THE ROHINGYAS: ASEAN’S EXAMPLE OF

HUMAN RIGHTS MOVING IN REVERSE

BY

MR SHERWAN JOMKHAMSING

AN INDEPENDENT STUDY SUBMITTED IN

PARTIALFULFILLMENT OF THE REQUIREMENTS FOR

THE DEGREE OF MASTER OF POLITICAL SCIENCE

(INTERNATIONAL RELATIONS)

FACULTY OF POLITICAL SCIENCE

THAMMASAT UNIVERSITY

ACADEMIC YEAR 2014

COPYRIGHT OF THAMMASAT UNIVERSITY

THE ROHINGYAS: ASEAN’S EXAMPLE OF

HUMAN RIGHTS MOVING IN REVERSE

BY

MR SHERWAN JOMKHAMSING

AN INDEPENDENT STUDY SUBMITTED IN

PARTIALFULFILLMENT OF THE REQUIREMENTS FOR

THE DEGREE OF MASTER OF POLITICAL SCIENCE

(INTERNATIONAL RELATIONS)

FACULTY OF POLITICAL SCIENCE

THAMMASAT UNIVERSITY

ACADEMIC YEAR 2014

COPYRIGHT OF THAMMASAT UNIVERSITY

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Independent Study Title THE ROHINGYAS:

ASEAN’S EXAMPLE OF HUMAN RIGHTS

MOVING IN REVERSE

Author Mr Sherwan Jomkhamsing

Degree Master of Political Science

(International Relations)

Major Field/Faculty/University International Relations (English Program),

Faculty of Political Science

Thammasat University

Advisor Professor Jaran Maluleem, Ph. D

Academic Years 2014

ABSTRACT

ASEAN still struggles significantly in implementing one of the most

fundamental necessity for its people, as prescribed in its own Charter of the Association

of Southeast Asian Nations (hereinafter referred to as ASEAN Charter) in the Preamble,

“… respect for and protection of human rights and fundamental freedom”. Its ambitious

goal of building a strong, cohesive and prosperous community in order to promote

development and prosperity for its peoples is critically challenged globally for its

inability to address serious issues regarding human rights in its region.

In this respect, the researcher would like to pick one of the thirty human

rights clauses, regarding the “Right to Nationality” as prescribed in the Universal

Declaration of Human Rights of 10 December 1948, Article 15, to construct this

research and assess it with one of the most current and controversial issue in ASEAN,

that is, the crisis of the Rohingyas in Myanmar. The people of Rohingyas have no

citizenship recognized by any state, no place to take refuge and the most alarming part,

no place to return to. With no national citizenship, the tribe is faced with inconceivable

hardships; they have become the human targets of various social injustices, having been

stripped of their basic human rights and along with them, their human dignity. Not only

does the statelessness of the Rohingyas affect Myanmar, it has caused hundreds of

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thousands of Rohingyas to flee from their land and seek refuge in neighboring countries

affecting the whole Southeast Asian region. As the regional organization, it is

ASEAN’s duty to address this issue. Astonishingly, ASEAN did not take serious

measures into resolving this issue. This raised various concerns and criticism of how

ASEAN is treating its human rights violator’s member countries or what is ASEAN’s

stance on issues as such. In this regards, this research will use the example of the current

state of the Rohingyas as the case study to elaborate the gap between the internationally

recognized term of human rights and the ASEAN’s perspectives on how the

organization has agreed to recognize it. Moreover, this research will discuss the reasons

preventing ASEAN from confronting such issues and predict if there are any

possibilities that these can change in the future.

Keywords: ASEAN, Rohinyas, Human Rights, Genocide, Ethnic Persecution,

Myanmar, Sovereignty, International Community

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ACKNOWLEDGEMENTS

I would like to take this opportunity to express my gratitude to Dr Jaran

Maluleem who has shown compassion in his teachings of Islam and the Muslim

brotherhood combining with International Relations, and has made possible for me to

work on a topic that has great interest to me. I would like to thank my professor and

mentor, Dr Pisawat Sukonthapan for her perceptions and passionate discussions in

regards to this topic during our dinner meetings. In addition, I would like to thank my

dear friend, Mr Kittipot Boochangkool who has shared his greatest concerns regarding

the seriousness of this issue to me since my bachelor degree.

My chapter in MIR would not have been complete without all the lovely

MIR 16 friends who have shared the time, the struggle, and the happiness together in

these two profound years. My special thanks to Sebastian Poggel without whom

studying would not have been this enjoyable, Mr Chawal Parwasuthikarn and Mr

Miguel Fuentes for guidance and assistance in terms of studies and the assignments that

we have completed together throughout the MIR years, and Mr Sandy Saluya for my

never-ending fountain of motivation.

Last but not least, I would like to thank my partner, Ms Saralee

Wacheeworasit and my family for their greatest and never-ending support for my

education, inspiration, and well-being. I dedicate all my achievements in life to my

mother, the hero of my life.

Mr Sherwan Jomkhamsing

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TABLE OF CONTENTS

Page

ABSTRACT (1)

ACKNOWLEDGEMENTS (3)

LIST OF ABBREVIATIONS (6)

CHAPTER 1 INTRODUCTION 1

1.1 Significance of the Problem 1

1.2 Research Questions 2

1.3 Research Objectives 3

1.4 Hypothesis 3

CHAPTER 2 REVIEW OF LITERATURE 5

CHAPTER 3 RESEARCH METHODOLOGY 7

3.1 Research Methodology 7

3.2 Theoretical Approach 7

CHAPTER 4 RESULTS AND DISCUSSION 10

4.1 Understanding the Structure of ASEAN and its Perception on

Human Rights 10

4.1.1 ASEAN’s Development and Drawbacks 10

4.1.2 The ASEAN Charter 11

4.1.3 The ASEAN Intergovernmental Commission on

Human Rights (AICHR) 14

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4.2 Case Study of the Rohingyas in Myanmar 15

4.3 Case Study Analysis 23

4.3.1 Universal vs. ASEAN’s perception of Human Rights 23

4.3.2 Right to Nationality of the Rohingyas 24

4.3.3 Interpretation of Legal Instruments 26

4.4 Examination of ASEAN’s Reality and Expectations 29

CHAPTER 5 RECOMMENDATIONS AND CONCLUSIONS 32

5.1 Recommendations 32

5.2 Conclusion 33

REFERENCES 35

BIOGRAPHY 40

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LIST OF ABBREVIATIONS

Symbols/Abbreviations Terms

AICHR

ACWC

ASEAN

EU

IDP

UDHR

ASEAN Intergovernmental Commission

on Human Rights

ASEAN Commission on the Promotion

& Protection of the Rights of Women &

Children

Association of Southeast Asian Nations

European Union

Internally Displaced People

Universal Declaration of Human Rights

UN United Nations

UNHCR United Nations High Commissioner for

Refugee

1

CHAPTER 1

INTRODUCTION

1.1 Significance of the Problem

The Universal Declaration of Human Rights (UDHR) created by the United

Nations - which is one of the principals that all ASEAN members upholds in accordance

to the ASEAN Charter, article 2 Principles, 2. (j) - has laid upon the 30 basic human

rights that every single human being is entitled to have for simply being a human

regardless of any political or social status. However, although ASEAN has vowed to

adhere to the protection of human rights (and showed progress) by establishing its

human rights body (Bangkok.ohchr.org, 2015), its capability to address any human

rights issue in its member countries is still far from being admissible.

Looking into this matter by legal aspects, this research shall outline the

current ASEAN constitution and its established bodies that concern human rights and

this matter. It will closely examine what ASEAN has constituted in regards of human

rights and what practices are preventing it from confronting this issue. Using the case

study of the Rohingyas, the research will explore the background history of the issue,

understanding the roots and history of the tribe, their living conditions in Myanmar, the

outbreak of the events which led to the crisis as we know today, and Myanmar’s

reformation (in its political and economic transition) which is turning a blind eye in the

human rights abuses in its own state. Lastly, by observing the approaches and actions

taken by ASEAN and evaluating with its outcome, the research may question into what

might be a direction to resolve this humanitarian crisis in the region.

The researcher would like to develop a research that can contribute a new

variable, challenging to the reality of ASEAN, but at the same time be possible to

happen (even though it will not be practical in the near future). The research’s variable,

in some sense, must have immediate impact on both ASEAN and the country that the

matter is concerned. In this modern age of globalization where ASEAN is committed

to form into a regional economic community by 2015(Asean.org, 2015), if ASEAN still

2

chose not to seriously commit to addressing the human rights issue in its region, it will

definitely attract more criticism and lose its credibility in the international stage.

