Law

1. Citizenship Law

a. Jus Sanguinis Provisions

Citizenship of Myanmar, stipulated by the Burma Citizenship Law, is defined largely upon ethnic ground, and through jus sanguinis principles, with citizenship available to those who are considered “nationals” or whose parents both are nationals. Article 3 states that members of the Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine or Shan and ethnic groups who have resided in Myanmar since 1823 are Burma citizens. Article 4 further provides that “the Council of State may decide whether any ethnic group is national or not”. Myanmar’s citizenship legislation does not include a definition of a stateless person nor does it explicitly mention or address statelessness.

b. Naturalized Citizenship

The citizenship legislation of Myanmar provides for two other categories of citizenship: associate citizenship and naturalized citizenship, which the government may confer on any person ‘in the interest of the State’. Citizenship by naturalization is only available to those with at least one citizen parent or who can prove sufficient links to the country at the time of its independence. While this may offer a way for persons outside of the designated ethnic groups to acquire citizenship in Myanmar, citizenship acquired by naturalization does not provide the same quality and security of citizenship as is granted to indigenous groups. For example, an associate or naturalized citizen’s citizenship may be stripped or they may be blocked from enjoying certain rights available to citizens of the designated ethnic groups. This distinction between citizens contradicts Article 21(a) of the 2008 Constitution, which states that “every citizen shall enjoy the right to equality.” There is no scope in the legislation for naturalization through marriage or long-term residence. Stateless persons are not eligible for naturalization in Myanmar.

c. Dual Citizenship

Dual citizenship is not permitted in Myanmar. Foreign citizens applying for naturalization must renounce prior citizenship upon acceptance to citizenship of Myanmar.

2. Treaty Ratification Status

Myanmar has only ratified three relevant treaty bodies, that includes ICESCR, CRC and CEDAW. In its 2012 concluding observations, the CRC Committee expressed concerns regarding the large portion of the population without access to citizenship, the lack of protective legislation for stateless children and the overall strict citizenship laws which leave many stateless. The Committee was also concerned that ethnicity and religion are marked on identity cards, exposing minority populations to discrimination. The large number of children, particularly Rohingya children, whose birth remain unregistered was also noted, citing multiple administrative barriers to registration. It was recommended that Myanmar remove such barriers and ensure effective registration of all children in the territory. As a party to the CRC, Myanmar is obligated to ensure that every child’s birth is registered immediately as well as that all children enjoy the right to acquire a nationality.

In its 2019 concluding observations, the CEDAW Committee also raised extreme concern over the repeated warnings given to Myanmar regarding its regressive Citizenship Law and ‘citizenship verification’ exercises conducted in northern Rakhine State. These verification exercises have resulted in the “arbitrary deprivation of nationality and statelessness of Rohingya women and girls”. Further, Rohingya women and girls who refuse to identify as ‘Bengali’ are “ arbitrarily excluded from the verification process”. The Committee recommended that Myanmar amend its discriminatory laws on citizenship, ensure the registration of Rohingya children, and recognize Rohingya individuals’ and communities’ right to self-identify.

In Myanmar’s Universal Periodic Review, the 1982 Citizenship Law was identified to be discriminatory on the grounds of race, placing several groups, including the Rohingya, at risk of statelessness. The UPR further adds that while groups outside of the 135 listed ethnic groups in citizenship legislation may be eligible for citizenship under certain provisions, implementation has been arbitrary and discriminatory.

Status of Accession of International Human Rights Treaties in Southeast Asia

Country	Stateless 1	Stateless 2	Refugee	ICCPR	ICESCR	ICERD	CRC	CEDAW
Myanmar

Signifies that the country is a party to the convention

Stateless 1 – 1954 Convention relating to the Status of Stateless Persons

Signifies that the country is not a party to the convention

Stateless 2 – 1961 Convention on the Reduction of Statelessness

3. Application of the Convention on the Prevention and Punishment of the Crime of Genocide

In 2019, The Gambia filed a case against Myanmar in the International Court of Justice (ICJ) accusing Myanmar of violating the 1948 Genocide Convention and its intention to “destroy the Rohingya as a group”. The Gambia also requested that the Court grant measures to protect the Rohingya from the ongoing genocide. Albeit Myanmar denied these allegations, the ICJ ruled in 2020 that Myanmar is now legally bound to “take measures to protect the Rohingya from genocide; prevent the Military from committing genocide; take steps to prevent the destruction of evidence of genocide; and file a report with the ICJ in four months, and every six months that follow until the closure of the case, documenting what they have done to ensure these measures are met”.

Objections by the Myanmar government in 2021 that the Court did not have jurisdiction for the case were thwarted by the Court’s judgement in 2022. In 2002, a rare occurrence for the U.S., Anthony Blinken, U.S. Secretary of State, explicitly stated that the Rohingya have, in fact, been subjected to crimes against humanity constituting genocide by the State of Myanmar, essentially expressing its support for the Gambia’s case. The U.S.’s statement is said to be based on the findings of experts appointed by the U.S. State Department which supports the findings of the Independent International Fact-Finding Mission on Myanmar. On November 15, 2023, the United Kingdom, Canada, Denmark, France, Germany, and the Netherlands filed a joint declaration of intervention, supporting the accusations that Myanmar’s systematic ‘clearance operations’ amount to acts of genocide intended to destroy the Rohingya as a group. A separate declaration of intervention was received by the ICJ from the Maldives on November 10, 2023. The ICJ has set May 2024 and December 2024 as time limits for written pleadings from The Gambia and Myanmar respectively.

