Myanmar’s Rohingya Crisis and the Need for a Regional Response to Statelessness in Southeast Asia

Over the past two months, about half a million Rohingya people have fled from Myanmar (Burma) to neighboring Bangladesh. The immediate trigger for this mass exodus was a crackdown by Myanmar’s security forces against Rohingya insurgents and civilians, which reportedly included widespread torture, rape, and killing. However, the roots of this conflict lie far in the past.

The Rohingya are a Muslim ethnic minority based in the western part of predominantly Buddhist Myanmar. Since the establishment of Myanmar in 1948, Rohingya leaders have made separatist claims, at times accompanied by a violent struggle by some insurgent groups. The government, on its part, has denied Burmese citizenship to the Rohingya people and refused to include them among the country’s 135 officially recognized ethnic groups. The government asserts that the Rohingya are illegal migrants from Bangladesh, whereas the Rohingya consider themselves to be indigenous people of western Myanmar. Neither Bangladesh nor any other country has been willing to grant citizenship to Myanmar’s Rohingya, and the vast majority of the group’s one million members have thus remained stateless.    

As a stateless minority, the Rohingya have suffered severe discrimination in Myanmar. They have been denied the right to participate in elections and have faced severe restrictions on movement, land ownership, family life, religious freedom, education, and employment. They have also been persecuted by extremist Buddhist groups without government interference. During the last decades, this reality has pushed tens of thousands of Rohingya to seek asylum in neighboring countries. The present crisis thus marks the culmination of the longstanding persecution of this stateless minority.

In this contribution, I argue that the adoption of a more effective regional response to the problem of statelessness is essential in order to ameliorate the plight of the Rohingya and other stateless groups in Southeast Asia. I begin by providing a brief factual background on statelessness in Southeast Asia. I then describe the existing international legal framework on statelessness, noting the limited impact that it has had in Southeast Asia. Finally, I present the justifications for adopting a new Southeast Asian regional approach to statelessness, and discuss the role that the Association of Southeast Asian Nations (ASEAN) should play in this respect.

Statelessness in Southeast Asia

According to the estimates of the United Nations High Commissioner for Refugees (UNHCR), there are currently more than 10 million people around the world who are stateless, that is, not considered as nationals by any state under the operation of its laws. The highest concentration of stateless persons can be found in Southeast Asia, with Myanmar’s Rohingya forming the largest stateless group in this region (and worldwide), and Thailand’s half million stateless hill tribe people forming the second largest group. Stateless groups in Southeast Asia also include ethnic Vietnamese in Cambodia, semi-nomadic sea-based people in the Philippines (Sama Dilaut) and in Burma (Moken), and many others. Another notable category of stateless people in the region are children born to unwed mothers in countries whose nationality laws constrain the ability of women to confer their nationality on their children, such as Nepal, Malaysia, and Brunei.

International Legal Framework

International norms addressing statelessness can be divided into two types: protection norms and prevention norms. Protection norms require states to respect the basic human rights of stateless persons regardless of their statelessness. The 1954 Convention relating to the Status of Stateless Persons is a clear example of this type. It establishes the duty of states to ensure that stateless persons within their territory have free access to courts, enjoy religious freedom, are entitled to primary education, and more.

In contrast to the 1954 convention, most subsequent international norms on statelessness focus on the prevention of statelessness rather than the protection of stateless persons. The major prevention treaty is the 1961 Convention on the Reduction of Statelessness, which places limitations on the discretion of states with respect to granting and revoking citizenship. In addition, relevant international human rights conventions—including the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Racial Discrimination, and the Convention on the Elimination of All Forms of Discrimination Against Women—enshrine the right of every person to nationality and prohibit discrimination in the enjoyment of this right.

Both the 1954 and the 1961 statelessness conventions have had limited influence on state practice, which may be attributed to the absence of adequate monitoring and enforcement mechanisms and to the poor ratification of these treaties. By the end of 2013, less than half of the world’s states (79) had ratified the 1954 convention, and less than a third (55) had ratified the 1961 convention. Against this background, in 2014 the UNHCR launched the #Ibelong campaign to end statelessness by 2024. This campaign has induced ten governments worldwide to accede to one or both of the statelessness conventions. In addition, it has led to the adoption of regional decisions and action plans to eradicate statelessness in Latin America, West Africa, and Europe. Southeast Asia has been less responsive to the UNHCR campaign. Although a regional Ministerial Declaration to “Get Every One in the Pictureˮ was adopted in Bangkok under UNHCR auspices in December 2014, this declaration is dedicated to promoting the registration of births, which is crucial for the prevention of statelessness, but is hardly enough. Other aspects of statelessness have yet to be addressed by regional decision-makers in Southeast Asia, and accession to the statelessness conventions has remained remarkably low, with the Philippines being the only country in the region to have ratified them.

