The Human Rights Of Stateless Persons: A Case Of Burma’s Rohingya

1. Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4.
November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4
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THE HUMAN RIGHTS OF STATELESS PERSONS: A CASE OF BURMA’S ROHINGYA
Dr.Abbas Hardani
Faculty of Law
Multimedia University, Melaka, Malaysia
Abbas.hardani@mmu.edu.my
ABSTRACT
Statelessness, the situation of not holding citizenship from any state, has become a most important matter in international human rights laws. According to the 1954 Convention relating to the status of stateless persons, “stateless person” means a person who is not considered as a national by any state under the operation of its law.
The most important actions of UN relating to people without any nationality were two conventions held in 1954 & 1961 as well as establishment of United Nations High Commissioner for Refugees (UNCHR).
The Rohingyas are one of most vulnerable communities in Asia today. The government of Burma deprived the Rohingyas of their nationality and made them stateless by means of citizenship laws of Myanmar in 1982. This enactment was based on discriminatory treatment against the Rohingya community and systematically contravenes their human rights. Based on the above facts, this paper focuses on international human rights, especially statelessness, as well as mechanisms of statelessness. Also, this paper explains limitations of Rohingyas as stateless persons and concludes with rights of stateless persons. The methodological approach involves an in-depth study of current practices in selected regions and selected issues and examining literature of previous findings in arriving at a logical assumption. The findings are intended to demonstrate a coherent argument and appropriate responses to conflicting points of views.
Key Words: Human Rights, Law, Nationality, Discrimination
INTRODUCTION
Statelessness, the situation of not being a citizen from any state, is one of the most critical and unknown breach of human rights. According to UNCHR1, there are nearly 12 million stateless persons in the world2, this means there exist 12 million people who are not accepted as a citizen by any state.
Article 15 of the United Nations Declaration3 states that everyone has the right to a nationality and “no one shall be arbitrarily deprived of his nationality”. Right to a nationality is recognized as an important human right. It is considered and discussed in numerous international human rights conferences and treaties such as Convention on Reduction of Statelessness, Convention Relating to the Status of Stateless Persons, and Convention of Discrimination against Women.
The right to have nationality is very significant due to the states then allowing their citizens to have civil, political and social rights; stateless persons, by contrast, are deprived of these fundamental rights. Other views say
1 - United Nations High Commissioner for Refugees
2 - UNCHR website, http://www.unchr.org/4b02c5e39
3 - Universal Declaration of Human Rights, 10/12/1948

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November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4
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that stateless people cannot receive any diplomatic protection from a state due to stateless people's lack of political belonging to any state.
RIGHTS OF STATELESS PERSONS ACCORDING TO INTERNATIONAL EFFORT
A stateless person is not recognized as a citizen of any country, which severely restricts his or her ability to access the protection, rights and services comprised within the legal bindings between a government and an individual. According to a UNCHR report, 82 countries have a significant stateless population, the majority being in Asia and Africa.
There are some international conventions that have addressed the problem of statelessness e.g. International Convention on Civil and Political Rights which had specified that “every child has the right to acquire a nationality4”. Under article 9 of Convention on the Elimination of all Forms of Discrimination against Women, it is stated that neither marriage to an alien nor change of nationality by the husband during marriage shall render a woman stateless. However, really significant attempts regarding stateless persons started during the 1954 Convention relating to the status of stateless persons5.
The main focus of the 1954 Convention was related to the regulation and improvement of the status of stateless people and their protection. It clearly states that only stateless persons, who are also refugees, are covered by the Convention Relating to the Status of Refuges 1951 while the rest of the stateless people are not covered by this conference. It should be noted that with reference to the traditional concept of statelessness, whereby citizenship signifies the right to have rights, stateless person have traditionally been seen as having no rights. The 1954 convention includes six chapters with 42 articles. The question of who is a stateless person is clearly answered by the first article: “stateless person means a person who is not considered as a national by any state under the operation of its law”.
In the second chapter, Article 12 also discusses the status of stateless persons, stating they: “shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence.” It obligates states to be party to the convention to accord stateless persons certain rights and treatment including: freedom from discrimination, freedom of religion, the ability to obtain property, access to court systems, employment, and education. States that are party to the convention must provide documentation to stateless people.
The next effort was by Convention on the Reduction of Statelessness6. This convention made special attention on decreasing statelessness. Unlike the 1954 convention that tried to protect stateless persons, the 1961 convention made efforts to reduce statelessness and find solutions for their condition. Its first article mentions “A contracting state shall grant its nationality to a person born in its territory who is stateless. Such nationality shall be granted:
a) At birth, by generation of law, or
b) Upon an application being lodged with the appropriate authority7
c)
This convention tried to create a framework for avoiding statelessness and obligates states that are party to the convention to help prevent statelessness through nationality laws and practices. States party to the convention must also prevent statelessness among children and protect people against loss of nationality later in life.
4 - art 24
5 - Adopted on 28 September 1954 and entered into force on 6 June 1960
6 - Adopted on 30 August 1961 and entered into force on 13 December 1975
7 - art 1

