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This part of the debate proposes to discuss the much highlighted, but under-researched applicability of the international law to Myanmar crisis where Rohingya Muslims are being persecuted. The constitutional and international law perspectives have been briefly discussed from Pakistan’s viewpoint.
3. Pakistan-Myanmar: Applying the Int’l Law
The media in Pakistan are inundated with material related to the persecution of Muslims in Myanmar. As usual, the discourse is essentially sentimental and looks at the issue primarily through a religious lens; this write-up will, however, briefly employ legal analysis, as a tool, to understand the issue and then to stock-take any possible legal remedies and administrative strategies to mitigate the sufferings of the Muslims of Myanmar. At an academic level, the situation in Myanmar is helpful in understanding how the municipal laws of a country mirror the international law challenges that test its efficacy.
A snapshot of political history of Myanmar evinces that in many ways, the country is similar to Pakistan and Bangladesh, as it kept vacillating between democracy and military rule. It witnessed enactment of three constitutions – 1947, 1974 and 2008. While Article 10 of Myanmar’s first Constitution of 1947, which came into effect after its independence from the Britain in 1948, made ‘birth’ the basis of its citizenship, the municipal law relating to citizenship gradually started restricting the concept of citizenship by excluding Rohingya Muslims of Rakhine state from its scope. The 1982 Citizenship Act and subsequently the 2008 Constitution effectively resulted in rendering the Rohingya Muslims stateless. The same treatment was meted out to other minorities. Amid this state of affairs of the municipal laws of Myanmar, the international law has to be applied.
It may be noted that the circumstances in Myanmar have graduated in the last three decades from being entirely internal to international, hence internationalization of the Myanmar crisis. Pakistan’s premier research think tank of international law, Research Society of International Law, Pakistan (RSIL) has posted a position paper on its website, wherein it has aptly analysed the applicable international law in the context of the international humanitarian law by focusing on the international criminal law. This approach is wholesome and caters for the existing situation and justifies the existence of an armed conflict in the country. This position, apparently, has been influenced by the work of the Harvard Law School (HLS), which produced a Legal Memorandum on the subject in 2014, in which it documented the crimes against humanity in Rakhine state. On the matter of principle, however, it may be beneficial to underline that much more international law is applicable to the situation, and applying it with abandon will invariably increase the options to respond to the emerging crisis.
In the first place, and before actually applying the international law, some thought should be spared to examine which international law regime should be made applicable to the factual circumstances in Myanmar from the perspective of Pakistan. Do on-ground facts attract the international human rights law? Or do they become the subject of the International Humanitarian Law (IHL) in terms of minimum protections affordable to Rohingya Muslims and culpability due to violations of the IHL? Categorising the conflict as a Non-International Armed Conflict (NIAC) may result in legal consequences for Pakistan as it may be estopped to object to categorization of its internal disturbances as NIAC in future. Therefore, at diplomatic level, proper consultation be undertaken before invoking a particular type of international law regime to the situation in Myanmar.
Secondly, in case the international human rights law regime is applied, the nub of the problem will be the desire of Myanmar to declare its citizens stateless. This is in clear violation of the international law. Article 15 of the United Nations Declaration of Human Rights, 1948, guarantees the Right to a Nationality. It states in its sub-article (2) that “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” Commentators on the international human rights law agree that the Declaration is not an international agreement, but they argue that the rights enshrined therein enjoy the status of the customary international law and therefore Right to a Nationality cannot be discounted for conveniently insofar as its binding legal effect is concerned. The advocates of the international human rights law further argue on the strength of the 1954 Convention relating to the Status of the Stateless Persons (1954 Convention) and 1961 Convention on the Reduction of the Statelessness (1961 Convention) that states are under international legal obligation to ensure reduction of statelessness.
Likewise, article 24 of the International Covenant on Civil and Political Rights, 1966 (1966 Covenant), Articles 7 and 8 of the 1989 Convention on the Rights of the Children (1989 Convention) and Article 29 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990 (1990 Convention), provide for registration of a child on his birth and a right to acquire nationality of the state in which he is born. With this cardinal international legal obligation, Myanmar can be impressed upon at various fora to fulfil it. It may also be noted that the above-stated legal provisions have largely been codified in the post Second World War scenario to cater for new geographies; the concept is, however, still relevant in view of the possible geographical configurations that may emerge due to new conflicts like Catalonia (Spain) and Kurds-related area (Iraq).
Thirdly, in addition to their international legal right to nationality, the Rohingya Muslims should be granted full rights of refugees (when they cross the international borders) and the receiving states shall be obliged to follow the principle of non-refoulement as contained in Article 33 of the 1951 Refugees Convention (1951 Convention). The right to non-refoulement is buttressed by Article 3 of the 1984 Convention Against Torture (1984 Convention).
Fourthly, if Pakistan were to categorise the situation in Myanmar as an NIAC in the wake of the escalations of hostilities in August, 2017 (as proposed by the RSIL, Pakistan), the minimum protections contained in Common Article 3 of the 1949 Geneva Conventions (1949 Conventions) would have to be extended to Rohingya Muslims requiring Myanmar to treat the non-combatants (hors de combat) humanely. In relation to violations, Myanmar will have to end the following as minimum requirement of Common Article 3:
(a) violence to life and person;
(b) murder of all kinds, mutilation, cruel treatment and torture;
(c) taking of hostages; and
(d) outrages upon personal dignity, in particular humiliating and degrading treatment.
Finally, as far as the adjudicative remedies and administrative strategies are concerned, the options are not very many. RSIL, Pakistan has examined the possibility of instituting a case at the International Court of Justice (ICJ), which is easier said than done. There are remote interstate obligations justifying invoking the jurisdiction of the ICJ. On the other hand, the chances of invoking the jurisdiction of the International Criminal Court (ICC) to bring perpetrators of the violations of the IHL to task are minimal due to procedural, organizational and jurisdictional reasons. The administrative strategies for Pakistan to initiate the processes of utilizing Chapters VI and VII of the United Nations Charter are clogged by many a consideration ranging from the influence of China to internationally amplified internal disturbances within the country. In these circumstances, the international law has moral and persuasive value, from Pakistan’s perspective, and the likelihood of translating any option to action is second to none.