A New Regional Approach to Statelessness

Why are Southeast Asian countries reluctant to take part in the international legal regime on statelessness? I believe that a major reason for their reluctance is that this regime focuses almost exclusively on preventing statelessness, as opposed to protecting stateless persons as such. Admittedly, the elimination of involuntary statelessness seems to represent an ideal goal in the current world order, which is organized around the assumption that states, as the main guarantors of human well-being, have stronger duties toward their citizens than toward non-citizens. However, this ideal solution may be impracticable in situations where the denial of citizenship is rooted in deep cultural and ideological divides, as is the case in some Southeast Asian countries.

In the case of Myanmar, for example, it may be extremely difficult to induce the government to grant citizenship to the Rohingya anytime soon. So far, the best that the government has been willing to do is to grant citizenship to Rohingya who agree to be registered as Bengalis. For the Rohingya, however, this condition amounts to erasing their indigenous identity, and is therefore unacceptable. To take another example, the widespread public hostility toward ethnic Vietnamese in Cambodia, which has been fueled by ongoing governmental incitement against them, is likely to present a serious obstacle to the full naturalization of this group, although most of its members have lived in Cambodia for several generations and are not recognized as nationals of any other state. This does not mean that the prospects for the naturalization of stateless people are poor throughout the region. For example, in recent years the government of Thailand has responded to international and civil society pressures and changed its naturalization policies to allow for many long-excluded hill tribe people to acquire citizenship, and the government of Indonesia has acted similarly with respect to local ethnic Chinese.

This suggests that different measures may be needed to address statelessness in different Southeast Asian countries, depending, inter alia, on the nature of the country’s regime and its relationship with stateless minorities within its territory. However, despite these differences, it is important to develop solutions to the problem of statelessness at the regional level, for several reasons. First, the persecution of stateless groups in one country often has destabilizing effects on neighboring countries, as in the case of the Rohingya people seeking asylum in Bangladesh, Thailand, Malaysia, and Indonesia. Hence, adjacent countries have a common interest in preventing the persecution of stateless people in their region. Second, regional coordination can facilitate reciprocal improvement in the treatment of stateless groups, as for example in the case of ethnic Vietnamese in Cambodia and ethnic Cambodians in Vietnam. Third, in the absence of regional coordination, countries may be hesitant to adopt favorable policies toward stateless persons that might spark an influx of migrants from the entire region.

ASEAN can and should play a central role in the promotion of a concerted regional response to statelessness. Until recently, ASEAN did not place the protection of human and minority rights high on its agenda. However, in recent years the organization has demonstrated greater commitment to promoting these goals. In 2007, ASEAN Member States adopted the ASEAN Charter, which enumerates the promotion and protection of human rights, fundamental freedoms, and social justice among the core purposes and principles of the organization, to which all states must adhere. The Charter, which envisions a “new” ASEAN with wider authority and stronger institutions, has instigated the creation of several human rights bodies and mechanisms, including the ASEAN Intergovernmental Commission on Human Rights (AICHR) and the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC), which were established in 2009 and 2010, respectively, with the mandate of developing strategies for the promotion and protection of human rights; the 2012 ASEAN Human Rights Declaration, which enshrines, inter alia, the right of every person to a nationality; and the ASEAN Socio-Cultural Community Blueprint, which stresses the need to promote and protect the human rights of all ASEAN people, including ethnic minorities and other vulnerable groups. ASEAN members have also demonstrated—inter alia by adopting the 2015 ASEAN Convention Against Trafficking in Persons and the 2016 East Asia Summit Declaration on Strengthening Responses to Migrants in Crisis and Trafficking in Persons—their commitment to respond to conflict-induced transboundary migration and to human trafficking, two urging regional problems which are exacerbated by statelessness.

All of these instruments and mechanisms can support the development of regional schemes for addressing statelessness. Such schemes should encourage states to change their nationality laws to eliminate ethnic- and gender-based discrimination in the granting of citizenship. They should also outline methods and best practices for enhancing the efficiency of naturalization policies and removing bureaucratic, financial, and informational barriers that may prevent eligible applicants from obtaining citizenship. At the same time, ASEAN should induce member states to improve the protection that their legal systems provide to those who remain stateless and to ensure, in particular, that they enjoy basic freedoms and socioeconomic rights and are not persecuted or abused by other people. Such a combination of prevention and protection measures can allow all ASEAN members to take part in the regional regime on statelessness, while providing the best available solution to the quandary of stateless populations.