The State of Belonging

POST WRITTEN BY: Kee Moe Thi Han (15′)

In East African Asians v. United Kingdom (PDF), thirty-five citizens of the United Kingdom and Colonies and holders of United Kingdom passports, who were residents (but not citizens) of East Africa, brought suit against the United Kingdom for refusing to grant them admission under the Commonwealth Immigrants Act of 1968. As Anthony Lester writes, under the 1968 Act

a UK passport holder could enter the UK free of immigration control only if he, or at least one of his parents or grandparents, was born, naturalised, adopted or registered as a UK citizen in the United Kingdom itself.

Since British Asians residing in East Africa obtained UK citizenship under the colonial government rather than the UK government, the 1968 Act effectively excluded the citizens of the UK and Colonies of Asian descent from entry into the UK. The European Commission of Human Rights in the East African Asians v. United Kingdom case concluded that

publicly to single out a group of [citizens] for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity, [constituting] degrading treatment [in breach of Article 3 of the European Convention on Human Rights.]

Compare this to the plight of the Rohingya Muslims, an ethnic group of the Northern Rakhine State in Myanmar. The Rohingya were denied their right to nationality under the Burma Citizenship Law of 1982, which decrees that ethnic groups who

have settled in any of the territories included within the State as their permanent home from a period anterior to 1185 B.E., [to] 1823 A.D. are Burma citizens.

Consequently, Rohingya Muslims have become stateless, stripped of their nationality in Myanmar and understatedly mistreated in the neighboring countries to which they have fled. According to Human Rights Watch, those who remain in Myanmar have been pillaged, raped, killed, and subject to arbitrary arrests and detention.

Under the ruling of the European Commisson of Human Rights, the racial discrimination against the Rohingya amount to the level of “degrading treatment” under Article 3 of the European Convention on Human Rights, as well as Article 5 of the Universal Declaration of Human Rights. However, the ruling of the Commission in East African Asians v. United Kingdom stemmed from the UK citizenship that the British Asians had already obtained from the colonial government, and the adjustment to immigration that was created by the UK government. Must the Burma Citizenship Law of 1982 be revised to include the Rohingya population before the atrocies towards them can be addressed? Can the Burmese government be forced to grant the Rohingya population citizenship as a blatant violation of customary human rights law, when it does not concede jurisdiction to foreign and international tribunals? Does the law of nations extend to the nationless, like the Rohingya, who belong to neither Bangladesh or Myanmar?

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