Albeit Myanmar denied these allegations, the ICJ ruled in 2020 that Myanmar is now legally bound to “take measures to protect the Rohingya from genocide; prevent the Military from committing genocide; take steps to prevent the destruction of evidence of genocide; and file a report with the ICJ in four months, and every six months that follow until the closure of the case, documenting what they have done to ensure these measures are met”.

Population

1. Reported Stateless Persons

Within Southeast Asia, Myanmar has the largest reported stateless population (and the second highest in the Asia Pacific), reporting 630,000 stateless persons to UNHCR in 2022. This reported figure represents UNHCR’s estimate of the number of Rohingya as well as stateless Internally Displaced Persons (IDPs) in Myanmar in Rakhine State alone. Data in other states of Myanmar are unavailable. The estimate also includes 156,600 internally displaced Rohingyas. This represents an increase of 30,000 stateless persons in the last year after three years of no change in the reported estimate at 600,000.

The Rohingya population, a largely Muslim ethnic group with roots in the Rakhine state in west Myanmar, has faced discrimination, persecution and oppression at the hands of the government of Myanmar over the past decades. Not included in the list of 135 ethnic groups eligible for citizenship in Myanmar, they have been systematically excluded from citizenship in their home country. Since the military coup in February 2021, Rohingya populations in Myanmar have continued to face persecution, insecurity and restrictions on freedoms.

In 2017, the brutal ‘clearance operations’ conducted by the military, which constitute genocide, involved “arbitrary arrests and torture, indiscriminate killings, mass gang-rape of women, enforced disappearances, forced labour, and the destruction by fire of entire villages”. In the ‘clearance operations’, upwards of 40,000 structures, including over 200 Rohingya settlements, were completely destroyed in just two years. Despite the denial of the Myanmar government of such crimes, they have been well documented. The government does not allow any monitoring or access by humanitarian aid or human rights organizations.

While many have fled to neighboring countries, such as Bangladesh, Malaysia, Indonesia, Thailand, Saudi Arabia, India, and Pakistan, and beyond in search of refuge from persecution, those who remained after the 2017 ‘clearance operations’ are subject to apartheid conditions. The Rakhine State, where much of the Rohingya population in Myanmar reside, is subject to severe restrictions of freedom of movement, which is largely targeted at Rohingyas. Often Rohingyas, including Rohingya children, are arrested while traveling anywhere within and outside of the country. The movement restrictions are so severe that Rohingyas in internment camps are unable to leave the camps. If they attempt to do so, they are likely to be apprehended and subject to abuse by military or police at the many checkpoints in the area. The only way to access health services for those living in camps is to apply for permission to leave the camps, which entails a security escort to the hospital where Rohingyas are segregated from others in the hospital and closely monitored. For grave or complex illnesses, it is unlikely that an individual would be able to get to the hospital in time to save their life. Further, internet blackouts were imposed on townships in Rakhine and Chin States, which affected more than one million people in 2019 just before the COVID-19 pandemic began, barring them from accessing life-saving information about the virus. The Rohingyas have notably not been included in consultations for an MoU between UNHCR and UNDP with the Myanmar government. Rohingya leaders shared a statement in 2019 regarding the lack of proper consultation:

“As the victims of these crimes, our demand is for justice and accountability, and the right to return to our country to live in security and dignity, as equal citizens. The international community must hear our voices and do everything in its power to uphold international law and bring the perpetrators to justice. Please include us in these processes, which are ultimately about us. We are available to be consulted and to share our perspectives, experiences and solutions with you.”

Reported stateless persons to the UNHCR

Country	2019 (year start)	2020 (year end)	2021 (year end)	2022 (year end)
Myanmar	600,000	600,000	600,000	600,000

Source: UNHCR, Global Trends: Forced Displacement from 2019-2022.

2. Persons at Risk of Statelessness

Any group or individual who does not match the 135 included ethnic groups in Myanmar’s citizenship legislation is at risk of statelessness. This includes, but may not be limited to, Rohingya, individuals of ‘Nepali’ or ‘Indian’ descent, Tamils, Hindu speakers of Bengali-dialects, groups at the Myanmar border, minority groups of Rakhine State, and Muslim and Hindu communities. People born to parents of different or mixed religions or ethnicities are also at risk due to exclusion within Myanmar’s citizenship legislation. IDPs and refouled refugees, largely from Bangladesh and Thailand, have also been identified to be at risk. Children born to refugee parents in Thailand are also at risk of statelessness as Myanmar does not recognize birth certificates issued by Thai authorities to refugee children.

