“Witness accounts, satellite imagery and data, and photo and video evidence gathered by Amnesty International all point to the same conclusion,” contends Amnesty International. They continue, “Hundreds of thousands of Rohingya women, men, and children have been the victims of a widespread and systematic attack, amounting to crimes against humanity."[1] How exactly is a state able to perpetrate these crimes against its own citizens in the human rights age without consequence? The answer lies in the word “citizen.” According to Myanmar’s domestic law, the Rohingya are no longer considered citizens and thus do not hold the rights of citizens. They belong to no nation, are protected by no law. They are stateless.

Introduction

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The phenomenon of statelessness has plagued the international community since the end of World War I. This paper investigates why, despite the rise of the human rights and refugee regimes, the issue of statelessness remains unsolved. To do so, it will review the legal reality of statelessness and then argue that there exists a fundamental contradiction in international law that makes statelessness uniquely difficult to address. This contradiction, which arises from international law simultaneously protecting the individual’s human right to nationality and the state’s right to determine its nationals according to domestic law, creates the opportunity to render peoples stateless. This paper will then examine two key case studies: Slovenia will represent a successful handling of statelessness while Myanmar will demonstrate a failure. After analyzing the similarities and differences between the two cases, this paper will suggest that given the legal ambiguity surrounding statelessness, the successful resolution of statelessness depends on the values and interests of the regional supranational organization to which the state in question belongs. Those regions that, shaped by their geographies and histories, are characterized by values and interests that support human rights and intervention are more likely to resolve issues of statelessness; those regions that place a higher value on sovereignty and have interests in non-intervention will be far less likely to intervene in states’ internal affairs. 

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Defining Statelessness

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At this point, it becomes necessary to legally distinguish the stateless person from the refugee or internally displaced person (IDP). The refugee is legally defined as someone 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."[2] Refugees, in short, are citizens who fled their states for fear of persecution. Once outside their state, however, they are well protected under clear and strong international law. This is not to say that all states always uphold their obligations to protect refugees, but that legally the refugee outside his nation is entitled to safe asylum, medical care, schooling, work, and basic human rights and freedoms as would be extended to any other foreign legal resident.[3]

An IDP is a citizen forced to relocate within his or her state “to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters.”[4] IDPs, by definition, cannot have crossed an international border. Unlike refugees who are outside their state and entitled to international protections, IDPs “being inside their country, remain entitled to all the rights and guarantees as citizens and other habitual residents of their country. As such, national authorities have the primary responsibility to prevent forced displacement and to protect IDPs.”[5]

The 1948 Study on Statelessness conducted by the United Nations Ad Hoc Committee on Refugees and Stateless Persons defines the stateless as “persons who are not nationals of any State, either because at birth or subsequently they were not given any nationality, or because during their lifetime they lost their own nationality and did not acquire a new one.”[6] The stateless, without citizenship, do not qualify as refugees or IDPs. Accordingly, they are not entitled to international refugee protections, nor are they protected by any state. Furthermore, acquisition of citizenship is not so simple as the above report might suggest; domestic laws often ban particular groups, primarily ethnic minorities, from acquiring citizenship. The domestic procedures for conferring citizenship are unique to each state, but typically include some combination of jus sanguinis and jus soli, that is right of blood (citizenship granted by parentage) and right of soil (granted by birth in the territory). Jus sanguinis laws prove particularly problematic, as they frequently serve to determine nationality along ethnic lines and in doing so render ethnic minorities stateless.

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The Difficulty: Contradiction in International Law

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The fundamental contradiction that allows for statelessness lies in the simultaneous sanctity under international law of the universal human right to nationality and the state’s sovereign right to determine its citizenship. The right to a nationality is upheld in the Universal Declaration of Human Rights (UDHR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Nationality of Married Women, the Convention on the Rights of Persons with Disabilities, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.[7]

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Furthermore, many international bodies and covenants assert that the right to a nationality protects against arbitrary deprivation of citizenship. The UDHR claims “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”[8] The  ICCPR too holds that “No one shall be arbitrarily deprived the right to enter his own country.”[9] The ICERD further enshrines the “right to leave any country, including one’s own, and return to one’s country.”[10] In 2009, the United Nations Human Rights Council prepared a report on behalf of UN Secretary-General on “human rights and the arbitrary deprivation of nationality.” This report advocates, “The prohibition of arbitrary deprivation of nationality, which aims at protecting the right to nationality, is implicit in provisions of human rights treaties that prescribe specific forms of discrimination.”[11] Article 27 states, “Deprivation of nationality resulting in statelessness would generally be arbitrary unless it served a legitimate purpose and complied with the principle of proportionality.”[12] There is evidently no shortage of international conventions honoring the right to nationality and protection from arbitrary deprivation.

