The Implications of International Law on the protection of Stateless Persons: A case study of the Rohingyas

Abstract

As per article 1(1) of The Convention Relating to the Status of Stateless Persons (1954), a stateless person is defined as “a person who is not considered as a national by any State under the operation of its law.” In other words, this essentially means that a stateless person, although having ethnicity by descent, doesn’t have a national identity and, by extension, legal personality outside of the stateless identity. The United Nations High Commissioner for Refugees’ 2024 report suggests that there are at least 4.4 million stateless people around the world. While this number is substantial by itself, the UN Refugee Agency also clarified that the reporting was incomplete, as states generally do not comply with sharing statelessness data and that the reporting only consisted of reporting across 101 out of the 194 United Nations recognised countries. [1]

This paper aims to show that protective frameworks established by International Law exist to protect stateless persons while highlighting the inconsistencies that leave them vulnerable through a case study of the world's largest group of stateless persons, the Rohingyas. It also aims to carry out conceptual research through the use of secondary and tertiary literary sources around the core questions:a) How does international law respond to statelessness?

b) What are the gaps that leave stateless persons vulnerable, as revealed by the Rohingya Crisis?

Key Terms: Rohingya, Stateless Persons, Refugees, International Law, National Identity, Conceptual Research

Legal Definitions and Discourse on Statelessness in International Law

“Ending ‘Statelessness’ is an Imperative for the 21st Century”

- Volker Turk (Former Director of International Protection, UNHCR)

At the end of the Second World War, the world saw a massive increase in stateless populations. This could be directly correlated to the newly re-drafted state lines and the mass displacement of populations to accommodate the same. This brought about the question of “Nationality in International Law”. According to Dr W. R. Bisschop, the word national if used in International Law, has a technical meaning.[2] This meaning arises from the discourse around the definitions of the terms Nation and State and their relationship with one another. In common parlance, any person who belongs to a group united through a marker of national identity, such as race, religion, ethnicity, language, etc., is considered a national of that “nation”. However, in International Law, the legal personality of an individual arises from the state that they belong to, and the two are unfortunately not synonymous. Let us take the example of the United Kingdom of Great Britain and Northern Ireland to demonstrate this idea, since it is a State comprising four nations. A Welsh National, although by the definition in common parlance would be able to call themselves as such, would only have legal personality as a British Citizen. In the event that the Welsh people were no longer British Citizens for any reason, such as displacement, they would lose their individual legal personality.

This means that Citizenship and Nationality are mutually exclusive from one another under International Law. The latter attributes no international legal personality whatsoever to an individual, despite being a universally declared right under Article 15 of the Universal Declaration of Human Rights (UDHR).[3] This gap in citizenship and nationality is what leads to Statelessness, as can be observed in the case of the Rohingya population. While the Rohingyas are an ethnically, linguistically and religiously tied group with national identity, the 1982 Citizenship Law of Myanmar actively excludes them from the category of “National Races” by seeking proof of residence prior to 1823.

The 1954 Convention relating to the Status of Stateless Persons provides us with the first comprehensive definition of Stateless Persons, through its Article 1(1), “A person who is not considered as a national by any State under the operation of its law.” The initial approach aimed to legitimise the identity of stateless persons and to carry out efforts to grant them protection for as long as they remain stateless. It also paralleled the Convention Relating to the Status of Refugees (1951) in granting them minimum rights as persons, such as access to employment (Art. 17-19), education (Art. 22) and the freedom of movement (Art. 26). [4] It is not until the Convention on the Reduction of Statelessness (1961) that the obligation of states to grant citizenship to persons born in their territory, who would otherwise be stateless, was addressed. The 1961 Convention began efforts relating to preventing/reducing statelessness rather than just protecting stateless persons.

While International Law cannot dictate the formation of domestic legislature, it can generate a common consensus through International Customs and State Practice. The legal principle of Ex Injuria Jus Non Oritor (Law Cannot Arise from Injustice), when applied to domestic law, is often limited in its extent as it is the state and its organs that create law, interpret it and enforce it. Therefore, the only way to apply it would be to do so externally. While there is no provision to do so, one can make the argument that the 1982 Citizenship Law of Myanmar and many others like it across nations of the world fail the standard of law formation established under this principle. This brings to light the tension between nationality being perceived as a sovereign prerogative of the state and the international nature of nationality as a human right. In the advisory opinion presented by the Permanent Court of International Justice, on the Nationality Decrees Issued in Tunis and Morocco, the court declared that the, “Questions of nationality were too intimately connected with the actual constitution of a State to make it possible to consider them as questions of an ‘exclusively juridical’ character.”, in response to the question placed by the Council of the League of Nations on behalf of the British Government. This means that any international effort to prevent statelessness would in effect be weak and dependent on voluntary state participation.

