism and Ethnic Conflicts (Cambridge, Massachusetts London: MIT, 1997) 65. 22 Nathaniel Berman, International Law and Ethnic Conflict, ed. David Wippman (Ithaca and London: Cornell University, 1998) 25-6.

17

2.1.3. Ethnicity and Ethnic Conflicts

Almost all the countries in this globe have their own different ethnic groups. They

might have different languages, cultures, religions, histories and also different identities

of their own. People who belong to a large or small group, in traditional or advanced

civilization, who are living in a common culture of national origin, religion, language,

history and similar racial identity can be defined as an “ethnic group” or “ethnic

community”.23 However, it is difficult to define “ethnicity”, as its meaning is said to be

not fully racial or cultural or religious.

Reuter observed in her article that the term “ethnic minority” is not clearly

defined in political and social science research or international law and its

characterization depends on the context and the academic approach chosen. She stated

that according to Anthony D. Smith, an ethnic group has six characteristics: a common

name, a myth of common ancestry, shared memories (including historical experiences,

myths, and legends), a link with a historic territory or a homeland (which the group may

or may not currently inhabit), a common culture, and a measure of common solidarity

and self-awareness.24 For Reuter, the term “minority” not only refers to a group

numerically inferior compared to the whole population, but also to express the power

structure in a given case, namely to describe a group in a disadvantaged position.

23 Raymond C. Taras and Rajat Ganguly, Understanding Ethnic Conflict: The International Dimension (Longman: Pearson Education, 2006) 1.24 Tina Kempin Reuter, “Dealing with Claims of Ethnic Minorities in International Law”, Connecticut Journal of International Law (Spring 2009). Downloaded from Lexis Nexis.

18

Maleševic shares the definition of “ethnic groups” by Weber25 as ‘those human

groups that entertain a subjective belief in their common descent because of similarities

of physical type or of customs or both, or because of memories of colonization and

migration; conversely, it does not matter whether or not an objective blood relationship

exists.’26

According to Taras and Ganguly, there are two different types of ethnic groups or

ethnic communities. They are “homeland societies” and “diaspora communities”.

Homeland societies have long-time ownership over that land and such claims are usually

backed up by historical (factual and mythical) and archaeological evidence. Ethnic

Diaspora communities exist in foreign countries and are mainly caused by population

migrations, induced either by oppression in their home state or by the attraction of better

economic prospects and opportunities.27

Claims of ethnic minorities generally fall in two major categories: demands for

protection and demands for empowerment. The first category concerns requests for

protection against extinction and discrimination, as well as claims focusing on the

preservation of culture and ethnic identity of the group. Claims falling within the second

category relate to empowering the group to have the authority to determine its own

affairs, actively and effectively participate in state affairs, to obtain autonomy (non-

territorial [segmental, cultural] and territorial), and, in some cases, to be able to secede

25 Weber is the only founding father of sociology who explicitly and extensively engaged with ethnic relations. Weber not only developed a highly original and systematic account of ethnicity but his theory still remains a potent explanatory framework in dealing with the sociology of ethnic relations. The skeleton key of this theory is present in his chapter on ‘Ethnic groups’ in Economy and Society (1968), but elements of his theory of ethnicity are also vivid in other writings (the various other sections in Economy and Society, Ancient Judaism (1967) and Religion of India (1992); and articles on W. E. B. Du Bois). 26 Siniša Maleševic, The Sociology of Ethnicity (London: SAGE, 2004) 24. 27 Taras and Ganguly, 1.

19

from the state and gain independence. The claims depend on the structure of the ethnic

group and its role in society. Regionally concentrated groups with a history or myth of

independent political existence tend to seek secession or autonomy, while minorities

integrated in pluralistic societies seek equal treatment and access to power within existing

political structures.28

Ismayilov stated that an ethnic conflict is a dispute about important political,

economic, cultural, or territorial issues between two or more ethnic communities. Since

the 1960s, increasing numbers of ethnic groups have begun to demand more rights and

recognition, demands that are now recognized as the major source of domestic and

international conflicts in the post-Cold War world.29

The most difficult claims to deal with not only politically but also legally are

demands of secession and independence. Attachment to territory is particularly powerful;

compromise is often looked upon as an act of treason. As Stefan Wolff points out: “[T]he

significance of territory lies primarily in its symbolic and historical importance for the

relevant groups’ ethnic identities, regardless of the extent to which claims match up with

the historical record.” Surrendering territories tend to be among the most disputed actions

for states as it violates their right to territorial integrity and potentially weakens their

power and role in the international order.30

Territorial claims are usually all-or-nothing matters and predominantly difficult to

resolve. Ethnic separation as policy resolving ethnic conflict can encourage the break-up

28 Reuter 3. 29 Gursel G. Ismayilov, “Ethnic Conflicts and Their Causes”, 53.<http://dspace.khazar.org/jspui/bitstream/123456789/136/1/Gursel%20G.%20Ismayilov.doc>.30 Reuter 22.

20

of states, may transform civil war to an international war, and in the end, might do

nothing to resolve ethnic antagonism. Furthermore, international law does generally not

recognize a right to secession for ethnic groups. Only in “exceptional circumstances,” it

might be a feasible option under international law.31

Many of the central issues arising from ethnic claims implicate key aspects of the

international order and, as a result, international law. The claims touch upon international

legal concepts and pose difficult questions: First, how can international law contribute to

the protection of minorities, particularly regarding the political and economic

discrimination of ethnic groups and the preservation of the group’s identity? Second, how

territorial claims of ethnic groups should be treated? Are power-sharing arrangements

and autonomy compatible with international legal principles? How does international law

deal with claims to secession and independence? And thirdly, does the active protection

and empowerment of ethnic groups and as a consequence, the favorable treatment of

minorities, undermine fundamental principles of equality in international human rights

law?32 These questions need to be addressed by international law.

Generally, it is accepted that justification of the protection of ethnic minorities is

based on three concepts: maintenance of peace and security, respect of human dignity,

and preservation of minority culture. Ethnic conflict poses a threat to peace and security

on the regional and international level. Conflicts in the Balkans, Rwanda, Chechnya, Sri

Lanka, India, and Darfur are only the deadliest and best-known ethnic conflicts that have

shaped international relations over the last fifteen years. Provinces, states, and in some

31 Ibid. 28.32 Ibid. 3.

21

cases even whole regions have been destabilized through a wave of ethnic insecurity and

violence, often paired with a downward spiral of economic decline and state failure,

accompanied by corruption and mismanagement. Ethnic conflicts often involve massive

attacks on civilians, especially on the weakest part of the population. The worst atrocities

have been committed during ethnic conflicts. Spillover effects of ethnic conflict to nearby

regions can include refugee problems, economic disasters, ecological catastrophes,

military complications (armament and proliferation), and instability leading to interstate

war.33

As stated above, ethnic conflict is born out of human attitude concerning their

status and identity, and hence, it is a conflict between the separate groups to gain their

identity and status and it could keep on for a long period, if not until the end of

civilization. In Reuter’s view, peace and stability are the necessary preconditions for an

effective implementation of international legal provisions concerning ethnic minorities.

2.1.4. Self-Determination, President Wilson’s 14 Point Program, and

Groups’ Claims

Self-Determination

In her article, Carley writes, “Since the end of World War I, and especially since

World War II, the world has ordered its affairs with an international system based on the

concept of states whose borders, no matter how they were originally determined, are

considered inviolable. . . The United Nations and other international organizations have

steadfastly defended this system of states. They also defended the right of peoples to self-33 Ibid. 4.

22

determination as outlined in the UN Charter. However, the self-determination principle

has been interpreted differently at different times and has been inconsistently applied as a

result. In the wake of rapid political, social, and technological changes in the world,

distinct national groups have pushed demands for their own states to the top of their

political agendas. These national groups have armed themselves with the claim to self-

determination, in which the right to secession is seen as an implicit, integral part. Because

the issue is so complex and potentially explosive, the response of the international

community has frequently been to sidestep it.”34

She continued to state that, Hurst Hannum of the Fletcher School of Law and

Diplomacy described three eras that have shaped the history of the concept of self-

determination. The first era began in the nineteenth century and lasted through the

Wilsonian period, ending in approximately 1945. At this time, the essential qualities of

the concept of self-determination were, first, that it was a purely political principle,

usually referring to some sort of autonomy rather than statehood for ethnic or national

groups, and second, that the right was not absolute, but relative. In the late nineteenth and

early twentieth centuries, the concept of self-determination was seen almost invariably in

terms of another, much more important, political goal of promoting world peace.

The establishment of the United Nations in 1945 marked the beginning of the

second era of the self-determination idea. Although the UN Charter mentioned self-

determination twice, the term very clearly applies to states and not to peoples or groups.

Yet, once the idea was written into the Charter, it very quickly evolved from a principle

34 Patricia Carley, “Self Determination: Sovereignty, Territorial Integrity, and the Right to Secession”, Report from a Roundtable held by the United States Institute of Peace in conjunction with the US Department of State. (February 1995) 1. <http://www.usip.org/files/resources/pwks7.pdf>.

23

to a right. However, it was never seen as an absolute or unlimited right. During this era,

four principles characterize self-determination. First, self-determination referred only to

decolonization. Second, it did not apply to peoples but to territories. Third, self-

determination was now considered an absolute right – though, again, for colonies only.

Finally, self-determination did not allow for secession; instead, the territorial integrity of

existing states and most colonial territories was assumed. The essential quality of self-

determination during this era, Hannum emphasized, was not that all peoples had the right

of self-determination, but that all colonies had the right to be independent.

The third, and most problematic, era in the development of the concept began

with the end of decolonization in the late 1970s and continues to the present. This stage is

characterized by the attempt in recent decades to fuse the first two eras; that is, to

combine the ethnic and cultural rights of minorities that Wilson championed with the

territorial absolutism of decolonization. The result has been a tendency to redefine self-

determination to mean that every distinctive ethnic or national group has a right to

independence. But though self-determination has taken on this new meaning in a popular

sense, it has not been accepted by any state or by international law.35

Ralph Steinhardt of George Washington University Law School outlined four

essential propositions regarding self-determination and international law. The first is that

the law simply will not definitively resolve competing claims for power or territorial

disputes, though it can provide the requisite mechanism in attempts to do so. Yet the

paradox remains: Self-determination has little legal meaning but is nevertheless a

tremendously powerful political principle. The second proposition regarding the legal

35 Carley 3-4.

24

context of self-determination is that international law is not “univocal” on the subject.

Self-determination has never been defined; hence, its mere mention conjures up several

different meanings at once. The third basic proposition about the legal context of self-

determination is that it is not a “suicide pact” in that it does not oblige any state to

subjugate its own self-interest. The fourth proposition is that law is constantly changing.

There are several new meanings or “clusters of principles” that should be included in the

right to self-determination, just as there are new ways in which the right should be

interpreted.36

Kampelman stressed that “The right to self-determination must be separated from

the right to secession. . . Self-determination may be an internationally recognized

principle, but secession is a national issue, one for states themselves to decide. Self-

determination, Kampelman maintained, means, inter alia, the right to cultural

independence, religious freedom, and the use of one’s own language, but not

secession.”37

President Wilson’s 14-Point Program

President Woodrow Wilson, according to Hannum, was the statesman most

closely identified with the principle of self-determination.38 The concept of “self-

determination”39 was used after World War I when President Woodrow Wilson believed 36 Ibid. 8.37 Ibid. 8-9.38 Ibid. 3.39 Oxford Dictionary of Law (2003) defines self-determination as ‘the right of people living within a non-self-governing territory to choose for themselves the political and legal status of that territory. They may choose independence and the formation of a separate state, integration into another state, or association with an independent state, with autonomy in internal affairs. The systems of mandates and trusteeship marked a step towards the recognition of self-determination as a legal norm. It is probably illegal for another state to intervene against a liberation movement and it may be legal to give assistance to such a movement.’

25

that the right of national self-determination incorporated two essential elements: the right

to secession and the right to independent statehood.40 In Wilson’s distinction between

“internal” and “external” interpretations of self-determination, the former, referring to a

people’s right to choose its own form of government without outside pressure, was of far

greater concern to him. Indeed, he rarely mentioned the external aspect of self-

determination, the one associated with the establishment of independent states.41

Hurst Hannum asserted that “Although US President Woodrow Wilson was the

most public advocate of “self-determination” as a guiding principle in the post-war

period, neither he nor other Allied leaders believed that the principle was absolute or

universal. Indeed, in Wilson’s celebrated “Fourteen Points” speech to the US Congress

on 8 January 1918, the phrase “self-determination” is conspicuous by its absence.”42

Ethnic Groups’ Claims

Self-determination is often considered to be the right of people to shape their own

political, economic and cultural destinies. Among several ethnic and national groups, and

minorities, “national self-determination” has become higher expectation, and used this

right to argue a right to secede from existing states. Consequently, the number of ethnic

groups’ claims and ethnic conflicts has risen continuously since the end of the Cold War.

These groups have various claims but are primarily searching for independent statehood,

or recognition of statehood.

40 Taras and Rajat 6. 41 Carley 3.42 Hannum 13.

26

Müllerson stated that, “the principle of the self-determination of peoples is rightly

considered to be a successor to the political principle of nationality, which became widely

recognized in nineteenth century Europe and related to the emergence of nation states.

Since then, hardly any political or legal principles have been highly praised and

supported by some and strongly denied by others, as has been that of the principle of self-

determination.”43

According to the UN statistics from 2006, “Since the late 1980s, the main threat

to regional and global peace has not come from major inter-state confrontations, but from

another source: internal conflicts, conflicts occurring within the borders of states. These

have replaced the Cold War’s ideological clashes as the principal types of conflicts. To

clarify, from May 1988, when the Cold War was coming to an end, up to the present day,

there have been 47 conflicts in which the United Nations (UN) has intervened with only 3

of these being inter-state in character (the Iraqi invasion of Kuwait in 1990, the Chad-

Libya border dispute in 1994, and the Ethiopia-Eritrea border dispute in 1998-2000).

Adding the latest Iraqi invasion by the United States brings the total number of inter-state

conflicts during the post-Cold War period to 4, compared with 44 internal conflicts in the

same period.”44

However, according to Hannum, “The principle of self-determination is

mentioned only twice in the Charter of the United Nations, both times in the context of

developing “friendly relations among nations”, and in conjunction with the principle of

43 Rein Müllerson, International Law, Rights and Politics, The New International Relations Series. (London: Routledge, 1994) 58.44 Muzaffer Ercan Yilmaz, “Resolving Internal Conflicts in the Post-Cold War Era: Is Peacekeeping Enough?”, Journal of Economic and Social Research . 8(2), 27-42, 27-28.

