Forum Recap: Human Rights
On Wednesday 4th March 2020, the Research for Change Forum delved into the topic of Human Rights. Our wonderful speakers Vy-Liam Ng and Sophia Soares discussed both issues of the torture of refugees and the link between statelessness and genocide.
Sophia Soares was our first speaker, a PhD student, researching the prevention of torture in relation to liberty-deprived asylum seekers and refugees. Her research is framed within the UN Sustainable Development Goals, formed to ensure ‘no-one is left behind’, with a focus on the refugee population being one of the most vulnerable of being forgotten.
International Human Rights Law, Sophia explained, pervades all aspects of life and levels of society. The UN is central as a forum for the State to organise Treaties (contracts, creating obligations between States and their citizens). The State (the rulers over a "sovereign" territory) is central to International Human Rights Law. Rights are subdivided into three ‘generations. 1st Generation Rights pertain to political rights, such as the right to life and freedom from torture. These are thought of as the most important rights to humanity. 2nd Generation Rights relate to the economic, social and cultural aspects of life, such as the right to education and right to health. 3rd Generation Rights include the right to development and the right to self-determination – the collective or solidarity rights.
1st Generation Rights often coincide with ‘jus cogens’ rights; for example, the prohibition on torture, which is non-derogable. It is also a General Principle of International Law, recognised in the European Convention Against Torture. Jus cogens rights are customary law, meaning it needn’t be written down in a Treaty; it is so vital and intrinsic to society that it is treated as if it is written law.
Sophia focuses on prevention instead of remedy, for example the monitoring of detention centres and potential liberty-deprived persons. The UN Optional Protocol to the Convention against Torture (OPCAT) is one device implementing such. Sophia has named this as ‘ground-breaking’; whilst it doesn’t establish new rights, it establishes a process of enforcement of rights. When ratified by a State, the State is obliged to implement an independent National Preventative Mechanism, undertaking regular visits to places where ‘persons of concern’ are detained, formulating recommendations for authorities. The Subcommittee on Prevention of Torture (SPT) is the international arm of OPCAT, focusing on innovative and sustainable approaches. It is composed of 25 independent, impartial experts, who may visit any place where persons may be deprived of their liberty in States party to OPCAT. With around 90 Member States, OPCAT is still in its early days (having come into effect in 2006), however is already proving effective.
Another focus of Sophia’s research is International Refugee Law; this discipline appreciates that the refugee population lacks protection of their own country, thus requires further rights. The UN Refugee Agency (UNHCR), based in the 1951 Refugee Convention, aims to protect persons of concern; this includes refugees, asylum seekers, internally displaced people (those displaced within the borders of their own country), and stateless persons. The 1951 Convention defines the term ‘refugee’ and outlines the rights of the displaced and legal obligations of States in protecting them. The UNHCR is the ‘guardian’ of the 1951 Convention and OPCAT; these legal documents extinguish geographical and temporal restrictions, giving all refugees rights globally.
Whilst there are issues with these devices, for example the problem of striking a balance where there is a lack of resources (for example with the implementation of OPCAT bodies), there has been obvious improvement throughout the decades. Sophia aims to examine the mandates of the mechanisms established under OPCAT and the UNHCR, exploring avenues of cooperation between the mechanisms in order to optimise preventative action.
Our second speaker, Vy-Liam Ng, is a PhD student and International Student Adviser. His research focus has been statelessness as a precursor to genocide, using the Rohingya genocide as a case study.
The 1954 Convention relating to the Status of Stateless Persons defined a stateless person as “a person who is not considered as a national by any State under the operation of its law”. Article 15 of the Universal Declaration of Human Rights (UDHR) acts as parallel to this, stating ‘everyone has the right to a nationality’ and that ‘no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality’. The definition of a ‘stateless person’ is customary law, meaning it must be recognised regardless of consent. The legal issue with statelessness is the remedy: to pacify statelessness, a State must grant nationality.
The incompatibility of theory versus practicality is where the issue lies. Whilst it is a universal human right to hold nationality, in practice, the nation-state system (premised on territorial sovereignty) allows gaps for statelessness to happen. For example, restrictions in citizenship law, newly founded states, and weak or corrupt governments can allow for statelessness to occur. However, statelessness often won’t occur without discrimination, whether direct or implicit, to substantiate it.
The Rohingya, a predominantly Muslim ethnic group largely situated in Burma and Bangladesh, are one explicit example of the link between statelessness and genocide. In Burma, they reside in the Rakhine state, home to around 120,000 internally displaced persons. In Bangladesh they situate in Cox Bazaar, home to Kutupalong refugee camp, housing 900,000 Rohingya stateless refugees (the largest refugee camp globally). Vy names three main points to the Rohingya genocide: racism, islamophobia, and rising ethno-nationalistic sentiments.
The 1982 Burmese Citizenship Law brings these three points to fruition. It is the domestic legal framework which disenfranchised the Rohingya from Burmese Citizenship. The Burmese State argue that the Rohingya are Bengali workers, thus not indigenous. However, the Rohingya argument is that they are indigenous to the land, therefore entitled citizenship. Whilst it is disputed about when they arrived, it has been agreed that the Rohingya in Burma trace back to pre-colonial days (at least 18th Century).
Article 3 of the Burmese Citizenship Law highlights how the document circulates around the idea of ‘national races’ (those living in the Burmese state prior to 1823AD), however excludes Rohingya. Whilst ‘Rohingya’ has never been mentioned in previous Citizenship Laws, the term ‘Arakan’ has appeared and is replaced by ‘Rakhine’ in the current law, Arakan being the previous name for Rakhine, the ancestral home of Rohingya. There has previously been flawed attempts of granting nationality to the Muslim population through identity cards, however, Vy argues there has been an intentional change in the new law, in a campaign to marginalise the Rohingya, pushing them to the peripheries of society, leading to persecution and genocide.
It has been widely reported that the Rohingya have faced a campaign of violence, dating back to 1978 with Operation Dragon King, where foreign nationals were violently screened out in a registration exercise. In 2017, Burmese military retaliated to ‘domestic terrorism’ by attacking Rohingya villages.
In 2019, Gambia, on behalf of the 57-nation Organisation of Islamic Cooperation put forth an application to the International Court of Justice against the Burmese State for violations of the Genocide Convention. On 23rd January 2020, the judgment recognised the right of the Rohingya people to be protected from genocide, directing the Burmese State to comply with measures protecting the group. This case has been ground-breaking in examining denationalisation relating to genocide.
Vy asks: as genocide is a jus cogens norm, can it be used to prevent statelessness, when viewing them as one in the same?
The Research for Change Forum earnestly thanks our speakers, Vy-Liam Ng and Sophia Soares, for their incredible insights into this fascinating topic. See you at our next event!