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At the same, however, international law grants the state the right to determine who is and is not a national. The Convention on Certain Questions Relating to Nationality law holds that “It is for each State to determine under its own laws who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality.”[13] The latter part of this 1st Article is rather confusing; which international conventions, customs, and principles it refers to is unclear. The case could and has be made by supporters of the human rights regime that it refers to international law discussed above. This would mean that states’ right to determine nationals would defer to international conventions protecting the right to nationality and protection from arbitrary deprivation. The opposite argument, favoring state sovereignty and the abundance of law protecting it, is bolstered by Article 2 of the same Convention, which states, “Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of the State.”[14] This lack of clarity and the soundness of both arguments allow for each state to choose whether or not to act in accordance with conventions protecting against statelessness, and for other states in the global community to interpret whether or not they consider those acts legal. 

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Many attempts have been made to reconcile the legal disconnect between the universal right to nationality and the domestic right of the state to determine its nationals. One such example is Special Rapporteur Córdova’s Report on Elimination or Reduction of Statelessness for the International Law Commission written in 1953. In Article 14, Córdova writes that “international law may also restrict the authority of the State to deprive a person of its own nationality. There are cases in which international law considers that a certain national legislation is not legal because it comes into conflict with the broader interests of the international community.”[15] Article 15 further clarifies that “the right of individual States to legislate in matters of nationality is dependent upon and subordinate to the rules of international law on the subject, and that, therefore, these questions of nationality are not, as has been argued, entirely reserved for the exclusive jurisdiction of the individual States themselves.”[16]

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These statements, however, remain both controversial and difficult to enforce. While the spirit of international law is arguably in line with Córdova’s call for states to defer to international convention, the letter of the law protects the sovereignty of states and does not directly address the gap between the individual right to nationality and the state’s right to determine citizenship. Paul Weis, co-author of the Convention Relating to the Status of Refugees, explains in his now standard work Nationality and Statelessness in International Law: “to the extent that there are no rules of international law imposing a duty on States to confer their nationality, and few, if any, rules denying or restricting the right of States to withdraw their nationality, one may say that statelessness is not inconsistent with international law.”[17] Without international law instructing the state to create in its domestic law a standard set of rules regarding citizenship, Córdova’s report is easily ignored or contested. Any such laws would constitute a breach of state sovereignty and it is extremely unlikely they will ever arise, at least in any form other than purely voluntary guidelines. Thus, the contradiction between the right of the individual and the right of the state remains, and with it the opportunity for states to deprive unwanted individuals, mainly ethnic minorities, of citizenship.

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Recognizing the weakness of international law concerning statelessness, the UN established the 1954 Convention relating to Status of Stateless Persons. Rather than address the cause of the problem by attempting to impose duties or restrictions on states, the Convention instead focused on easing the symptoms. According to the UNHCR, the “1954 Convention is designed to ensure that stateless people enjoy a minimum set of human rights.”[18] These rights, as will be discussed at greater length in the case studies below, are far from upheld. The 1961 Convention on the Reduction of Statelessness, on the other hand, actually attempted to address the root of the problem by providing something very close to the laws Weis referred to as non-existent. It “requires that states establish safeguards in their nationality laws to prevent statelessness at birth and later in life… establishes that children are to acquire the nationality of the country in which they are born if they do not acquire any other nationality” and “sets out important safeguards to prevent statelessness due to loss or renunciation of nationality and state succession.”[19] This convention represents the most direct attempt to combat statelessness but has unfortunately been met with minimal success. Unsurprisingly, states were slow to forgo their right to determine citizenship. Only 61 states are party, as compared to the 83 that are party to the 54 Convention. Further, the two states that will now be discussed as case studies are not party to the convention, highlighting the weakness of protections for the stateless.

Case Studies

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Having established that international law does not conclusively protect against statelessness, the question arises as to why statelessness is successfully addressed in some cases and not in others. In answering this question, this paper next presents an example of the successful resolution of an issue of statelessness, which occurred in Slovenia, and an example of the devastating consequences of statelessness left unresolved, which is currently occurring with the Rohingya people in Myanmar. While these two cases, of course, represent only two examples of statelessness, they were selected specifically to represent the two opposite ends of the spectrum, success and failure.