27

“equal rights … of peoples”, and neither self-determination nor minority rights is

mentioned in the 1948 Universal Declaration of Human Rights although the Declaration

contains a preambular reference to developing friendly relations between nations.”45

2.1.5. Territorial Integrity

International law is based on the concept of the state. The state in its turn lies

upon the foundation of sovereignty, which expresses internally the supremacy of the

governmental institutions and externally the supremacy of the state as a legal person. But

sovereignty itself, with its retinue of legal rights and duties, is founded upon the fact of

territory. Without territory, a legal person cannot be a state. It is undoubtedly the basic

characteristic of a state and such fundamental legal concepts as sovereignty and

jurisdiction can only be comprehended in relation to territory.46

In this age of globalization, political entities are not immutable. One of the core

principles of the international system is the need for stability and finality in boundary

questions and much flow from this. Reflective of this concept is the principle of territorial

integrity. Geographical claims have been raised throughout.47 The principle of the

territorial integrity of states is well established and is protected by a series of

consequential rules prohibiting interference within the domestic jurisdiction of states as,

for example, article 2(7) of the United Nations Charter, and forbidding the threat or use

of force against the territorial integrity and political independence of states, particularly

article 2(4) of the United Nations Charter. This principle has been particularly

45 Hannum 16.46 Jennings, Malcolm Shaw QC 487.47 Ibid. 524.

28

emphasized by Third World states and also by other regions.48 It is widely accepted that

the principle of respect for the territorial integrity of states is well founded as one of the

linchpins of the international system, as is the norm prohibiting interference in the

internal affairs of other states.49

However, this principle appears to conflict on the face of it with another principle

of international law, that of the self-determination of peoples as the requirement to

respect territorial integrity seems to make self-determination null and void. Practice has

not supported its application as a principle conferring the right to secede upon identifiable

groups within already independent states.50

2.2. Statelessness and Refugees

2.2.1. Statelessness and International Jurisprudence on Statelessness

Statelessness

“Statelessness”, in a strictly legal sense, describes people who are not considered

nationals and are unrecognized by any state. Although statelessness is prohibited under

international law, the UNHCR recently estimated that there may be as many as 12 million

stateless people in the world. Recent research from the Refugees International has

highlighted the numerable barriers with which stateless people contend, including the

denial of opportunities to: establish a legal residence, travel, work in the formal economy,

48 Ibid. 522.49 Ibid. 488.50 Ibid. 522-23.

29

send children to school, access basic health services, purchase or own property, vote,

hold elected office, and enjoy the protection and security of a country. 51

There are various circumstances regarding people becoming statelessness which

include, differences in the laws between countries; laws regulating marriage and birth

registration; failure to register children to birth; nationality based solely on descent, often

that of the father; renunciation of nationality (without prior acquisition of another

nationality); political change; discrimination due to race, ethnicity, or gender; expulsion

of people from a territory; abandonment of children; migrant workers being unable to

pass citizenship to their children; and trafficking.52

These people face different problems depending on why they become stateless

and where they live. For instance, in the European Union (EU), stateless people, like

other non-citizens, are not qualified to vote and banned from certain public sector jobs.

Moreover, in some EU states, large numbers of stateless people – such as Slovenia’s

erased citizens are not qualified to obtain both health care and education. 53

In other cases, a stateless person can also be considered as refugee if he or she is

forced to leave the home land. However, Goodwin-Gill writes that, “Statelessness and

refugee status are by no means identical phenomena.”54

International Jurisprudence on Statelessness

51 Brad K. Blitz, “Statelessness, Protection and Equality”, Forced Migration Policy Briefing 3, Refugee Studies Centre, Oxford Department of International Development, (University of Oxford: Sep. 2009) 6.52 Ibid. 2.53 Indira Goris, Julia Harrington and Sebastian Köhn. “Statelessness: what it is and why it matters”, Forced Migration Review: Stateless, Marion Couldrey and Maurice Herson eds., Refugee Studies Centre, Issue 32 (Refugee Study Center: April 2009) 4.54 Guy S. Goodwin-Gill, The Refugee in International Law (New York: Oxford University, 1998) 42. For full text, 1961 Convention on the Reduction of Statelessness: UNdoc.A/CONF.9/15, Final Act.

30

Over the past five decades, the right to nationality has been elaborated in two key

international conventions that have brought the concept of statelessness into the United

Nations framework: the 1954 Convention relating to the Status of Stateless Persons; and

the 1961 Convention on the Reduction of Statelessness.55

The 1954 Convention introduces the international legal status of stateless person

and provides the definition of stateless persons. There are two basic forms of

statelessness: de jure and de facto. “A person who is not considered as a national by any

state under the operation of its law creates de jure (legally) statelessness. De facto (in

fact) stateless persons are those who have legitimate claims to citizenship, but who

cannot prove their citizenship, whose governments refuse to give effect to their

nationality”.56 However, in the Final Act of the 1961 Convention on the Reduction of

Statelessness, the Conference recommended that “Persons who are stateless de facto

should as far as possible be treated as stateless de jure to enable them to acquire an

effective nationality”.57

In addition, as regards to the stateless persons, there are certain cases, such as in

the case of de facto stateless German Jews who were, under the Reich laws, classed as

nationals and non-citizens. Although they were holding nationality legally, the lack of the

usual attributes of nationality, including effective protection, was evident. It is from this

epoch that the term de facto statelessness traces its origins. At that time, however, the

55 Blitz 6.56 Katherine Southwick and M. Lynch, “Nationality Rights for All”, Refugee International (March 2009) 1. 57 See Goodwin-Gill 42-42.

31

terminology was more encompassing for the criterion was not lack of citizenship but

rather lack of effective protection.58

Chimni stated that, the protection of stateless persons thus reveals a gap in

definition between those stateless refugees, and those as such protected as refugees, and

those who are legally or de jure stateless and therefore, covered by the statelessness

conventions. As Manley Hudson, Special Rapporteur for the International Law

Commission on the subjects of nationality and statelessness commented:

Purely formal solutions … might reduce the number of stateless persons

but not the number of unprotected persons. They might lead to a shifting

from statelessness ‘de jure’ to statelessness ‘de facto’.59

Each state has the sovereign responsibility to determine under its national/

domestic law who are its citizens. However, there are also many treaties’ provisions

which protect the children, women and minority groups. As regard to the children, article

24 of the 1966 International Covenant on Civil and Political Rights states that, “Every

child shall be registered immediately after birth and shall have a name,” and that “every

child has the right to acquire a nationality”. The 1989 Convention on the Rights of the

Child (CRC) carries similar provisions. States are to ensure these rights “in particular

where the child would otherwise be stateless”.60

Recently, statelessness has become global issues and challenged not only the

understanding of the issue but also of the causes. Currently, the United Nations,

International and domestic NGOs, refugee organizations and human rights monitoring

58 B.S. Chimni, ed., International Refugee Law: A Reader, 1st Published (New Delhi: Sage, 2000) 73.59 Ibid.60 Southwick and Lynch 4.

32

bodies are the main actors in providing protection for the stateless people and refugees

and their problems.

2.2.2. Refugees, Refugees defined in International Instruments, and Refugees

and the United Nations

Refugees

In this age of globalization, not only the numbers of refugees or immigrants have

been increasing day by day, the purposes and objectives of the peoples who tried to find

refuge in other lands have become very diverse and complex when compared to the ones

taken place in the olden days. Moreover, the volume of these people have mostly

increased in the developed countries as most of the peoples from developing countries try

to escape from their homelands, partly due to circumstances found to be intolerable in

their native countries.

The term refugee is often used to refer to the people who have escaped from

hunger, wars, and other natural, social and security problems such as natural disaster,

33

earthquake, flood, drought, and famine encountered in their homelands or places that they

were living in. However, these terms are not precise.

According to Goodwin-Gill, “The ‘fugitive’ from justice, the person fleeing

criminal prosecution for breach of the law in its ordinary and non-political aspect, is often

excepted from this category of refugees”.61 He again stated that “for the purposes of

international law, states have further limited the concept of the refugee and the solution to

this problem lies, rather in the institution of asylum than in the protection given for

whatever duration, in the territory of another state”.62

Refugees defined in International Instruments

In treaties and arrangements concluded under the auspices of the League of

Nations, a group or category approach was adopted. If the refugee was (a) outside their

country of origin, and (b) without the protection of the government of that state, then it

was sufficient. A Russian refugee, for example, as defined in 1926, includes ‘any person

of Russian origin who does not enjoy or who no longer enjoys the protection of the

Government of the Union of Soviet Socialist Republics and who has not acquired another

nationality’.63

Refugees and the United Nations

The Office of the United Nations High Commissioner for Refugees was

established by the General Assembly on 1 January 1951 to provide international

61 Goodwin-Gill 3.62 Ibid. 3.63 Ibid. 4.

34

protection to the refugees and the resolution of refugee problems. According to the statue,

the work of the Office shall be of an entirely non-political character – it is for

‘humanitarian’ and ‘social’ and to relate, as a rule, to groups and categories of refugees.64

The UNHCR defines the term refugee as a person who “owing to a 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 to or, owing to such fear, is unwilling to avail himself of the protection of that

country…”65

In 1959, in anticipation of World Refugee Year, the General Assembly called for

special attention to be given ‘to the problems of refugees coming within the competence’

of UNHCR, while simultaneously authorizing the High Commissioner to use his good

offices in the transmission of contributions for the assistance of refugees ‘who do not

come within the competence of the United Nations’.66

64 Ibid. 7.65 UNHCR: Definitions and Obligations. (undated, last accessed 30 Sep. 2010) <http://www.unhcr.org.au/basicdef.shtml>; For full text, Article 1, 1951 Convention relating to the Statue of Refugees. 66 Goodwin-Gill 10.

35

CHAPTER II - CONCEPTS OF CITIZENSHIP IN

DOMESTIC AND INTERNAITONAL LAWS AND SECURITY OF

THE STATE

3.1. A Brief Historical Background of the Evolution of the Rohingya

Issue in Myanmar

Throughout the history of Myanmar, until the fall of the last king, King Thibaw,

the peoples of Myanmar had lived in peace and unity and through weal and woe under a

feudal form of administration. Myanmar became a colony under the British rule in three

stages: in 1826, in 1852, and in 1886. The colonial administration in Myanmar also

developed through several stages and its form differed from one region to another.67

Between 1826 and 1941, a modern state structure was imposed by the British only upon

the areas of Burma (Myanmar) where the more culturally and linguistically uniform

“valley” peoples lived; the Burmans (Bamars), Mons, Arakanese (Rakhines), Tavoyans

(Dhawes) and some Karens (Kayins). Amongst the diverse “hill” peoples, the Kachins,

Chins, Shans and some Karens (Kayins), the colonial state remained as remote and

67 Kyaw Win, Mya Han and Thein Hlaing, The 1947 Constitution and the Nationalities, vol.1 (Yangon Universities Research Centre and Innwa, 1999) 1-2.

36

largely irrelevant as it had been during the pre-colonial period.68 The rationale of the

colonial administration was based on an economical, as well as a divide-and-rule policy.

When the British annexed Rakhine and Taninthayi in 1826 after the first Anglo-

Myanmar War, they were first placed under the direct control of the Governor-General of

India. However, because Rakhine adjoined Bengal, it was early transferred to the care of

the Government of the Presidency of Bengal, with the Superintendent of Rakhine being

placed under the control of the Commissioner of Chittagong. A little later, the

Superintendent was elevated to the rank of a Commissioner and Rakhine was excluded

from the charge of the Commissioner of Chittagong and placed under the direct control of

the Government of Bengal as one of the territorial divisions of Bengal.69 The introduction

of this administrative system in Rakhine was one of the principal factors that facilitated

the easy migration of people from Bengal, which was to significantly influence issues of

ethnicity in later times.

The Rakhines (Arakanese), on the west coast of Myanmar, have a long history

like the Bamars and the Mons. The Rakhines are from the Tibeto-Burman stock and their

language is very close to the language of the Bamars. The majority of them are Buddhists

although it is estimated that there are more people of Islamic faith found in Rakhine State

than in any other parts of the country, as a result of its common border with the Bay of

Bengal, especially with Chittagong District. Additionally, the introduction of an

administrative system that made it part of Bengal after 1826, as well as Myanmar

68 Robert H. Taylor, “Perceptions of Ethnicity in the Politics of Burma (Myanmar)”, Southeast Asia Journal of Social Science, vol. 10, No. 1 (1982) 8. 69 The 1947 Constitution and the Nationalities, vol.1, 2-3.

37

becoming a province of India after the Third and last Anglo-Myanmar War of 1885, is

believed to have contributed to this situation.

The people who call themselves Rohingyas are the Muslims of Mayu Frontier

area, present-day Buthidaung and Maungdaw Townships of Rakhine State, an isolated

province in the western part of the country across Naaf River, which forms the border

with Bangladesh. The word “Rohingya” was first pronounced by Mr. Abdul Gaffar, an

MP from Buthidaung, in his article “The Sudeten Muslims”, published in the Guardian

Daily on 20 August 1951.70 Since then, a few Bengali Muslim intellectuals of the

northwestern part of Arakan (Rakhine) began to use that term “Rohingya” to refer to

themselves. They were in fact direct descendants of immigrants from the Chittagong

District of East Bengal (present-day Bangladesh), who had migrated into Rakhine after

the province was ceded to British India in 1826. Most of the migrants settled in the Mayu

Frontier Area, near what is now Myanmar’s border with modern Bangladesh. Actually

they were called “Chittagonians” in the British colonial records. The British policy then

was to encourage the Bengali inhabitants from the adjacent areas to migrate into the

fertile valleys in Rakhine as agriculturalists. Indeed, during a century of colonial rule, the

Chittagonian immigrants became the numerically dominant ethnic group in the Mayu

Frontier.

A peaceful coexistence was possible for the two different religious/ethnic groups

in the Mayu Frontier till the beginning of the World War II. However, during World War

II and after 1948, in the opening decade of independent Myanmar, the ethnic violence

70 Aye Chan, “The Development of a Muslim Enclave in Arakan (Rakhine) State of Burma (Myanmar)”, SOAS Bulletin of Burma Research, vol. 3, No. 2, ISSN 1479-8484, Autumn 2005: 412.

