The Erga Omnes Right to Return Back of the Rohingya Refugees
By Aman Ullah
Erga omnes is a Latin phrase which means “towards all” or “towards everyone”. In legal terminology, erga omnes rights or obligations are owed toward all. For instance, a property right is an erga omnes entitlement, and therefore enforceable against anybody infringing that right.
The right of all peoples to self-determination is one of the core principles of international law and, by virtue of its erga omnes status, it is the responsibility of all states to ensure that this right is realised. The obstruction or violation of this principle, particularly through the use of force, constitutes a very serious violation of international law.
In the opening chapter of the UN Charter, respect for the right to self-determination of peoples is presented as one of the purposes of the United Nations. The right to self-determination of all peoples was confirmed by the United Nations General Assembly (GA) in the Declaration of Friendly Relations, which was unanimously adopted in 1970 and is considered an authoritative indication of customary international law.
A people can be said to have realised its right to self-determination when they have either (1) established a sovereign and independent state; (2) freely associated with another state or (3) integrated with another state after freely having expressed their will to do so. The definition of realisation of self-determination was confirmed in the Declaration of Friendly Relations.
The principle of self-determination outlines not just the duty of states to respect and promote the right, but also the obligation to refrain from any forcible action which deprives peoples of the enjoyment of such a right. In particular, the use of force to prevent a people from exercising their right of self-determination is regarded as illegal and has been consistently condemned by the international community. The obligations flowing from the principle of self-determination have been recognised as erga omnes, namely existing towards the international community as a whole.
In international law, the concept of erga omnes obligations refers to specifically determined obligations that states have towards the international community as a whole. By its very nature this affects the freedom of state consent and the sovereignty of states. In its dictum on the Barcelona Traction case, the International Court of Justice, as the primary judicial organ of the United Nations, gave rise to the concept of erga omnes obligations in international law. The World Court specifically enumerated four erga omnes obligations: the outlawing of acts of aggression; the outlawing of genocide; protection from slavery; and protection from racial discrimination In this judgment the Court drew a distinction between the erga omnes obligations that a state has towards the international community as a whole and in whose protection all states have a legal interest, and the obligations of a state vis-à-vis another state.
Such obligations, as enumerated above, have been determined by the Barcelona Traction case, together with other subsequently developed obligations, such as the obligation to respect the principle of self-determination in the Case Concerning East Timor and the Advisory Opinion on the Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, and the erga omnes obligation prohibiting the use of torture which was recognized by the International Criminal Tribunal for Yugoslavia (hereinafter, the ICTY) in the Furundzija case.
The Nu-Atlee Agreement was not only an international agreement but also an agreement made under the Article 73 of the United Nations Charter, carries the norm of jus cogens character. Jus cogens (or ius cogens) is a latin phrase that literally means “compelling law.” It designates norms from which no derogation is permitted by way of particular agreements. The object and the purpose of the Nu-Atlee Agreement should be understood to achieve the decolonization of Burma that is to realize the right to self-determination of the all peoples living in Burma within the territorial frontiers accepted by the concept of uti possidetis at the date of the agreement. Uti possidentis is a principle in international law that territory and other property remains with its possessor at the end of conflict, unless otherwise provided for by treaty; if such treaty does. All the articles of the Nu-Atlee Agreement should be interpreted to reflect the goals of the right to self-determination without any acceptation of the peoples living in Myanmar. Peoples of Myanmar used their right of self-determination under the erga omnes provisions of the UN Charter on decolonization by the Nu-Atlee Agreement.
The object and purposes of the Nu-Atlee Agreement are decolonizing all the peoples living in Burma (Myanmar) and make them citizens of the newly independent State. When the minorities, who had gained their citizenship by using their right to self-determination by the Nu–Atlee Agreement, lost their citizenship and become stateless because of the implementation of the modification of the Nu- Atlee Agreement by the Article 3 of the Myanmar Citizenship Law 1982, this is against the object and purposes of the Nu-Atlee Agreement and its ordinary meaning. Even the approval of the UK for this kind of modification which may cause the statelessness of the decolonized peoples could not be accepted as legal and valid by the UN.
The minorities of Myanmar who became stateless by the implementation of the Article 3 of the 1982 Citizenship Law should be accepted “de facto” stateless, but not “de jura” by the international community. The Article 3 of the Myanmar Citizenship law 1982 is a serious breach of obligations under peremptory norms of general international law, jus cogens norm of self-determination right of the minorities of Myanmar to the international community as a whole.
Since the right to self-determination, is a jus cogens norm, and since the ICJ has clearly referred to it as an erga omnes obligation, by drawing an analogy with the other erga omnes obligations in the Barcelona Traction case deriving from jus cogens norms, it is safe to regard the obligation to respect the right to self-determination as an erga omnes obligation. The ICJ in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory case, asked the question of the action is required to bring to an end by the UN on a breach of an erga omnes norm of self-determination and reminded that international community is under an obligation not to recognize the illegal situation resulting.
The international community has an obligation of non-recognition of an unlawful statelessness situation of the Myanmar minorities created by the implementation of the Article 3 of the Myanmar Citizenship Law. The international community not only has an obligation for the non-recognition of deprivation of nationality by the Article 3 of the Myanmar Citizenship but as well as an obligation to not to recognize as lawful the consequences of the Article 3 as in the case of Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.
