Obama Centers (Rohingya) Citizenship in Burma

by Peter Spiro

President Obama’s visit to Burma/Mynamar has centered the status of the country’s Muslim minority Rohingya community which has been denied Burmese citizenship notwithstanding their historical presence in the country. (The issue gets a lot more coverage in the Muslim world than in the West.) Obama’s speech today welcomed recent steps by the Burmese government “to address the issues of injustice and accountability, and humanitarian access and citizenship.” Obama then focused on citizenship at length:

Every nation struggles to define citizenship. America has had great debates about these issues, and those debates continue to this day, because we’re a nation of immigrants — people coming from every different part of the world. But what we’ve learned in the United States is that there are certain principles that are universal, apply to everybody no matter what you look like, no matter where you come from, no matter what religion you practice. The right of people to live without the threat that their families may be harmed or their homes may be burned simply because of who they are or where they come from.

Only the people of this country ultimately can define your union, can define what it means to be a citizen of this country. But I have confidence that as you do that you can draw on this diversity as a strength and not a weakness. Your country will be stronger because of many different cultures, but you have to seize that opportunity. You have to recognize that strength.

I say this because my own country and my own life have taught me the power of diversity. The United States of America is a nation of Christians and Jews, and Muslims and Buddhists, and Hindus and non-believers. Our story is shaped by every language; it’s enriched by every culture. We have people from every corners of the world. We’ve tasted the bitterness of civil war and segregation, but our history shows us that hatred in the human heart can recede; that the lines between races and tribes fade away. And what’s left is a simple truth: e pluribus unum — that’s what we say in America. Out of many, we are one nation and we are one people. And that truth has, time and again, made our union stronger. It has made our country stronger. It’s part of what has made America great.

We amended our Constitution to extend the democratic principles that we hold dear. And I stand before you today as President of the most powerful nation on Earth, but recognizing that once the color of my skin would have denied me the right to vote. And so that should give you some sense that if our country can transcend its differences, then yours can, too. Every human being within these borders is a part of your nation’s story, and you should embrace that. That’s not a source of weakness, that’s a source of strength — if you recognize it.

He concluded: “we have an expression in the United States that the most important office in a democracy is the office of citizen — not President, not Speaker, but citizen.” (Though it got lost in the campaign, this picks up on Obama’s Democratic National Convention acceptance speech, which also included citizenship as a refrain.)

There is a very territorialist approach here (“every human being within these borders”), not so surprising out of the super-strong American tradition of jus soli. That’s also consistent with an emerging international law perspective on these questions, which sees habitual residence as giving rise to a right of access to citizenship. The Rohingya situation in Burma is exceptional in rejecting this norm (the Bedoons in Kuwait and Nubians in Kenya are other examples).

But Obama didn’t seem quite willing to turn to international law as the source of an obligation on this score.  ”Only the people of this country ultimately can define your union, can define what it means to be a citizen of this country.” That’s out of the old playbook in which nationality is a matter ultimately of sovereign discretion. He was more in a “leading by example” posture than a tougher one under which Burma has no choice but to fall in line. Leave the latter argument to the human rights heavyweights.

http://opiniojuris.org/2012/11/19/obama-centers-rohingya-citizenship-in-burma/

4 Responses

  1. Very interesting comment, thanks! I think Obama’s assumption that the American example is universally applicable begs the question somewhat, though. Do the United States actually have enough in common with Burma to be a useful precedent? 

    The case of the Rohingya is hardly unique in the huge realm of former colonies that won independence after World War II and ended up saddled with their colonial borders and whoever happened to wind up within them by the time of independence (through the principle of uti possidetis). As a result, tendencies to question the citizenship of entire population groups is not only a driver of conflict in Burma but also Fiji, Cote d’Ivoire, Democratic Republic of Congo, Libya and many, many other places. 

    The fact that there might have initially been some room for negotiation about whether or not relatively recent arrivals in newly independent states would be awarded citizenship appears to have been recognized in international law. For instance, ICESCR Art 2.3 allows developing countries to “determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals”, and the Limburg Principles clarify that this provision was meant “to end the domination of certain economic groups of non-nationals during colonial times. In the light of this the exception in article 2 (3) should be interpreted narrowly”. 

    However, this principle is not exactly given top billing in the more recent General Comment on non-discrimination and ESC rights and should probably be presumed to have lapsed. The point is, however, that the political tensions in many more recently independent countries rumble on. Moreover, Obama’s presumption of a ‘withering away of difference’ and an inevitable historical progression towards e pluribus unum seems to cut directly against the manifest persistence of all differences that have made it to the modern era, where they can now be nourished through the possibilities of mass education, mass communication and pluralist politics. 

    The US certainly had to wrestle with these types of issues (indeed as Obama pointed out they threatened to consume the nation at one point), but had the luxury of doing so a long time ago. Since the Civil War, ethnic mixing in the US has resulted from migration that was not only voluntary on the part of the migrants (resulting in a reasonable assumption that they will engage in a minimum level of integration) but also freely chosen on the part of a sovereign government exercising its powers to regulate immigration (meaning that such migration was not imposed on the ‘native’ population and the subsequent grants of citizenship to immigrants were uncontroversial).

    This is a nice model if you can manage it. Whether it leads to e pluribus unum or not depends on your read of the last election (reasonable people could differ). But its applicability to places like Burma is debatable, at best. In countries like Burma that have inherited mixed populations, along with their violent internecine conflicts and mistrust, the better model might be a constitutional one where the democratic opening becomes an opportunity for each such group to renegotiate its voluntary participation in a state to be shared by all of them. 

    This is what effectively happened in post-Franco Spain, for instance. It is not easy, and it is not guaranteed to be stable, as reflected in current debates over possible Basque and Catalan referenda on sovereignty. However, it gives the constituent nations in a mixed neighborhood like Burma an opportunity to seek meaningful recognition and the entitlements that flow from it, including at a minimum citizenship and the right to protection of life and property.
     

  2. Rhodri, Thanks for the thoughtful comment. I agree that the US experience may not be a one-size-fits-all. That said, there is some international convergence towards at least modified jus soli as a floor on citizenship practice (that is, at some point, intergenerationally present lineage should result in a grant of citizenship and the full status equality that is supposed to come with it). Secession and territorial fragmentation may be a byproduct in some contexts, but I’m not sure there is necessarily anything wrong with that. Best, Peter

  3. Quite right, sorry, I was really just free associating from your piece rather than responding to it. And I agree with your point. From a legal perspective, rights like that to recognition as a person under the CCPR don’t seem constrained by the “non-citizens” caveat in CESCR A2.3. And appealing to an emerging rule on the limited issue of citizenship is probably a much more effective advocacy strategy than trying to muscle through some form of ethnic federalism.

    I wonder if the fact that UNHCR is still fighting the good fight, trying to get states to sign onto the statelessness conventions might be confusing the issue in terms of discretion. By focusing on trying to get states to voluntarily ratify these specialized instruments, one perhaps distracts from the formation of binding human rights rules going on in the background. On the other hand, where states actually do voluntarily agree to address the issue, the outcome may be better (because of a real political commitment) then where they are obliged to act. However, if the alternative is situations like in Rakhine, bring on the CIL. 

  4. Rhodri, Another very interesting point. Vincent Chetail of the Geneva Institute is doing some very interesting work situating the Refugee Convention  in the context of the human rights convention (I think the bottom line is basically, the latter is subsuming the former). Same might be said here with respect to the statelessness conventions. “Right to access to citizenship” also works better in terms of pinning the obligation to grant citizenship on a particular state, which has been a weak point of the statelessness regime. Best, Peter

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