38

between Rakhine Buddhists and those Muslim Chittagonians broke out. Just before

gaining independence, Myanmar cooperated with the Japanese in her attempts to gain her

independence from the British at an early date. Then, the British recruited some of these

settlers to give assistance to them in their war efforts against the Japanese in Myanmar,

particularly in gathering military information concerning the Japanese and local

resistance movements. Then, some armed clashes occurred between the Rakhine people

and these settlers. It had brought a great deal of bloodshed to Rakhine. Thus, suspicion

and mistrust had been sown between the two communities since then, and said to have

been lingering on till today.

When we looked back the history of the evolution of the Rohingya movement, it

was found that at the beginning, the Rohingyas adopted the policy of joining East

Pakistan with the slogan, “Pakistan Jindabad” (Victory to Pakistan). When Myanmar

was on the brink of independence, “some members of the ‘Jami-atul Ulema-e’ religious

association of the settlers went to Karachi on a delegation to discuss the incorporation of

Butheedaung, Maungdaw and also Rathedaung townships into East Pakistan, but Pakistan

ignored their proposal”. This policy faded away when they could not gain support from

the government of Pakistan. After Myanmar gained independence, some of these people

rebelled against the government of Myanmar and tried to establish a Muslim State in

northern Rakhine. When that attempt failed, they demanded an autonomous region

instead. When that also failed and Dhaka also followed a policy of disowning those

Chittagonians when Bangladesh gained independence they stuck to insist firmly on their

claim for citizenship by creating stories that they were one of the original ethnic

minorities of Myanmar and included in its 135 or so nationalities.

39

Now the main objectives of the movement of some Rohingya groups have been to

gain the recognition of their ethnic entity in the Union of Myanmar and to obtain the

equal status enjoyed by other ethnic groups. However, some elements have still adopted

the radical idea of founding a separate Muslim state.71 Their leaders began to complain

that the term “Chittagonian Bengali” had been arbitrarily applied to them. But the

majority of the ethnic group, being illiterate agriculturalists in the rural areas, still prefers

their identity as Bengali Muslims. The demand for the recognition of their rights has been

interpreted by some as a direct challenge to the right of autonomy and the myth of

survival for the Arakanese majority in their homeland. A symbiotic coexistence has so far

been inconceivable because of the political climate of mistrust and fear between the two

peoples and the policy* of the military junta.72

The Muslims from the other parts of Rakhine kept themselves aloof from the

Rohingya cause as well. Thus the cause of Rohigyas found a little support outside their

own community and their claims of an earlier historical tie to Myanmar are

unsupportable as U Khin Maung Saw, a former lecturer from the Humboldt-University in

Berlin and an expert in the Rakhine Affairs had observed. He stated that “In the history of

Myanmar, there is no ethnic race called “Rohingya” within the 135 ethnic races and it is

also neither in Myanmar nor Arakanese (Rakhine) language”.73 U Khin Maung Saw also

pointed out that “these people can speak neither Myanmar nor Rakhine language and

71 See full text in Aye Chan, “The Development of a Muslim Enclave in Arakan (Rakhine) State of Burma (Myanmar)”, 408-09.72* The author (Aye Chan) earlier stated that they (Burma’s successive military regimes) stubbornly grasped the 1982 Citizenship Law that allowed only the ethnic groups who had lived in Myanmar before the First Anglo-Burmese War began in 1824 as the citizens of the country. Aye Chan 414-45. 73 Khin Maung Saw, “The Rohingyas’, Who are they? The Origin of the Name ‘Rohingya’”, Uta Gärdner and Jens Lrenz eds. Tradition and Modernity in Myanmar (Munster, Hamburg: Lit, 1994) 89-90.

40

what they can only speak is the Chittagong dialect”, but they have claimed themselves

that they are one of the Islamic Rakhines since from the time of their ancestors and

considered themselves as Myanmar citizens.

Map 2. The Myanamar – Bangladesh Border Land74

Gradually, the question of the citizenship of the Rohingya people has become a

complicated issue. There are numerous reasons for this development. Firstly, as stated

above, Myanmar has 135 nationalities and it has been engulfed with ethnicity problems

74 Myanmar-Bangladesh Border Land, map (Schendel, Kyoto Review of Southeast Asia)

41

of one kind or another since she regained her independence, even to the extent of the

armed conflicts in some cases, and one or two of those conflicts are still ongoing today.

Naturally, Myanmar has neither been willing nor prepared to adopt one more ethnic race

as her own, especially when that one is not included in her original list of nationalities.

Secondly, these people are, also as stated above, the direct descendants of the

Chittagonian immigrants from the Chittagong District of East Bengal and their features

appear very much the same as those of the people living in the present-day Chittagong

areas. Therefore, it is difficult to identify whether the people in that border areas are

recent immigrants, or are descended from the people who had migrated to this area

during the colonial days.

Thirdly, some of these people have adhered to the radical idea of founding a

Muslim State in these areas, or at least wish to establish an autonomous region. The

armed struggle they have been waging against the government of Myanmar has clearly

demonstrated this objective.

Finally, due to globalization, many of these people nowadays, especially the

educated people of Rohingyas, wish to obtain Myanmar citizenship or Myanmar

passports in order to immigrate to third, more economically advanced countries. Hence,

in fact, most of them have now become economic migrants. It could be observed that the

Rohingya movement led by the educated people of their race has been raising, in the

international media, political issues concerning the autonomy of the region where most of

their people are living, or demanding for the right to citizenship of their peoples. They are

also publicizing the issues of discrimination and abuse of human rights. However, the

42

lack of evidence to corroborate their allegations has, many a time, raised a legitimate

question as to whether the real intention of these people who have already been living in

foreign countries, lies in gaining political asylum or refugee status in the developed

countries.

Due to these reasons, the successive governments of Myanmar might have found

themselves in a difficult situation whenever they attempted to find solutions to this

problem. The Myanmar government’s inability or reluctance to accept their claim of

citizenship seems to dwell in legitimate grounds. However, the government has tried its

best to accommodate for the settlement of those who have returned back to the country

after completing a scrutinizing process.

3.2. The Situation of Rohingyas in Myanmar

Currently the population of Rohingyas can be found in three parts of the Rakhine

State in Myanmar, which are Maungdaw, Buthidaung and Rathedaung. The United

Nations estimated in 2009 that the population of the Rohingyas is around 720,000. As the

population of the Rakhine State in 2010 is estimated at 3.83 million, the Rohingyas made

up approximately 25% of the state’s population. However, they are said to be not counted

as citizens by the government.75

The Rakhine people have their own dialect which is close to the Bama dialect and

culture. However, the Rohingyas have a different dialect and culture. They speak a

Bengali dialect which is similar to the one spoken in the Chittagong region of

75 Myanmar, “Rakhine State”, Ministry of Hotel and Tourism. (undated, last accessed 17 Aug. 2010)<http://www.myanmar.gov.mm/ministry/hotel/fact/st_div/rakhine.html>.

43

Bangladesh. Moreover, most of the Rohingya children could not speak either official

language of Myanmar or Rakhine dialect when entering public schools.

During the 1990s, it is reported that thousands of Rohingyas fled to Bangladesh.

In 1992, after signing the bilateral Memorandum of Understanding (MOU) on the

repatriation, the governments of Myanmar and Bangladesh made an arrangement to place

ten transit camps on the Bangladesh side and five reception centers on the Myanmar side.

These five reception centers were opened in May 1992 and 21,850 persons were accepted

during the period from 22 September 1992 to 15 August 1997.76 Amnesty International

also reported that, the mass repatriation of Rohingyas to Myanmar by UNHCR took place

from April 1994 to December 1995. During 2003, some 3,000 Rohingyas were

repatriated to Myanmar. To date a total of 236,000 Rohingyas have returned to the

Rakhine State from Bangladesh. At the beginning of 2004, it is estimated that about

20,000 Rohingyas were still in Kutapalong and Nayapara, the two remaining refugee

camps in Cox’s Bazaar in southern Bangladesh. It is reported that seven thousand of

these 20,000 people have been cleared by Myanmar authorities for return to Myanmar.77

In April 2004, in response to the United Nations Committee on the Rights of the

Child, the government of Myanmar stated that:

“The Government renders full and equal treatment to these people, as

with other races, in matters relating to birth and death registration,

education, health and social affairs. In the official records, they are listed

76 Myanmar, “Ministry of Immigration and Population”, MODiNS.NET. (undated, last accessed 17 Aug. 2010) <http://www.modins.net/myanmarinfo/ministry/population.htm>. 77 “Document – Myanmar”. Amnesty International. (undated, last accessed 17 Aug. 2010) <http://www.amnesty.org/en/library/asset/ASA16/005/2004/en/a565434b-d5d5-11dd-bb24-1fb85fe8fa05/ asa160052004en.html>.

44

as Bengali racial group of the Bengali race and are recognized as

permanent residents within Myanmar.”78

The UNHCR Refworld reported that several Rohingya armed groups have been

established during the past decades, including Rohingya Solidarity Organization (RSO)

and the Arakan Rohingya Islamic Front (ARIF). The RSO was formed in the early 1980s

and switched from political to armed activity after 1991-92. The RSO insurgents

detonated bombs in towns and villages along the western border of Rakhine, resulting in

several deaths and injuries in 1994. At one time, the RSO and the Arakan Rohingya

National Organization (ARNO) had joined and formed the Arakan Rohingya Islamic

Front (ARIF), but the RSO is reported to have left the ARIF in 1998 (The Independent 23

Jan. 2001).79 Although they do not appear to have a large number of troops, there are

concerns about the security and stability of the region.

Some of the Rohingyas are now said to be living in Bangladesh, Pakistan and

Saudi Arabia. They are also located in small numbers in the UAE (United Arab

Emirates), Thailand and Malaysia. In Bangladesh, there are around 28,000 Rohingyas

remaining in two camps and they are recognized as refugees and have benefited from

limited protection and assistance of the UNHCR.80 In 2004, the UNHCR stated that there

are 10,000 Rohingyas in Malaysia and the government of Malaysia had granted

temporary stay permits to these Rohingya refugees. Many of them are said to have

arrived during the 1990s.81

78 Ibid.79 “Myanmar: Information on the Situation of Rohingyas”, UNHCR Refworld, 28 March 2001, 17 Aug. 2010. <http://www.unhcr.org/ refworld/country,,USCIS,,MMR,,3deccd7a4,0.html>. 80 Chris Lewa, “North Arakan: An Open Prison for the Rohingya in Burma”, Forced Migration Review: Stateless, Marion Couldrey and Maurice Herson eds., Issue 32 (Refugee Study Center: April 2009) 13. 81 UNHCR, The UN Refugee Agency , (undated, last accessed 17 Aug. 2010). <http://www.unhcr.org/cgi-bin/texis/vtx/search?page=search&docid =4187af744&query=populationofrohingyainmyanmar>.

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3.3. Domestic Laws

3.3.1. 1947 Constitution

The First Constitution of Myanmar was adopted by the Constituent Assembly on

the 24th of September 1947.82 There are altogether 14 Chapters in the Constitution and

Citizenship, certain Fundamental Rights and Safeguards are to be found in Chapter Two

– Fundamental Rights - of the Constitution. These rights were enjoyed by citizens and

aliens alike. In this Chapter83, the citizenship was defined as follows:

10. There shall be but one citizenship throughout the Union; that is to say, there shall

be no citizenship of the unit as distinct from the citizenship of the Union.

11.(i) Every person, both of whose parents belong or belonged to any of the indigenous

races of Burma;

(ii) Every person born in any of the territories included within the Union, at least one

of whose grand-parents belong or belonged to any of the indigenous races of

Burma;

(iii) Every person born in any of territories included within the Union, of parents both

of whom are, or if they had been alive at the commencement of this Constitution

would have been, citizens of the Union;

(iv) Every person who was born in any of the territories which at the time of his birth

was included within His Britannic Majesty’s dominions and who has resided in

any of the territories included within the Union for a period of not less than eight

years in the ten years immediately preceding the date of the commencement of

this Constitution or immediately preceding the 1st January 1942 and who intends

82 Myanmar, The Constitution of the Union of Burma, (Rangoon Supdt., Govt., Printing & Stationery: 1947) 1.83 Ibid., 2.

46

to reside permanently therein and who signifies his election of citizenship of the

Union in the manner and within the time prescribed by law, shall be a citizen of

the Union.

12. Nothing contained in section 11 shall derogate from the power of the Parliament

to make such laws as it thinks fit in respect of citizenship and alienage and any

such law may provide for the admission of new classes of citizens or for the

termination of the citizenship of any existing classes.

Section 10 stipulates that there is one common Union Citizenship; there is no state

citizenship separate from Union citizenship. Under section 11 (iv) certain persons were

allowed to elect Union citizenship. The Union Citizenship (Election) Act, 1948 lays

down the rules for electing Union citizenship. Naturalization is provided for by the Union

Citizenship Act, 1948, and the Union Citizenship (Amendment) Act, 1954. There are the

usual qualifications for naturalization: attainment of 18 years of age; 5 years continuous

residence in the country; proficiency in one of the languages spoken in the country; good

character; intention to settle in the country or serve the government of the Union or of

one of the states. However the Union of Burma (Adaptation of Laws) Order, 1948 had

later repealed the Burma Naturalization Act. Consequently, the hardship was encountered

by this Order. Later, the Union Citizenship (Amendment) Act, 1954 removed the

hardship and enabled such persons to acquire a new naturalization certificate by a simple

procedure if they applied for it before April 1, 1955. No distinction is made in the

constitution between a natural-born citizen and a naturalized citizen. Dual citizenship

was, however, eliminated by the Union Citizenship (Amendment) Act, 1954.84

84 Maung Maung, Burma’s Constitution, (The Hague: Martinus Nijhoff, 1959) 94-96.

47

3.3.2. 1974 Constitution and 1982 Burma (Myanmar) Citizenship Law

1974 Constitution

The Second Constitution of Myanmar, which was approved in a nation-wide

referendum held in December 1973, is divided into 16 Chapters and contains 209

Sections. The Citizenship was defined in Chapter XI, Section 145 and 146 of the 1974

Constitution85 as follows:-

Article 145

(a) All persons born of parents both of whom are nationals of the Socialist Republic

of the Union of Burma are citizens of the Union.

(b) Persons who are vested with citizenship according to existing laws on the date

this Constitution comes into force are also citizens.

Article 146

Citizenship, naturalization and revocation of citizenship shall be as prescribed by

law.

Article 147 states the equality of all citizens before the law irrespective of race,

status, official position, wealth, culture, birth, religion or sex. Fundamental Rights and

Safeguards are to be found in the Articles from 148 to 172.