After reviewing the actions that the international community and various

international humanitarian organization has responded to this nationality issue

concerning the mass killing and dehumanization of the Rohingyas in Myanmar from

various internet sites and newspapers, one may question what are the measures that can

be taken to prevent such crisis which is currently happening in our modern society.

Some of the proposed solutions that the researcher came across for this issue includes

applying economic sanctions to Myanmar so that the country will alter its behavior

(John, 2009), or for the country to seek and allow assistance from humanitarian

organizations such as the United Nations High Commissioner for Refugee (UNHCR).

It is true that more than a million Rohingyas are currently present in Rakhine state in

Myanmar and along the borders of Bangladesh; many are trying to travel by boat to

Thailand and Malaysia (Radio Free Asia, 2015), all barely surviving on a day to day

basis. Even with the help of UNHCR and other humanitarian organizations, they can

only aid up to not more than 400,000 refugees in their programs (Refugees, 2015). The

bottom line, therefore, is not solving the problem at the surface, however, search for a

concrete guideline to understand and (hopefully) contribute into a reference that the

studies of ASEAN can use to develop in the future.

This research paper will closely examine how ASEAN (as the regional

organization) has responded to Myanmar, both formally and informally, in resolving

this issue.

1.2 Research Questions

The research will also focus on the below mentioned research questions

that might help guide to understand the reasons of the actions and inactions of ASEAN:

1. Why is ASEAN not addressing the crisis of Rohingyas although the

protection of human rights is the fundamental clause of the ASEAN Charter?

2. According to ASEAN, is the human rights violation in regards of the

Rohingyas categorized as a Political-Security issue or a Socio-Cultural issue? What are

the differences and its affects?

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3. How can ASEAN address and approach Myanmar’s Rohingya issue

without offending the country’s sovereignty?

1.3 Research Objectives

To understand the structure, values, and norms of ASEAN as a regional

organization. In addition, examine its strong points, weaknesses, and limitations of

addressing non-compliance of its member states.

To understand the written legal bodies of ASEAN including its constitution

and human rights bodies and evaluate its effectiveness.

To benefit researchers who are interested in learning about the legal

framework of regional organizations.

To use the case study of the crisis of the Rohingyas to assess ASEAN’s

stance in terms of human rights violation in the region. This research place serious

concerns regarding human rights abuse in the society in our modern society.

1.4 Hypothesis

In answering the above-mentioned questions, the hypothesis of the research

is formulated as simple predicted answers that could also explain the questions

accordingly. The direction of the discussions will be based upon the ASEAN’s

constitution, The ASEAN Charter. In addition, some key differences in the ASEAN

Intergovernmental Commission on Human Rights (AICHR) under the ASEAN

Political – Security Blueprint, and the ASEAN Commission on the Promotion &

Protection of the Rights of Women & Children (ACWC) under the ASEAN Socio –

Cultural Blueprint will be pointed out to see how (and why) ASEAN addressed the term

“Human Rights” differently in both blueprints and what are the effects of doing so.

1. ASEAN upholds the general principle of non-interference (ASEAN-

Way) more than the unenforceable clause to protect human rights.

2. According to the views of ASEAN, the human rights violation of the

Rohingyas in Myanmar is a Socio-Cultural issue.

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3. The statelessness crisis of the Rohingyas could be resolved by the

establishment of a Human Rights mechanism that can issue and enforce specific

policies and regulations that are mutually agreed upon by all ASEAN members.

5

CHAPTER 2

REVIEW OF LITERATURE

One of the limitations of this research is that, although the human rights

violation of the Rohingyas has been one of the most controversial topics of this decade,

there are very few books written in regards to it, let alone any connection with this topic

to ASEAN. Although the social injustice and inhumane treatment of the tribe has been

ongoing for decades since the citizenship law, the wake of the crisis has only occurred

in 2012. Therefore, Ahmed Jilani’s, A cultural history of Rohingya and Greg

Constatine’s, Exile to Nowhere, Burma’s Rohingya only gives the information

regarding the background and hardship of the tribe. There are no insight books linking

or analytically criticizing this crisis in Myanmar with the international community yet.

Fortunately, the researcher was able to locate two books in Thammasat’s

library which touched some aspects of this topic. The first book is Barak Kalir and

Malini Sur’s Transnational Flows and Permissive Polities (Enthnographies of Human

Mobilities in Asia) which compared migration workers from different parts of the world

in the post-imperial age. The book concluded in regards of the Rohingyas stating that

modern liberal state, governed by the rule of law, must seek to use legal instruments in

the management of its population (Kalir and Sur, 2012). Similarly, the second book,

Tang Lay Lee’s, Statelessness, Human Rights and Gender (Irregular Migrant Workers

from Burma in Thailand) concluded that the absence of regional instruments and low

number of ratifications to the conventions on statelessness indicate that the protection

of stateless persons in South East Asia has to be sought under international instruments

(Tang, 2005). The two books similarly focused on the migration and stateless issues of

the Rohingyas with its neighboring country and concluded with the requirement of the

state and region to engage in legal pathways to deal with the issue. This is however, not

practical in the foreseeable future considering ASEAN’s pace in handling with this

issue, yet, it is not impossible in the studies of international relations. As the literature

is scarce regarding this topic, the researcher shall focus more from the institutional

perspectives referring to the ASEAN’s constitution, the ASEAN Charter, and its two

established human rights

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body; the ASEAN Intergovernmental Commission on Human Rights (AICHR) and

ASEAN Commission on the Promotion and Protection of the Rights of Women and

Children (ACWC). The research shall analyze the clauses and implementation of the

clauses in the abovementioned documents. Moreover, this research will refer to the

discussion paper of Regional Expert Roundtable on Good Practices for the

Identification, Prevention and Reduction of Stateless Persons in South East Asia

conducted by the National Human Rights Commission of Thailand and the United

Nations High Commissioner for Refugees (Refugees, 2015), and the publication of Dr

Sriprapha Petchramesree, The Human Rights Body: A Test for Democracy Building in

ASEAN as guidance in assessing ASEAN’s human rights bodies and what are the

necessary frameworks into creating an effective human rights body that would be

agreeable, practical, and enforceable among the member states of ASEAN.

The relevant topics that this research has touched upon in order to

understand the root of knowledge includes, why legal bodies are important when

dealing with states or international actors, why use Neoliberal Institutionalism to assess

and propose the solution for this issue, and human rights in its general meaning and the

importance of human rights in the society. Philosophy of Law written by Dr Somyos

Chuathai has included various important theories of great historic philosophers

explaining the history of law and legal bodies in the making. This book has also outlined

the importance of using law as the tool to solve issues that is accepted by the public

without the interference of passion and discrimination.The Meanings of Rights, The

Philosophy and Social Theory of Human Rights of Costas Douzinas depicts the essence

of how the society has perceived the term human rights since its origin and development

until the term which is used in today’s modern society. This book accurately debated

the gap of the term of human rights in its theoretic meaning and how the reality is. As

this research emphasized ASEAN as the main actor, International Relations in

Southeast Asia, The Struggle for Autonomy of Donald E. Weatherbee explains the

current situation of ASEAN’s development as the regional organization and its struggle

for harmonization, and unification of the ten member states who are diverse in their

history, background, culture, norms, practices, national interests, alliance, domestic

issues and international issues in the international community.

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CHAPTER 3

RESEARCH METHODOLOGY

3.1 Research Methodology

The research study will be conducted using a qualitative approach relying

on both primary and secondary sources focusing in depth on ASEAN constitution and

its human rights bodies, and the Rohingyas tribe of Myanmar. The first aspect will focus

on understanding ASEAN and its prospect of developing a human rights mechanism

for the organization. In this regard, I would like to conduct interviews with professors

specialized in ASEAN and International Law for new and different perceptions of

establishing a legal entity or mechanism of the organization. The second aspect is to

truly understand what is happening to the people of Rohingyas and what future do they

see in this time of crisis. The secondary sources of information are from journals,

literature, and news from newspapers and the internet regarding the crisis of the

Rohingyas.

3.2 Theoretical Approach

This research uses the Neoliberal Institutionalism (Neoliberalism) as the

theory/ approach to analyze and recommend the solution for the issue. The core of this

theory derives from the original Liberalism theory. This theory emphasizes on human’s

capacity to rationally learn from past mistakes resulting as the possibility of progress.

