Protecting the stateless: Proposing an ASEAN response to the Rohingya

By Julio S. Amador III and Joycee A. Teodoro

Rappler.com

July 9, 2015

Can ASEAN protect the rights of the Rohingyas, considered as stateless by some, through a regional initiative?

The number of Rohingyas believed to be stranded off the coast of Southeast Asia has reached alarming proportions– UN estimate is around 2500– and this surge in number has caught the attention of the international community. The initial policy of destination countries Indonesia, Malaysia, and Thailand, to turn away the Rohingyas back to the sea has led to the worsening of what humanitarian groups tag as a looming humanitarian crisis.

With growing international pressure, Indonesia and Malaysia reversed their stance following a trilateral meeting in Kuala Lumpur in May 2015 and have agreed to grant the Rohingyas temporary shelter for up to one year. Thailand, for its part, has offered to extend medical aid at sea. ASEAN, meanwhile, has been feeling the pressure to arrive at a collective regional course of action. Can ASEAN protect the rights of the Rohingyas, considered as stateless by some, through a regional initiative?

Understanding statelessness

The 1954 Convention relating to the Status of Stateless Persons defined a stateless person as someone “who is not considered as a national by any State under operation of its law.” Martin Stiller, in his work Statelessness in International Law: A Historic Overview, explained that international legal custom allows a state to determine who its nationals are. States come up with the norms and agreements to regulate persons traversing their national boundaries. Statelessness is arguably a product of the state-centric international system that privileges states rather than individuals.

Moreover, individual persons generally have no standing under international law without the mediation of the state since persons are granted this standing to the extent that they are subject to the rights and privileges imposed by international legislation. The benefits afforded to individual persons as a result of nationality can be considered as products of the social contract between individuals and their states.

While stateless persons may not enjoy state recognition as well as benefits and rights afforded to those with citizenship, there are international legal instruments put in place to serve as safeguards. The 1954 Convention relating to the Status of Stateless Persons identifies minimum standards of treatment that must be observed by contracting states. Moreover, the 1961 Convention on the Reduction of Statelessness provides guidelines on how contracting states could grant nationality to stateless persons or regulate processes in granting citizenship. The 1951 Refugee Convention and the 1967 Protocol that amended it can also be used to protect the rights of stateless persons who have become refugees. The Refugee Convention is vital since it does not distinguish between those who are stateless and those who have defined nationalities. However, gaps in the protection of stateless persons remain.

Challenges for ASEAN: A collective regional course of action?

The pressure on ASEAN to take a collective regional course of action is growing. The transnational and inter-state nature of the Rohingya issue, on the one hand, and the different positions of the ASEAN Member States, on the other, constrain the prospect of an effective regional response, and in some cases even lead to tensions among the ASEAN Member States themselves. Also, ASEAN has to carefully tread this issue so as not to put too much pressure on Myanmar given its fragile political and social system. However, ASEAN also needs to ensure that it upholds the protection of the fundamental rights of persons.

The principle of non-intervention is a strong factor in the ASEAN Member States’ inability to act on the issue. As former ASEAN Secretary-General Surin Pitsuwan admitted, ASEAN cannot press Myanmar on the citizenship issue, although it can and should do so regarding the humanitarian aspect of the situation. He further explained that if an ASEAN Member State says these people are not its citizens, the regional organization effectively bars itself from responding to the Rohingya issue.

There is also the economic and social cost of refugee recognition as an argument for non-recognition. This is used to ensure that the Rohingyas, considered by some as “illegal economic migrants,” do not compete with the local labor supply nor freely avail of public services that are primarily meant for the consumption of citizens. An offshoot of this argument is the perception that refugees are threats to social cohesion. The lack of understanding of the nature of statelessness and refugees may be true both for governments and their nationals alike.

Member states have also been lagging in committing themselves to international legal instruments regarding the stateless and refugees. ASEAN Member States have not found interest in being part of the global process to protect the rights of the stateless and refugees. As scholar, Sara Davies, explains, this non-interest can be rooted in the belief that such legal concept is imposed by the West, thereby prompting resistance from AMS. This explains their non-signing of existing legal international instruments on statelessness and refugees. The non-signatories, therefore, are free from the burden of implementing the provisions stated in these conventions.

The way forward

On May 29, Thailand convened in Bangkok a special meeting attended by 17 countries to address the issue. The one-day meeting resulted in the agreement to protect the people at sea, to find a comprehensive solution to prevent irregular migration, smuggling of migrants, and trafficking in persons, and more importantly, to address root causes and improve the livelihood of those in at-risk communities. The statement was carefully worded to avoid putting the blame on just one country, nevertheless it was seen as an important step forward.

With these recent developments on crafting a shared and cooperative regional approach, ASEAN still needs to develop a mechanism to address this kind of problem. ASEAN may find it difficult to push for the Rohingyas’ political rights but it does not mean that their human rights should go unprotected. Under the ASEAN Socio-Cultural Community Blueprint, it is the aspiration and the goal of the region to respect fundamental freedoms and to promote and protect human rights, including those of foreigners living in the region. In addition, the ASEAN Human Rights Declaration recognizes that all persons are entitled to rights and freedoms without discrimination.

ASEAN could also provide humanitarian aid for internally displaced persons and refugees. In the case of the Rohingyas, ASEAN Member States should intensify their diplomatic efforts with Myanmar to allow the entry and coordination of humanitarian assistance. ASEAN should take charge in pooling humanitarian aid for the Rohingyas. Some arrangements could be made with external partners including the UN High Commissioner for Refugees, the Red Cross and Red Crescent, and other parties with regard to providing international humanitarian assistance to the Rohingyas. This highlights that there is space for international humanitarian assistance.

ASEAN has the tools of diplomacy, experience in coordinating other international efforts, and influence over Myanmar to forge a regional response. ASEAN must still try to reconcile regional norms with international ones. If it does not accept these concepts, it must at least try to come up with regionally contextualized ones that take into consideration the rights of the stateless. ASEAN has already enunciated its adherence to human rights in several of its important documents. But until special meetings and statements are not supported by concrete actions and tangible outcomes, they will remain as mere rhetoric.

Julio S. Amador III is the Acting Director-General of the Foreign Service Institute.Mr. Amador can be reached at jsamador@fsi.gov.ph.

Joycee A. Teodoro is a Foreign Affairs Research Specialist with the Center for International Relations and Strategic Studies of the Foreign Service Institute. Ms. Teodoro can be reached at jateodoro@fsi.gov.ph.