85 Myanmar, The Constitution of the Socialist Republic of the Union of Burma , (Rangoon: Printing and Publishing Corporation, 1974) 38.

48

1982 Burma (Myanmar) Citizenship Law

In 1982, the then government of Myanmar, on the basis of, and in accordance

with, the 1974 constitution, elaborated and promulgated the Citizenship Law86 as Pyithu

Hluttaw (People’s Assembly) Law No. 4. The Law contains 8 chapters and 76 sections.

The Citizenship Law contains: Title and Definition; Classifications of Citizenship

(Citizenship, Associate Citizenship and Naturalized Citizenship); Decision as to

Citizenship, Associate Citizenship, or Naturalized Citizenship; Central Body; Appeals;

and Miscellaneous.

The salient points of the Law are as follows:

3. Nationals such as the Kachin, Kayah, Karen, Chin, Burman (Bamar), Mon,

Rakhine or Shan and ethnic groups as have settled in any of the territories

included within the State as their permanent home from a period prior to 1185

B.E., 1823 A.D. are Burma citizens.

4. The Council of State may decide whether any ethnic group is national or not.

5. Every national and every person born of parents, both of whom are nationals, are

citizens by birth.

6. A person who is already a citizen on the date this Law comes into force is a

citizen.

7. The following persons born in or outside the State are also citizens:

(a) persons born of parents, both of whom are citizens;

86 “1982 Myanmar Citizenship Law”. UNHCR.org Refworld. (undated, last accessed 6 Aug. 2010)<http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=3ae6b4f71b>.

49

(b) persons born of parents, one of whom is a citizen and the other an

associate citizen;

(c) persons born of parents, one of whom and the other a naturalized citizen;

(d) offsprings born of parents one of whom is -

(i) a citizen; or

(ii) an associate citizen; or

(iii) a naturalized citizen; and the other is born of parents, both of

whom are associate citizens.

(e) Xxx.

(f) Xxx.

8.(a) The Council of State may, in the interest of the State, confer on any person

citizenship or associate citizenship or naturalized citizenship.

13. A citizen shall not acquire dual citizenship.

15.(b) A foreigner shall not acquire citizenship merely by marriage to a citizen.

42. Persons who have entered and resided in the State prior to 4 th January 1948,

and their children born within the State may, if they have not yet applied

under the Union Citizenship Act, 1948, apply for naturalized citizenship to

the Central Body, furnishing conclusive evidence.

43. The following persons, born in or outside the State, from the date this Law comes

into force, may also apply for naturalized citizenship: -

(a) persons born of parents, one of whom is a citizen and the other a

foreigner;

(b) persons born of parents, one of whom is an associate citizen and the other

a naturalized citizen;

(c) persons born of parents, one of whom is an associate citizen and the other

a foreigner;

(d) persons born of parents, both of whom are naturalized citizens;

50

(e) persons born of parents, one of whom is a naturalized citizen and the other

a foreigner.

44. Any applicant for naturalized citizenship shall have the following qualifications: -

(a) be a person who conforms to the provisions of Section 42 and Section 43;

(b) Xxx;

(c) be able to speak well one of the national languages;

(d) Xxx;

(e) Xxx;

45. A person married to a citizen or to an associate citizen or to a naturalized citizen,

who is holding a Foreigner’s Registration Certificate, prior to the date this Law

comes into force, shall have the following qualifications to apply for naturalized

citizenship:-

(a) Xxx;

(b) Xxx;

(c) Xxx;

(d) be the only husband or wife;

(e) have resided continuously in the State for at least three years as the lawful

wife or husband.

72. No foreigner shall have the right to apply for naturalized citizenship from the

date this law comes into force, except under provisions of this law.

76. The following Acts are repealed by this law:

(a) The Union Citizenship (Election) Act, 1948;

(b) The Union Citizenship Act, 1948.

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3.3.3. 2008 Constitution

The third constitution of Myanmar was approved in a nation-wide referendum

held in May 2008.87 The 2008 Constitution contains 15 Chapters and 457 Clauses88 and

the Provisions concerning citizenship are stated in Sections 345 and 346 in Chapter VIII

– Citizen, Fundamental Rights and Duties of the Citizens. They are as follows:

345. All persons who have either one of the following qualifications are citizens of the

Republic of the Union of Myanmar.

(a) person born of parents both of whom are nationals of the Republic of the

Union of Myanmar;

(b) person who is already citizen according to law on the day this Constitution

comes into operation.

346. Citizenship, naturalization and revocation of citizenship shall be as prescribed by

law.

3.3.4 Burma (Myanmar) Immigration Act

The Burma Immigration (Emergency Provision) Act, 1947 was enacted on 13

June 1947. Section 13 and 14(1) of this Immigration (Emergency Provision) Act, 1947

was amended in 1990.89

In accordance with the 1982 Citizenship Law, all citizens need to apply for the

new “Citizenship Scrutiny Cards” which are color-coded for each categories of the

87 Robert H Taylor, The State in Myanmar, (Singapore: NUS, 2009) 487.88 Myanmar, Constitution of the Republic of the Union of Myanmar (2008), (Ministry of Information, 2008) 89 “The Burma Immigration (Emergency Provision) Act, 1990”, www.baliprocess.net. (undated, last accessed 5 Aug. 2010). <http://www.baliprocess.net/index.asp?PageID=2145832107>.

52

citizenship status: “Pink Cards” for full citizens who belong to one of the 135 national

races, “Blue Cards” for associate citizens and “Green Cards” for naturalized citizens.

3.3.5. Rohingya Issue and 1947, 1974 and 2008 Constitutions and Myanmar

Citizenship Laws

From the discussions of the history and salient points of Myanmar’s Constitutions

and their Citizenship Laws enacted so far in the country, it was found that the laws with

regard to granting citizenship are strict in Myanmar and there seemed to have no

flexibility also in their applications. On the other hand, there had been some weaknesses

on the part of the so-called Rohingya people in taking up the opportunities which had

come out from time to time from the loopholes of the enacted laws. The misses of

opportunities might primarily have come out as most of them were poor and uneducated

and lived in the remote areas of the country as well as partly due to the ignorance,

insensibility, inconsiderateness and lack of far-sightedness of the educated people of their

community in advancing the interests of the community, especially in the cases

concerning the submission for citizenship for their people.

For instance, in the 1947 Constitution, section 11(iv) stated that;

“Every person who was born in any of the territories which at the time of

his birth was included within His Britannic Majesty’s dominions and who

has resided in any of the territories included within the Union for a period

of not less than eight years in the ten years immediately preceding the

date of the commencement of this Constitution or immediately preceding

the 1st January 1942 and who intends to reside permanently therein and

53

who signifies his election of citizenship of the Union in the manner and

within the time prescribed by law”.

Therefore, under section 11(iv), certain persons were allowed to be elected as

Union citizenship.

The inclusion of this provision was in fact intended to give opportunity to the

British citizens who, at that time, may wish to attain citizenship of Myanmar. They may

choose to remain British nationals. This was a reciprocal arrangement, provided for by

His Majesty's government by the Burma Independence Act, 1947. The period allowed for

those to make their choice before the first day of April, 1955. The Union Citizenship

(Election) Act, 1948 lays down the rules for electing Union citizenship. Naturalization is

provided for by the Union Citizenship Act, 1948, and the Union Citizenship

(Amendment) Act, 1954.90 The question as to whether there was a possibility for the so-

called Rohingyas to obtain citizenship from this provision should be considered.

However, these people needed to have proficiency in one of the languages spoken in the

country.

Although most of the descendants of the migrants from the Chittagong district

might not have applied and obtained Myanmar citizenship at the dawn of the

independence, U Khin Maung Saw, in his paper, stated that in the 1950s the then Prime

Minister U Nu was reported to have granted about 50,000 illegal immigrants in the

Rakhine State to Myanmar citizenship and the rest were tolerated to continue to stay in

Myanmar without any identity or as foreigners.91

90 Maung Maung 94-95.91 Khin Maung Saw, “On the Evolution of Rohingya Problems in Rakhine State of Burma”, 61.

54

Although Article 3 of the 1982 Burma (Myanmar) Citizenship Law stated that

“Burma (Myanma) citizens are nationals such as the Kachin, Kayah, Karen, Chin,

Burman (Bamar), Mon, Rakhine or Shan and ethnic groups as have settled in any of the

territories included within the State as their permanent home from a period prior to 1185

B.E., 1823 A.D.,” another opportunity seems to have been opened in the. Article 42

which stated that, “Persons who have entered and resided in the State prior to 4th January

1948, and their children born within the State may, if they have not yet applied under the

Union Citizenship Act, 1948, apply for naturalized citizenship to the Central Body,

furnishing conclusive evidence”.

According to Amnesty International, the press release of the Ministry of Foreign

Affairs of the Union of Myanmar in 1992 stated that:

“In actual fact, although there are (135) national races living in Myanmar

today, the so-called Rohingya people is not one of them. Historically,

there has never been a ‘Rohingya’ race in Myanmar. The very name

Rohingya is a creation of a group of insurgents in the Rakhine State. Since

the First Anglo-Myanmar War in 1824, people of Muslim Faith from the

adjacent country illegally entered Myanmar Naing-Ngan, particularly

Rakhine State. Being illegal immigrants, they do not hold immigration

papers like other nationals of the country.”92

However, since then, there are some indications of the change of situation with

regard to this issue. It is reported that the Ministry of Immigration and Population have

been issuing temporary registration cards to these people without registration certificates.

92 “Document – Myanmar”. Amnesty International. (undated, last accessed 17 Aug. 2010)<http://www.amnesty.org/en/library/asset/ASA16/005/2004/en/a565434b-d5d5-11dd-bb24-1fb85fe8fa05/ asa160052004en.html>.

55

In response to UNHCR’s intensive advocacy efforts to document the so-called

Rohingyas, the Department of Immigration and National Registration, in 1995, has

started to issue the Temporary Registration Cards (TRC) which is also known as the

“White Cards”.93 It is learned that during the period of 1 April 1995 to 11 November

1997, the Department of Immigration and National Registration had issued 350472

Temporary Registration Certificates.94

The new 2008 Constitution has not yet expounded the citizenship laws in detail.

Article 346 merely states that “Citizenship, naturalization and revocation of citizenship

shall be as prescribed by law”. We will need to wait and see how it will come into shape.

In the meantime, I would take this opportunity to make some observations with

regard to the issue concerning nationality of the Rohingyas in Myanmar in the context of

the international practice concerning the issue of nationality.

Firstly, the practice of some of the developed countries with regard to granting of

citizenship could be observed as follows. Despite the United States being renown as the

most democratic country, it is learned that it has not granted automatic citizenship to the

children born in the US of Mexican parents who had come to and lived in the US

illegally. Likewise, the peoples of the Indian subcontinent, such as Sri Lanka, are also

known to have suffered similar discrimination of citizenship right for their children when

they took up permanent residency in the United Kingdom which is recognized as the

Mother of Democracy. Moreover, Germany also has not automatically granted German

93 Lewa 11.94 Myanmar, “Ministry of Immigration & Population”. MODiNS.NET. (undated, last accessed 17 Aug. 2010)

56

citizenship to the children of many Turks who had lived in Germany for more than forty

years after arriving there as Guest Workers in the 1950s.95

Secondly, it could be observed that the Rohingya problem initially appears to be a

simple and straight forward issue and easy to be resolved. However, when we study it

deeply, it is found that the problem lies deep in the historic and ethnic marshes. In the

historical context, there are firm evidences that they had arrived as immigrant labors

during the colonial period. Hence, the logical conclusion that could be drawn from this

historical fact is that their ethnicity is not included in the list of the country’s indigenous

nationalities. However, the Rohingyas claimed that they have been the descendents of

early immigrants to Myanmar and hence entitled to the automatic citizenship of the

country like other nationalities such as the Shans, the Kachins, etc. In fact, historically as

well as regionally, never there has ever been an ethnic race with the name of Rohingya in

this part of the world, let alone in Myanmar. As stated above, the name came into being

only in the 1950s when it was invented by one of their people. Therefore, it is not a

straightforward issue and hard to mange it, especially when it is added by other complex

factors such as geographical position, population explosion, economic development,

security concern and endeavors for unity and harmony of the people.

Finally, it could be concluded that the only rational solution could lie in the step

by step approach and it would include the process of integration, applying and obtaining

permanent residential status, and eventually, gaining naturalized citizenship. This process

could be expedited by the so called Rohingyas’ learning and understanding of the

Myanmar language and culture and living in harmony with the native people as well as

95 Khin Maung Saw 62.

57

their disowning the ideas of founding a Muslim state or establishing an autonomous

region inside Myanmar.

3.4. International Instruments

3.4.1. Citizenship or Nationality

When we study the term citizenship, we can see that it has many meanings in

sociology, political theory, and law. It can denote a relationship to a polity, a social

status, an activity, a package of rights, or a package of responsibilities. In international

law which deals with the state system and with phenomena that transcend state borders,

citizenship is nationality, membership in a state. Nationality establishes the link between

a state and the persons forming it. In fact, nationality is of basic importance for any state

because it defines its population which is one of the three constituent elements of

statehood. The other two constituents are territory and effective government. In

international law and international relations, nation-states are still the main actors and

nationality cannot be bestowed or acquired under international law. Besides, nationality

has always been seen in the context of sovereignty and regarded as falling within the

domestic jurisdiction of states. States, therefore, pay special attention to the rules of

acquisition and loss of nationality, as well as to the effects of nationality in municipal and

international law.

In the field of International Law, there have been cases of States’ conferment and

withdrawal of nationality. The most recent cases happened in the former states of the

Soviet Union. Soon after the Soviet Union fractured into fifteen states, the Supreme

58

Council of Latvia proclaimed that only citizens of prewar Latvia and their descendants

would be granted automatic citizenship in the newly independent state. With this, some

half a million ethnic Russians in Latvia became instant aliens in the place they considered

home. Estonia also adopted a restrictive citizenship law in 1992 as it reclaimed

independence following fifty-one years of Soviet rule. When the Czech Republic became

an independent state upon its “velvet divorce” from Slovakia in December 1992, it too

enacted a restrictive law excluding its long-term residents from citizenship.96 U Khin

Maung Saw, remarked that, “In any case one should not forget the fact that every

sovereign nation has their own immigration and naturalization laws which the others

show respect”.97

3.4.2. Ethnic Group and Ethnicity

The Rohingyas are definitely the members of an ethnic group. However, it is not

certain whether an ethnic group called Rohingya has existed historically or it has all

along been a fabricated ethnic name. Because historically, there are firm pieces of

evidence that they have been the descendants of the migrants from the Chittagong

District. So before we dispute whether the Rohingyas are one of the ethnic groups of

Myanmar as they have been claiming, the problem to be resolve first is whether there

existed at all in history an ethnic group called the Rohingya. As stated very often, ethnic

groups cannot be created out of whole cloth. Therefore when it comes to the question of

citizenship for these people, there could be a possibility for them to obtain naturalized

citizenship gradually, but it could be on an individual basis after gaining first the right to

96 Orentlicher 296-98.97 Khin Maung Saw 62.

59

permanent settlement. However, it would be impossible for the group as a whole to

obtain recognition as an ethnic group originated in Myanmar because they are neither an

historical ethnic group nor an indigenous ethnic group of Myanmar. As mentioned in

Chapter Three, indigenous ethnic groups of Myanmar are defined to be the ethnic groups

who were already living in Myanmar before 1823. There is a possibility that new settlers

who arrived after British colony could be considered to be citizens but not as an

indigenous ethnic group.

