Country Position Paper: Statelessness in Myanmar 1982 Law states that those who were citizens before the law came into force shall remain citizens (section 6). However, a lack of documentary evidence of citizenship together with the arbitrary removal and destruction of state-issued documents by state authorities leaves many of those entitled to citizenship under the 1948 framework, in practice, unrecognised as citizens under the 1982 Citizenship Law. 12 The following summary identifies problems relating to the law or its application that may lead to statelessness. Racial Discrimination Under the 1982 Citizenship law, the acquisition of nationality in Myanmar is primarily based on “race” or “ethnicity” rather than objective criteria. The ethnic criteria is not adequately balanced by other avenues through which to acquire nationality for those with strong ties to the country. As such, those who do not belong to the 135 national ethnic groups recognised by the State are disadvantaged and discriminated against. The prohibition of race discrimination is a norm of customary international law. 13 “Full citizenship” in Myanmar is reserved for those who belong to one of the national ethnic groups who are listed by the state as having settled in Myanmar before 1823, or before British colonial rule (section 3) and the children of citizens. The groups included on the list are decided at the complete discretion of the Council of the State (section 4). The list of 135 national ethnic groups does not include Rohingya, Arakan Muslim, 14 or people with ancestral affiliations with Chinese, Indian or Nepali populations, thus denying them access to “full citizenship”. 15 The 1973 census, in contrast, included 144 ethnic groups, which did not correlate with the later list of 135. 16 Under the 1982 Citizenship Law, the two other tiers of citizenship are: “associate citizenship”, for those who had pending citizenship applications when the 1982 law came into force (section 23-41); and “naturalised citizenship” which applies to those who have “conclusive evidence” of entry and residence in Myanmar before 1948, who speak one of the national languages and whose children were born in Myanmar (section 43-61). These requirements are often prohibitive. Associate and naturalised citizens have fewer rights, 17 they cannot transmit citizenship to their children easily, and their citizenship can be revoked more easily. Further, naturalised citizenship is acquired through an application process which is characterised by decision-making processes that are discretionary, arbitrary and corrupt. This results in the exclusion of many applicants from minority groups. 18 Since the 1990s, the UN’s Special Rapporteurs on the human rights situation in Myanmar have been calling for the reform of the 1982 Citizenship Law to bring it into line with international standards. Kyaw, N.N., 2017. Unpacking the Presumed Statelessness of Rohingyas. Journal of Immigrant & Refugee Studies, 15(3), pp.269-286. The Tunis Conclusions stated that “loss or deprivation of nationality may not be based on discrimination on any ground prohibited in international human rights law, either in law or in practice.“ The UN High Commissioner for Refugees (UNHCR), Expert Meeting Interpreting the 1961 Statelessness Convention and Avoiding Statelessness resulting from Loss and Deprivation of Nationality ("Tunis Conclusions"), March 2014, available at: https://www.refworld.org/docid/533a754b4.html [accessed 24 February 2019] 14 “Arakan Muslim” was previously used as an ethnic or racial designation by the Myanmar State. 15 OHCHR 2016, para 20. 16 Nick Cheesman, 2017, How in Myanmar “National Races” Came to Surpass Citizenship and Exclude Rohingya, Journal of Contemporary Asia, 47:3, 461-483 17 Section 30(c) and 53 (c) state that associate and naturalised citizens shall “be entitled to enjoy the rights of a citizen under the laws of the State with the exception of the rights stipulated from time to time by the Council of State.“ 18 Institute on Statelessness and Inclusion and Norwegian Refugee Council, Navigating without a map: access to civil documents and citizenship in south east Myanmar, forthcoming 2019 (draft report available on file with Institute of Statelessness and Inclusion) 12 13 6