The human tragedy of the Rohingya that is unfolding in front of us has a root cause and Myanmar’s refusal to acknowledge the issue continues to make the situation worse.

Countries in the region, including Australia, must do what they can to address this cause immediately. All efforts must be made to secure Burmese citizenship for the Rohingya who have been resident in that country for generations.

In a recent article, Amnesty International Australia noted that thousands of people from “Myanmar and Bangladesh remain stranded at sea in dire circumstances and at risk of death while authorities defy international human rights law and their duty to protect.” The same article goes on to point out:

Despite positive developments on this issue, thousands of people remain stranded at sea and at immediate risk of death by starvation and drowning. On 21-22 May, Indonesia and Malaysia announced that they would undertake search and rescue operations. However, these will only operate in Indonesian and Malaysian territorial waters, leaving those in other territories – and in international waters – without hope of rescue.

Many of these people have been on boats in harrowing conditions for more than two months and are in desperate need of food, water and medical care.

The people stranded at sea are just the face of the tragedy, and many hundreds of thousands continue to suffer.

So, who are the Rohingya and why are they fleeing their home country? The Guardian captures the reasons neatly:

There are around 1 million Rohingya in Burma. The United Nations has called them one of the most persecuted minorities in the world.

Some of the Rohingya are descended from families that have been there for generations. Others arrived more recently from neighbouring Bangladesh. All have been denied citizenship, rendering them stateless.

For decades, they have been unable to travel freely, practise their religion, or work as teachers or doctors. They need special approval to marry and are the only people in the country barred from having more than two children.

Indeed, the lack of citizenship rights in their home country, Myanmar, coupled with widespread discrimination, is the root cause behind the Rohingya taking on the devastating journey across the seas. As has been stated in a Human Rights Watch report from 2000:

The stipulations of the Burma Citizenship Law governing the right to…Burmese citizenship effectively deny to the Rohingya the possibility of acquiring a nationality. Despite being able to trace Rohingya history to the eighth century, Burmese law does not recognize the ethnic minority as one of the national races. Many Rohingya families migrated to and settled in Arakan during the British colonial period which would immediately exclude them from citizenship. Even for those Rohingya whose families settled in the region before 1823, moreover, the onerous burden of proof has made it nearly impossible for all but a handful to secure citizenship. Rohingya who cannot provide “conclusive evidence” of their lineage or history of residence find themselves ineligible for any class of citizenship. And because of their formal legal status as resident foreigners, Rohingya are subject to restrictions on their freedom of movement, are denied access to higher education, and are restricted from holding public office.

One might ask how a country can legally deny citizenship to a people, some of whom have been living on its territory for centuries.

The answer lies in the regulation of citizenship. Citizenship can take various dimensions, but here we are concerned with its legal notion. In its legal notion, citizenship is a concept of domestic law, and States possess a very broad discretion to decide who their citizens will be. This broad discretion derives from State sovereignty. In 1923, this general principle was stated in the case of the Nationality Decrees issued in Tunis and Morocco by the Permanent Court of International Justice, the court that preceded the International Court of Justice.

So, like all sovereign nations, Burma can determine the rules that individuals must satisfy to acquire its citizenship with considerable freedom.

However, international law places obligations on States impacting upon citizenship. For example, a State must not render its nationals stateless. Under the Universal Declaration of Human Rights “Everyone has the right to a nationality; and no one shall be arbitrarily deprived of his nationality….” Such obligations are imposed by international law because of the significance of citizenship for an individual.

Citizenship is a symbol of membership of the nation, and it constitutes the legal bond of attachment between an individual and the State. As is evidenced by the plight of the Rohingya, the absence of citizenship can lead to devastating consequences, resulting in State sanctioned discrimination and breach of the most fundamental rights.

It will not be difficult to successfully demonstrate that Burma is in breach of several international law obligations concerning the denial of citizenship to the Rohingya. However, international law claims are difficult to prosecute in practice, because significant problems exist with the enforcement of international law generally.

In domestic legal systems, aggrieved individuals may access national courts and obtain binding judgments. However, generally speaking, such a facility is not present in the international law sphere. This is especially true for the Asian continent. Unlike the European, African and American regions, the entire Asian continent lacks a regional human rights court. Individuals who find themselves in the position of the Rohingya cannot access any remedies internationally. This is a significant problem because their own country is unlikely to provide the Rohingya with any justice. The Rohingya simply have to rely on diplomatic pressure on the Burmese regime by sympathetic and concerned countries.

In the case of the Rohingya, access to citizenship is a critical first step in removing discrimination, and halting the flow of Rohingya refugees. The grant of Burmese citizenship to the Rohingya will result in two main things. First, it will mean that the Rohingya can access citizenship on a non-discriminatory basis. Second, enjoyment of citizenship status will significantly enhance the likelihood of other forms of discrimination against the Rohingya being completely removed over time.

Very recently, the US Deputy Secretary of State urged the Burmese to grant the Rohingya citizenship. He said:

“[The Rohingya] should have a path to citizenship,” adding “the uncertainty that comes from not having any status is one of the things that may drive people to leave.”

“Even if we address the immediate crisis, we also must confront its root causes in order to achieve a sustainable solution,”

On 29 May 2015, at the meeting of the ASEAN regional grouping – also attended by the US, UN and International Organization for Migration (IOM) – it was stated that countries would address the root causes of irregular migration, working to create jobs and promoting “full respect for human rights and adequate access of people to basic rights and services such as housing, education and healthcare”.

Regional efforts to address the real cause of this crisis must focus on the lack of Burmese citizenship for the Rohingya. Countries in the region, including Australia, need to do more to address this root cause. No doubt, some may argue that Australia does not possess a moral basis to make strong public representations to Burma in light of its own treatment of asylum seekers. However, that is not reason enough for Australia not to take a stance against Burma on its treatment of the Rohingya. Burma’s honeymoon as the darling of the international community is now over, and it must act with speed, determination and decisiveness to ensure that the Rohingya of Burma have access to its citizenship.

Rishi Gulati is a practicing barrister focusing on both private and public international law with expertise on citizenship and nationality law. This article can be republished with attribution under a Creative Commons Licence.