Case Study 1: Slovenia

The Republic of Slovenia is a rather young state, having only gained independence in 1991 amidst the dissolution of the Socialist Federal Republic of Yugoslavia (SFRY). The Slovene desire for independence, however, stretches back much further. The ethnically Slovene people (not to be confused with the “Slovenian”, meaning of Slovenia) have throughout history belonged to various states and empires, including the Roman Empire, the Holy Roman Empire, and the Habsburg Monarchy. After World War I, Slovenes for the first time attained a degree of independence through participation in the formation of the State of Slovenes, Croats and Serbs. The State of Slovenes, Croats and Serbs later joined with Serbia to become the Kingdom of Serbs, Croats and Slovenes, which was renamed the Kingdom of Yugoslavia in 1929. After occupation by Germany, Hungary, and Italy during World War II, Slovenia joined the SFRY. Under the rule of Josip Tito, Slovenia enjoyed considerable economic rights and freedoms that allowed their economy to flourish. Upon Tito’s death, politicians across the SFRY, most notably Slobodan Milosevic, mobilized support by taking advantage of existing ethnic hostilities. In addition to ethnic tension, the Slovenes felt exploited by the SFRY, which redistributed the fruit of their economic success to support the less successful economies of other SFRY republics. Slovenia held a referendum in 1990 and became independent in June of 1991.

a. Rendering Stateless: Domestic Citizenship Law

The history of subordination instilled in Slovenes the desire for not only independence but also the establishment of a national identity. After discontent with the communist and multi-ethnic SFRY, Slovenia was quick to write its independence into law with the drafting of a new constitution for a democratic and ethnically homogenous state. As occurred in many post-Yugoslav states, Slovenia’s constitution and citizenship laws defined the emergent state along ethnic lines. The preamble to Slovenia’s constitution invokes the identity of the majority ethnic group, Slovenes, reading “[Proceeding…] from the historical fact that in a centuries-long struggle for national liberation we Slovenes have established our national identity and asserted our statehood.”[20] Igor Štiks describes the way Slovenia drafted their new legislation, saying, “[W]hat initially presented itself as ethnic solidarity and a nationalist vision of recomposition of previously existed communities into neatly divided ethnocultural groups governing ‘their’ territory was soon enshrined in legislation” through the use of “citizenship laws as an effective tool for ethnic engineering.”[21]

Under the SFRY system, each citizen held citizenship both to the SFRY and to one of its republics. The same month they achieved independence, June of 1991, Slovenia adopted the Citizenship Act of the Republic of Slovenia. The Act provided that those individuals who held both SFRY and Slovenian citizenship prior to the referendum on independence in 1990 (a year before Slovenia was actually independent) were automatically considered citizens. Those who were not had a six-month period to apply for citizenship, after which they would become illegal aliens.[22] While on its face this law may seem innocent enough, Štiks explains, “[T]he law itself becomes quite controversial when we consider that it enabled policies of ethnic engineering.”[23]

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After the six months passed, those who had not acquired citizenship, either because they had not applied or had not been approved, were rendered stateless. Slovenia now recognizes it left 18,205 people stateless, while the European Court of Human Rights places the number at 25,671.[24] Many of these citizens never applied for citizenship because they were born in Slovenia and assumed jus soli they were citizens, because they were simply unaware of the law at all, or because they did not understand it applied to them.[25] Others did attempt to apply, but were limited by the “short application period of six months, confusing procedures, numerous difficulties in obtaining all necessary documents at the moment of Yugoslavia’s break-up and subsequent escalation of violence, and finally by the overall political confusion since Slovenia was still legally part of the SFRY and was not internationally recognized until January 1992.”[26] Another group had their applications denied, for example, for failing to satisfy the requirement that they not “endanger public order”[27] (which was not defined) or that they possess “assured residence and sufficient income that guarantees material and social security.”[28]