Myanmar has been encountering problems which could be construed as ethnicity

issues, for instance with some Kayins, but their case is different from the issue of so-

called Rohingyas because Kayins are one of our races or ethnic groups from the very

beginning. If ethnicity serve as part of a group’s claim to be a people entitled to self-

determination,98 it could be argued with definitiveness that there has never been an

ethnicity issue concerning the so-called Rohingyas in Myanmar. Besides, for Myanmar

which is still encountering or threatened with armed conflicts in a few remote areas of the

country, territorial integrity plays a paramount important role in her internal and

international considerations.

3.5. Statelessness, Refugees and Security of the State

3.5.1. Statelessness

Who are the stateless persons? It is difficult to identify them. However, persons

those who claim for citizenship but cannot prove their citizenship or whose governments

refuse to recognize them as their nationality or citizenship can be called as stateless 98 Wippman, ed., 2.

60

persons. According to Blitz and Lynch, ‘statelessness’ is defined as people who are not

considered nationals by any state.99 In this world, there are millions of people who lack

nationality or citizenship and become stateless. There are various stateless groups in

various parts of the world, such as the Roma, and some other groups in Europe, and some

in Russia, and the Palestinians. Some of the Rohingyas who have not yet been granted

citizenship by Myanmar has now become stateless persons as Bangladesh has not also

recognized them as its citizens.

3.5.2. Refugees

The term refugee is defined in the Lectric Law Library as “any person who is

outside any country of such person’s nationality or, in the case of a person having no

nationality, is outside of any country in which such person last habitually resided, and

who is unable or unwilling to return to, and is unable or unwilling to avail himself or

herself of the protection of, that country because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership in a particular social

group, or political opinion.”100 Since the end of the Cold War, human migration and the

flow of international refugee movements are rapidly increasing. The Rohingya people

who have become stateless are eager to get refugee status in any country they arrive as

refugees have also the right to seek asylum (Universal Declaration of Human Rights of

1948).

99 Brad K. Blitz and Maureen Lynch, “Statelessness and Benefit of Citizenship: A Comparative Study”, Agenda for Human Rights (16 November 2008) 4. 100 “Refugees”, The Lectric Law Library. (undated, last accessed 9 Aug. 2010)<http://www.lectlaw.com/def2/q023.htm>.

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3.5.3. Security of the State

Security is a legitimate interest of a State. The State has the right to protect its

people and all persons under its jurisdiction and its territory and adopt policies, rules and

regulations to protect them. The Rohingya problem was in fact triggered by security

reasons. The Myanmar government had been concerned with the security of the border

areas in the west due to steady influx of refugees and attempts were made from time to

time to drive out the refugees or the illegal immigrants from the country. However, the

problem came up whenever it attempted to do so and reached beyond its control.

When the “Independence War” in East Pakistan broke out in 1970, it was reported

that there were about one and a half million “war refugees” in Arakan Division of

Myanmar. In fact, most of the people who claimed to be the “Rohingya people”

nowadays, crossed the border and settled down inside Myanmar in the 1970s during the

Bangladesh Liberation War and later. Then, the population growth of Rohingyas inside

Myanmar became at least ten times higher than before. In 1978, the then Myanmar

Government made routine immigrant checks with the “Nagamin Operation” at the

Rakhine-Bangladesh border and most people fled to Bangladesh claiming that they were

Rohingyas and the issue of abuses of the army were raised. Later those Rohingyas were

allowed to return back to Myanmar but the numbers of returnees were reported to be

much higher than the numbers of official refugees declared by the Bangladeshi

authorities. In fact, the aborted Naga Min Operation at that time had put the Rohingya

issue to the attention of the international community. In 1991, another Naga Min-type

operation was conducted by the Myanmar government, and consequently, the issue of

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abuses against the Rohingyas was raised. Although the allegations were vehemently

rejected by the military government, the international pressure was said to be harsher than

in 1978.101

The government’s intention was to curb the influx of migrants and refugees into

the country. The increase of migrants or refugees would in the long term definitely

threaten the integrity and perpetuation of the state. The Rohingyas, although they were

originally migrants, now aimed at founding a Muslim State inside Myanmar, or at least

demanding the establishment of an autonomous region. Some of them are spearheading

armed struggles against the government. Some of them are reported to have been

undergoing training in terrorist camps outside the country. Those taking refuge in other

countries are also working hard to disseminate and publicize unfounded allegation of the

so-called abuses the Rohingyas were said to have been suffering inside Myanmar. They

all have been campaigning in different and various ways to attain their goal of at least

establishing an autonomous region in a country of which historically they have never

been a part of it. At least the security of Myanmar is at stake if this issue could not be

resolved as quickly as possible.

101 Khin Maung Saw 45.

63

CHAPTER III - A COMPARATIVE STUDY ON THE STATUS

OF STATELESSNESS: ROHINGYAS AND THE EXPERIENCES

OF ROMA

4.1. The Development of the Rohingya Issue and Perspectives of the

Interested Parties

4.1.1. Perspective of Myanmar

In Chapter Two of this study, it is already discussed on the historical background

and the situation of the Rohingya people in Myanmar. The study of the historical

background found the Rohingyas’ claims of an earlier historical tie to Myanmar to be

unsupportable. As stated, Myanmar historians generally agreed that “in the history of

Myanmar, there is no ethnic race called “Rohingya” within the 135 ethnic races”.102

The cause of the Rohigyas found a little support outside their own community.

However, today, in the Rakhine state, the population of Rohingyas comprises

approximately 25% of the state’s population. Although the records of the Myanmar

government have not counted them as citizens, since 1995, the Department of

Immigration and National Registration have been issuing Temporary Registration Cards

(TRC), also known as the “White Cards”, to these people.

Today, due to the globalization, many of these people wish to immigrate to the

economically advanced countries such as Thailand, Malaysia and the Middle East in

102 Khin Maung Saw, “The ‘Rohingyas’, Who are they? The Origin of the Name ‘Rohingya’”, 89-90.

64

order to enjoy better living conditions. To achieve this purpose, they seemed to have

attempted as follows. First, they tried to travel to the destination countries legally with

Myanmar passports. However, in order to get Myanmar passports, they need to obtain

citizenship. Due to the lack of identification documents, they have also chosen to take

risky immigration and illegal channels, such as by boat. Under the present circumstances,

undocumented stateless Rohingyas have now become economic migrants and illegal

trespassers. Furthermore, in order to enable to gain refugee status in countries to which

they have attempted to immigrate, they have fabricated stories alleging discrimination

and persecution in Myanmar.

Therefore, though the government of Myanmar has refused their claims of

citizenship or ethnic group status and also declined their claim of separated autonomy

within Myanmar, Myanmar authorities tried its best to accommodate them by way of

accepting them back to the country and provide them for resettlement in Myanmar.

4.1.2. Perspective of Bangladesh

Today, Rohingyas can be found mostly in Bangladesh, Pakistan and Saudi Arabia

while smaller populations are located in the UAE (United Arab Emirates), Thailand and

Malaysia. Lewa states that, on account of statelessness and lack of identification

documents to prove their citizenship, tens of thousands of Rohingyas have been travelling

by boats to the Middle East and Malaysia using Bangladesh as a transit country.103 Since

they are entering illegally, they have no access to protection and are also regularly caught

in the immigration crackdowns and end up facing deportation.

103 Chris Lewa, “North Arakan: An Open Prison for the Rohingya in Burma”, 13.

65

In 1992, after signing the bilateral Memorandum of Understanding (MOU) on the

repatriation between Myanmar and Bangladesh governments, an arrangement was made

to set up ten transit camps on the Bangladesh side and five reception centers on the

Myanmar side.

According to the UNHCR, there are around 28,000 Rohingyas remaining in the

two camps. The government of Bangladesh has allowed the UNHCR and some NGOs to

assist them,104 yet it is reported that there are still up to 200,000 of them who had settled

outside the camps.105 They are unregistered Rohingya refugees and they settled among

local residents in slums and villages in Cox’s Bazar District and Chittagong Hill

Tracks.106 The government of Bangladesh considered them as irregular immigrants and

they do not have any benefits or protection. The government also considers them to be

economic immigrants. However, Lewa stated in his article that there are also some anti-

Rohingya movements among the local population which have been pressing (the)

government to take action against the Rohingyas.107

As Bangladeshi population continues to increase, resulting in a variety of

economic and related problems, the Bangladesh authorities began to crackdown on

unregistered Rohingyas at the end of 2007. Some of them were arrested under the

Immigration Act and some of them were deported across the border to Myanmar. These

deportations generally took place across the Naaf River or on a land border. The police

104 “Rohingya: Burma’s Forgotten Minority”, UNHCR Refworld, 18 Dec. 2008, 15 Oct. 2010. <http://www.unhcr.org/refworld/country,,,FACTFINDING,MMR,,494f53e72,0.html>.105 Lewa 13. 106 Chris Lewa, “Unregistered Rohingya Refugees in Bangladesh: Crackdown, Forced Displacement and Hunger”. The Arakan Project, (Bangkok: 11 February 2010) 2.107 Ibid. 1.

66

and the Bangladesh Border Security Forces (BDR) are rounding up in all sub-districts

where unregistered Rohingyas have been settling.108

Lewa wrote that, on 2 January 2010, there was a crackdown on unregistered

Rohingyas who had settled outside the two camps in Cox’s Bazar by the Bangladesh law

enforcement agencies.109 The Cox’s Bazar District crackdown was followed by the

announcement of the Bangladesh national media on December 2009 that Myanmar had

agreed to the repatriation of 9,000 Rohingya refugees during a meeting between the

Bangladesh Foreign Secretary and the Myanmar Deputy Foreign Minister.110

Although many of them were deported or repatriated to Myanmar voluntarily or

involuntarily by the Bangladeshi authorities, some returned with new groups or sought

out opportunities to try to go to other countries by sea using Bangladesh as a transit point

rather than seeking refugee status in Bangladesh.

4.1.3. Perspective of Rohingyas

The CRCS historian Nurul Islam expounded the perspective of Rohingyas in his

article, “To Bring Harmony in Arakan, Xenophobic Works of the Rakhines Must Stop”.

The article dated September 2009 was circulated via the Internet. On the ‘Inhabitance of

the Rohingyas in Rakhine’, he stated, “According to History, mankind started to inhabit

in Arakan since 6th century. But one thing is not proved that only Buddhist inhabitants

were exclusively commenced to inhabit in Arakan. So, it is no doubt that Muslim

inhabitants were among them… Most of the Buddhists migrated from India and the

108 Ibid. 1-3.109 Ibid. 1.110 Ibid. 4.

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Muslims migrated mostly from Arab countries and few from Bengal. . . Some Arakanese

kings were found bearing Muslim names…”111

…On ‘Ethnic Name Issue’, he explained that “….In other hand, in the early

period, Arakan Muslims were less educated and politically not so conscious. First they

call themselves “Rohangyi”. But after 16th century when they become politically

conscious, they were realizing that a meaningful ethnic name is crucial for them as

identity. So, they themselves invented a name “Rohingya” as ethnic identity. But none

can give guarantee of 100% reality on historical facts. . . Some Rakhine brothers raised a

question that “Why the historical evidences about the Rohingya Muslims were ignored in

Burma history?” It is clear that Burma history was a fabricated history because the

history was compiled as per direction of the military rulers. Burma history is

discriminated and incomplete because the real history of an ancient ethnic group of

Arakan was intentionally ignored and … I mean the real historical evidences of Rohingya

Muslims were hidden and distorted. . .112

On ‘Rohingya-Phobia and its impact’, he stated that “. . . So, why the Rohingya

Muslim in Arakan were rejected their citizenship despite they have been inhabiting on

Arakan soil for centuries. It was due to religious and political discrimination. . . After

downfall of democratic government in Burma, the military junta (dictatorship) adopted

policy of ‘Divide and Rule’ only for different religious ethnic groups such as Rohingya

Muslim, Karen, Ko Kang, etc. This Junta is being implemented many kinds of Rohingya

cleansing policies and operations one by one caused huge Rohingyas left Arakan to

111 Nurul Islam, “To bring harmony in Arakan, Xenophobic works of the Rakhines must stop”, (Sep., 2009) 1-2. 112 Ibid. 2-3.

68

escape the severe persecution of Junta. The aim and objective of Junta is to make Arakan

a Rohingya free state. . .At the same time . . . the conservative Rakhines are raising

slogan that “Rohingyas are Bangali, they came from Bangladesh.” They said they never

heard the name ‘Rohingya’ in Arakan. But they will never refuse the existence of Arakan

Muslims (Rohingya) since Arakan was discovered. . .”113

In ‘comment and suggestions’, he asked “. . . Rakhine brothers to erase ‘Rohingya

phobia’ from their minds and get ready to embrace them because when the prospective

Democratic Government in Burma is established . . . when the government announces its

amnesty to those who are living in exile, more than 20,00,000 exile Rohingyas will be

repatriated in to their Native place, Arakan, Burma . . The Rohingya can play a majority

role in Arakan politics . . . But it will be a political blunder for them (Rakhines) for . . .

the Arakan people must be in a great trouble in future and they will have to atone for their

political blunder one day. .” 114

The work of Nurul Islam indicates a lack of support regarding claims of the

inhabitance of the so-called Rohingya people in the Rakhine state since 6th century when,

according to him, the Rakhine state was founded. He concluded that the Muslims’ claim

of residence was based on a lack of proof that Buddhists exclusively inhabited in the area.