It places weight on human’s faith in reasoning and rationality because it believes that

human being are truly good in their nature and thrives to pursue means in acquiring

better peace, stability, and justice for its kind. Combining these essences through

toleration and justice, human race can win over their fear and the lust of power in the

anarchic and chaotic nature of global governance. World politics is nothing but the

product of different ideas of leaders in the international community. The changes of

trends that accepts new ideologies defining what is socially and morally acceptable in

any given era brings about changes in the fabric of the

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international community throughout the history of mankind. However, these changes

are most effectively put to force by the creation of acceptable norms and institutions

that can regulate the anarchic system. Neoliberalism focuses on the important role and

beneficial impact of international institutions. The international institutions can act as

the arena in which states and/or members can interact and cooperate to solve common

problems collectively through different means (such as arbitration, negotiation,

mediation, etc.) as long as the arena can serve as the tool for conflict prevention.

Cooperation can lead to progress because actors are given the space to learn about their

mistakes and gain mutual understanding through dialogues. Moreover, cooperation

with different actors intensifies greater and more complex interdependence among

actors causing them to be more reluctant in turning away from the agreed norms of the

institution. In this sense, the atmosphere has created a dilemma for the actors to choose

between the better benefit of what they could have received by complying with the

agreed norms, and the losses of noncompliance. Even when the institution is put into

place, it can still further improve in its effectiveness by the enforcement of

accountabilities for the negative consequences that the members have caused. It creates

a framework and guideline in which the actors can follow for peace and collaboration.

In context, the global governance is the sum of different international

institutions whose reason for being is the management of transnational problems in a

peaceful, humane, and most of the time legal way. In this sense, any regularized set of

expectations or behavior is an institution,” (Baylis and Smith, 2001). Needless to say,

ASEAN too, is an institution established for mutual goals of prosperity in various

aspects for its members and for the region. A state can aspire to make substantial

improvements in the global condition. This can be seen in Myanmar’s eagerness for its

reformation during the past decade (BBC News, 2015). Moreover, Neoliberalism points

that under the conditions of globalization, the states will change its behavior to adapt

with the international community for the enhancement of the state’s economy. The

interconnectedness factor of globalization will boost the formation of deeper level of

interdependence among states.

In ASEAN’s case, we can clearly see how the region has already signed up

to form a regional community after the Asian financial crisis in 1997 (Iem.ro, 2015).

9

This is because the members together saw a weak spot in the economic

sphere of the region and responded to it. Although the process took more than a decade,

a solution was embodied using the Neoliberal approach. It is a matter of time before

very critical humanitarian issues (such as this) in the region will mark a new scar in the

region’s reputation and affect its stability, economic and security. When the time

comes, ASEAN will have to collectively again turn to form an affective mechanism to

solve the problem as a region. Although ASEAN has recently established its own

human rights body, the objectives lain down are too vaguely written which does not

require formal prescription or enforcement by the member countries. Moreover, the line

is not drawn on how to address the issue in the event that any member state violates the

human rights within its territory.

Nevertheless, we may monitor into how ASEAN concerns regarding its

image, reputation and collective identity. The ASEAN Charter has clearly stated for the

member to respect for fundamental freedoms, the promotion and protection of human

rights, and the promotion of social justice. Although currently the states are to uphold

the principle of non-interference firmly, there are no doubts that this norm, will too,

weakened in time after the formation of the community. As the result, humanitarian

crisis (as such) will be tackled with an enforcing institutionalized body from the

organization, reassuring the international stage that ASEAN is not only an organization

with concerns for economic integration but also the integrity and dignity of human

rights.

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CHAPTER 4

RESULTS AND DISCUSSION

4.1 Understanding the Structure of ASEAN and its Perception on Human Rights

4.1.1 ASEAN’s Development and Drawbacks

Association of Southeast Asian Nations (ASEAN) formed on 8th August

1967 currently consists of ten Southeast Asian countries including Brunei, Cambodia,

Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Vietnam.

These smaller states were not recognized as major powers throughout the course of

history. However so, since its commitment to integrate into a region and single market,

all these ten member states combined as one organization has formulated ASEAN to

become a unique political and economical bloc of significant importance in the

international arena. With the population of over 600 million people, the combined GDP

of more than 2.3 trillion US dollars, and the geographic location situated in the middle

of Indian Ocean, Pacific Ocean and South China Sea, ASEAN has marked its

importance in the international community in terms of trade and economy, alliances,

sphere of influences, military strategic location, partnership and more. Although

ASEAN is still not seen as a power, it has shown in the past decades that it has become

the bloc that has been able to influence the major powers such as United States, China,

and Japan in their foreign policies and international relationship toward each other, and

also towards ASEAN. However, ASEAN still struggles significantly into becoming a

solid organization due to lack of common dialogue, enforceable norms, and

continuation of common practice.

The organization suffers from weighing the conflicting importance of

regional multilateralism and at the same time not losing grasp of its solidarity, the

ASEAN Centrality. ASEAN members itself has not reached the stage of solid

unification among each other. There is a very far gap of development and connectivity,

conflicting national and international interests, and level of trust among the members

of ASEAN. The organization pursues to integrate for common goals, yet, lacks the

common enforceable mechanism in order to acquire such goals. With this in mind,

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ASEAN struggles as an organization to maintain strong relationship with each other,

the member states also has their own agendas, practices and various bilateral

agreements with other outside states. One of the most problematic issues of ASEAN is

how to address any wrongdoings of their member states that is hindering ASEAN in its

path of development. In this regards, the concern of human rights abuses is definitely

in the spotlight and is critically challenged by the international community. To remedy

serious issues in the region, ASEAN turns to its most fundamental value of using

“communication” as its main tool to establish stages and platforms to create

opportunities for members and outsiders to come together and discuss such issues.

Although in most occasions, serious matters or issues were not put on the table or raised

on these events, this mechanism has, to a certain extent, assisted in promoting

interactions of these actors under the roof of ASEAN. Nevertheless, to confirm the

seriousness of regional integration, ASEAN has confirmed of its legal status and set out

its legal body as the framework of the organization. This research shall therefore, assess

the legal framework – which is given weight as the most concrete material of the

organization - of ASEAN in questioning and challenging its loopholes in regards to

why issues such as human rights abuses is not, and may not, be addressed from

ASEAN’s perspective.

4.1.2 The ASEAN Charter

The ASEAN Charter was adopted as the constitution for the ASEAN at the

13th ASEAN Summit in November 2007 (Asean.org, 2015). The purpose was to lay a

concrete foundation for this association which has existed for more than 40 years with

no written constitution. The Charter aims for ASEAN’s integration and transformation

to become a community emphasizing on 4 main focuses:

1. respect for the independence, sovereignty and territorial integrity of

member states;

2. peaceful settlement of disputes;

3. non-interference in member states internal affairs; and again

4. the right to live without “external interference.

ASEAN confirmed of its legal personality in its Article 3 of the ASEAN

Charter that, “ASEAN, as an inter-governmental organization, is hereby conferred legal

12

personality.” In addition, it has set forth its rights and obligation, hence its duty in

Article 5 (3), “In the case of serious breach of the Charter or non-compliance, the matter

shall be referred to Article 20.” Unfortunately, the Article 20 (1, 2, and 4) under

Consultation and Consensus has laid out very shortcoming practices which are below

the international standards which states, “1. As a basic principle, decision-making in

ASEAN shall be based on consultation and consensus”, “2. Where consensus cannot

be achieved, the ASEAN Summit may decide how a specific decision can be made,”

and, “4. In the case of a serious breach of the Charter or noncompliance, the matter shall

be referred to the ASEAN Summit for decision.” This particularly means that an issue

would have to be put on hold until it can be brought up formally in an ASEAN Summit

which is held only once a year and all members must agree to it as a serious matter of

concern by consensus to then address the issue. If these steps did not follow through,

the issue will have to be put aside and then (possibly) be addressed again the following

year in the following pattern.

The main reason for such practice is because ASEAN projects a family

image, preferring inclusion and compromise to isolation and judgment, the ASEAN

Way (Masilamani and Peterson, 2014). The ASEAN Way can be described as a

distinctive and agreed approach of ASEAN members. This approach is based on shared

and acceptance of common behavioral norms (Weatherbee and Emmers, 2005). Any

disputes over member states' behavior will be dealt with on the basis of consultation

and consensus is the principles that ASEAN holds dear. This custom is strictly

embedded in the heart of the Charter, “Respecting: the fundamental importance of

amity and cooperation, and the principles of sovereignty, equality, territorial integrity,

non-interference, consensus and unity in diversity.” Fortifying the norm, Article 2 (2),

the Principle states, “ASEAN and its Member States shall act in accordance with the

following Principles: (a) respect for the independence, sovereignty, equality, territorial

integrity and national identity of all ASEAN Member States; (e) non-interference in the

internal affairs of ASEAN Member States; (f) respect for the right of every Member

State to lead its national existence free from external interference, subversion and

coercion; and (g) enhanced consultations on matters seriously affecting the common

interest of ASEAN.”