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The government did not provide notification or explanation to those in danger of losing citizenship. Štiks explains that this “confusion was only partly the product of an unstable political context” and that the government in reality “created confusion intentionally. Arbitrariness could be found in many of the legal prescriptions and actual administrative practices, and was clearly part of a general strategy” under which “the citizenship laws and the procedures for acquiring new citizenship proved to be the main weapon of administrative ethnic engineering.”[29] The result was that those of ethnically Slovene descent were accepted jus sanguinis as citizens, while thousands of ethnic minorities, despite being born in Slovenia or having extended residence, were denied.  Those ethnic minorities who did not acquire Slovenian citizenship were literally erased from the national registries overnight. “Their documents (e.g. passports, driver’s licenses and IDs) were invalidated. They lost all civic and social rights, jobs, health care and social benefits, and became ‘dead’ from an administrative point of view – they were izbrisani, i.e. erased.”[30] To be dead from an administrative point of view has very tangible consequences. Losing their citizenship meant the loss of both health care and legal employment, which in turn drove many to homelessness.[31]

b. Domestic Response: Judicial Failure

Though Slovenia enjoys a highly functioning judicial system, the numerous attempts of stateless peoples to bring their case to Constitutional Court saw very little success. In 1999, the Constitutional Court did find the Citizenship Act illegal and called on the legislature to correct it.[32] However, when legislation to do so was drafted, voter turnout was  “less than a third of the 1.6 million electorate, and the Act was rejected by almost 95 percent.”[33] Mild, yet certainly insufficient, progress came in the form of an amendment to the Citizenship Act in 2002 creating a new article stating that “An adult may obtain Slovenian citizenship if he or she is of Slovenian descent through at least one parent and if his or her citizenship in the Republic of Slovenia has ceased due to release, renunciation, or deprivation or because the person had not acquired Slovenian citizenship due to his historical circumstances.”[34] Essentially, this amendment provided the option for ethnic Slovenes who had been rendered stateless in the confusion of 1991 to reclaim citizenship. It did nothing, however, for those who had been born in Slovenia to non-Slovene parents and thereby required citizenship jus soli. For these individuals, the new law introduced naturalization, which required the applicant “have lived in Slovenia for ten years,” “not constitute a threat to public order,” “fulfill his or her tax obligations and has a guaranteed permanent source of income,” and possess the “required knowledge of the Slovene language.”[35] This last requirement included a language examination where none existed before. Many of the stateless possessed insufficient mastery of the language, their first languages being Croatian, Serbian, Italian or Hungarian.[36] These requirements provided opportunity for ethnic discrimination, both obviously in the language examination and more subtly via the undefined “threat to public order.”

c. International Response: Regional Intervention

 In 2006, the case of the stateless of Slovenia was brought before the European Court of Human Rights. After deliberation, the Court found “in July 2010 that Slovenia had violated the right to private life under article 8 of the European Convention on Human Rights.”[37] Slovenia appealed and the case was taken up by the Grand Chamber, which held in July 2011 that Slovenia had breached Article 8, as well as Article 14, prohibiting discrimination, and Article 13, the right to an effective remedy.[38] The Court “ordered Slovenia to pay between €29,400 and €72,770 to each of the six applicants in the case,” which amounted to “€150 per person per month” [39] spent stateless. While this case represented only a handful of the erased, it has set both legal and normative precedent for other stateless persons of Slovenia, who now have 65 cases pending. [40] James Goldstone, executive director of the Open Society Justice Initiative, remarked, “This decision should enable thousands of the ‘erased’ to finally receive legal recognition…the judgment represents an important milestone in strengthening international norms against statelessness.”[41]

Case Study 2: Myanmar

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“The word ‘Rohingya’ is a historical name for the Muslim Arakanese.”[42] Arakanese refers to the region formerly called Arakan, now a territory of Myanmar known as the Rakhine State. Arakan experienced periods of independence and domination until 1784, when it was “formally annexed by the Kingdom of Burma.”[43] This annexation later brought the ire of the British, who also had interest in the region. This resulted in the First Anglo-Burmese War, lasting from 1824 to 1826. It is important to note that this date of 1824 is now used in Myanmar as the marker of colonial rule. Research Professor Azeem Ibrahim explains, “Up to this point in time, the histories of Burma and Arakan were largely separate...”[44] A series of Anglo-Burmese wars thereafter ended in further British conquerings and their establishing “a clear division between a central region dominated by the Burman majority and outlying regions in which a complex patchwork of ethnic groups lived alongside one another.”[45]

