February 25, 2013
Bangkok Post
Vitit Muntarbhorn
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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