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MECHANISM OF STATELESSNESS
There are many ways by which an individual may become stateless. In the information and accession package of the 1954 and 1961 conventions, the UNCHR had mentioned mechanisms that make persons stateless. The first reason is conflict of laws. Two of the most important principles of citizenship are jus soli and jus sanguinis. Jus soli means law of the land and this principle is based on place of birth whereas jus sanguinis refers to citizenship based on family heritage or descent. Problems arise in many countries with jus sanguinis nationality laws if a woman marries a stateless person, as the government only recognizes rights of paternal descent.
Another way that makes a person stateless is when a child is born in a country to stateless parents. If jus sanguinis laws govern the territory where the child has been born, and only allows parental descent rights, such a situation make this new born person stateless.
Another mechanism of statelessness is dependent nationality that is based on linking nationality of married women to her spouse. Problems arise when a woman, according to the principle of dependent nationality, would lose her citizenship and acquire citizenship of her husband's country. Subsequently, if she divorces her husband or following the death of her husband, she may be unable to regain her original nationality and become stateless.
If any change in citizenship law happens, it creates risk for those persons who were granted citizenship under provisions of earlier laws but under new laws, they may be considered non-citizens or stateless persons. Individuals might be made stateless by renouncing their original citizenship before acquiring new citizenship.
Statelessness can occur when a government revokes a person's nationality and they do not have any recourse to any other citizenship. Persons can become stateless when states are dissolved, ceded or broken up or when territory is transferred. Examples can be found in the Soviet Union, Czechoslovakia, Yugoslavia or recently, the Crimean Peninsula.
Clearly, all the above mechanisms were de jure mechanisms but there are some mechanisms of de facto statelessness such as in slavery and human trafficking. In these mechanisms, passports and identification documents of these persons had been seized and they are unable to prove their identity and nationality.
OBSTACLE AND DIFFICULTIES FACED BY BURMAS RUHUNGYAS AS STATELESS PERSONS
The Rohingyas are one of the most vulnerable communities in the world. Revoked of their citizenship based on the 1982 Citizenship Law of Myanmar and due to persecution in their country, they have traveled to other countries, with the majority migrating to neighboring countries over the past 42 years, seeking refuge. Rohyngyas are stateless and countries such as Malaysia, Thailand, Indonesia and Saudi Arabia have given residence to this community. But for the majority of Rohingyas, life is a cycle of escape, human trafficking, poverty, detention and finally deportation to the country that had not given them legal nationality in the first place.

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Myanmar does not recognize the existence of an ethnic community by the name of Rohingya. The Rohingyas do not have the freedom to move within Myanmar. They have limited access to employment, education, health and trade.
Statelessness is indeed a deplorable situation for those who are subjected to it. Without identity documents, many stateless persons also find it impossible to obtain political asylum. The difficulty is not only for social and protection services, they even face infringements on civil and political rights such as the right not to be subjected to arbitrary detention. One of the main rights that is denied to Rohingyas is the right to leave and re-enter one’s own country.
CONCLUSIONS
Statelessness, the situation of not holding citizenship from any state, has become a most important issue in international human rights law. It cannot be denied that great benefits have been achieved since creation of the United Nations such as obligating countries to protect stateless persons through both the Convention Relating to the Status of Stateless Persons, 1954, and Convention on the Reduction of Statelessness, 1961. However, only a few countries have ratified these conventions and this poses great difficulties to UNCHR.
Nevertheless, all nations should develop strong co-operation in order to respect human rights at both domestic and international level through the recognition of the 1954 and 1961 conventions and need to support UNCHR to reach the goals and aspirations of these two conventions so that the plight of the long-suffering Rohingyas can be alleviated.
REFRENCES
1. Buitrago, Andres Ordonez, “ Statelessness and Human Rights: The Role of the United Nations High Commission for Refugees (UNCHR)”, EAFIT Journal of International Law, Vol 2, Dec 2011
2. Convention on the Reduction of Statelessness, 1961
3. Convention Relating to the Status of Stateless Persons, 1954
4. Ishan Jan, Mohhamad Naqib, “ Principles of International Law: A Modern Approach”, 2nd Edition, IIUM Press, 2009
5. K.Blitz, Brad, “Statelessness, Protection and Equality”, Refugees Study Center, 2009
6. N.Shaw, Malcolm, “International Law”, 6th Edition, Cambridge University Press, 2008
7. “ Trapped in a Cycle of Flight: Stateless Rohingya in Malaysia”, The Equal Rights Trust, 2010
8. Weissbrodt, David, “ The Human Rights of Stateless Persons”, Human Rights Quarterly 28, 2006