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Nevertheless, the Charter still acts as a milestone of a concrete structure

that has value to set a clear and focused direction for ASEAN, the first time in forty-

one years of the organization’s history. This structure has laid the framework to address

non-compliance with agreements and settle disputes in an objective and binding matter.

Without this Charter, ASEAN would not have the agreed-upon criteria for its members

to account for adverse impacts. As mentioned earlier, the Charter is legally binding, as

all ten member states ratified it before the 14th ASEAN Summit in December 2008.

Myanmar also ratified this Charter on 18 July 2008(Reuters, 2015); meaning that all

the provisions stated in the Charter are binding to the country too and it shall be retained

accountable for its illegal actions in region.

In terms of human rights, the ASEAN Charter has set forth its principles as

follows: Preamble of ASEAN Charter: “ADHERING to the principles of democracy,

the rule of law and good governance, respect for and protection of human rights and

fundamental freedoms.”

Article 1 Purposes: “7. To strengthen democracy, enhance good

governance and the rule of law, and to promote and protect human rights and

fundamental freedoms, with due regard to the rights and responsibilities of the Member

States of ASEAN, 11. To enhance the well-being and livelihood of the peoples of

ASEAN by providing them with equitable access to opportunities for human

development, social welfare and justice.”

Article 2 Principles: “2. ASEAN and its Member States shall act in

accordance with the following Principles: (i) respect for fundamental freedoms, the

promotion and protection of human rights, and the promotion of social justice; and (j)

upholding the United Nations Charter and international law, including international

humanitarian law, subscribed to by ASEAN Member States.”

The ASEAN Charter demanded a Human Rights body in Article 14: “1. In

conformity with the purposes and principles of the ASEAN Charter relating to the

promotion and protection of human rights and fundamental freedoms, ASEAN shall

establish an ASEAN human rights body. 2. This ASEAN human rights body shall

operate in accordance with the terms of reference to be determined by the ASEAN

Foreign Ministers Meeting.”

14

The Charter caused various controversies, as the principles of non-

interference and human rights mentioned-above contradict each other. Although we can

see that they are various clauses which considered to adhere the protection of human

rights in the region, the principles regarding the non-intervention rule out the

possibilities to address these issues in an effective or timely manner. The Charter does

not authorize ASEAN (as the regional organization) to have the power to impose

sanctions or punish countries that violates the clauses set out and, would therefore, be

limited in effectiveness. As Article 14 provided that ASEAN must have a human rights

body, the ASEAN’s newer members including Cambodia, Laos, Myanmar and

Vietnam were reluctant and protested against the formation of a functional ASEAN

Human Rights body which might lead to accusations of human rights abuse within their

borders. Moreover, these states view that these constructions might lead to attempts by

outsiders to pursue their own interests in various possible aspects within their borders.

Non-interference, in this regard, is given weight for its ability to preserve the

domination and manipulation of weaker members by more powerful members.

Notwithstanding, the terms were agreed upon leading to the establishment of ASEAN

Intergovernmental Commission on Human Rights (AICHR) on the ASEAN Summit 23

October 2009 (Aichr.org, 2015).

4.1.3 The ASEAN Intergovernmental Commission on Human Rights

(AICHR)

In reference to the ASEAN Charter, the AICHR turned out to only

“promote and protect human rights” as clearly stated in its Article 1, Purposes. The

Terms of Reference of the AICHR states in the Principle clauses as follows: “The

AICHR shall be guided by the following principles: 2.1 Respect for principles of

ASEAN as embodied in Article 2 of the ASEAN Charter, in particular: a) respect for

the independence, sovereignty, equality, territorial integrity and national identity of all

ASEAN Member States; b) non-interference in the internal affairs of ASEAN Member

States; c) respect for the right of every Member State to lead its national existence free

from external interference, subversion and coercion; 5 ASEAN Intergovernmental

Commission on Human Rights; d) adherence to the rule of law, good governance, the

principles of democracy and constitutional government; e) respect for fundamental

15

freedoms, the promotion and protection of human rights, and the promotion of social

justice.”

The Principles of AICHR, again, return to the norms of non-interference

among the ASEAN members laid in the ASEAN Charter rendering the body to have

absolutely no enforcement power (NewsDesk, 2013). The definition of promotion and

protection, hereby only include raising awareness, advising, sharing information, and

advocating to the member states. It cannot pass judgments regarding the violation of

human rights in the region or of the member states. There is no mention of any enforcing

power or even the ability to address country-specific human violations.

4.2 Case Study of the Rohingyas in Myanmar

The crisis of the Rohingyas and its prolonged tragedy is one of the examples

demonstrating the results of ASEAN’s practices and the ineffectiveness of its human

rights’ bodies. To truly understand the cause of the issue, we would have to trace back

to the roots of the Rohingyas and understand the history which leads to the crisis as we

know today. The “Rohingya” is a generic term which is an Islamic tribe that has been

mentioned to live in the northern Rakhine state in western Burma - officially known as

Republic of the Union of Myanmar, commonly shortened to Myanmar (Szczepanski,

2015) involving in a long history of isolation from the rest of the country until today.

Their origins are variously debated as mixed Muslims including the Arab traders

settling into the area in the 7-8th century, to the Moors, Turks, Persians, Muguls, and

Pathans. In Myanmar, a majority Buddhist nation, the Rohingyas are more likely to say

they are “Muslim” than to identify themselves with a particular ethnicity. Their

population expanded with the Muslims from India and Bangladesh migrants who

migrated to the area during the British Rule in the sub-continent from 1858 to

1947(Refugees, 2015).

In Truth & Rights: Statelessness, Human Rights, and the Rohingya, Patrick

Balazo has done a thorough research in the background of the Rohingyas which will be

be used as reference in this research. The origin of Rohingya population has had a

deeproot within the history of Myanmar long before any of the current issues have

emerged. One of the earliest records of Rohingya may have been found in Arakan or

16

what is now known as Rakhine state of Myanmar. In 1401, the then king of Arakan,

Narmeikhla, defeated in an attack against the neighboring Burma and sought asylum

within the Muslim Bengali ruler Jalaluddn Shah. By 1430, the Muslim Bengali ruler

returned Narmeikhla to Arakan as its ruler, reaffirming its Islamic influence over the

region. Arakan had then retained its independence as an Islamic kingdom for over a

few centuries until 1784 where the king of Burma, Bodawpaya defeated and subjugated

Arakan. Through the incorporation of the defeated state, its Muslims took flight to

Bengal – Bangladesh – 200,000 Muslims left the state. By just over a decade, in 1789,

two-thirds of Arakan’s Muslims had abandoned their homeland.

It should be noted that the term “Rohingya” may have originated from the

term “Rooinga” meaning “natives of Arakan”, this term was used among the

Mohammedans, those who have long settled in Arakan, to call themselves. In 1824,

after the British invasion of Burma and in 1826, with the Treat of Yandobo, Arakan

was made into a British Territory. The state of Arakan became a more stable and

hospitable place for the Rohingyas prompting many who have fled to Bengal to migrant

back to their home. However, under the British’s government, Bengali farmers were

encouraged to settle in Arakan to increase its agricultural productivity for export. The

movement of Bengali farmers undermined the impact and the historical presence of the

Ronhingyas in the Arakan region. Followed by the Second and Third Anglo-Burmese

wars, Burma was to become a province of India, a large Indian population poured into

the region furthering the confusion and slowly dissolving the Rohingyas of their legacy

and history. They later became labeled as “Indian Muslims” through new colonial rules.

Although, there had always been tension between the Buddhist and Muslim

communities within Burma, it became more pronounced in 1930 and 1938 with the

“Anti-Indian riots”. Many Burmese had felt they could not afford the same social and

economic opportunities as their Indian counterparts. With the Rohingyas being legally

labeled as “Indian Muslims”, they shared the same treatment as the “Indian Muslims”

population, as their persecution began to escalate. On 4 January 1948, Burma succeeded

in getting back its independence and sovereignty as a State from the British, Anti-

Fascist People’s Freedom League (AFPFL) was left in charge of the State. Under the

leadership of Prime Minister U Nu and the AFPFL, the Rohingyas were recognized as

citizens of Burma. However, the coup d’état staged by General Ne Win in 1962 forever

17

changed the fate of the people of Rohingyas. Ne Win announced that the Rohingyas are

“Indian Bengalis” who migrated to Burma after the first Anglo-Burmese war. This

declaration has spurred a lot of legal acts against the Rohingyas: movement restriction,

outlawing Rohingya organizations and discontinuing all their language programs. With

the most infamous passing of the bill, the Emergency Immigration Act, it effectively

and underhandedly stripped the Rohingyas of their Burmese nationality by replacing

their national registration certificates with foreign registration cards (Balazo, 2015).