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The ethnic origins of the Rohingya have recently been questioned. One group, including Ibrahim, contends “the Rohingyas settled in Burma in the ninth century, which, through the ages, have mixed with Bengalis, Persians, Moghuls, Turks, and Pathans, in line with the historically pluralistic population of Arakan State,” while the other considers them to be “illegal Chittagonian Bengalis who arrived as a by-product of British colonial rule.”[46] Unfortunately for the Rohinyga, the latter view has become widely accepted in Myanmar. In addition to being considered foreign, the association with British colonial rule is dangerous for the Rohingya. The British placed the ethnically Burmese Buddhist majority lower on the hierarchy during their rule than the Rohingya Muslims.[47] The Burmese deeply resented their inferior status, colonial rule, and the preferential treatment bestowed upon the Rohingya. Additionally, the Rohingya supported the British occupation. Ibrahim identifies this historical “link between religion, ethnicity and anti-British sentiment” as having a “profound influence”[48] in creating the intense ethnic hatred felt toward the Rohingya today.

During World War II, Japan invaded and took over the region from the British. While the ethnic Burmese ranged from indifferent to supportive of the Japanese, the Rohingya supported British rule. This further heightened ethnic tensions in the area. The British recruited soldiers from both the Rohingya and ethnically Burmese, promising both groups independence after the war in exchange for their service. General Aung San famously led the Burmese to fight, first for the Japanese who made similar promises for independence, then later for the British.

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When Burma became independent in 1948, the Rohingya petitioned to join the Muslim state of East Pakistan. The petition was rejected, but had the effect of leading the “Burmese authorities to regard the Muslim population of Arakan as hostile to the new regime and to see them as outsiders whose loyalty lay with a different state. These events helped create a belief that only Buddhists could really be part of the new state.”[49]

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Burma’s history has been complex since achieving independence, but for the sake of brevity, it is here heavily condensed. Burma experienced a short period of democracy wracked with ethnic conflict and civil strife. General Ne Win first established a caretaker government, then later launched a military overthrow in 1962. Under military rule, Burma met protest and opposition with arrest and violence. In 1988, amid severe unrest, Ne Win stepped down. Student protests were met with police brutality, triggering demonstrations and further protests that were in turn met with military-grade violence. After a period of chaos and revolutionary fervor, General Saw Maung lead a coup, became Prime Minister, and instituted martial law. It was in 1989 that the military government changed the state’s name to Myanmar. Notably, in 1991, Aung San Suu Kyi, daughter of famed General Aung San who had helped bring independence but was assassinated before it was realized, received the Nobel Peace Prize while under house arrest for her words regarding peaceful reform. Throughout the 2000s, the military government made several small steps to ease Myanmar into democracy, culminating in 2011 with political reform and the release of Suu Kyi from house arrest. Under the new democracy, Suu Kyi won a seat in parliament in 2012. She was elected to the presidency in 2015, but is constitutionally barred from the presidency. She is the de facto state leader, but called officially “State Counselor.”

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a. Rendered Stateless: Domestic Citizenship Law

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It was during the time of unrest in 1974 that an intense need to divert public dissatisfaction resulted in the Emergency Immigration Act. The Act “imposed ethnicity-based cards (National Registration Certificates), with the Rohingya only being eligible for Foreign Registration Cards (non-national cards).”[50] These cards represented the first step in depriving the Rohingya of their citizenship. The 1974 Constitution of the Socialist Republic of the Union of Burma then defined citizenship jus sanguinis, giving it to those whose parents were citizens in 1947 – a time when the Rohingya were not formally citizens (as they had never been required to register, given their assumed citizenship jus soli).[51] Finally, in 1982, the Burmese Citizenship Law created categories of citizenship grouped by ethnicity. The groups were meant to align with length of bloodline prior to 1824 (the date marking the start of colonial rule). If a group was not considered indigenous prior to British rule, they were declared foreigners. This is what happened to the Rohingya, who subsequently became stateless. The Law includes steps for naturalization, but as Ibrahim explains, “[T]he one category that is excluded is someone born to two parents neither of whom are already citizens (the Rohingyas are therefore, by definition, excluded).”[52] In the most recent census (2015), “Rohingya” was not listed among the 135 ethnic groups, and their status as illegal residents was cemented.