On the ethnic name “Rohingya”, he said that the Rohingyas invented the name after the

16th century when they became politically conscious. But he said he could not give

historical evidence as, according to him, Burma history was a fabricated history; that the

real history of an ancient ethnic group of Arakan was intentionally ignored; and that the

113 Ibid. 3-5.114 Ibid. 6.

69

real historical evidences of Rohingya Muslims were hidden and distorted. On ‘Comment

and Suggestions’, he threatened that the Arakan people will be in great trouble in the

future and will have to atone for their political blunder if they continue their xenophobic

activities because the Rohingyas will become a majority when they are repatriated back

to Rakhine, Myanmar, after the announcement of an amnesty for those who are living in

exile by the prospective Democratic Government of Myanmar.

4.1.4. Perspectives of UNHCR and NGOs

The United Nations and donor countries have separated the Rohingyas from other

Myanmar refugees. According to the United Nations High Commissioner for Refugees

(UNHCR), the plight of Rohingyas has become a regional problem. In the UNHCR

Refworld report, it is stated that in Malaysia, the UNHCR continues to work for a

separate solution for the Rohingyas’ “temporary work permits” and exclude almost all of

the Rohingyas from options such as resettlement that are available to other Burmese

(Myanmar) refugees.115

The UNHCR is also highly concerned with the boat people who were caught in

the sea while seeking refuge in other countries. In January 2009, regarding the boat

people who had been detained by the Thai authorities, the UNHCR requested the Thai

government for access to 126 detained Muslim Rohingya boat people in order to assess

their situation and determine whether any of them were in need of international

protection and to make sure whether their lives were not put at risk.116 However, on

115 “Rohingya: Burma Forgotten Minority”, UNHCR Refworld. 18 Dec. 2008, 18 Oct. 2010.116 “UNHCR seeks access to 126 Muslim Rohingya Boat People in Thailand”, UNHCR: The UN Refugee Agency, 20 Jan. 2009, 18 Oct. 2010. <http://www.unhcr.org/4975f6362.html>.

70

occasions, the UNHCR have difficulties to get access to the detention centers to secure

the release of the registered refugees.

The Refugee International report urged the UN and other NGOs as well as donor

countries and the countries within South and Southeast Asia that they should begin to

address the plight of all Burmese (Myanmar) refugees equally, and commit resources to

them in equal measure. . It is also recommended that the receiving countries should

welcome the UNHCR and the implementing partners and allow them to provide basic

necessities to the Rohingyas and also to recognize them as refugees.117

4.2. Roma and the Development of Statelessness in Europe

4.2.1. Roma in Europe

Origin and the Background

The “Roma”,118 also known as “Gypsies”, are living with large populations in

Central and Eastern Europe and in small numbers in the Baltic countries. The early

history of the Roma is little known and unclear although it was assumed that they

originally came from India. Historical records indicate that, they appeared to leave their

original homeland in Northern India and migrated to Europe between ninth and

fourteenth century although the reasons for their migration are not clear. Tanner, the 117 “Rohingya: Burma’s Forgotten Minorities”, Refugees International Field Report, 19 Dec. 2008. <http://www.reliefweb.int/rw/RWFiles2008.nsf/FilesByRWDocUnidFilename/MYAI-7N45J8-full_report. pdf/$File/full_report.pdf>.118 The term ‘Roma’ is used to refer to Roma, Sinli. Kale, Travellers and related groups in Europe and covers the wide diversity of groups concerned, including groups which identify themselves as Gypsies. This usage is in line with the terminology of other international bodies including the Council of Europe. See full text in “The Situation of Roma in France and Europe”. Joint Information Note by Vice-President Viviane Reding, Commissioner Laszlo Andor and Commissioner Cecilia Malmstrom , 1 Sep. 2010.

71

Finnish Directorate of Immigration, stated in his article that “around the year 1000, an

event in northern India, about the time of Muslim invaders, likely triggered their mass

exodus. The precise event is still unknown, but the possible reasons include a conflict that

resulted in the Roma’s persecution, a natural disaster, or even recruitment into a

mercenary military.”119 They went first into the Byzantine Empire where they stayed for

several hundred years. However, the Muslim expansion, mainly made by the Seljuk

Turks into the Byzantine Empire recommenced the movement of the Romani people.

They had reached the Balkans and Bohemia around 14th century; by the 15th century,

they reached Germany, France, Italy, Spain and Portugal; and by the 16th century,

Russia, Denmark, Scotland and Sweden. Some Romanies migrated from Persia through

North Africa, reaching Europe via Spain in the 15th century. The two currents met in

France.120

By the end of the 16th century, they had covered almost all the central and

Western Europe including Russia, Scandinavia and Spain. However, a 2004 study by

Morar et al. concluded that the Romanies, a founder population of common origins, has

subsequently split into multiple socially divergent and geographically dispersed Gypsy

groups.121 Throughout their history, the Nazi era was the darkest period. Similar to the

Jews, the Roma were also targeted with discriminatory legislation and at later stages they

faced extermination.

119 Arno Tanner, “The Roma of Eastern Europe: Still Searching for Inclusion”, Migration Information Source, (May 2005) <http://www.migrationinformation.org/feature/display.cfm?ID=308>. (undated, last accessed 19 Dec. 2008)120 “Romani People”, enotes.com. (undated, last accessed 18 Nov. 2010) <http://www.enotes.com/topic/Romani_people>.121 Ibid.

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Map 3. Map of Central and Eastern Europe122

122 Central and Eastern Europe, map (Wikipedia, the Free Encyclopedia, sources from CSUN)

73

Approximately, half a million of the Roma across Europe were executed or killed

in concentration camps. They were mostly from Yugoslavia, Romania, Hungary, the

USSR (Union of Soviet Socialist Republics) and Poland.123 Likewise, many of them were

suppressed and killed under Stalin’s rule in the USSR.

On the other hand, during the communist era, the Roma were forced to settle in

the major cities and adopt a “decent” communist way of life by the governments of

Romania and Hungary.124 Therefore, their life under communism seemed to be better as

they were provided access to housing, health care and employment. Under the socialist

Yugoslavia, they were officially granted nationality status in 1981. In general, for Roma,

the socialist policies improved their living conditions; however, theirs was a mixed

blessing. As the level of their education and skills were low, their positions in the work

place became unqualified ones, such as low-skilled jobs on collective farms, instead of

places in public sector enterprises.125

Along with the transition to democracy and market economies, new opportunities

came for ethnic minorities to freely express their ethnic identity and to take part in the

society. Hence, most of the ethnic minorities were again classified as distinct ethnic

groups in most of the countries. For example, in 1991, Czechoslovakia adopted the new

Declaration of Basic Human Rights and Freedoms, which allowed for free determination

of ethnic identity.126 However, the transitional era also brought new challenges and

123 Dena Ringold, Mitchell A. Orenstein and Erika Wilkens, Roma in an Expanding Europe: Breaking the Poverty Cycle (Conference Edition), A World Bank Study (Washington DC: 2003) 14.124 See full text in Tanner, “The Roma of Eastern Europe: Still Searching for Inclusion”. 125 Dena Ringold, Mitchell A. Orenstein and Erika Wilkens, Roma in an Expanding Europe: Breaking the Poverty Cycle, A World Bank Study (Washington DC: 2005) 8.126 Dana Ringold, Roma and the Transition in Central and Eastern Europe: Trends and Challenges, The World Bank (Washington DC: 2000) 6.

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hardships for the Roma in Central and Eastern Europe. The situation of the Roma in

Europe differs from one country to another. However, in general, the Roma have low

levels of education and minimal skills and it is quite difficult for them to compete for jobs

in a market economy. As a result, this economic transition affected them very severely

and led to increased poverty, lower living standards and insecure economic prospects.

Thus, according to Tanner, since the fall of Communism, the Roma’s problems in Eastern

Europe have become more severe.127 They have suffered not only from discrimination

and high rates of unemployment in the labor market but also from a lack of access to

public services such as education, health care and housing.

In her article, Ringold states that in the early 1990s, approximately 50,000 Roma

left Central Europe and fled to the West along with other migrants when border controls

were relatively lenient. However, migration later slowed down as the countries began to

close their borders. Most of the Western European Countries, including France and the

Netherlands, started to repatriate and deport the immigrants and asylum seekers whose

applications had been rejected.128

Circle of Poverty and Exclusion

In Europe, no ethnic group has experienced greater poverty, discrimination and

social exclusion than the Roma. Throughout European history, the Roma were one of the

poorest peoples in Europe. Moreover, their situation included living in isolated areas or in

illegal housing. Since they lacked identification documents, they encountered increasing

barriers to access to social welfare, such as education, employment opportunities, health

127 See full text in Tanner, “The Roma of Eastern Europe: Still Searching for Inclusion”.128 Ringold 8.

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care and other social assistances. Many Roma children could not attend schools as some

parents were incapable of sending them to schools as they could not even afford the basic

supplies and there were also fears of losing their cultural identity. At the same time, some

parents began to realize the important role of the education for the future prospects of

their children.

Cultural and Linguistic

Estimating the accurate size of Roma population worldwide is quite difficult.

However, EU reports estimate that their population all over the world is between 15 and

30 million, with more than 10 million residing in Europe. Historically, the Roma

developed tribes and clans, each with its own traditions, culture, beliefs, and practices.

They speak different languages and practice a number of religions.129 There are various

dialects of the Roma language widely used among some Roma communities.130 For

example, in Bulgaria, half of them speak the Roma language at home. While in Hungary

and Slovakia, a lesser percentage of their population speaks the Roma language.131 They

are especially known for their skills of music, craftsmanship and even fortune-telling.

4.2.2. The Situations of Roma in Europe and the EU Position

Due to the problems discussed above, the situation and the legal status of the

Roma differs from one country to another, as well as from one group to another. The

European Commission has registered the term “Roma’ in its documents. Nevertheless, it

considers the use of the term “Roma” as an umbrella one, practical and justifiable within

129 The European Social Fund and Roma (Background Report), (European Union: Belgium, 2010) 14. 130 Roma in an Expending Europe: Breaking the Poverty Cycle (Conference Edition) 17. 131 Roma in an Expanding Europe: Breaking the Poverty Cycle, 11.

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the context of its policy documents dealing above all with issues of social exclusion and

discrimination, but not with the specific issues of “cultural identity”.132

According to World Bank reports, the “Policy approaches that European

governments have taken in modern times fall into four broad groups: policies of

exclusion, assimilation, integration, and minority rights (see Marko 2000 for a similar

typology). These approaches reflect different responses to two basic questions about the

Roma policy: whether Roma should be treated as a distinct group or as individual

members of a broader society, and whether Roma policy should be pursued through

coercive measures or with respect for the Roma rights”.133

As discussed above, it is difficult to confirm the number of Roma throughout the

regions of Europe or in each of the European country as some European Countries do not

recognize the minorities and do not allow the collecting of the ethnic data. In the cases of

France and Italy, France does not acknowledge the existence of minorities in its territory,

nor accept any minority rights, while Italy does not recognize the Roma as a minority.134

French authorities took actions of repatriation and deportation of illegal settlements in

France. Therefore, estimates from different sources widely differ. According to the

sources of official national census and the estimation of Council of Europe in Eurostat

2006, Roma population in EU27 should be between 4 and 7 million135. However, sources

from joint information note of “The Situation of Roma in France and Europe”, states that

there are some 10 to 12 million in EU countries, candidate EU countries and potential EU

132 The European Social Fund and Roma (Background Report), 15.133 Roma in an Expanding Europe: Breaking the Poverty Cycle, 14.134 The European Social Fund and Roma (Background Report), 15.135 This number is 5 to 10 million including all other European Countries in the “Table of Roma and Sinti Population in Europe”. See Table 1. The European Social Fund and Roma (Background Report) 16.

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candidate countries. They are mainly residing in Bulgaria, Hungary, Romania and

Slovakia, with a total of 80% of their population.136

Most Roma are nationals of some countries which have become Member States of

the European Union such as Romania, Bulgaria, Czech Republic and Slovakia; they are

entitled to free movement as EU citizens, but in some Member States they lack full rights

as workers.137 The above mentioned four member states recognize Roma as ethnic

minorities and they represent in each country more than 1% of the total population. In

most of these member states, large numbers of them are nationals of these states and thus

European citizens which entitle them to free movement. However, those who lack birth

certificates or other identification documents are still considered as illegal migrants. In

the case of other Member States, there are limited numbers of Roma among the

population, but they are recognized as national or ethnic minorities as in Austria,

Belgium, Germany, Estonia (where those who have Estonian nationality are considered a

national minority), Finland, Latvia, Poland, Slovenia, Sweden (where they are recognized

as a cultural minority) and the United Kingdom.138 However, there are also some other

Member States which still do not recognize their nationality or as an ethnic minority.

In EU reports, the Roma are not officially recognized as a minority in Bulgaria

and Greece although a large proportion of the population there are of Roma origin. There

is no policy document addressing the national minority groups in Bulgaria and, in 1999,

the Bulgarian parliament ratified the Framework Convention for the Protection of

136 “The Situation of Roma in France and Europe”, Joint Information Note by Vice-President Viviane Reding, Commissioner Laszlo Andor and Commissioner Cecilia Malmstrom, 2. 1 Sep. 2010, 2 Nov. 2010. <http://www.statewatch.org/news/2010/sep/EC-Roma-France-report.pdf>.137 The European Social Fund and Roma (Background Report), 17.138 Ibid.

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National Minorities (Council of Europe) and in 2003, the Protection against

Discrimination Act was also ratified; however, Bulgaria recognizes minorities on the

basis of language. There is evidence of the existence of Roma in Greece since the 11th

century and their current population is estimated at between 0.73% and 3.18% of the

overall Greek population. The only minority officially recognized in Greece is the

Muslims of Tracia. A large number of Roma did not have Greek citizenship until the

mid-1970s.139

To improve the situation of Roma, particularly to improve the social and

economic integration of Roma in Europe, has become important challenges for all EU

Member States. Under these circumstances, in 2009, the European Platform on Roma

inclusion was launched. The first integrated platform on Roma inclusion was organized

on 24 April 2009 in Prague and a set of 10 Common Basic Principles140 to effectively

address the inclusion of Roma was identified. These Principles were annexed to their

Conclusions on the Inclusion of the Roma by Employment and Social Affairs Ministers

of the EU countries on 8 June 2009. The second meeting took place in Brussels on 28

September 2009 and the main objective of the platform concerned with the improvement

of the Roma education in Europe. The third platform took place in Brussels on 17 June

2010, and was organized under the Spanish presidency. The meeting focused on the

discussion of a roadmap proposed by the Spanish Presidency and provided a mid-term

framework of stakeholder actions and expected outputs for the Platform.141

139 Ibid. 140 See full text in “Platform for Roma Inclusion”. European Commission. 5 Nov. 2010.<http://ec.europa.eu/social/main.jsp?catId=761&langId=en>.141 Ibid.