Since then, the tribe has been an integral part of Burma tripling in

population from 58,000 in 1871 to 178,000 in 1911.However, by year 1977-1978, the

Rohingyas was crucially violated of their human rights under the regime of military

junta, driving over 200,000 Rohingyas to Bangladesh, 12,000 of whom died due to

starvation and many were deported back to the northern area of Rakhine state. The

spark of the most recent cruelty started by 1982 with the Burmese government, under

the regime of military junta, excluded Rohingyas from retaining their Burmese

citizenship. They were rendered stateless by the Burma Citizenship Law of 1982 which

effectively denied the Rohingyas recognition of their status as an ethnic group

(Refugees, 2015).

The military junta considered these people as recent migrants from

Bangladesh. Chapter II of the Burma Citizenship Law 1982 clearly excluded the

Rohingyas from the ethnic group as follow: “3. Nationals such as the Kachin, Kayah,

Karen, Chin, Burman, Mon, Rakhine or Shan and ethnic groups as have settled in any

of the territories included within the State as their permanent home from a period

anterior to 1185 B.E., 1823 A.D. are Burma citizens.4. The Council of State may decide

whether any ethnic group is national or not.”

Immigrants that settled in Myanmar before its independence in 1948 are all

considered as legal immigrants. Other immigrants must prove their ancestors origin

before 1948 or else they are considered as illegal immigrant. There are no means for

the Rohingyas to prove their identity or national status under the 1982 Citizenship law

which demands evidence, documentations and proof of their living in Burma before

1823. Their available nationality papers, family list, and IDs have been burnt into ashes

or seized away by the government officials throughout the course of their existence in

Myanmar. In addition to that, the Rohingya are not recognized to have civil rights,

18

official recognition, or justice. The government of Myanmar has denied providing any

form of recognition, moreover, stripped off the rights to acquire citizenship to the

approximately one million population of the Rohingya residing in the Rakhine state

near the Myanmar-Bangladesh border.

Moreover, the Burma Citizenship Law 1982 was declared under the reign

of the dictator General Ne Win who was against all international treaties and the

Universal Declarations of Human Rights (UDHR). This law violates the Burma Union

Citizenship Act 1948 when Burma won independence which states: “(2) Any person

descended from ancestors who for two generations at least have all made any of the

territories included within the Union their permanent home and whose parents and

himself were born in any of such territories shall be deemed to be a citizen of the Union

(Burmalibrary.org, 2015).”

From this point onwards, the group has been the target of unjust behaviors

violating every means of Human Rights: on-going inhuman treatment, mental and

physical torture, intimidation, harassment, life threatening, forcing to confess as

Bengali race, massive home eviction by arson and ravaging in private properties. As a

result of not having the nationality to be protected by the domestic law, the Rohingyas

are confronted with other forms of persecution, discrimination and exploitation. These

includes (but are not limited to) forced labor, extortion, restriction on freedom of

movement, the absence of residence rights, inequitable marriage regulations and land

confiscation. The Rohingyas also have limited access to secondary and tertiary

education as well as other public services. As the Rohingyas does not have the capacity

to wage war with the center and does not have links with any respective communities

unlike Shan, Chin, Kachin and Mon, their lack of networks and channels to help deal

with the issues in their community has result as being neglected from the international

community.

The military junta maintains a clearly articulated stance on the Rohingyas.

In a press release issued by the Ministry of Foreign Affairs of Myanmar on 26 February

1992, the government declared: “In actual fact, although there are [135] national races

living in Myanmar today and the so-called Rohingya people is not one of them.

Historically, there has never been a ‘Rohingya’ race in Myanmar” (Kyaw, 2008). As a

result of such deprivations, large numbers of Rohingya have left Myanmar and have

19

been forced to migrate to Bangladesh, Thailand, India, Pakistan, Saudi Arabia, and

Malaysia. While there is a general lack of precision with respect to the number of people

involved, there are estimated to be up to 400,000 Rohingyas in Bangladesh, 200,000 in

Pakistan, 20,000 in Thailand and 15,000 in Malaysia. United Nations High

Commissioner for Refugee (UNHCR) estimates some 1,477,500 Rohingyas (including

other possible IDPs) remain in northern Rakhine state and other parts of Myanmar

(Refugee, 2015).

Myanmar recently held their national census through 30 March to 10 April

2014, first time in 31 years (The Guardian, 2014). However, controversies occurred

when the officials did not count the population of the Rohingya Muslims in the Rakhine

state. The household who identified themselves as “Rohingya” or “Muslim” were

ignored and not counted in the census. Official reported that doing so might be

perceived as a step toward granting them citizenship (Tonkin, 2015).

The conflict that decided the Rohingyas’ fate is a deep-rooted turmoil that

has resulted in years of ill will that eventually drove a wedge into the long-standing

community of the Rakhine state. The said conflict is the difference in faith, due to

mistrust, misunderstanding and discrimination. There had always been some kind of

segregation within the state between the Muslims and the Buddhists. The Muslims, as

a minority, has largely been the target for persecution solely on ground of accusations

of conspiring to overtake the entire area of Rakhine as their own. The accumulation of

these hatred and discrimination for decades among the Buddhist of Myanmar in

Rakhine State towards the Muslim minority of Rohingya, sparked into a raging violence

in 2012. This event was the trigger that brought out the name of Rohingya to be heard

and recognized (even by few today) by the international community. The incident took

place on May 28, 2012 when three Muslims raped and murdered a Buddhist woman in

the state of Rakhine. On June 3, 2012, few days following the incident, a group of

Buddhists stopped a bus, dragged approximately ten Muslims passengers to the street

and beat them to death(OpenDemocracy, 2015).The event has put the entire community

of Burmese Buddhists on edge and drove them to take an extreme measure on the entire

community of innocent Rohingyas Muslims. One can only recognize the violence

against the Muslims in the Rakhine state as ethnic cleansing and genocide in Myanmar

(United to End Genocide, 2015). The event was the tipping point which erupted as the

20

ethnic riots across the Rakhine state. The Buddhist launched coordinated attacks against

the Muslims villages and neighborhood in the state. Moreover, local governmental

authorities aided the Rakhine extremists in destruction of the Rohingya villages playing

a leading role in targeting Rohingya through mass arrests and arbitrary violence. Houses

were burnt down and the Muslims caught by the extremists were shot, speared, hacked,

and in some cases lynched. On 10 June 2012, President Thein Sein declared a state of

emergency in the Rakhine State after the deadly clashes between Buddhist and the

Rohingya. The whole villages have been totally destroyed. As of 14 June 2012, over

2,500 houses were burnt to the ground. According to Tun Khin, the President of the

Burmese Rohingya Organization UK (BROUK), as of 28 June 2012, 650 Rohingyas

have been killed, 1,200 are missing, and up to 140,000 people have been

displaced(Hindstrom, 2012).

On 12 July 2012, President Thein Sein tells the UN High Commissioner for

the Refugees that the government will take responsibility for its own ethnic

nationalities, but it is “not at all possible to recognize the illegal border-crossing

Rohingyas who are not our ethnicity”. Thein Sein alleged that the “Bengalis were

brought into Burma to work as farmhands by the English colonialists before the

[country’s] independence in 1948”. The president then asserted that in accordance with

Burmese Law, “only a third generation [immigrant] descended from those who came

into Burma before 1948 are recognized as a citizen.” He said that the Rohinyas as pose

a threat to national security and that they should be resettled in any third country that is

willing to take them. He further continued, "The solution to this problem is that they

can be settled in refugee camps managed by UNHCR, and UNHCR provides for them.

If there are countries that would accept them, they could be sent there. This is what we

are thinking is the solution to the issue (DVB Multimedia Group, 2012)”. This proposal

was immediately rejected by the agency. U.N. High Commissioner for Refugees,

Antonio Guterres, rejected the proposal, telling reporters that resettling or taking care

of the Rohingyas in camps is not the refugee agency's job. The U.N. says Rohingyas in

Myanmar are displaced within their own country and insists they be treated as citizens.

The total number of Muslims killed in Myanmar since June 3, is estimated to be about

52,000 but the exact numbers of Muslims killed is still unknown because the

government has not allowed independent investigations, no UN or Human Rights

21

activists or media has been given access in the affected areas since the violence began

(Bangladeshcorruption, 2012).