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The stateless Rohingya have been systematically abused for decades, but in 2012 there was an incident wherein an ethnically Burmese Buddhist woman was raped by a Muslim Rohingya man that escalated the crisis.[53] Violence against the Rohingya became severe and their status as stateless both intensified the hatred directed towards them (as it confirmed their status as illegal Bangladeshis) and left them without legal protection or recourse. For his report for the Journal of Contemporary Criminal Justice, Ullah conducted 29 interviews with Rohingya. He found the situation far worse than the lack of income or healthcare experienced by the erased in Slovenia. Rohingya women explained how their “status of statelessness makes them vulnerable to sexual attack at different levels by pirates, bandits, members of the security forces, smugglers, or other refugees.”[54] One interviewee, Mr. Kalam, explains his experience as follows:

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"We were born on this soil but we are called illegal migrants....my family is from Maungdaw, but we left a few days later the NaSaKa people raped my sister in front of my family members. My brother in-law tried to resist them but he was taken away by them and he never returned. They told us if we didn’t leave Myanmar they would kill us all brutally."[55]

In October of 2017, Amnesty International reported that over 530,00 Rohingya attempted to flee the country.[56] Given Myanmar’s geographic position, that journey requires them to brave the sea. Ullah’s interviewees describe the danger of the journey, which included starvation, beatings, and observed suicide of many who threw themselves overboard.[57] Those who survived the crossing were often treated no better upon arrival. Human Rights Watch issued a report in 2009 entitled “Perilous Plight” following the emergence of graphic images of a group of Rohingya on board a boat from Myanmar to Thailand.[58] The report discusses “Thailand’s callous ‘push-back’ policy,"[59] calling out the Thai government for “saying that the Rohingya were economic migrants, not refugees, and that Thailand could not absorb the flow.”[60] Worse than sending the Rohingya back to Myanmar (which would breach non-refoulement laws if the Rohingya were legally refugees[61], [62]) is the reality that “In May 2015, gruesome mass graves were unearthed in southern Thailand, revealing scores of bodies belonging to mostly Rohingya refugees.”[63] The Rohingya represent the very worst possible outcome of statelessness. They exemplify the way in which a people without citizenship or refugee status become vulnerable. This vulnerability, when applied to a despised people, results in some of humanity’s darkest crimes, many of which are now being identified as ethnic cleansing[64] and crimes against humanity.[65]

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b. Domestic Response: Endorsement and Ignorance

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As described, there is an abundance of evidence supporting the fact that the violence against the Rohingya is state-sponsored. Ullah calls it “organized, incited, and committed by local political party operatives, the Buddhist monkhood, and ordinary Arakanese, directly supported by state security forces.”[66] There is no functioning judicial infrastructure to speak of in Myanmar, though if there were it would be useless given the intermittent application of martial law. Suu Kyi, to the great disappointment of the West who honored her with the Nobel Peace Prize, has been largely silent and apathetic regarding the Rohingya. She avoids using the word “Rohingya” in interviews, mentioning it only in connection with the Arakan Rohingya Salvation Army, a Rohingya resistance group, which she claims commits acts of terrorism.[67] In one interview, Suu Kyi downplayed the crisis to such an extent that she referred to it as a “quarrel.”[68] When cornered by the media, she claims the West exaggerates the crisis.[69] Furthermore, the government of Myanmar has been accused of interfering with humanitarian aid meant for the Rohingya. The Rahkine National Party spokesperson justified restricting the aid supply as follows: “When the international community give them [Rohingya] a lot of food and a lot of donations, they will grow fat and become stronger, and they will become more violent.”[70] In keeping with this logic, borders were shut to international agencies attempting to help the Rohingya, such as Médecins Sans Frontiéres (the French branch of the NGO Doctors Without Borders), in what the ISCI calls deliberate “state actions designed to systematically weaken the Rohingya community.”[71]

c. International Response: Non-Intervention

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The international response has largely been that of naming and shaming. Both Amnesty International[72] and Human Rights Watch[73] have labeled the abuses in Myanmar as Crimes Against Humanity. The US has responded with words of condemnation. Rex Tillerson, US Secretary of State, stated in November of 2017, "These abuses by some among the Burmese military, security forces, and local vigilantes have caused tremendous suffering... After a careful and thorough analysis of available facts, it is clear that the situation in northern Rakhine state constitutes ethnic cleansing against the Rohingya."[74] Yet, the only action taken has come in the form of diplomatic visits, verbal urges, and sanctions that were lifted in 2015. The European Union also lifted their sanctions in 2013 (except for an arms embargo).  The UN has crafted reports and condemnations, but there has been no mention of action beyond the normative sphere. The UN has plans drafted for providing the Rohingya in Bangladesh with resources and aid,[75] but despite the talk of crimes against humanity and ethnic cleansing, there has been no movement in the General Assembly toward humanitarian intervention beyond aid.

