To Guarantee the Erga Omnes Right to Return Back of the Myanmar Refugees
To Guarantee the Erga Omnes Right to Return Back of the Myanmar Refugees
Complaint Procedure Unit 04.06.2019
Human Rights Council
Branch Office of the United Nations High Commissioner for Human Rights
United Nations Office at Geneva
CH-1211 Geneva 10, Switzerland
The Responsibility of the Human Rights Council to Guarantee the Erga Omnes Right to Return Back of the Ethnic and Religious Refugee Minorities of Myanmar Including the Next Generations
This petition is given under the General Assembly Resolution 53/144 of 8 March 1999, "Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms" and Human Rights Council Resolution 5/1 of 18 June 2007, “Institution-building of the United Nations Human Rights Council” on the “de facto” statelessness situation of the Myanmar minorities and in order to guarantee their erga omnes right to return back to Myanmar.
The Human Rights Council took many decisions on the situation of gross violations of human rights in Myanmar including on the denationalization of the minorities.
The Human Rights Council in the operative Paragraph 16 of its resolution A/HRC/40/L.19 of 19 March 2019 with the title “Situation of human rights in Myanmar” urged the Myanmar government as;
16. Urges the Government of Myanmar to expedite efforts to eliminate statelessness and the systematic and institutionalized discrimination against members of ethnic and religious minorities, in particular against the Rohingya, by, inter alia, reviewing the 1982 Citizenship Law, which has led to violations of human rights; restoring full citizenship through a transparent, voluntary and accessible procedure and guaranteeing all civil and political rights; recognizing self-identification; and amending or repealing all discriminatory legislation and policies, including discriminatory provisions of the set of “protection of race and religion laws” enacted in 2015;
The Human Rights Council by its resolution urged the Government of Myanmar to expedite efforts to eliminate statelessness by, reviewing the 1982 Citizenship Law, which has led to the statelessness of the members of ethnic and religious minorities.
The statelessness of the minorities in Myanmar is originated from the implementation of Article 3 of the Myanmar Citizenship Law 1982: a citizen in Article 3 defined as:
“Nationals such as the Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine or Shan and ethnic groups as having settled in any of the territories included within the State as their permanent home from a period anterior to 1185 B.E., 1823 A.D. are Burma citizens.”
We should ask whether the question of nationality falls within the domestic jurisdiction of Myanmar, as a right of sovereignty, defined in Article 2.7 of the United Nations` Charter. If the answer to the question is “YES”, nationality falls within the domestic jurisdiction of Myanmar than the implementation of Article 3 of the Myanmar Citizenship Law 1982 is lawful under the international law.
In its Advisory Opinion on the Tunis and Morocco Nationality Decrees of 1923, the Permanent Court of International Justice on citizenship stated that whether a certain matter is or is not solely within the domestic jurisdiction of a State is an essentially relative question; it depends on the development of international relations of the State. The Permanent Court of International Justice said that while nationality issues were, in principle, within domestic jurisdiction, States must, nonetheless, honor their obligations to other States as governed by the rules of international law. Denationalization or arbitrary deprivation of nationality, which is against the international treaties, and obligations of a State should not be recognized as lawful as stated by the Permanent Court of International Justice decision of 1923.
Myanmar was under the list of decolonization by the General Assembly Resolution 66 (I).
After gaining his independence, Myanmar applied on 27 February 1948 to the membership of the United Nations by a letter from the Ambassador U So Nyun. In the first paragraph of the letter, the ambassador of Burma (Myanmar) had written that:
“By an Act passed by the Parliament of the United Kingdom, Sovereignty over Burma passed from the British Crown to the Burmese people on 4th January 1948, since when Burma has been a sovereign Independent Republic”.
The Act passed by the Parliament of the United Kingdom as written in the letter given by the Ambassador U Son Nyun, is the Burma Independence (A.D. 1947) Act to Provide for the independence
of Burma (Annex II). The British parliament approved the Burma Independence Act on December 10,1947. In the Article 1.2 of the Burma Independence Act, the appointed independence day of Myanmar was written as 4 January 1948. The Burma Independence Act is the appropriate legislation of the United Kingdom Parliament for the Independence of Myanmar as indicated in the Article 15 of the Agreement between the Government of the United Kingdom and the Provisional Government of Burma, the Burma Independence Agreement (known as the Nu-Atlee Agreement, Annex III) signed in London, on 17 October 1947.