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4.3. The International Responses on the Statelessness in Europe

4.3.1. United Nations High Commissioner for Refugees (UNHCR)

There are millions of stateless people in numerous countries around the world. In

those countries, stateless people experience social exclusion, discrimination and lack of

documentation. Since they lack identification documents, it has been difficult to gather

related information and as a result, it has been difficult to address their situation.

Therefore, in order to gather related statistical information, the UNHCR together with

other UN agencies, has been working with recipient governments as well as other

partners. The kinds of issues that the UNHCR and its partners are analyzing include the

causes of statelessness and the problems incurred thereof. On the other hand, statistics on

statelessness worldwide are always incomplete due to political sensitivities. There are

various activities in progress in the field of statelessness and actions have been taken on

resolving the existing problems.

Due to the break-up of the USSR, Yugoslavia and Czechoslovakia, the number of

stateless people has increased. Hence, the UN General Assembly specifically requested

the UNHCR to take action to prevent and reduce stateless people and to protect them. As

a result, the UNHCR has a mandate with two approaches: to address situation of

statelessness which have occurred around the world and to assist in resolving cases which

may arise under the 1961 Convention.142 The UNHCR also provided, as the advisory143 of

142 Mark Manly and Santhosh Persaud, “UNHCR and Responses to Statelessness”, Forced Migration Review: Stateless, Marion Couldrey and Maurice Herson eds. Issue 32, (Refugee Study Center: April 2009) 7.143 “provide relevant technical and advisory services pertaining to the preparation and implementation of nationality legislation.”

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UN General Assembly, to governments around the World for both prevention and

alleviation of these stateless persons. Moreover, in the article of Manly and Persaud, it is

stated that states which are not member to the 1961 convention can also implement

safeguards in their national legislation to prevent and reduce statelessness.144

Although in certain countries some stateless people may enjoy rights similar to

nationals’, in other countries, they have no access to social welfare and lack freedom of

movement. In the case of Estonia and Latvia145, the majorities of the stateless people

there have long-term residence permits, and enjoy the privileges and guarantees

envisaged by the EU Council Directive 2003/109/EC of 25 November 2003 concerning

the status of third-country nationals who are long-term residents. None-the-less,

discrimination in certain areas remains. In Estonia, stateless people with the long-term

residence status have the right to vote others but cannot be elected at local elections and

they are not allowed to be members of the political parties and run for the public office.

As for the stateless people in Latvia, they are not allowed to vote or work in the civil

service. Along with other international organizations, the HCNM (High Commissioner

for National Minorities) is also involved in the process of drafting the new legislation of

elaborating Latvia’s new Citizenship Law. In addition, with the financial support from

the Russian Federation, the UNHCR’s Regional Office for the Baltic and Nordic

Countries in Stockholm continues to encourage efforts for the alleviation of statelessness

in Estonia and Latvia. Funding for these efforts was provided by the Russian Federation

in 2007 and 2008.

144 Manly and Persaud 8. 145 “Humanitarian Assistance to Countries and Regions of Concern to the Russian Federation”, UNHCR’s Regional Office for the Baltic and Nordic Countries, Stockholm, 2-3. UNHCR Nov. 2009, 30 Oct. 2010.

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The UNHCR has been cooperating closely with national and international NGOs

and other international agencies that are supporting stateless people. Although it does not

cover the whole world at global level, together with its partners, the UNHCR has

continued its wide-ranging activities in order to more effectively focus on the issue of

statelessness.

4.3.2. International Non-Governmental Organizations (INGOs)

Today, many of the internationally-funded Non-Governmental Organizations

(NGOs) are playing an important role as agents on the issues of the ethnic minorities,

statelessness and refugees. In the process, they are also closely cooperating with the UN

and other International Agencies, governments, and local NGOs to help the peoples who

are in greatest need. Some of the INGOs are implementing projects such as “closing the

gap between the Roma and the non-Roma” in education and other development activities.

Concerning such projects, they continue to encourage governments to work with the

Roma in actively supporting Roma children in their early childhood education.

Using the activities of the REF (Roma Education Fund) in Romania and

Hungary,146 the REF, for an example, in recent times, set up the first operational office in

Romania in view of creating a project by using structural funds to strengthen its ability to

support local and public institutions for the Roma students. Up to now, the REF has

received over EUR 10,000,000 in Structural Funds to support local partner activities such

as to offer scholarships for the Romani pre-school and primary school students,

146 Costel Bercus, “Increasing Access to and Management of Structural Funds for Quality Education of Roma”, Roma Education Fund. (undated, last accessed 10 Nov. 2010)<http://ec.europa.eu/employment_social/esf/docs/2-4-costel-bercus_en.pdf>.

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secondary school students, and university scholarships in the health profession, and to

facilitate the transition from university life to labor market integration amongst Roma

university graduates.

Supporting education and social welfare are not the only issues that the NGOs are

concerned with, as some organizations are also giving legal assistance for the Roma. In

the case of the Roma from Bulgaria and Romania who have been repatriated and

deported by French authorities, a Hungary-based public-interest law organization, the

European Roma Rights Center (ERRC) provided legal briefs to the Commission on the

Roma expulsion issue, arguing that France’s actions violated not only the Freedom of

Movement Directive and the Charter of Fundamental Rights but also the European

Convention on Human Rights (ECHR).

At present, the number of NGO projects throughout the world has increased

which provide financial support and other assistances to help not only the Roma but also

other refugees, stateless people in Europe in their resettlements, education, and health

care and also provide social services together with the local governments and national

and international human rights institutions. Nevertheless, providing enhanced protection

for stateless people remains a significant challenge for both governments and the

international organizations concerned.

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4.4. A Comparative Study of the Status of Statelessness: Rohingyas and

the Roma

“Statelessness” is described as people who are not considered nationals and are

unrecognized by any state. As discussed earlier, there are various circumstances

regarding peoples becoming stateless. These people face different problems depending on

why they become stateless and where they live.

Recently, statelessness has become a global issue and challenged not only the

understanding of the issue but also of its causes. Currently, the United Nations,

International and domestic NGOs, refugee organizations and human rights monitoring

bodies are the main actors in providing protection for the stateless people and refugees.

When we study the statelessness of the Rohingya and the Roma, there are some

similarities but it could also be observed that more differences exist on the way the two

peoples became stateless. Then, what are the similarities and what are the differences we

could possibly observe? First of all, it is to be acknowledged that there is a similarity in

the origins of the two peoples. Both peoples were originally from India. The Roma were

from Northern India. The Rohingyas were from the Chittagong District of East Bengal of

the Indian Sub-continent.

Prof. Aye Kyaw defined the term “Rohingya” as “fallen leaves” or “the

wandering people” in the Bengali language, ‘the ones who do not have a permanent

home’ or like ‘people who are moving everywhere like Gypsies’. In fact, the Roma are

“Gypsies”. Therefore, both people nowadays share the same “Gypsy” status, implying

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that they have been moving from one place to another and are not permanently residing at

any place. This is the second similarity. However, it should be noted that the Rohingyas

have become Gypsies or wandering people in recent times, coinciding with the

emergence of globalization. Their original nature will be discussed when the differences

of the two communities are considered later.

The third similarity could be that both people have now become economic

migrants as they are seeking to settle in the economically advanced countries where there

are promises of better living conditions.

Today, while some European countries were deporting the Roma from their

countries claiming that the Roma were not following their Law and Order as well as their

culture, the Rohingyas in Asia are also facing deportation by the authorities of the

countries to where they have migrated. This situation could be concluded as the fourth

similarity of the two communities.

The fifth similarity lies in the area of discrimination. Due to lack of identification

papers and documents, members of the two communities face discrimination in the

countries they have been residing.

The poverty and lack of education are also common characteristics of the two

communities and these characteristics have reduced their capacity of adaptability in the

new societies. This sixth similarity produces untoward consequences for both peoples and

lead to the following seventh similarity.

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Both communities, in consequence, have shown, also due to other reasons of their

own, resistance in their integration into the societies of the host countries. Religious

fanaticism could be one of the primary reasons of Rohingyas and concern for the loss of

their identity could be one of the main reasons of the Roma. This is also an important

aspect of similarity between the two peoples as it has the disastrous effect of prolonging

their sufferings.

However, there are some important differences as well between the two

communities. The first difference is historical concerning the direction and the distance

they had migrated. The Roma had migrated to the West and moved far away from their

homeland. They were thought to have left for the West between AD 1000 and 1030. By

the end of the 16th century, they were said to have covered almost all the central and

Western Europe including Russia, Scandinavia and Spain. On the other hand, the

Rohingyas migrated to Rakhine in the East which was very close to their homeland

situated in the Chittagong region although some of their scholars invented unfounded

stories of the history of their people “starting to inhabit in Rakhine since 6 th century by

migrating mostly from Arab countries and with a few from Bengal.”147

The second difference concerns with the reasons of their departures. Although

the reason of the Roma’s departure from their homeland about 11 th century was still

unclear, it was assumed that around the year 1000, an event in northern India, about the

time of Muslim invaders, likely triggered their mass exodus. One possible reason was

thought to be a conflict that resulted in the Roma’s persecution. The Rohingya on the

147 See full text in Nurul Islam, “To bring harmony in Arakan, Xenophobic works of the Rakhines must stop”.

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other hand, started to arrive in Myanmar to earn a living as seasonal workers at the rice

fields in the Rakhine region after 1826. It is obvious that the reason of the Rohingyas’

migration is economic while the reason of the Roma is to escape from persecution.

Thirdly, not like the Roma, the Rohingyas, initially, did not, at that time or later

for some time until the 1990s, try to proceed to other countries or destinations in groups

or in large numbers. Until the dawn of the age of globalization, the Rohingyas were not

like the Roma. They were not travelers by nature and their culture was not characterized

by self-employment, occupational fluidity, and nomadism. They were mostly uneducated

agricultural workers and contented to continue to stay in the western part of the country

where they were living for quite some time. Myanmar was also a bit well off at that time.

They were, therefore, not even included in the exodus of many Indians from Myanmar

that occurred after the 1964 nationalization of the private enterprises by the Socialist

government of Myanmar. In the beginning of their settlement in Myanmar immediately

after 1826, they even did not live in Rakhine for good or for a long time. Every time,

they, being seasonal workers, came to work in the rice fields in Rakhine and returned to

their native Chittagong District after completion of their work in the fields. However,

later, gradually they used to continue to stay in Myanmar. At that time, Myanmar was

under the British colonialists and the country had even been made a part of India. There

was no international boundary between Myanmar and India at that time and no

immigration existed. Therefore, no question of nationality or citizenship came up for

those people who settled in Myanmar. This situation might have caused them untoward

consequences after many years later.

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The continued stay of the Rohingyas in Myanmar after independence pointed the

fourth difference between the two peoples. The Rohingyas, not like the Roma, had not

experienced any discrimination or persecution in Myanmar during their long stay. The

history of the Roma is filled with stories of persecution experienced by these people

during their endless journey. The continuous stay of the Rohingyas, on the other hand,

had demonstrated the absence of any discrimination, let alone persecution, in Myanmar

even though there was mistrust and suspicion existed between the two communities due

to events occurred immediately before and after the birth of independence as well as the

involvement of some of their educated leaders in the political demands made in the name

of their ordinary people who in fact might not be aware of these demands that had been

made on their behalf.

The fifth difference is the Rohingya’s (especially the educated and ambitious

sections of the Rohingyas) political involvement which could not be observed or heard in

the case of the Roma. It has been discussed in detail in Chapter Two, under the heading,

‘A Brief Historical Background of the Evolution of the Rohingya Issue in Myanmar’. The

political ambitions of the Rohigyas and the unfoundedness of their claim to be one of the

original ethnic groups of Myanmar have led to the assertion of one Rakhine scholar that

the Roingyas are like ‘the guest, who wants to kick out the host and has an intention to

occupy the house’. The Roma, not like the Rohingyas, never tried to turn a part of the

host nation to a ‘Roma Land’. This fifth difference pointed to the fact that the Rohingya

issue is no longer a simple and pure humanitarian issue.

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The issue of statelessness is difficult to resolve because it is not a simple

humanitarian issue. It is also a political and legal issue. Resolving the issue of

statelessness involves a lot of factors that should be given careful consideration, such as

the constitution of the country, the mind-set of the nation, the internal political situation,

the character, the characteristics and the historical backgrounds of the individual as well

as the community to be granted citizenship, and so on and so forth.

The Rohingya issue, in fact, should be a simpler one than the Roma’s. However,

the Rohingya’s educated leaders had made matters worse by politicizing the issue to

pursue their own interest. Nowadays, the issue of statelessness in Europe, particularly the

issue of the Roma, seems to have become simpler and more straightforward to resolve

compared to the issue of the Rohingyas. The Roma did not make any political claims.

When we study the status of the statelessness of the two communities, a lot of

lessons could be learned from their experiences. The two communities have very similar

origins but vast different of experiences. What is identical is that both communities no

longer have their own states. They have lost their origins since a long time ago for

different reasons. They have to find a state which would adopt them as their nationality or

citizen. Both of them wanted to attain citizenship or nationality to enable them to settle in

a country. However, both have drawbacks in their struggles to escape from statelessness.

Initially, the status of the Rohingyas was in better position as they lived in one country as

an integrated entity and they needed to contend only with one state. Even if there were

problems they could try to settle them with the state amicably. However, they did not

choose that way. The Rohingyas try to achieve their objective of securing citizenship by

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applying political pressure on the government of Myanmar. Thus, the issue has become

intractable as time passed. For the Roma, they are not one integrated society. They have

different communities in various countries. They also try to find countries willing to

accept and integrate them into their society. There is no evidence of the Roma employing

political means to achieve their objective of escaping from statelessness. If the two issues

are compared, the issue of the Roma nowadays seems more simple and straightforward

than the issue of the Rohingyas. The issue of the Roma looks to have better chances of

quicker resolution than the issue of the Rohingyas. The valuable lesson from the Roma

issue is that the Rohingya issue also stands better chances of resolution if the Rohingyas

forsake the political methods in their request for citizenship.