The Case of the Rohingyas and the Question of Evidence of Residence pre-1823

The Rohingya people are the indigenous citizens of the Arakan Kingdom, which ruled over what is now modern-day Rakhine State. Even before the British colonisation of Burma, Bengal and Arakan, there existed migration between the three regions, especially between Bengal and Arakan, during the rule of the Burmese Kingdom over the Arakan region. However, when the British Colony of Burma was formed, the lines between the Indigenous Arakanese and Bengali migrants blurred, due to the intermixing of the two communities under British rule. Post Independence, the Arakan territory was drawn as part of the newly established state of Burma (Myanmar) and renamed as Rakhine State, in accordance with the pre-colonial lines (as the Burmese Kingdom had control over the region before the Britishers and not the Arakan Kingdom).

In 1948, the then Burmese Government (Burma officially changed its name to Myanmar only in 1989) introduced a new citizenship law which was based on the principle of Jus Sanguinis (Right of Blood), where anyone who could prove ancestral ties would be granted citizenship.[8] However, over time, an anti-Rohingya sentiment was built across various changing Burmese Governments. The narrative that all Rohingyas were, in fact, Bengali migrants was pushed by the state as a means of manufacturing consent, as is necessary for any authoritarian state. The Rohingyas were depicted as unruly, violent and as a threat to national unity, making them the ‘common enemy’ of the state and the people, eventually leading to the 1982 Citizenship law, which specifically targeted the Rohingya people, effectively rendering them stateless. [9]

The 1982 law mandated that to be a citizen, one had to fulfil one of two requirements. First, they had to be part of any one of the 135 recognised national races (ethnicities). This list excluded the Rohingya People, thereby rendering them unable to access citizenship. The Second Requirement was to have proof of residence that pre-dates 1823 ( Commencement of British Rule). These two requirements effectively pushed out Jus Sanguinis while not having even implemented Jus Soli (Right of Soil). [10] The law uses the two tiered approach to ensure every single Rohingya is stripped of their citizenship or national identity, since they were actively excluded from the list of National races, and if for some reason they were still able to remain as citizens or within the nation they had to prove that their ancestors lived in the region before 1823, which is not possible for anyone living in the Arakan region as the region saw successive changes in regimes over a short period of time thereby not having a centralized registry of citizens nor any land documentation, prior to 1823.

The Case of the Rohingyas highlights that the largest challenge to combating statelessness boils down to state accountability. In non-democratic, or more specifically authoritarian state systems, there exists no checks and balances on the state, especially with regard to policy formation and law making, allowing the state to take discriminatory and violent action against its own people without any consequences. 

The International Community often tries to intervene with such nations to hold them accountable. Such efforts as seen in the ICJ case relating to the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) with seven states having intervened on the matter pursuant to article IX of the convention, further in its Order of 23 January, 2020 the Court indicated provisional measures requiring Myanmar to “take all measures within its power to prevent the commission of all acts within the scope of Article II of the Genocide Convention.” [11] Similar efforts through intervention could be seen with instances such as the United Nations High Commissioner for Human Rights, in September 2017, through a press release declaring that the events unfolding in Myanmar are “a textbook example of ethnic cleansing.”, [12] The International Criminal Court (ICC), exercising its jurisdiction by issuing an investigation into Myanmar for alleged ‘crimes against humanity’, even though Myanmar is not a party to the Rome Statute, simply by calling cross-border jurisdiction through Bangladesh, which is a party to the same, while also being a territorial link to the conduct.[13] However, all such efforts, although essential, still consistently fail to address statelessness as the focus of the matter. This shows the structural gap between the recognition of the Right to Nationality under International Law and the existence of binding pathways to enforce it against states like Myanmar.

Conclusion and Recommendations

The development of International Law surrounding Statelessness recognises that the right to Nationality is a human right and is also a matter of dignity. It seems to acknowledge that stateless persons are denied opportunities and resources necessary to live an ordinary life, yet it consistently fails in its efforts through frameworks such as the 1954 and 1961 conventions, ICCPR and the UDHR to achieve compliance from states or even exercise binding enforcement. This has been illustrated in the case of the Rohingya People, rather clearly. The International Community seems to be working towards the protection of stateless persons through combating atrocity crimes, and therefore, there is a lack of effort directed towards addressing the structural problem of statelessness. While addressing each case of statelessness through its own individual lenses is extremely important, failing to create binding norms and obligations on states to prevent statelessness as a phenomenon altogether will help prevent another state from subjugating its people to atrocity crimes, justified through the guise of statelessness.