In Article 15 of the Nu-Atlee Agreement, it is written that:
“The present Treaty shall be ratified and shall come into force immediately upon the exchange of Instruments of Ratification, which shall take place on the day on which Burma becomes independent in accordance with the appropriate legislation to be introduced in the United Kingdom for that purpose.”
The Nu-Atlee Agreement came into force on 4 January 1948, on the day of independence of Myanmar.
In Article 1 of the Nu-Atlee Agreement, the Government of the United Kingdom recognizes the Republic of the Union of Burma as a fully Independent Sovereign State. In Article 3 of the Nu Atlee Agreement, a citizen of Burma (Myanmar) defined as:
“Any person who at the date of the coming into force of the present Treaty is, by virtue of the Constitution of the Union of Burma, a citizen thereof and who is, or by virtue of a subsequent election is deemed to be, also a British subject, may make a declaration of alienage in the manner prescribed by the law of the Union, and thereupon shall cease to be a citizen of the Union. The Provisional Government of Burma undertake to introduce in the Parliament of the Union as early as possible, and in any case within a period of one year from the coming into force of the present Treaty, legislation for the purpose of implementing the provisions of this Article.”
The Nu-Atlee Agreement is an agreement of decolonization, in other words, State succession of Burma (Myanmar) from the British Empire. The effect of change of sovereignty upon the nationality of the inhabitants of the territory has a long history under the Customary International Law before the establishment of the United Nations. The territorial transfer is usually based on a treaty, and the agreement made between the ceding and cessionary State will, as a rule, include provisions concerning the nationality of the inhabitants of the ceded territory.
The Burma Independence Act, 1947 provided, inter alia, that a person who ceased to be a British subject under the Act and who upon independence neither became, nor became qualified to become, a citizen of the independent country of Burma had the right of election of its citizenship. In general, no minorities of Myanmar had the option to refuse the nationality of new on the date of decolonization.
In decolonization cases, British practice was to include the provisions, relating to the acquisition of the nationality of the new state, in their respective independence Act or Order itself. Such provisions are based upon the substantial connection between the person concerned and the territory of the new state. The option to refuse the nationality of the new state is rarely given to them. In this way, the British system succeeded to avoid the possibility of dual nationality and statelessness under the principle “leaving no one behind.”
The United Nations` Charter Article 2.7 is the Charter's reference to sovereignty. It stipulates that nothing in the Charter authorize the United Nations to intervene in matters, which are "essentially within the domestic jurisdiction of any State." In the context of the United Nations` Charter, Article 2.7 has been regarded as embodying the principle of non-intervention. The relation between the concept of domestic jurisdiction and the non-intervention principle has been aptly described as:
“Clearly, domestic jurisdiction refers to the right of each state to freely—independent of other States and international organizations—exercise its own legislative, executive and judicial jurisdiction. Its exercise is consequence of state sovereignty and the rights of the nations to self-determinations.”
The key point is, whether an international responsibility for Myanmar which makes the citizenship problem out of the context of Article 2.7 of the United Nations` Charter as written in the Resolution 2625 of the United Nations General Assembly which specifies the principle of State sovereignty by providing:
“Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States.”
The answer to the question, on the legality of the statelessness of the Myanmar minorities, lay if the Nu Atlee Agreement is an international agreement or not.
Permanent Court of Arbitration in the Matter of the Chagos Marine Protected Area Arbitration, under Annex VII of the United Nations Convention on the Law of the Sea, between the Republic of Mauritius and the had given the same definition for the Lancaster House Undertakings as an international agreement. The Court noted that in paragraph 428 of his decision that:
“Had Mauritius remained part of the British Empire, the status of the 1965 Agreement would have remained a matter of British constitutional law. The independence of Mauritius in 1968, however, had the effect of elevating the package deal reached with the Mauritian Ministers to the international plane and of transforming the commitments made in 1965 into an international agreement.”
