State Responsibility for Citizenship in India: Lessons from Myanmar, and the CERD Inter-State Communications Mechanism

The International Court of Justice has just last week commenced and concluded provisional measures hearings in a case between The Gambia and Myanmar. It is based on allegations of violations of the Genocide Convention and is the culmination of years of persecution of the Rohingya, an ethnic Muslim minority in Myanmar’s Rakhine state. While there have been waves of atrocities, in the last few years targeted ‘clearance operations’ by the Myanmar military have resulted in close to a million Rohingya seeking refuge across the border in Bangladesh. In addition to the scores killed, tortured, and raped, the community left within Myanmar is under threat of genocide, according to UN International Fact-Finding Mission report of September 2019. The attention of the world is focused on the initial legal steps at the court – and the fact that the Myanmar delegation was led by none other than a Nobel peace prize winner, Aung San Suu Kyi. 

But what is more insidious and that needs to be highlighted is the fact that the persecution of the Rohingya has been ongoing for decades, facilitated by the enactment of various laws in the country. One such category is the use of citizenship laws to disenfranchise and dehumanize, leading up to this point in time where Myanmar is accused of genocide before the International Court of Justice. In 1982, the Myanmar military passed a citizenship law on the basis of which Rohingya were in effect stripped of citizenship. This abhorrent and discriminatory law made it impossible for the Rohingya to avail of the basic rights of citizenship – access to documentation, education, services, and were in effect corralled into particular areas and unable to travel freely – just a few of the many indignities inflicted on the community. Make no mistake, this law laid the pathway to this point.   

The discriminatory citizenship law is a key part of the conditions that created the environment that enabled the ongoing atrocities. Citizenship laws are not benign – they are the source of rights of individuals within a country, and equally important, place obligations on the part of states. The one myth in talking about the legal parameters of citizenship is that this is essentially a matter of state sovereignty and is within the purview of the state to do as it pleases. This is incorrect. 

While the state can indeed frame its citizenship laws, this is not absolute. There are a plethora of international legal obligations and principles that place limits on the types of laws that can be enacted – and some of these basic principles include non-discrimination. These are all principles that must be taken into account in the formulation of any law relating to citizenship. In particular, when the risks are of creating statelessness such as here, the stakes are even higher. 

State responsibility under international law is the accountability for acts of a state – and the most extreme example of this is the legal process at the International Court to hold Myanmar responsible for what has been done – and continues to be done – to the Rohingya. So to indicate that there is a legal vacuum, or that a state has sole purview with no check on the manner of its citizenship law is wrong. The sovereign right to determine nationality is not absolute, and there are a number of obligations a state needs to adhere to which emanate from multiple sources, including a variety of international treaties that India has committed to adhere to, including non-discrimination. 

International legal obligations of a state include those from various treaties, such as the  International Convention on Civil and Political Rights, as well as the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The treaty definition of “racial discrimination” is wide and encompasses “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin…” One method to address violations of the various treaties including ICERD was to file an individual complaint with the particular treaty body created to safeguard rights under nine core human rights treaties, and which procedure a state needed to agree to. Now however, there is a new legal route which would seem particular relevant to the Indian case – and which might be exercised by another state – as a violation of ICERD – the inter-state mechanism. 

In a legal first, the ICERD committee is hearing inter-state disputes, and not just complaints from individuals. This means that another state that alleges a violation of the provisions of the treaty can approach the ICERD committee. Currently, the committee is considering two complaints by Qatar against Saudi Arabia and the UAE, as well as one by Palestine against Israel. This legal route may well be initiated by another state against India, in relation to the discriminatory provisions of the Constitutional Amendment Act of 2019, on the basis of a violation of the CERD convention. While there are certain pre-requisites before such a complaint including the exhaustion of local remedies, this is certainly a step that may be taken up by another state.   

The dangers of the rhetoric that accompanies such discriminatory and persecutory laws are clearly evident and portends something much more sinister to come. The course that India is on today in enacting such a law has significant international legal repercussions and is cause for serious concern.