The outbreak of violence and riots in 2012 between the Muslim minorities

Rohingyas, the Buddhists, and other population of Rakhine state have led to the

casualties of approximately 52,000 Rohingyas killed, 160,000 displaced, and all their

previous residence and villages burnt down. It did surely catch the attention of the

international communities and organizations criticizing Myanmar of its cruelty and

responded for the country to take action. Many organizations has led in their hand to

help with providing food and shelter to the displaced and stateless people and many has

provoked various important responses to the violence since June 2012. The twelve (12)

Rohingya Organizations that were established in the past decade include as follows:

Rohingya Concern International (RCI), Burmese Rohingya American Friendship

Association (BRAFA), World Rohingya Congress (WRC), Rohingya Arakanese

Refugee Committee (RARC), Arakan Rohingya Organization-Japan, Burmese

Rohingya Association in Queensland-Australia, Rohingya Muslim Organization

(RMO), Rohingya Youth Development Forum (RYDF), Arakan Rohingya Ulama

Council (ARUC), Ethnic Rohingya Committee of Arakan (ERCA), Human Rights

Association for Rohingyas (HURAR), and Myanmar Muslim Council (MMC), Saudi

Arabia. Their aims are to voice the injustice for the victims of Rohingya’s regarding

their legislation of laws pertaining to citizenship denial, statelessness, human rights,

slow burning genocide, racial discrimination, human trafficking and ethnic cleansing

activities in Myanmar.

As the Rohingyas become striped of their nationality and citizenship, their

very existence is undermined by the State in which they used to belong. It should be

noted that statelessness can be grave, not only are they not recognized, the fact that they

are unrecognizable or refused to be recognized under law means they are easy targets

for violence and exploitation. Having been ousted by its own native land and shunned

by its former government, the Rohingyas stand to face more hardships as their

countrymen have rejected them on the basis of their culture and identity, left with no

rights and defenseless, fueled by the tension of the ethnic and religion differences, they

are at risk of genocide, a number of experts fear. With the unwelcoming sentiment from

their former State, the Rohingyas have but 2 choices: to stay and be persecuted or flee

22

and risk losing their lives at sea. In the recent events, there have been multiple reports

of Rohingyas dying at sea, gathered in camps and/or falling prey to human trafficking.

The conditions of life have progressively worsened since the eventful day of mass

exodus. It has been estimated that around 100,000 Rohingyas have fled Myanmar, some

have attempted to flee to Thailand and Malaysia. Thailand has had a history of rejecting

Rohingyas in 2009, 2011 and 2013 whereas Malaysia has mostly permitted Rohingyas

into its territory. Although successful in fleeing, many Rohingyas have fallen victims

to human traffickers, being forced to work in plantations on Thai and Malaysian soils.

In 2015, waves of the Rohingyas are been drifted out into the sea with the

assistance of human traffickers to Malaysia and Indonesia, and Thailand. Their trips are

made in boats clustered with people. The people on the boats lack food, drinking water,

and proper excretory means. Therefore, the population on these boats is starving, and

is critically fermented with infection and diseases (Aljazeera.com, 2015). Currently,

these three countries are critically facing challenges internationally and domestically

on how to remedy this stateless population who are floating in their waters. Many deaths

have also been reported with hundreds of bodies found around the border of Thailand

in jungle camps which has gained the attention of international media. The moral

dilemma also leaks to the states that provide refuge for these people, what is appropriate

and how many people can they handle without compromising their own national

responsibilities to their own citizens and how long to keep them. Bangladesh has made

its stance clear with its rejection but Thailand has taken some of the responsibility for

the people of Rohingyas, the Thai government has been lending support and providing

shelters for those who narrowly escaped their cruel fate. However, as a safe haven for

the tribe, the country has had to deal with the cost of such heavy burden, to take care of

thousands of people who do not belong in the territory. Human-trafficking has emerged

as some of these people are kidnapped and sold for extremely cheap labor among other

things.

It is true that any state can only care for their “friends” for so long. This

issue as outlined is not of Myanmar’s neighbors, but is of Myanmar to resolve. The

statelessness has put Rohingyas in a vulnerable position, with no legal status recognized

anywhere, they are barred from even the most basic human rights and prone to such

exploitations mentioned above.

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4.3 Case Study Analysis

4.3.1 Universal vs. ASEAN’s perception of Human Rights

Human rights is one of the most theoretical topic in modern history which

still cannot be fully conceptualize after almost a century of its introduction. It is very

difficult to specifically classify if the term “human rights” is truly a political or

individual matter. Scholars in different fields of studies viewing human rights from

different angles still struggle to mutually agree on the magnitude of this matter. This is

because this topic revolves around so many possible factors imaginable ranging from

socially (but not limited to) different history, traditions, cultures, religions, and believes

around the world, to the political factors such as ideologies, practices, sovereignty, and

national interests. Although we have been taught that human rights are the inalienable

rights that every single human-being is entitled to just for being born human in

accordance to the Preamble of UDHR, the reality (even in modern times) has proved

very differently. There are various lenses that scholars use to argue regarding human

rights. “In the South, rights are seen as primarily collective rather than individual,

economical rather than civil, associated with equality rather than with liberty. In the

North, they can reflect commitments to solidarity and social justice as well as to

political freedom (Douzinas and Gearty, n.d.).” In this sense, as members of ASEAN

are mostly developing countries, human rights in the region are perceived as more

collective rather than individual. The perception of ASEAN’s human right is not to the

universal standard of truly recognizing human rights as an individual matter, and the

Charter too, has confirmed of this perception.

4.3.2 Right to Nationality of the Rohingyas

This research focuses specifically on “nationality rights” which is the legal

bond between the person and the state. A person who does not have a nationality,

therefore, becomes stateless meaning that he does not have the legal bond of nationality

with any state in the world. As a result, a stateless person will not be able to enjoy their

other rights in relation to having a nationality under the domestic law such as the right

to be protected by the law, right to own property, right to vote, right to work and right

to education. Without nationality, the person shall become a foreigner in his own land,

24

and even worse, also foreigner to the rest of the world. Accordingly, not only does the

statelessness of the Rohingyas affects domestically, it affects the whole region as the

stateless people are being displaced and seek refuge in neighboring countries such as

Bangladesh, Thailand, Malaysia (and even outreaching to the Middle East), resulting

as other border issues such as human trafficking, rape, drug trafficking and terrorism in

the region.

To understand the root of the problem, we must know that Rohingyas’

status of statelessness is their depravation from nationality in the legal-political sense.

According to the 1954 Convention Relating to the Status of Stateless Persons, Article

1 states the definition of the term “Stateless person” means a person who is not

considered as a national by any State under the operation of its law. A person who is

stateless lacks this membership and will be seen and treated as a foreigner by every

country in the world. This phenomenon has also been described as “de jure

statelessness”. In contrast, to have a nationality refers to the legal bond between a

person and a state. This bond can best be seen as a form of official membership which

confers upon the national certain rights (like the right to live in the country or participate

in elections) as well as duties (Nationalityforall.org, 2015). To determine whether a

person is considered as a national by a state under the operation of its law requires a

careful analysis of how a state applies its nationality laws in practice.

For a person to be stateless it is not relevant where he or she is located

(Institutesi.org, 2015). Statelessness occurs in both migration and non-migration

contexts. A stateless person may never have crossed an international border, having

lived in the same country for his or her entire life. As in the case of the Rohingyas, they

and their ancestors have lived in the region for centuries tracing back to their origins as

mentioned earlier. The Burma Citizenship Law of 1982 was the reason to legally render

the Rohingyas as stateless. The Law provided for three categories of citizenship: (1)

full citizens, (2) associate citizens, and (3) naturalized citizens. According to this list,

the Rohingyas fall under session 2 (e), which defines a Rohingya as a non-national or

a foreign resident, a person who is not a citizen or an associate citizen or a naturalized

citizen. Rohingya people could try to apply for naturalized citizenship but they must

present evidence, however, they possess no ancestral, or registration identification.

Moreover, their language are not recognized as an official language, therefore, they

25

cannot prove their nationality to the authority. It can clearly be seen that this law is a

scheme of the military junta to turn the Rakhine State into a Buddhist region by

reducing the Muslims into a stateless minority. Having striped off their nationalities,

the Rohingyas are exposed to a magnitude of human right abuses that stem from being

statelessness such as the right for education, the right for health services, the right for

marriage, and family rights. Persecution can be easily kept secret, the population statics

can be manipulated, promoting racism and discrimination, therefore, resulting as state-

sponsored ethnic cleansing and genocide.

These results directly conflict with the Article 1(1) Purposes and Principles of

the ASEAN Charter that is “to maintain and enhance peace, security and stability and

further strengthen peace- oriented values in the region.” The statelessness of the

Rohingyas is the threat to the not only the region’s but even outside the region’s with

peace security and stability issues. With the people of Rohingyas idle, angry, and

desperate for freedom, the population can easily become targets for people smuggling,

human trafficking, and worse, breeding ground for terrorism, and other forms of

violence. The people have nothing to do, no education, no job, no food. The anger can

be molded and easily manipulated by transnational criminals or Muslim based terrorist.