If by the Nu-Atlee Agreement, Myanmar remained part of the British Empire, the status of the Nu Atlee Agreement would have remained a matter of British constitutional law. Upon the independence of Myanmar, the Nu-Atlee Agreement became a matter of international law between the Parties. The Nu-Atlee Agreement is an international agreement under the United Nations` system of decolonization by which citizenship becomes out of the context of Article 2.7 of the United Nations` Charter with a binding international agreement character.
The Nu-Atlee Agreement, in fact, other than being an international agreement but as an agreement made under the Article 73 of the United Nations Charter, carries the norm of jus cogens character, which makes the erga omnes responsibility to the international community as a whole. The very object of the Nu-Atlee Agreement is the decolonization of the all peoples living in Burma (Myanmar) which cannot be sacrificed and left behind on the collective right of self-determination under the principle of uti possidetis.
The International Court of Justice in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory case, asked the question of the action is required to bring to an end by the United Nations on a breach of an erga omnes norm of self-determination and reminded that international community is under an obligation not to recognize the illegal situation resulting.
The obligations in Article 41 of the International Law Commission Articles on the Responsibility of States for Internationally Wrongful Acts rest on the assumption of international solidarity an understanding that a collective response by all States is necessary to counteract the effects of such a violation. The obligation of non-recognition of an unlawful situation is set out in Article 41.2 of Articles on the Responsibility of States for Internationally Wrongful Acts.
The function of non-recognition is to prevent validation of an act or its consequences, which are already legally void. This obligation is linked with the maxim ex-injuria jus non-oritur requiring that acts contrary to international law shall not become sources of legal rights for the violator and is, therefore, primarily directed against “poisoned fruits”(results) of the illegal conduct.
Article 48 of Articles on the Responsibility of States for Internationally Wrongful Acts deals with the invocation of responsibility by states other than the injured state acting in the collective interest. A state that is entitled to invoke responsibility under Article 48 is acting not in its individual capacity by reason of having suffered injury, but in its capacity as a member of a group of states to which the obligation is owed, or indeed as a member of the international community as a whole. In practice, it is most likely that this collective response will be coordinated through the competent organs of the United Nations as well.
The United Kingdom is primarily responsible for the internationally wrongful act of Myanmar on the modification/termination of the citizenship article of the Nu-Atlee Agreement as the party to the agreement and should act with his responsibility as codified in Article 14 of the agreement. In Article 14, it is written that:
“Should any difference arise relative to the application or the interpretation of the present Treaty, and should the contracting parties fail to settle such difference by direct negotiations, the difference shall be deferred to the International Court of Justice unless the parties agree to another mode of settlement.”
The United Kingdom should begin to negotiate on the full implementation of Article 3 of the Nu-Atlee
Agreement. The United Kingdom if cannot solve the dispute of the full implementation of Article 3
of the Nu-Atlee Agreement than shall defer the validity of Article 3 of the Agreement to the International Court of Justice for a binding decision. The United Kingdom shall take the necessary steps on the non-recognition of the statelessness resulting from the Myanmar Citizenship Law 1982 and shall ask the international community on the obligation of the non-recognition of the “de facto” statelessness of the Myanmar minorities as the consequence of the implementation of the Article 3 of
the Myanmar Citizenship Law 1982. This is an obligation for the United Kingdom under the principle of pacta sunt servanda and good faith under international law for the Nu-Atlee Agreement. The United Nations has the same responsibility as the United Kingdom for the Nu-Atlee Agreement.
In paragraph 160 of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory case, the International Court of Justice reminded the responsibility of the United Nations to bring to an end the illegal situation created by the wall.