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On the regional level, Myanmar is a member of the new supranational organization ASEAN (Association of Southeast Asian Nations). The 30th ASEAN Summit in April of 2017 notably did not include the crisis in Myanmar on its agenda and made no mention of it throughout the entirety of the Summit.[76] According to an article from The Diplomat, President Widodo of Indonesia expressed to Suu Kyi “that stability in Myanmar was important not only for the country but also the region.”[77] This passing comment, representing the most direct acknowledgement of the crisis from the Summit, is a far cry from intervention or even condemnation by fellow ASEAN states. As is typical of the culture of ASEAN (which will be discussed later at length), the problem is identified as an issue of stability rather than human rights.

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Bangladesh, which is not an ASEAN member, has worked with the United Nations Development Programme to create a Humanitarian Response Plan.[78] The Plan seeks to raise US $434 million for humanitarian aid, resources, and improved infrastructure in the host communities receiving the influx of Rohingya. The area to which most of the Rohingya arrive, Cox Bazar, has a “population of 2,290,000 predominantly Bengali Muslims, is one of Bangladesh’s poorest and most vulnerable districts, with malnutrition and food insecurity at chronic moderate levels, and poverty well above the national average.”[79] The Plan stressed the difficulty for Cox Bazar to accommodate the Rohingya who are “adversely affecting the food security and nutrition situation, and impacting the local economy by introducing a labor surplus which has driven day labor wages down, and an increase in the price of basic food and non-food items.”[80] The Plan also identifies a need for capital to address the issue of the increase in the illegal methamphetamine “yaba” coming from Myanmar and entering the local drug trafficking circles in Cox Bazar.[81]

Case Study Analysis

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Similarities:

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Both cases of statelessness begin with the establishment of independent states freeing themselves from the influence of larger empires they felt exploited by. Slovenia emerged from the SRFY, while Myanmar gained independence from British colonial rule. Both states had preexisting ethnic tensions and upon independence used jus sanguinis citizenship laws as tools of ethnic engineering to establish national ethnic identities that privileged the ethnic majority over ethnic minorities. Slovenia’s citizenship law was written in 1990, while Myanmar’s was written just a few years prior in 1982. Both states are members of the UN and have affirmed the Universal Declaration of Human Rights. Both have chosen to join regional supranational organizations: Slovenia both the European Union and the Council of Europe, and Myanmar ASEAN. The Council of Europe has a doctrine of human rights, titled the European Convention on Human Rights, while ASEAN has formed the ASEAN Intergovernmental Commission on Human Rights and has included human rights law explicitly in their Charter.[82]

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Differences:

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While both case studies feature a recent history of independence, only Myanmar has a colonial history. Among the many long-term effects of colonialism is the exacerbation of deep ethnic tensions.[83] While the ethnic Slovenes had a desire to assert their independence and bolster their ethnic identity, they did not have a history of ethnic conflict rooted in colonial oppression. The ethnic majority of Myanmar, however, harbors a hatred of the Rohingya for their support of the British colonizers and their privileged position under colonial rule. This hatred, left to fester for centuries and passed down through generations, helps to explain the view of the Rohingya dominant in Myanmar: that they are Bangladeshi foreigners that have no place in Myanmar.

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Another difference, also attributable (at least in part) to colonial legacy, is in development status. Slovenia is affluent and highly developed, as is typical of European states. Myanmar, like many Southeast Asian states, has been a Least Developed Country since 1987. For the last thirty years, they have not been able to reduce their Economic Vulnerability Index the requisite degree to graduate to a Developing Country.[84] Development Status, of course, reflects the state economy, but it also includes rates of literacy, undernourishment, child mortality, and education.[85] These factors influence the political realities of states. Slovenia has had the opportunity to invest in infrastructure and education that allows for high quality of life, reduced ethnic divide, and high levels of institutionalization and rule of law. Myanmar, on the other hand, has not had the resources to engage in those opportunities, and instead faced poverty that only hindered rule of law, aggravated tensions, and made people susceptible to mobilization along ethnic lines by military and political opportunists.

