Photo Credit: Nora Rowley
Vitit Muntarbhorn
Bangkok Post
February 25, 2013
Although the term "Rohingya" is subject to various interpretations, it has been used in recent times primarily to cover the ethnic Muslim minority found in Myanmar's Rakhine State. Rohingya have sadly been in the news because of the violence, discrimination, dispossession and marginalisation to which they have been subjected. The depth of their tragedy cries out for a robust helping hand from their state of origin and the international community.
Their persistent plight invites deeper understanding of their situation. First, it should be noted that their status in Myanmar was not adequately dealt with at the time of Burma's (later Myanmar) independence. In effect, many of them are stateless. The 2008 constitution of the country perpetuates their marginalisation by providing that a citizen is either a person "born of parents both of whom are nationals of the Republic of Myanmar" or "a person who is already a citizen by law on the day this constitution comes into operation". This is compounded by the 1982 Myanmar Citizenship Law which fails to list Rohingya as a "national ethnic group" entitled automatically to Myanmar citizenship, even though it recognises other national ethnic groups for this purpose.
Second, for decades, the group has suffered impediments to their rights and livelihood. They are some of the poorest people in the country. There are recurrent breaches of their right to freedom of movement, access to education, freedom of religion and even their right to marry. Matters came to a head in 2012 with widespread inter-ethnic violence in Rakhine State, causing a massive caseload of internally displaced persons, including Rohingya, and their most recent cross-border outflows into neighbouring countries by land and sea.
To be fair, however, the plight of other victims of violence in Rakhine State should not be forgotten. The authorities have also set up a national Commission of Inquiry on the issue.
Meanwhile, the UN Special Rapporteur on Myanmar remains concerned with the serious situation in Rakhine State, despite constructive developments on other fronts in the country.
Third, precisely because old caseloads of Rohingya who sought refuge in neighbouring countries, particularly during the mid 1970s and 1990s, have not been fully dealt with, those neighbours find it difficult to keep open the door to new arrivals.
For instance, in Bangladesh, while many have been assisted and have found solutions to their plight, including voluntary repatriation to their country of origin, others are in limbo and await long-term solutions. This creates a sense of compassion fatigue at the local level. The situation is rendered more complex by the fact that there is a local Rohingya community, as distinct from the Rohingya who are seeking refuge in Myanmar, and some of the local community are also seeking access to other countries.
Fourth, the past two years have witnessed large influxes into neighbouring Thailand and Malaysia (and other countries). The response facing Rohingya has been ambivalent. While tens of thousands have now found refuge in Malaysia and hundreds have been sheltered in Thailand, others have been subjected to push-backs and push-outs, particularly at sea as a kind of "soft deportation". There are fears of forced return to their country of origin, though this would be in breach of the international law principle of "non-refoulement" which prohibits the forced return of asylum-seekers to areas of danger, particularly their country of origin. Thailand is also a party to the UN Convention against Torture which prohibits absolutely the forced return of persons to areas where there is a fear of torture. However, on a welcome note, some of the more enlightened officials have urged safety and temporary shelter for the refugees, while civil society groups have shown kindness towards them.
Fifth, the outflow of Rohingya from Myanmar is blighted by criminal elements seeking to profit from them. Often, those who seek refuge elsewhere are victims of human trafficking _ a phenomenon leading them to a situation of exploitation whether or not they cross a border _ and victims of human smuggling whereby a third party helps them to cross the border to enter another country illegally or in an irregular manner. The gravity of the situation is highlighted by the fact that in recent months many of the victims have been women and children. The challenge is to ensure that they are not kept in detention but are cared for in welfare facilities and treated as victims rather than illegal immigrants.
On an auspicious front, even though most Southeast Asian countries are not parties to the UN Convention on the status of refugees, they are all parties to the UN conventions on the rights of women and children which advocate non-discrimination and humane treatment of all women and children irrespective of their origins. The most recent regional declaration on human rights _ the Asean Human Rights Declaration _ also refers to the possibility of asylum, even though that declaration has been criticised on some fronts.
From the angle of regional dialogue and related action, there is now a forum known as the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime, which acts as a platform to involve scores of countries in the search for solutions. This includes all the Asean countries as well as key neighbours such as Bangladesh, India and China, as well as other key actors such as the US, Australia and New Zealand. This process has established a regional office in Bangkok and it meets periodically to promote cross-border cooperation.
In 2011, it adopted a Regional Cooperation Framework to counter the irregular movement of people due to human smuggling, as well as to address the issue of asylum-seekers, with the possibility of assessment processes to determine their status. The latter is linked to the possibility of a variety of solutions, such as voluntary repatriation, resettlement within and outside the region, and "in country" solutions. Logically also, the main UN body dealing with refugees and the issue of statelessness _ the office of the UN High Commissioner for Refugees (UNHCR) _ is a key catalyst on these issues and is interlinked with the Bali Process, anchored on the need to ensure consistency with international law.
With regard to the Rohingya and other displacements, key actions premised on the need for robust international cooperation should include the following:
- Address the root causes of the conflict and displacement in Myanmar, including overcoming the marginalisation of the Rohingya community, to protect human rights, and to ensure sustainable development and poverty alleviation;
- Reform the citizenship law in the country and adopt more flexible criteria for the granting of nationality (such as by reason of birth in the country), as well as residency and travel documents based on the freedom of movement and return to the country;
- Provide humanitarian assistance to victims of violence in the country on the basis of non-discrimination;
- Keep open the borders of neighbouring countries to help victims of persecution, violence and conflict, with due respect for international principles such as "non-refoulement" and rescue at sea for boat arrivals, while countering human trafficking and smuggling;
- Provide at least temporary shelters for persons who seek refuge, avoid detaining them, and ensure that they have access to humanitarian bodies such as the UNHCR;
- Initiate a process to determine the status of those who seek refuge in these countries; where there are grounds to believe that they have escaped persecution, violence or conflict, they should be able to stay at least temporarily and have access to durable solutions; in regard to cases which do not pass this test, the main option is for them to return to their country of origin, preferably on a voluntary basis;
- Maximise international and regional responsibility-sharing by providing sustained support to the countries caring for persons who seek refuge; and
- Nurture mutual understanding and cooperation by means of inter-community programmes and activities, particularly from a young age and with due regard to the rich diversity and humanity of cultures and peoples in the region.
Vitit Muntarbhorn is a Professor at the Faculty of Law, Chulalongkorn University. He has helped the UN in a variety of capacities, including as a consultant, expert and Special Rapporteur.
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