The Rohingyas, “the world’s most persecuted minorities”, are facing an unprecedented situation in history. Along with a deepening identity crisis, they face persecution in the Rakhine state and hostility from other countries. The United Nations has branded the persecution as a “textbook example of ethnic cleansing”. As a result of the persecution, the Rohingyas are fleeing in large numbers to neighbouring Bangladesh and India.
The Indian government is attempting to deport an estimated 40,000 Rohingyas from India over their alleged “terror ties”. Its aim is to expel them under the Foreigner’s Act of 1946 and the Registration of Foreigners Act 1939. Two refugees have filed a petition against the deportation in the Supreme Court of India and the first hearing of the petitionwas on January 31, 2018. At the hearing the Union Government claimed that refuges were “eating into the limited resources of the country” and that illegal migrants were “more vulnerable for getting recruited by terrorist organisations.” The counsel opposing the government requested the Supreme Court’s immediate intervention into the matter citing the “inhuman conditions” the refugees were in. The next hearing of the petition will be on 7 March, 2018.
The Rohingyas and statelessness
Under international law, the Rohingyas are classfied as ‘stateless persons’. The 1954 Convention relating to the Status of Stateless Persons defines ‘stateless persons’ as “individuals who are not considered citizens or nationals under the operation of the laws of any country.” The Rohingyas are not considered citizens of Myanmar due to the 1982 Burmese Citizenship Law. Under the Law, citizenship is primarily based on membership of the “national races” (a list of 135 distinct ethnic groups) who are considered to have settled in Myanmar prior to 1824, the year of the first occupation of the British. The Rohingyas do not fall into any of the 135 ethnic groups, and are consequently excluded from citizenship despite their many years of residence in the country. The Rohingyas are hence left with no nationality and are stateless persons. The 1954 Convention also established the rights of stateless persons and it now lies at the heart of the international protection regime for stateless persons.
In addition to the 1954 Convention, there is a 1961 Convention on the Reduction of Statelessness which offers detailed safeguards against statelessness that are meant to be implemented through States’ national laws. Beyond these safeguards, states are free to elaborate the content of their national legislations.The aim of the 1961 Convention is to prevent statelessness.
The principles of jus soli (right of soil) and jus sanguinis (right of blood) are important in understanding the safeguards provided by the 1961 Convention.. Jus soli provides for acquisition of nationality based on birth in the territory of a state while jus sanguinis provides for acquisition of nationality of one or both parents based on descent.
Article 1(1) of the 1961 Convention providesthat a contracting state shall grant nationality to a person born in its territory, if he would otherwise be stateless. A person not born in a contracting state shall be granted nationality (if he would otherwise be stateless) if the nationality of one of his parents at the time of his birth was that of the state concerned. These provisionscreatea balance between the two principles ofjus soli and jus sanguinis by providing a person with the right to nationality by virtue of his birth in a territory and in absence of this, the right to nationality by his blood relation with a parent.
Myanmar is however not a party to the 1961 Convention so the Rohingyas cannot claiming any of these rights.
Nyi Nyi Kyaw argues that the statelessness of the Rohingyasis not only as a result of the discriminatory 1982 Citizenship Law but has also been caused largely by “de facto nuances and complexities surrounding the citizenization and naturalisation of the Rohingyas”. She argues that policies and practices of successive Myanmar governments since the late 1970s have caused the now chronic statelessness of the Rohingya.
Although naturalization has long been perceived as the key to the reduction of statelessness, states are reluctant to undertake the necessary humanitarian measures. This is reflected in the attitude ofthe Indian government which has acted in a very hostile manner towards the Rohingyas, and has referred to them as“Islamic terrorists”. Thisattitude clearly shows the lack of willingness of the Indian government to provide protection for or to recognise or secure any of the basic human rights that the Rohingyas as stateless persons are entitled to.
The rights of Rohingyas as stateless people in India
As the Rohingyas are stateless persons they are entitled to protection by the safeguards contained in the 1954 and 1961 Conventions on Statelessness.
India is however yet to accede to both Conventions. Consequently, India is not bound by the obligations imposed by these Conventions and lacks the legal framework for the protection of the rights of stateless persons. For example, the 1954 Convention guarantees stateless persons a right to administrative assistance (Article 25), and a right to identity and travel documents (Articles 27 & 28). These rights, in addition to other important civil rights such as access to courts (Article 16), right to self-employment (Article 18), right to housing (Article 21) and public education (Article 22) cannot be claimed by the Rohingyas in India because Inida is not a party to the two Conventions. This further worsens their plight.
Due to India not being a party to either of the Conventions, theIndian courts have rarely referred to either of the Conventions while resolving cases in which the issueof statelessness arose. The Supreme Court held in the cases of Louis De Raedt v. Union of India and Hans Muller of Nuremberg v. Superintendent, Presidency Jail, Calcutta that under the Foreigners Act 1946 the power of the government to expel foreigners is absolute and unlimited and that Constitutional provisions cannot override this power. This is one of the Acts under which the Indian government is attempting to deport the Rohingyas from India.
However, in contrast to the above cases, the Supreme Court in Chairman, Railway Board v. Chandrima Das held that Article 21 of the Constitution (right to life) was applicable to foreigners as well.
Given the ever-widening ambit of Article 21, it is possible that the Supreme Court of India in deciding on the Rohingyas’ petition might interpret the Article broadly and read it together with the principle of non-refoulement. India is bound by the obligation of non-refoulement under Article 14(2) of the Universal Declaration of Human Rights. Articles 6(3) and 13 of the International Convention on Civil and Political Rights and Article 16(1) of the International Convention on Protection of All Persons Against Enforced Disappearances. India is regrettably not a party to the 1951 Refugee Convention which provides the same obligation under Article 33 (1).
TheSupreme Court of India hastaken a proactive approach in recent times, inpreventing by applying principles of equity and justice. The future of the Rohingyas who are facing deportation from Indiais dependent on the stance that the Indian Supreme Court will take and it is hoped that it will take the broader, more protective approach.
The Rohingyas are in a very peculiar position of law. Not only are they a stateless people, they are also unable to enforce the protections available to them under the 1954 and 1961 Conventions. As a result, the lives and rights of the Rohingyas are at the mercy of the Indian state.
It remains to be seen how the petition at the Indian Supreme Court will be decided.