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While both states are part of supranational regional organizations, the strength, values, and interests of these two organizations are vastly different. The Council of Europe, founded in 1949, is characterized by a culture committed to Human Rights. Being an old organization comprised of wealthy and like-minded states, it has been able to develop strong institutions. The interest in and capacity to enforce human rights law manifests in the strength of the European Court of Human Rights and the European Convention on Human Rights. This culture of human rights and strength of institutions combined with an interest from regional states absorbing the stateless together brought the Court to convict Slovenia of breaching the European Human Rights Convention. Slovenia, under the weight of this powerful regional organization, conceded. Additionally, Slovenia is a new member of the EU and has such had an interest in accepting the EU’s human rights norms in order to cement their status as an EU member (and to avoid EU sanctions).

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The fledgling ASEAN, on the other hand, only recently adopted their Charter in 2008. As such, the organization is young, weak, and not highly institutionalized. While its Charter seeks to “protect human rights,”[86] it lacks any judicial infrastructure for doing so. It does, however, contain articles explicitly outlining: “respect independence, sovereignty, equality, territorial integrity and national identity of all ASEAN member states,”[87] “non-interference in the internal affairs of ASEAN member states,”[88] “respect for the right of every Member State to lead its national existence free from external interference, subversion and coercion,”[89] and “abstention from participation in any policy or activity, including the use of its territory, pursued by an ASEAN Member State or non-ASEAN state or any non-State actor, which threatens the sovereignty, territorial integrity or political and economic stability of ASEAN Member States.”[90] From these articles it is abundantly clear that the culture of ASEAN is such that it values sovereignty and non-intervention far more than human rights. In addition to weak institutions and a culture that respects sovereignty, the ASEAN member states are not absorbing the Rohingya population and thus have no interest in intervention. Gruesome as it may be, the geographic reality of the Southeast Asian region is such that those who flee from Myanmar do so by boat, and many do not survive the oceanic crossing. Those who do are headed primarily to non-ASEAN member Bangladesh. The Rohingya who attempted to enter Thailand, which is an ASEAN member state, were either returned to Myanmar[91] or did not survive.[92]

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Findings: The Importance of Regional Asymmetry

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This paper maintains that nearly all of the above differences share a common factor: they are regional in nature. The realities of being a European state versus a Southeast Asian state are markedly different. These regions have different histories, resources, levels of institutionalization, values, cultures, and interests, all of which are reflected in the actions (or lack thereof) of their supranational organizations. Without clear international law, it falls on these regional organizations to choose whether to intervene on the part of the stateless in the name of human rights or to be silent and honor sovereignty. This essentially means that without the protection of international law, domestic law, or refugee law, the fate of stateless peoples is currently determined by the fortuity of geography. Should they be rendered stateless in a region with a strong, established supranational organization with a culture valuing human rights, their treatment will be wildly different than a stateless person born in a region with a young, weak supranational organization that values sovereignty. 

Conclusion

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This paper has demonstrated that the issue of statelessness is so difficult to address because of the fundamental contradiction in international law protecting the universal human right to nationality and the state’s right to determine who its nationals are. When these rights come into conflict, it remains unclear which law supersedes the other, thereby creating opportunities for deprivation of nationality. This paper examined one successful example of statelessness being addressed (Slovenia) and one devastating failure (Myanmar). The case studies reveal the common use of citizenship laws as tools of ethnic engineering in newly formed states. They also reveal the primary difference, and thus determining factor, to be regional. In these legally ambiguous situations it was the strength, values, and interests of the regional organizations that determined whether or not stateless peoples were protected.

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Moving Forward

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This paper contends that the highly unequal treatment of the stateless of Slovenia and Myanmar is unacceptable. Rather than allow the fate of the stateless to rest upon the nature of the regional organization in place, clear and strong legal rights and protections need be outlined for stateless peoples. One manner of achieving this goal would be an amendment to the laws of refugees to include stateless peoples. The refugee legally flees their nation for “well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group.”[93] Amending the law such that this definition also includes persons fleeing for well-founded fear of persecution for reasons of statelessness would suffice. A second, more difficult, option would be to bolster a body of law specifically for stateless peoples (like that for refugees), as the current state of international law protecting stateless peoples is evidently insufficient. As the legal system stands now, the global community will likely not intervene in Myanmar until the crisis becomes so egregious as to invoke the Responsibility to Protect, and even then it is not clear if intervention will occur, and if so what form it will take.