When the Nu-Atlee Agreement decolonized Burma (Myanmar), the option to refuse the nationality for the new state and chose another nationality had not been given to the minorities of Burma (Myanmar). Before the independence of Myanmar, all the peoples including the minorities were under the protection of Article 73 of the United Nations` Charter by the General Assembly Resolution 66 (I). In Article 73, the interests of the inhabitants of the territories whose peoples have not yet attained a full measure of self-government as a principle defined as “paramount”, this principle includes “the wellbeing of them.” When the minorities of Burma (Myanmar) became stateless by decolonization, this is against the “object and purposes” of the Article 73 of the United Nations` Charter that can never be “sacrificed.”
In the operative paragraphs of the mandate of the Human Rights Council in the General Assembly Resolution 60/251, in Article 2, it is specified that “the Council shall be responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner”; in Article 3, gives responsibility for the decisions of the Human Rights Council within the United Nations system as “the Council should address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon. It should also promote the effective coordination and the mainstreaming of human rights within the United Nations` system;”, and in the Article 4, principles of the Human Rights Council is codified as “the work of the Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development.” In the operative Article 5 (i), the Human Rights Council is authorized to “make recommendations with regard to the promotion and protection of human rights” to the General Assembly.
As the main body of the human rights protection in the United Nations` System, the Human Rights Council should go on further action for the Nu-Atlee Agreement as the agreement itself is under the Principles and the Purposes of the United Nations` Charter in the sense of Article 73 of the United Nations` Charter on decolonization and the Human Rights Council has the responsibility to follow up that no derogation shall be permitted to a norm accepted and recognized by the international community of States as a whole.
The Human Rights Council should as well ask the General Assembly of the United Nations for an advisory opinion from the International Court of Justice within his mandate as written in the operative paragraph 5 (i) in accordance with Article 65 of the Statute of the Court, by referring Article 14 of the Nu-Atlee Agreement as the legal background of his application as the concept that the agreement is originated from the article 73 of the United Nations` Charter, signifies the reality that the United Kingdom had signed the agreement in the name of the United Nations on the following questions:
(a) The binding character of the Nu-Atlee Agreement for Myanmar including Article 3 on citizenship.
(b) The obligation of non-recognition, the consequences of the implementation of Article 3 of the Myanmar Citizenship Law 1982 as legal, for the “de facto” statelessness of the minorities of Myanmar by the international community as a whole.
On the other hand, the Human Rights Council in the operative paragraph 19 of its resolution A/HRC/40/L.19 of 19 March 2019 emphasizes “the need for the Government of Myanmar to cooperate fully with the Government of Bangladesh and with the United Nations, in particular, the Office of the United Nations High Commissioner for Refugees, and in consultation with the populations concerned to enable the safe, voluntary, dignified and sustainable return of all refugees and forcibly displaced persons to their places of origin in Myanmar, and to give returnees freedom of movement and unimpeded access to livelihoods, social services, including health services, education and shelter, and to compensate them for all losses.”
The protection provided under the UN 1951 Refugee Convention and its 1967 Protocol is not automatically permanent. A person may no longer be a refugee when the basis for his or her refugee status ceases to exist. This may occur when refugees integrate or become naturalized in their host countries and stay permanently in the case if the refugees cannot repatriate to their home countries. When the status of refugee is lost, the relation with the United Nations comes to an end. The United Nations is no more related to the legal right to return of the people who lost their refugee status.
To prevent the cease of the Myanmar refugees` relation with the United Nations, in particular the Rohingya in case of their changement of nationality because of the failure of the Government of Myanmar for not fulfilling of his responsibility for the Article 3 of the Nu Atlee Agreement, there exists an obligation of the Human Rights Council to create a mechanism for the follow up of its resolutions to protect the erga omnes right to return back of the Myanmar refugees in case of losing their status of being refugee in the future including their next generations.
To achieve this, the Human Rights Council should ask the Office of the United Nations High Commissioner for Refugees to create a special database to register the Myanmar refugees and their next generations in order to guarantee their erga omnes right to return back to Myanmar in the future to prevent the legal gap on the loss of the status of being a refugee to be used as a tool as a kind of mechanism for changing the demography in Myanmar.
Prof. Dr. h.c Mehmet Şükrü Güzel
United Nations Geneva Office Representative of Juridical Commission for the Auto-Development of First Andean Nations (CAPAJ), Peru.