3. Stateless Refugee

It is important to note that stateless Rohingyas account for the largest stateless population in the world. The majority of stateless Rohingya refugees reside in neighbouring Bangladesh, which in 2022 was reported to host over 900,000 of the 1.2 million stateless Rohingyas. This number is contradicted by other statistics reporting 2.5 million stateless Rohingya refugees who have fled Myanmar, with over 2 million reported among the top four receiving countries alone – Bangladesh (952,309), Pakistan (400,000-500,000), Saudi Arabia (558,000) and Malaysia (103,380). However, this number is expected to be even higher as Rohingya refugees in Pakistan and Saudi Arabia are often not counted due to the fact that they are not registered with the UNHCR or the UNHCR has no clear data on them.

4. Undetermined Nationalities

The true figure of statelessness in Myanmar likely extends beyond the reported figure and encompasses other ethnic minority groups excluded from the 1982 citizenship law. A 2014 Census showed that over 11 million people in Myanmar did not have valid identification documents. The US Department of State noted that a ‘significant number’ of persons of Chinese, Indian and Nepali descent living within Myanmar were either stateless or of undetermined nationality, facing restrictions on their freedom of movement and rights.

Causes of Statelessness

1. Discriminatory Nationality Laws

Ethnic discrimination in nationality law, leading to the denial of citizenship to Rohingya populations has been the key cause of statelessness in Myanmar. Ethnic discrimination within Myanmar citizenship law was codified in the 1982 Citizenship Law which limited citizenship to certain ‘national races’ (which did not include the Rohingya). Denial of citizenship of the Rohingya was a key component of the systemic oppression and persecution of the Rohingya people by the government and military of Myanmar before the 2017 ‘clearance operations’. The Rohingya are not the only victims of this discriminatory nationality law as any group not included on the list of 135 ethnic groups is denied the right to citizenship. Decision making for granting citizenship does not have a time limit or mechanism for review or appeal. The lack of avenues for redress have led to “arbitrariness, corruption and bribery to speed up decisions or secure a positive outcome”.

2. Lack of Legal Safeguards Against Childhood Statelessness

The citizenship law of Myanmar does not provide any right to nationality for foundling children or children born to stateless parents. This lack of legal safeguards further cement intergenerational statelessness within the country.

3. Citizenship Stripping

Myanmar’s citizenship legislation includes vague, overarching provisions allowing for the revocation of citizenship. An associate or a naturalized citizen’s citizenship may be stripped under the broad grounds of being “in the interest of the State”. This provision has also been used to strip citizenship of opposition and resistance politicians in recent years. Many Rohingya are referred to as naturalized citizens on citizenship applications, essentially denying them full citizenship rights. There are no legislative protections for those who have their citizenship revoked from becoming stateless. Since dual nationality is prohibited in Myanmar, many people could become stateless as a result of revocation of citizenship.

4. Administrative Barriers

Aside from discriminatory legislation and lack of legal safeguards, corruption perpetuates the issue of statelessness in Myanmar. The processing of citizenship applications has lacked transparency and consistency. In some cases, citizenship applications have required Rohingyas to have their ethnicity listed as ‘Bengali’, which is not only a stigmatizing term, but can lead to denial of citizenship as ‘Bengali’ is not included on the list of 135 ethnic groups.

Field research has shown that both majority and minority ethnicities experience difficulties in processing citizenship applications, including having to pay bribes to the Ministry of Labour, Immigration and Population (MoLIP), attend several appointments with MoLIP, and provide extensive documentation of their identity, their parents’ identities, and their grandparents’ identities in order to process an application. It is extremely difficult for poor communities to be able to fulfil these requirements of this process, effectively excluding them from accessing citizenship. Muslims are particularly targeted for being forced to pay higher charges for citizenship applications. While legislation stipulates that the fee for a citizenship card costs around 4 cents in USD, Rohingyas have been reported to pay upwards of 350-420 USD. The extensive documentation required for the process also excludes a third of the population in Myanmar (54% being women) who do not possess a legal identity or identity documentation.

In the past decades the provision and withdrawal of civil registration documents has been complex, discriminatory, and a key component of the persecution of the Rohingya population in Myanmar.2917 It has been argued that it is the implementation of the 1982 Citizenship Law and the failure of the government of Myanmar to facilitate the naturalization of Rohingya populations, and the degradation of the documented status of Rohingya that is also a key cause of statelessness within Myanmar (not simply the discriminatory law alone).

The CRC identified that administrative barriers such as lack of awareness of “the importance of birth registration; a non-user-friendly system; a lengthy process to obtaining birth certificates at the township level; unofficial fees associated with the birth registration system; the existence of the local order restricting marriages for Rohingya people; and the practice aimed at reducing the number of their children” contribute to a large number of Rohingya children remaining unregistered. Children born to parents of unregistered marriages are considered illegitimate and are excluded from receiving official documentation. Administrative barriers to marriage registration, such as lengthiness of the process, corruption and discrimination, have lowered access to marriage registration for many Rohingyas. The inability to register a marriage perpetuates the lack of registration for Rohingya children and has led to women resorting to dangerous abortions and couples fleeing the country.

People living in remote areas in Myanmar also experience barriers to accessing birth registration. Myanmar’s birth registration rate was reported to UNICEF as 81% as of 2016.

Myanmar

Overview

Law