The legal gaps can be perfectly illustrated through the Permanent Court of International Justice’s Advisory Opinion of 1923, related to the National Decrees in Tunis and Morocco, where the court opined that, “nationality is a matter within the domestic jurisdiction of the state, but it is not wholly without the domain of International Law.” In the case of Myanmar, this can be observed through the actions and measures carried out by the UNHCR, ICJ and the ICC, despite constituting international law, lack any enforcement capabilities at all since the UNHCR is supervisory in nature, ICJ rulings require compliance, and while the ICC can prosecute individuals, it lacks the jurisdiction to confer nationality.

In 2014, the then UNHCR High Commissioner, Antonio Guterres, declared that “Statelessness is inhumane. It causes untold suffering and anguish.” Bearing that in mind, it then becomes essential to focus on Statelessness as a structural failure of International Law rather than only tackling related elements such as atrocity crimes [14] or the status of refugees. In South Asia, the issue of statelessness is largely caused by the non-ratification of states to the 1954 and 1961 conventions. This could be prevented by amendment/reservation provisions in these conventions that allow for such frameworks to be more widely adopted. Further international pressure is often a useful tool to widen state ratification. Further, the lack of state jurisdiction over stateless people could potentially allow for the expansion of the UNHCR mandate to include Quasi-Enforcement capabilities on matters pertaining to Stateless Persons, thereby granting them international legal personality.

It is imperative that the International Community recognise Statelessness as a threat to International Peace and Security under Chapter VII of the United Nations Charter, as it can be observed with the situation in Myanmar, to be so, due to it causing forced displacement and cross-border instability. This will then allow the United Nations Security Council to request an Advisory Opinion from the ICJ, pertaining to expanding the applicability of International Law to statelessness by declaring the Right to Nationality a customary norm and a legal obligation of states. This will then allow the International Community to widen the scope of legal enforceability and intervention of states in the matter of reducing/preventing statelessness.

References

1. United Nations High Commissioner for Refugees. 2025. “Global Report 2024.” Unhcr.Org. United Nations. Accessed September 27, 2025. https://www.unhcr.org/sites/default/files/2025-07/global-report-2024.pdf.

2. “Nationality in International Law.” Transactions of the Grotius Society 28 (1942): 151–68. http://www.jstor.org/stable/742865.

3. United Nations. n.d. “Universal Declaration of Human Rights | United Nations.” https://www.un.org/en/about-us/universal-declaration-of-human-rights.

4. United Nations Office of the High Commissioner for Human Rights. 1954. “Convention Relating to the Status of Stateless Persons.” OHCHR.Org. September 28, 1954. Accessed September 28, 2025. https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-relating-status-stateless-persons.

5. United Nations. 1961. “Convention on the Reduction of Statelessness.” United Nations, Treaty Series. https://legal.un.org/ilc/texts/instruments/english/conventions/6_1_1961.pdf.

6. “Nationality Decrees Issued in Tunis and Morocco (French Zone) on November  8th, 1921, Advisory Opinion, 7 February 1923, Permanent Court of International  Justice (PCIJ).” n.d. https://www.worldcourts.com/pcij/eng/decisions/1923.02.07_morocco.htm.

7. Holloway, Kerrie, and Lilianne Fan. “Brief History of the Rohingya.” Dignity and the Displaced Rohingya in Bangladesh: ‘Ijjot Is a Huge Thing in This World.’ ODI, 2018. http://www.jstor.org/stable/resrep50174.5.

8. Union of Burma. 1948. “Union Citizenship Act, 1948.” https://data.globalcit.eu/NationalDB/docs/1948%20Union%20Citizenship%20Act%20%5BENG%5D.pdf.

9. Refworld - UNHCR’s Global Law and Policy Database. 2025. “Burma Citizenship Law.” Refworld. April 15, 2025. https://www.refworld.org/legal/legislation/natlegbod/1982/en/49622.

10. Scott, James Brown. “Nationality: Jus Soli or Jus Sanguinis.” The American Journal of International Law 24, no. 1 (1930): 58–64. https://doi.org/10.2307/2189299.

11. “Application of the Convention on the Prevention and Punishment of the Crime of Genocide (the Gambia V. Myanmar.” n.d. https://www.icj-cij.org/case/178.

12. United Nations Office of the High Commissioner for Human Rights, and Zeid Ra’ad Al Hussein. 2017. “UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein highlights human rights concerns around the world in an address to the 36th session of the Human Rights Council in Geneva.” Press release. September 11, 2017. Accessed September 30, 2025. https://www.ohchr.org/en/press-releases/2017/09/un-high-commissioner-human-rights-zeid-raad-al-hussein-highlights-human.

13. International Criminal Court. 2019. “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation Into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar.” ICC-01/19-27. Accessed September 30, 2025. https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2019_06955.PDF.

14. Southwick, Katherine G. “How Statelessness Matters to Atrocity Prevention: Lessons from the Rohingya Case.” Proceedings of the Annual Meeting (American Society of International Law) 115 (2021): 203–6. https://www.jstor.org/stable/27131297.