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5. CONCLUSION AND RECOMMENDATION

5.1. Conflict of Interests between the Recognition of the Claim of

Rohingyas and the Territorial Integrity of the State

5.1.1. The Conflicting Implications of the Concepts of Self-determination of

Ethnicity and the Territorial Integrity of the State

At this age of globalization, the issues of citizenship or nationality, ethnicity, self-

determination, human rights, and the territorial integrity of the states have become

pressing issues challenging the international community with an unprecedented scale. I

have discussed these concepts in Chapter One to some extent. At this conclusion, I would

like to discuss the implications and the impacts these concepts have on the development

of the affairs of a state as well as in the interactions on the international arena.

Particularly, I would like to discuss the conflicting implications of the concepts of self-

determination of ethnic groups and the territorial integrity of the state.

Although there are a number of nations where only one group of nationality

resides in its territory like nation-states, many other nations or states have combined more

than one nationality in their territories. In other words, a state or nation could be defined

as an entity composed of one or more ethnic or racial groups who live together in a

particular geographical area and share the common culture, tradition, history and

language although they might also have their own particular unique dialects, languages,

religions and cultures. The fact of living together of these ethnic groups in a particular

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territory or region has made them “nationalities” or “citizens” of a respective state or

nation.

If a state has more than one nationality, the nationalities which compose of that

nation or state may have a variety of their own interests. Some of their interests may be

submerged in the interests of their state. Some interests may conflict with the interests of

others. Some may even come into conflict with the interests of the state itself. This kind

of problem may occur due to fundamental conflicting nature of the interests. The original

cause of ethnic conflicts, therefore, could be an inherent one, or internal or external one,

or a combination of two or more causes.

When the concepts of international law are favorable to the integrity and

sovereignty of states, as it stood in the past and to some extent until now, the states could

more or less maintain their territorial integrity without much difficulty. If not, the

possibility for the disintegration of a state with more than one nationality could become a

reality sooner or later. The disintegration of the states especially in Eastern Europe is a

case in point.

Since the end of World War I, and especially after World War II, the world had

ordered its affairs in an international system based on the concept of states whose

borders, no matter how they were originally determined, are considered inviolable.

However, the self-determination principle has been interpreted differently at different

times and has been inconsistently applied as a result.148 Moreover, self-determination is

also considered to be the right of people to shape their own political, economic and

148 Carley, “Self Determination: Sovereignty, Territorial Integrity, and the Right to Secession”, 1.

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cultural destinies. Among several ethnic and national groups, and minorities, “national

self-determination” has become higher expectation, and used this right to argue for a right

to secede from existing states. Consequently, the number of ethnic groups’ claims and

ethnic conflicts has risen continuously since the end of the Cold War. These groups have

various claims but are primarily searching for independent statehood, or recognition of

statehood.

It is widely accepted that the principle of respect for the territorial integrity of

states is well founded as one of the linchpins of the international system, as is the norm

prohibiting interference in the internal affairs of other states. However, this principle

appears to conflict on the face of it with another principle of international law, which is

the principle of the self-determination of peoples. In other words, the requirement to

respect territorial integrity, in some respects, seems to make self-determination null and

void.

However, due to the emergence of new ideas and new concepts in the

international political sphere, efforts are being made in the regime of international law to

modify the prevailing concepts in order to be in harmony with the developments taking

place in other fields. Redefining or modifying the concepts to be in conformity with the

developments occurring in the international arena is a truly necessary and commendable

effort. However, new concepts, or new interpretations of concepts, would definitely have

a great impact to the states with many nationalities. Therefore, a cautious approach

should be taken and a careful consideration should be given in the process of

reformulating the concepts.

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5.1.2. Applicability of the General International Law Concept of Ethnic Self-

Determination to the Rohingya Case

As discussed previously, since the end of the Cold War, ethnic conflicts have

become the most common political violence in the world. For many centuries the

conflicts of minorities and majorities centered on the questions of regional autonomy,

religious rights, language rights, and group rights, etc. As these problems grow stronger,

the possibility for the collapse of a state becomes higher. Such situation can be witnessed

in many countries around the world, especially in the countries formed with many ethnic

groups. These nationalities have highlighted the ‘rights of people’ or ‘self-determination’

with the aim of protecting their groups from discrimination and achieving the right of

self-government, or establishing a separate state. The demands for the recognition of self-

government or autonomy and secession are the most difficult issues to deal with and

challenge a state’s ‘territorial integrity’ or ‘the right of the existence of a state’. The

outbreak of ethnic conflicts encourages the break-up of states and could turn the war from

a civil to a regional or international one.

According to the UN Charter, it is clearly mentioned that, “self-determination”

applies only to states not to peoples or groups. However, the outline of the UN Charter

also defends ‘the right of peoples’ to self-determination.149 To support their claims, some

ethnic groups interpreted self-determination in the international language of ‘human

rights’. While nationality, self-determination and territorial integrity are essential for the

interests of a state’s security and its people, the concept of human rights also supports the

rights of individuals and groups. 149 Carley 1.

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When we study the case of Rohingyas, the Rohingyas first wanted to integrate the

part of Myanmar territory they were residing into former East Pakistan. When their

approach to Pakistan for that purpose was refused, they attempted to establish an

independent Muslim state within Myanmar by waging a war against the then Myanmar

government. When that plan also failed to realize, they claimed for autonomy in the

territory they were residing. When that attempt was also rejected and no more alternative

was left, as Bangladesh also turned down their request for the incorporation of their

territory into Bangladesh when it was born in 1971 and did not also recognize them as

their citizens, they then resorted to the claim of the citizenship of Myanmar. Their claim

for citizenship has been based on their assertion that they were one of the ethnic

minorities of Myanmar. The research highlights firm evidences to the contrary with the

effect that the Rohingya has never been one of the 135 original nationalities of Myanmar

and that they are not entitled to claim either for nationality or self-determination. In fact,

some of the Rohingya people had requested and received some kind of citizenship of the

country in the meantime; but many others had not applied for the citizenship so far.

However, the number of people who had received a kind of citizenship of Myanmar is

indeed minimal.150

Therefore, the research found the case of Rohingyas having little basis for

applicability to the general international law concepts of nationality and self-

determination. Matters relating to the Rohingyas, however, may be considered case-by-

case as they had become stateless people or refugees and their issue needs to be resolved.

In an attempt to help resolve the issue, the Department of Myanmar Immigration and

150 See full text in Aye Chan, “The Development of a Muslim Enclave in Arakan (Rakhine) State of Burma (Myanmar)”.

95

National Registration, in 1995, started issuance of the Temporary Registration Cards

(TRCs), also known as the “White Cards”.151 Myanmar authorities also received

numerous Rohingya refugees who came back from the Bangladesh side after passing

their scrutiny test.

The Rohingyas have been denied by both states of Myanmar and Bangladesh as

their own nationality. However, both countries have been receiving them as either

refugees or economic migrants. The research notes that today they have been diversifying

their immigration channels as well as their destination countries and seeking refugee or

asylum status in the developed countries, most probably with the aim of achieving better

living conditions. The issue of the statelessness of the Rohingya has become a difficult

and complicated issue to be tackled with.

5.2. Resolving the Issue

5.2.1. Consequences of accepting or denying the claims of Rohingyas on the

Unity and Integrity of the Multi-ethnic State of Myanmar

As stated very often, the problem with the Rohingya’s claim is that there is no

historical ground to accept them as one of the ethnic groups of Myanmar. In addition to

that, Myanmar has been encountering the ethnic problems since she regained her

independence in 1948. Ethnicity even became part of the independence process itself.

However, the new ethnic politics which emerged in the 1990s when the government that

took power in 1988 reached a series of ceasefire agreements with the ethnically

151 Myanmar, “Ministry of Immigration and Population”, MODiNS.NET. (undated, last accessed 17 Aug. 2010) <http://www.myanmar.gov.mm/ministry/hotel/fact/st_div/rakhine.html>.

96

designated insurgent groups. Today, the State Peace and Development Council (SPDC)

have officially maintained ceasefires with seventeen out of eighteen armed ethnic groups

since 1997. Again, it could be observed that the question of ethnicity in Myanmar has yet

to be completely resolved once and for all.

Under these circumstances, Myanmar was not in a position to include the

Rohingya as one of its nationalities as this would make the already complicated ethnicity

problem of Myanmar become worse. Myanmar has enough of its own problems. Besides,

these Rohingyas were living in the border areas and their features very much look alike

with the people on the other side of the border. There is no way to differentiate and

identify as to whether they are the descendants of the people living there since many

years ago, or they are the people just arrived from the other side. This technicality may be

included in one of the points that had caused the authorities reluctant to accept their claim

of citizenship.

As discussed above, acceptance of their claims could also make matters worse

especially concerning the peaceful atmosphere of the Rakhine State as well because

suspicion has existed between the two communities due to the bloody clashes that had

occurred just before and immediately after the country’s independence. Therefore, it was

feared by the Rakhine people with some good reasons that the acceptance of their claim

of nationality in the long run has the potential of threatening the existence of the Rakhine

state and the survival of its people as well as the security and the territorial integrity of

the state as a whole.

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It is true that denying the claims of their nationality would give the Rohingyas an

opportunity to intensify their unfounded allegations of discrimination and persecution.

The Rohingas, in fact, might have made these allegations in order to gain acceptance of

the refugee status in other countries. Myanmar has been pushed into difficult situation

due to these allegations of the Rohingyas. For Myanmar, the territorial integrity of the

state must be given utmost priority and the authorities, therefore, are firm in rejecting the

nationality claims and all sorts of other unfounded allegations made by the Rohingyas.

The authorities, on the other hand, tried their best to cooperate with the international

organizations in resolving the issue, such as by issuing the Temporary Registration

Cards and also receiving numerous Rohingya refugees returning from the Bangladesh

side.

5.2.2. Concluding Remarks

The issues of nationality, self-determination and territorial integrity are important.

They are important because without nationality, a state would not exist. Likewise,

without territorial integrity, a state would not be able to survive, and without self

determination, the peoples would not feel free or independent to promote their individual

characteristics. On the other hand, they are also complex because nationality is difficult

to define, territorial integrity could be implied for the state where all her people reside as

well as for a part of the state where one of its nationalities reside, and self-determination

could mean both for the whole people of a country and for one of its nationalities.

When we consider about territorial integrity, sovereignty, ethnicity, nationality,

and self-determination, we could clearly observe and feel that they are not just concepts.

98

They have fundamental values and these values are still highly appreciated all over the

world. When the concept of self-determination is applied to an ethnic group, thorough

consideration should be given on the validity as well as the strength of the issue as this

could have far reaching impacts on the state as a whole and could eventually lead to its

disintegration. When the concept of human rights is added to this, the issue could then

become more complicated and the disintegration process of a state would then be

accelerated with added momentum.

In fact, most of the problems arising out of the ethnic questions could be traced in

the state of underdevelopment. This point should be noted and taken into consideration

when reformulations of the concepts are made. When a state is well off to some extent,

the nationalities inside would be happy to stay together and would not be very eager to

move for secession. The economic development seems to be the principal factor for the

firm integration and continued unity of the nationalities of a state and has a favorable

impact on the maintenance of the stability and security of a state.

For the development, a country needs peace. However, peace can only prevail

when there is development in sight. If progress and prosperity could be achieved to some

extent, all the nationalities will be eager to preserve it and that would become an

incentive to reaching agreements on the issues centering on ethnicity.

In the endeavors of a state to reach understanding and agreements on ethnic

issues, international law could play a positive and important role by its concepts of

nationality, territorial integrity and self-determination which would encourage the

harmonious living together of nationalities of a state.

99

5.3. Recommendation for Way Forward

The issue of the Rohingyas needs to be resolved. The authorities of Myanmar

would also like to resolve the issue of Rohingyas as quickly as possible as the adverse

effects of this issue lingering on could have the negative impact on the state and would

eventually impede the development efforts of the government and could also threaten the

security of the state. The government has now accepted the Rohingyas who returned from

the other side of the country and issued Temporary Registration Cards to these people. To

grant citizenship to these people will take time as outright granting of citizenship has

never been the case in almost any other countries. The Rohingyas on their part need to

show their sincerity and willingness to be integrated into the society of Myanmar such as

by way of learning Myanmar and Rakhine languages and cultures, adapting and living in

harmony with the native people, and showing their loyalty to the state.

However, it should also be noted that the citizenship could only be granted to

individuals and granting the status of nationality to an ethnic group like the so-called

Rohingyas is definitely not possible as the Rohingya has never been included in the

original 135 ethnic groups of Myanmar. There are no historical evidences also to support

the Rohingyas’ claim that they are one of Myanmar’s nationalities. Therefore, granting

citizenship step by step alone could be possible and an election could be made after

through scrutiny of each individual on a case by case basis.

In Myanmar, elections have been held in November 2010 in accordance with the

Constitution approved at a referendum held in 2008. A new government will be sworn-in

in the early months of 2011. The recommendation to the democratically-elected

100

government which would definitely be eager to resolve all the nationalities issues once

and for all is to also tackle this issue of the Rohingyas as the continuance of this issue

could have untoward consequences on the road to unimpeded development of the

country. The new government would be fully occupied with the affairs of the state when

it begins to accept new responsibilities and starts its new term of office. However, when

other nationality issues are considered, this issue should not be left out although this is

not the issue of a true ethnic group of the country. However, it is indeed a real and

profound issue that could, in the long run, have adverse effects on the country.

With regard to the Rohingya issue, the following recommendation may be made

for the speedy and successful resolution:

1. Firstly, consideration may be made to appoint a Committee for the purposes of

drawing up principles or provisions for recognizing the genuine people who have

already lived there for quite some time, in accordance with the new Constitution;

of setting up a sophisticated and clear-cut mechanism for verifying the genuine

people, perhaps with the aid of modern techniques such as the testing of DNA,

which may be assisted by the International organizations; and of writing down

procedures for issuance of different kinds of registration cards, if possible

together with an approximate time schedule to complete the whole process.

2. Secondly, steps may be taken, in accordance with the mechanism of verification,

to identify the people who are the genuine descendents of the people who had

settled in Myanmar since the British had brought them to this country to work in

agricultural farms.

101

3. Lastly, in accordance with the procedures drawn up by the Committee, the

issuance of Myanmar Registration Cards may commence in stages to the already

accepted people. The issuance may start from the Temporary Registration Cards

and complete with the recognition of some kind of citizenship to them.

The successful implementation of this recommendation will also depend on the

willingness, sincerity, and loyalty of the so-called Rohingyas to be integrated into

Myanmar society. Unfortunately, I have not bee able to find evidence that the leaders of

the Rohingya movement have expressed these attitudes in their appeal to the international

community. .

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