Unpacking the Presumed Statelessness of Rohingyas

 Unpacking the Presumed Statelessness of Rohingyas

By Dr. Nyi Nyi Kyaw, National University of Singapore, Centre for Asian Legal Studies, Faculty of Law, Singapore.

The decades-old Rohingya problem, which has affected Myanmar and other Southeast Asia countries, has long been defined in terms of forced migration, statelessness and humanitarian crisis. As the problems involving Rohingya refugees, forced migrants and internally displaced persons are commonly believed to have stemmed from the highly discriminatory 1982 Citizenship Law, international advocacy has focused on amending or repealing it as the ultimate solution. Despite its several discriminatory provisions, this paper argues that the real problem primarily lies in lack of its implementation and the Rohingya’s arbitrary deprivation of the right to nationality and citizenship documentation by successive Myanmar governments.

1. This article heavily draws upon the PhD thesis I submitted to the University of New South Wales in 2015. It is admitted that several old and new dynamics have been added to the Rohingya issue since the time of writing it in 2016, which cannot be covered here.
2. The name “Rohingya” and its legitimacy as an accepted ethnonym have added another contested layer to the issue, which is already a highly contentious one. Whereas the Myanmar government and people have contended that they do not accept “Rohingya” as an ethnonym and that they are Bengalis, the position of the international community is that Rohingyas have a right to self-identification. This article does not aim to delve into the naming controversy. It uses Rohingya because it is a commonly known name.
3. In response to the use of “Rohingya” in a statement, issued by the U.S. Embassy on April 20, 2016, concerning the capsizing of a boat in which more than 20 people lost their lives, Buddhist nationalists launched nationwide protests and the Ministry of Foreign Affairs, now headed by Daw Aung San Suu Kyi, requested that the U.S. Embassy refrain from using “Rohingya.” Buddhist nationalists demanded that those so-called Rohingya Muslims be called “Bengalis.” All these naming controversies and adamant demands made by the Myanmar side that “Rohingya” not be used could be seen as evidence of forced Bengalization or non-Rohingyaization of the Rohingya.
4. My translation of the original Burmese.

 I visited a hugely popular “Build-A-Bear” toyshop in Canberra in March 2015, where children interactively assembled and customized their own toys by choosing from different types of stuffed toys such as teddy bears. Once assembled, the toys were given birth certificates, evidence of the importance of birth registration in the modern world. However, in today’s world, millions of children are born without any documents. Due to their lack of birth certificates, it is highly likely that many of those children will remain undocumented into their teenage and adult years and never have access to several human rights. Most important is their right to nationality, which is often termed ‘the right to have rights’ (Weissbrodt and Collins 2006).

This article critically examines the case of the statelessness of the Rohingya  people. Their Myanmar citizenship status is among the most disputed issues within and beyond Myanmar—a country that has undergone significant political, social, economic and cultural transformations and dealt with a myriad of related challenges in recent years. As a major displacement and refugee issue since the late 1970s through the 2000s, Rohingya statelessness again came to the front as a politically volatile issue after violence broke out between Rakhine Buddhists and Rohingya and non-Rohingya Muslims in Rakhine State in 2012. The violent events precipitated mass internal displacement that disproportionately affected Rohingya and non-Rohingya Muslims. A humanitarian crisis has ensued since involving around 140,000 Muslim IDPs who are still confined to camps, and whose rights to freedom of movement, as well as access to education and health care, have been largely curtailed. The situation remains unresolved at the time of writing, some five years after the initial violent events.

The international community repeatedly called upon the Myanmar government to allow the violence-stricken and internally displaced Muslims back to their original homes (e.g. Special Rapporteur on the Situation of Human Rights in Myanmar 2016; UNGA 16 November 2012; UNGA 12 November 2013; UNGA 15 April 2014; UNGA 23 Mar 2015). The government’s response has been that Muslims in the camps must undergo citizenship scrutiny before they are allowed back to their original communities. As outlined in the draft Rakhine State Action Plan (n.d.) leaked in 2014 during the previous U Thein Sein administration (2011-2016), several stringent requirements such as forced ‘Bengalization’ of all the Rohingya both IDPs and non-IDPs, and an ambitious multi-layered and multi-agency scrutiny project involving horizontal and vertical sections of the government machinery and representatives of the Rakhine Buddhist community were consequently imposed on the displaced Muslim population in order for them to be able to prove their citizenship and legal residence status in Myanmar. All of these efforts on the part of the Myanmar government, encouraged and assisted by the international community, did not produce any substantial results.

 To repeat, it has been about five years since the first round of violence, yet most of the displaced Muslims are still confined to camps across Rakhine State. That the Myanmar government—both the previous and present ones—requires Muslim IDPs to prove their citizenship and legal residence reinforces international opinion that the root cause of the so-called Rohingya problem lies in the law. This perspective has existed at least since the 1990s.