As the people are being killed and dehumanized on a daily basis, their sacrifice in the

name of religion and freedom is definitely more meaningful resulting as threat to peace

and stability of the whole ASEAN region. This issue can sooner than later lead to very

critical and harmful consequences in the fabric of ASEAN’s community. It is time to

seriously acknowledge that the statelessness in a state does not only effect that

particular state, however, it effects its neighbors and the whole region.

4.3.3 Interpretation of Legal Instruments

Interpreting the legal instruments is important in understanding how a

certain law is written and why it was written as such. This applies not only to domestic

laws such as criminal or civil laws, but to any binding agreements that relevant

authorities have mutually agreed upon. Although international law has been criticized

by its effectiveness of enforcement and punishment for non-compliance, it still acts as

a framework on how the international communities should behave. Moreover, it also

regulates and restricts certain actions that would otherwise create chaos and disturbance

26

in the anarchic international community which does not have an absolute authority to

govern every state in the world. Therefore, any piece of bilateral or multilateral

agreements that states engage in and agreed to follow is given weight to its ability to

moderate the behaviors of these states who are concerned for their national integrity,

national interests, and images. ASEAN, as a regional organization, has determine its

legal character and put in writing by creating its own constitution. The ASEAN Charter,

as the constitution, is the legal instrument in which all the ten member states have to

follow in order to preserve its stance (and interests) in the organization. When non-

compliance occurs, the ASEAN Charter shall be referred to in order to resolve the issue.

However, after understanding the Charter as discussed earlier in this

research, it is come to known that it is has no enforceable clauses in the material. Any

serious breach of conditions will only be discussed in the ASEAN Summit until by

consensus after all members agree to address it in the meeting’s agenda. The question

hence arises, “what if certain clauses in the Charter is amended”. There is no doubt this

notion may come across as the most direct solution into resolving this problem.

However, considering the norms of the ASEAN Way, this can be seen as an unrealistic

approach. Therefore, a probable approach would be on how ASEAN can address their

human rights violators without offending the country’s sovereignty.

ASEAN can use the successful example of the European Union (EU) of

their establishment of human rights mechanism in the region to lay the foundation of

ASEAN. This is to make sure that while the region is gaining benefits from economic

integration, the basic human needs of the people and the minorities are not being

sacrificed in the process. It is a responsibility of the regional organization to take care

of its population when the integration takes place to ensure that the people benefit the

most out of the regionalization of ASEAN. Common dialogue must be strengthen in

the region to ensure that the standards of immigration are met. These include, but are

not limited to, migrant workers, human trafficking issues, human smuggling issues, and

genocide issues. ASEAN must be able to build a capacity which can monitor and

evaluate these movements within the region and report to their human rights bodies. It

is true that ASEAN’s credibility and success of its members lie in their economic

development in the past decades which was able to catch up with their competitors,

however, this success came about ignoring the ethnic minorities and human rights

27

abuses issues that are still current and happening within these states. Critics have

pointed out that a huge part of this success lies in the nature of ASEAN’s strict practice

of non-interference among member states. This gave the lesser developed members the

opportunity to catch up into the race with their own will and commitment without the

interference of outsiders who might gain benefits from exploitation of resources from

these countries. Consultation and consensus ensured that the level of understanding and

trust within ASEAN is well balanced and no new and abrupt issues will be dealt with

until full acknowledgment from all members. This is the reason why ASEAN held on

to the practice of non-interference very firmly and consider that overall economic

success of the region is the bigger goal that the organization pursue for. In this process,

they must be able to look aside the human rights abuses and internal affairs of their

members to ensure that cooperation and stability is well maintained within the region

at all times.

Correspondingly, Dr Sriprapha Petcharamesree has pointed out in her

lecture and writing that, “ASEAN has long emphasized that the promotion and

protection of human rights by the international community must recognize national

sovereignty, national borders and non-interference in another state’s affair. ASEAN

views human rights as an internal affair (Petcharamesree, 2009).”This can be easily

identified by the name of the ASEAN’s human rights body itself (ASEAN

Intergovernmental Commission on Human Rights). The body used the word

“Intergovernmental” to stress out that the actors that will be associated with this matter

is between only the member states of ASEAN. By including the word

“intergovernmental” and not using only the word “commission”, ASEAN has already

confirmed that this is not an independent body and no other actors can address in

regards of human rights matters within other state’s border independently. Therefore,

the AICHR is headed towards the other direction of promoting the human rights and

developing the ASEAN Human Rights Declaration to only establish a regional human

rights framework that is in accordance to the international standards and obligations.

There will be no accusations or finger pointing to the members that violate the human

rights within their territory. In ASEAN’s Socio-Cultural Community pillar, it has

established a more independent body which focuses on the human dimensions which is

the ASEAN Commission on the Promotion & Protection of the Rights of Women &

28

Children (Asean.org, 2015). As mentioned earlier, the body outlines various areas of

concerns in the region and has agreed upon different members to be the leader in solving

specific issues. Although we can argue that this matter also concerns the Rohingyas’

individual’s well-being, livelihood, and welfare and should be viewed from the ASEAN

Socio-Cultural Community pillar, there is no doubt that the human rights regarding the

rights to a nationality is more a legal-political matter as it directly includes other rights

that the person is bond to receive from his/her state. The argument concludes that

ASEAN must deal with nationality issue from political aspects from its Political –

Security Community pillar, and therefore, return to the structure that was laid upon

earlier in this research of ASEAN Charter and AICHR.

The next challenge is that can AICHR develop into something more

concrete and effective. If so, it would have become a mechanism that is agreed by all

members to be able to address issues which are on-going in states affair. Not only that,

it would have to change its function from only promotion to have the authority to

monitor, evaluate, investigate, and enforce policies within the region. Lastly, it must be

able to close the gap and change the perceptions of human rights in ASEAN to be that

of the universally recognized as mentioned earlier in this research.

4.4 Examination of ASEAN’s Reality and Expectations

Some of ASEAN’s noticeable actions towards the crisis of the Rohingyas

were on 30th October 2012 when ASEAN’s Secretary-General Surin Pitsuwan offered

open talks between ASEAN, the United Nations, and Myanmar’s government regarding

the violence in the country. He stated that the violence will threaten the stability of the

region jeopardizing the economic and security of South-East Asia

(Blogs.voanews.com, 2015).Moreover, he offered help on behalf of ASEAN for

humanitarian engagement. However, this offer was rejected immediately by the

Burmese government. Following that, ASEAN raised the issue of the Rohingya crisis

on three ASEAN Inter-Parliamentary Caucus on 28 November 2012, 2 April 2013, and

22 May 2013 expressing its support for a resolution drafted by Organization of Islamic

Cooperation members on anti-Muslim violence and human rights issues in Myanmar to

be brought before the UN Human Rights Council (Burmapartnership.org, 2015).

29

The recent event that the term Rohingya was mentioned was in the 25th

ASEAN Summit (held in Naypyidaw, 11-13 November 2014) by the UN Secretary-

General Ban Ki-Moon who called for better treatment of the stateless Muslim minority

in Myanmar(The Irrawaddy, 2014). The Burmese government officials reacted

furiously and did not approve of the statement. Ban Ki-Moon later stressed that, “It is

time to alleviate the fears of the two communities: by that I mean both the Rakhine

community and what you call the Rohingyas or Bengalis, and to address their

grievances and uphold their human rights. Failure to do so, as we have seen in other

parts of the world, can magnify inter-communal tensions and sow the seeds for future

instability (Bookbinder, 2014).” As mentioned earlier, the UN Secretary-General too,

also emphasized that human rights issue in the region is not something to be taken

lightly as it will sow the seeds and grow into a very immense security problem in the

region in the foreseeable future. By then, ASEAN (as a regional organization), will be

marked with a new scar and lose its credibility in the international stage. To be noted

that even in this ASEAN Summit, all the other leaders of the ASEAN members did not

raise or supported this issue with the UN Secretary-General. The Burmese officials cut

off the statement instantly and were critical over the use of the term Rohingya. To be

specific, the ASEAN members have agreed upon keeping the Rohingyas issue off the

ASEAN Summit’s agenda (Uscampaignforburma.org, 2015).

There is no surprise that the 26th ASEAN Summit which was held in Kuala

Lumpar, Malaysia on 26-28 April 2015 ended with no discussion in regards to the on-

going events of the Rohingyas. Even though Indonesia, Malaysia, and Thailand are now

facing serious issues involving thousands of Rohingyas stranded off their shores, which

led to the recent outbreak of people smuggling and corruption within their countries,

there is still no sign of the regional organization reacting cooperatively to address the

issue (Foster, 2015). Myanmar officials again refused to address (or even use the word)

“Rohingya” and has taken no responsibility to assist the affected neighbors, let alone

anything with the Rohingyas. As the agenda has not been raised in these two previous

ASEAN Summits, this issue has no hope to make its stance in the next Summit. This

particular event has illustrated the clearest picture of how ASEAN is reluctant to finger

point any of its member’s country that has violated human rights in its territory.

