ASEAN, Human Rights and the Stateless Rohingya

By Fia Walker | 23 Jun 15

It was not long ago that we witnessed horrible images of refugees drowning in their attempt to cross the Mediterranean Sea to reach Europe. Now the media is flooded with the suffering of Rohingya refugees attempting to reach Thailand, Malaysia or Indonesia for a new and safer life.

The United Nations calls the ethnic Rohingyas “the most persecuted refugees in the world” and both the Bangladeshi and the Burmese governments deny their right of citizenship, making them stateless.

The Rohingyas’ origin is disputed by both countries. The Bangladeshi government argues that they are from Rakhine (Arakan) state in Burma and the Burmese government argues they are from Bengal, which is now Bangladesh. Man-made border disputes have left the Rohingyas stateless for years. Nonetheless, Rohingyas lived in the Arakan state for generations. The most recent outbreak of sectarian violence in 2012 left more than 125,000 Rohingyas displaced.

Now, hundreds live not only in limbo but also on dilapidated boats in the Andaman Sea. There are news reports of smugglers threatening and killing these refugees or demanding ransom for their release. It is estimated that 7,000-8,000 refugees are still at sea risking their lives in the hands of people smugglers. After emergency talks between Thailand, Malaysia and Indonesia on 20 May 2015, Indonesia and Malaysia agreed to take thousands of stranded Rohingya refugees until they are either resettled in a third country or repatriated within 12 months.

On 29 May 2015 the Thai government called for a “Special Meeting on Irregular Migration in the Indian Ocean”. Seventeen countries and a number of international observers attended. They agreed on 16 recommendations for providing immediate humanitarian assistance.

While these important short-term solutions are welcomed, the lack of an enforceable and effective ASEAN human rights mechanism to protect the Rohingyas was not dealt with in this meeting. ASEAN needs a binding human rights mechanism, not just band-aid recommendations to protect the Rohingya refugees.

Unfortunately, this is not likely to happen anytime soon due to current ASEAN’s approach on human rights.

ASEAN was established in 1967 in Bangkok, Thailand. Its main purpose is economic cooperation – as set out in the ASEAN declaration, as well as promoting regional peace and stability. Currently, its members are Brunei, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar (Burma), the Philippines, Singapore, Thailand, and Viet Nam. ASEAN members believe they should work with each other to respect each country’s independence, sovereignty, equality, territorial integrity, and national identity.

Some hoped that human rights would guide how ASEAN states conduct their business and financial operations in the region. On a positive note, they have established the ASEAN Intergovernmental Commission on Human Rights (AICHR), which was established in 1993 after the UN “World Conference on Human Rights” in Vienna, Austria. At the time, ASEAN foreign ministers felt the need to set up a regional human rights mechanism in Southeast Asia that uniquely reflected ASEAN’s common perspectives on human rights.

This gives rise to the debate about “Asian values”. Former Prime Minister of Singapore, Lee Kuan Yew, and his Malaysian counterpart, Mahathir Mohamed, famously said that human rights are not compatible with Asian values. They argued that “supposedly universal human rights documents and treaties actually privilege Western values to the detriment of the diversity of Asian values”.

The notion of human rights in the context of “Asian values” means to improve economic wellbeing, and only then to promote human rights and fundamental freedoms of ASEAN citizens. The traditional approach of “Asian values” heavily informs the practices of the AICHR.

In 2012, ASEAN adopted the ASEAN Human Rights Declaration in Phnom Penh, Cambodia. As a non-binding declaration, it is toothless unless enforceable. Paula Gerber of the Castan Centre, however, is optimistic. She says that while this declaration has significant flaws, it is a starting point to begin dialogue with ASEAN members about human rights.

ASEAN needs an “ASEAN Convention on Human Rights” that guarantees the protection, promotion and enforcement of human rights for the people that it represents. As a minimum, such a Convention should adopt all rights that have been recognised in ASEAN human rights instruments and establish an individual complaints mechanism.

As for the Rohingyas, as a stateless people who are not citizens of an ASEAN member state, there are no ASEAN human rights mechanisms available to protect their basic rights.

Only two ASEAN member states – Cambodia and the Philippines – are party to the 1951 Convention relating to the Status of Refugees, and only one, the Philippines, is a signatory to the 1954 Convention relating to the Status of Stateless Persons. Member states should voluntarily and collectively sign the 1951 Refugee Convention and the 1954 Statelessness Convention, so that it would guarantee that refugees are treated in accordance with international standards.

The political will to resolve refugee crises in the region rests upon ASEAN’s attitude toward human rights. ASEAN needs to re-define its perspective on “Asian values” to accurately reflect its values of collectivism, fairness, justice, co-operation, compassion, sincerity and charity.

A non-interference principle and “deafening silence” have characterised ASEAN’s approach to human rights in the region. This approach has resulted in ASEAN’s failure to solve the current refugee crisis. ASEAN is well aware of the ill treatment and persecution that the Rohingyas are subjected to in Burma and Bangladesh.

There has been immediate humanitarian assistance to rescue the Rohingyas from dying on the sea and being persecuted in Burma. However, there is currently no human rights mechanism within ASEAN to hold the Burmese government accountable and responsible for this atrocity.

Nonetheless, ASEAN has the power to apply economic and political pressure on the Burmese government to grant the Rohingyas citizenship. This citizenship would automatically grant the Rohingyas ASEAN human rights protections.

The most palpable action that the Burmese government could do to solve this crisis is become party to the 1954 Statelessness Convention. Article 32 of the Convention states that the contractual party, as far as possible, facilitates the assimilation and naturalisation of the stateless person. But it is likely that the Burmese government would not sign this convention unless the other ASEAN member states do.

Fia Hamid-Walker is completing an Arts/Law degree at Monash University and is a Police Accountability Project law reform intern with the Flemington-Kensington Community Legal Centre. Twitter: @fiawalker

Feature image: Rohingyas in Bangladesh. By EU/ECHO/Pierre Prakash/Flickr