30

We can predict how far behind ASEAN is its concerns of human rights

issues in its region and even farther behind in its readiness to seriously and formally

address a human rights violation issue even in the stage that was meant to be held to

address these types of issues. UNHCR Executive Committee, Conclusion on

Identification, Prevention and Reduction of Statelessness and Protection of Stateless

Persons, No. 106, 6 October 2006, has laid the foundation of responding to statelessness

in four aspects including identification, prevention, reduction and protection. By

achieving one of the pillars, the other pillars will be reinforced and thus securing the

proposed solution’s effectiveness. It is stated that by “Identification”, it can be achieved

through a tailored population survey whereas “Reduction” is assisting stateless persons

to access naturalization procedures. While “Protection” can come through sheer fact

that stateless persons have proper identification – proof of ties to their state.

“Prevention” is to avoid new cases of statelessness.

It should be noted that these pillars are achievable via the cooperation of

every state involved – especially those with stateless persons. Most countries are to

uphold the Universal Declaration of Human Rights, Article 15, which states “everyone

has the right to a nationality”. The protocol is further supplemented by the 1961.

Convention on the Reduction of Statelessness through various norms formulated to

tackle this issue, international law now is involved in the process in which states

regulate access to their respective nationality. As “Protection” is at the very core of

human rights issue, according to international law, nationality is no longer the primary

basis for the enjoyment of rights, obliging states to respect and protect human rights of

all persons under their jurisdiction, including non-nationals. As such, states bound

under international law are legally obligated to adhere to these pillars where appropriate

to reduce, prevent and resolve the issue of statelessness.

However still, the reality has shown that ASEAN is not able to utilize this

solution and is stuck on the first aspect of Identification. Without the ability of the

organization to even point out (Identify) the issue in its annual meeting; prevention,

reduction, and protection are all very distant topics. It is only a matter of time when this

seed will mold into a severe security issue that will be beyond the control of the region

that ASEAN will open up to address the matter collectively.

31

We can notably agree that the establishment of the AICHR is the initiative

and right direction that ASEAN took in regards to human rights violations, however,

given the fact that right now it’s only purpose is only for promotion, the organization

must look into developing a particular mechanism on this milestone that can be able to

create an impact to addressing human rights violators in the region. As mentioned above

in compliance with the ASEAN Charter Article 1, 2, and 14, the members must address

human rights issues affectively in order to develop as a democratic region as a whole

in order to gain respect from the rest of the world. If ASEAN will hold its practice of

non-interference firm, the solution should then encompass a mean that can be respected

by all without the practice of interference.

32

CHAPTER 5

RECOMMENDATIONS AND CONCLUSION

5.1 Recommendations

The incident of the ASEAN Summit in regards of the Rohingyas depicts

the reality that of how ASEAN members view human rights issues in its member

countries despite the knowledge of the losses and damages that the region has already

suffered. Therefore, developing a human rights mechanism is too impractical. A more

realistic possibility might lie on how the ASEAN members can agree collectively to

“address” a human rights issue first. Thus, agreeing on a norm. By using the framework

of Neoliberalism, the members can look into agreeing upon a norm that can address the

human rights issues more formally and constructively. This norm can then later become

a mechanism and hopefully, evolve into something more concrete (such as a Human

Rights Court). With the knowledge that ASEAN is constructed as a regional

organization similar to the European Union and will become a regional community in

the near future, ASEAN can further look into the successful example the European

Court of Human Rights (ECHR) as guidance. Although the notion of having a Human

Rights Court in ASEAN (let alone a mechanism) is too far reached, the concept of

having a mutually agreed norm of practice within ASEAN members is reasonably

possible.

Based on the analytical framework provided, we can at least be optimistic

for the possibilities of what the future holds. On 29th May 2015, Thailand hosted the

first formal summit on migrant crisis calling representatives from 17 nations to talk

about the on-going crisis of the Rohingyas (CNN, 2015). Although senior officials were

not present at the summit and the Myanmar’s official denied responsibility for the roots

of the crisis, this summit is the milestone that ASEAN is chasing for. Even though the

summit ended with the participants not able to agree on any binding agreements at the

time, let alone call for a common norm to address the issue, the hype of the event and

the participants stimulated and called for summits and meetings as such to take place

again. Whether in regards of the criminality of people smuggling and/or human

trafficking which are the results of this crisis, or whether to find a dialogue to address

33

this issue, the spur of these meetings will passively create a sense of commitment of

participation among the members.

Institutionalization is conceptualized for its ability of bounding, guiding,

and regularizing (Emmers, 2012). The participants are encouraged to commit to the

defined rules and frameworks (in a formal and organization sense) and at the same time

partake in habituation, regularization, and normalization (in a sociological sense).

When these actions take place regularly, a norm is born which eventually leads to a

formal agreement. This can later be applied into the human rights body, AICHR, giving

it the ability to do more than just promotion of human rights. The first advantage is that

it will do aside the concerns for intervention and threats of national sovereignty. This

modification to AICHR shall be able to address the issue, and leads to agreements that

may resolve issues regarding human rights in the region in a legal and binding manner.

5.2 Conclusion

In answering the questions which this research has set forth, it can be

concluded that the human rights violation in regards of the Rohingyas is categorized as

a political issue; therefore, the means to resolve this issue cannot be done by the

independent bodies of ASEAN. Consistently, the reason why ASEAN is not addressing

the crisis of the Rohingyas although the protection of human rights is the fundamental

clause of the ASEAN Charter is because of ASEAN’s firm commitment of non-

interference. Consultation and consensus priorities mutuality among the members.

Mutuality and mutual respect is what ASEAN aspire to achieve, therefore, all its

instruments and legal bodies are written in such a manner that only promotes

relationship building and relationship-maintaining among the members.

After examining the legal and human rights bodies of ASEAN, it is

demonstrated there are no binding clauses to impose on members who have violated

human rights within their territories. In addition, the human rights bodies of ASEAN is

not an independent body, which means it cannot address human rights issues or operate

on its own accord to resolve any issue in the region. From the legal point of view, the

probable answer to this question is to develop the human rights body to become an

independent entity which has the authority to address the human rights abuse issue in

34

the region by its own framework. To do so, the members would have to come to an

agreement to amend the clauses set forth in the constitution and in AICHR. Moreover,

the term “intergovernmental” in AICHR would have to be put away into something

which does not specify that only the governments can address human rights issues in

the region. This process will definitely take time, however, every legal agreement that

the ASEAN members were able to endorse and finalize came from mutual commitment

into addressing the issue and the encouragement to sit together to discuss the significant

of such issues effecting the reputation, peace, and stability of the region.

The agreement of ASEAN member on finding a common norm to address

the issues of human rights is a vision that will definitely not happen shortly, yet it is

within its grasp. The ten states are diverse in their histories, background, forms of

government and stance in human rights. This is the core limitation of this proposal that

there is no common critical motivation in forming such norms within the organization

that should have the ability to formally address or pin out country specific human rights

violation. The crisis of the Rohingyas alone is not sufficient enough for such

commitment (yet). ASEAN will continue in its path of upholding their general principle

of non-intervention and non-intervene among each other.

The consequences of statelessness are that it will significantly meddle with

the social fabric of the communities in the region. It will also strain the state relations

if the issues overflow starting with one state to the next, not only within ASEAN

members but eventually to outside the region. It is the choice of ASEAN to either wait

until such humanitarian crisis erupts into a physical threat to the stability, economy and

security of the region or it can learn from its previous mistakes and agree to make a

difference. Identity and reputation matter significantly in the global context. The role

of an international institution can benefit the region tremendously to form an identity

of a region that concerns about human rights issues seriously. In the process of dealing

with humanitarian issues, the region will gain reputation for its commitment that it has

laid ahead in the foundation of the Charter. We have learnt that human rights issues are

not only of the states, but an international responsibility beyond borders, and it can only

be solved collectively through cooperation and trust.

35

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40

BIOGRAPHY

Name Mr Sherwan Jomkhamsing

Date of Birth July 19, 1990

Educational Attainment 2013: Bachelor of Law

Work Position Client Service Officer

Australian Embassy of Bangkok

Work Experiences Client Service Officer

Australian Embassy of Bangkok

Corporate Assistant

Kamthorn Surachet & Somsak (KSS) Law Firm