The International Court of Justice in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory case, asked the question of the action is required to bring to an end by the United Nations on a breach of an erga omnes norm of self-determination and reminded that international community is under an obligation not to recognize the illegal situation resulting.
The obligations in Article 41 of the International Law Commission Articles on the Responsibility of States for Internationally Wrongful Acts rest on the assumption of international solidarity an understanding that a collective response by all States is necessary to counteract the effects of such a violation. The obligation of non-recognition of an unlawful situation is set out in Article 41.2 of Articles on the Responsibility of States for Internationally Wrongful Acts.
In Article 48 of Articles on the Responsibility of States for Internationally Wrongful Acts deals with the invocation of responsibility by states other than the injured state acting in the collective interest. A state that is entitled to invoke responsibility under Article 48 is acting not in its individual capacity by reason of having suffered injury, but in its capacity as a member of a group of states to which the obligation is owed, or indeed as a member of the international community as a whole. In practice, it is most likely that this collective response will be coordinated through the competent organs of the United Nations as well.
The United Kingdom is primarily responsible for the internationally wrongful act of Myanmar on the modification/termination of the citizenship article of the Nu-Atlee Agreement as the party to the agreement and should act with his responsibility as codified in Article 14 of the agreement. In Article 14, it is written that:
“Should any difference arise relative to the application or the interpretation of the present Treaty, and should the contracting parties fail to settle such difference by direct negotiations, the difference shall be deferred to the International Court of Justice unless the parties agree to another mode of settlement.”
The United Kingdom should begin to negotiate on the full implementation of Article 3 of the Nu-Atlee Agreement. The United Kingdom if cannot solve the dispute of the full implementation of Article 3 of the Nu-Atlee Agreement than shall defer the validity of Article 3 of the Agreement to the International Court of Justice for a binding decision. The United Kingdom shall take the necessary steps on the non-recognition of the statelessness resulting from the Myanmar Citizenship Law 1982 and shall ask the international community on the obligation of the non-recognition of the “de facto” statelessness of the Myanmar minorities as the consequence of the implementation of the Article 3 of the Myanmar Citizenship Law 1982. This is an obligation for the United Kingdom under the principle of pacta sunt servanda and good faith under international law for the Nu-Atlee Agreement. The United Nations has the same responsibility as the United Kingdom for the Nu-Atlee Agreement. Pacta sunt servanda is a Latin phrase means “agreements must be kept”[, is a basic principle of civil law, canon law, and international law.
In paragraph 160 of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory case, the International Court of Justice reminded the responsibility of the United Nations to bring to an end the illegal situation created by the wall.
When the Nu-Atlee Agreement decolonized Burma (Myanmar), the option to refuse the nationality for the new state and chose another nationality had not been given to the minorities of Burma (Myanmar). Before the independence of Myanmar, all the peoples including the minorities were under the protection of Article 73 of the United Nations` Charter by the General Assembly Resolution 66 (I). In Article 73, the interests of the inhabitants of the territories whose peoples have not yet attained a full measure of self-government as a principle defined as “paramount”, this principle includes “the wellbeing of them.” When the minorities of Burma (Myanmar) became stateless by decolonization, this is against the “object and purposes” of the Article 73 of the United Nations` Charter that can never be “sacrificed.”
In the operative paragraphs of the mandate of the Human Rights Council in the General Assembly Resolution 60/251, in Article 2, it is specified that “the Council shall be responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner”; in Article 3, gives responsibility for the decisions of the Human Rights Council within the United Nations system as “the Council should address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon. It should also promote the effective coordination and the mainstreaming of human rights within the United Nations` system;”, and in the Article 4, principles of the Human Rights Council is codified as “the work of the Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development.” In the operative Article 5 (i), the Human Rights Council is authorized to “make recommendations with regard to the promotion and protection of human rights” to the General Assembly.
As the main body of the human rights protection in the United Nations` System, the Human Rights Council should go on further action for the Nu-Atlee Agreement as the agreement itself is under the Principles and the Purposes of the United Nations` Charter in the sense of Article 73 of the United Nations` Charter on decolonization and the Human Rights Council has the responsibility to follow up that no derogation shall be permitted to a norm accepted and recognized by the international community of States as a whole.
The Human Rights Council should as well as the General Assembly of the United Nations for an advisory opinion from the International Court of Justice within his mandate as written in the operative paragraph 5 (i) in accordance with Article 65 of the Statute of the Court, by referring Article 14 of the Nu-Atlee Agreement as the legal background of his application as the concept that the agreement is originated from the article 73 of the United Nations` Charter, signifies the reality that the United Kingdom had signed the agreement in the name of the United Nations on the following questions:
(a) The binding character of the Nu-Atlee Agreement for Myanmar including Article 3 on citizenship.
(b) The obligation of non-recognition, the consequences of the implementation of Article 3 of the Myanmar Citizenship Law 1982 as legal, for the “de facto” statelessness of the minorities of Myanmar by the international community as a whole.
On the other hand, the Human Rights Council in the operative paragraph 19 of its resolution A/HRC/40/L.19 of 19 March 2019 emphasizes “the need for the Government of Myanmar to cooperate fully with the Government of Bangladesh and with the United Nations, in particular, the Office of the United Nations High Commissioner for Refugees, and in consultation with the populations concerned to enable the safe, voluntary, dignified and sustainable return of all refugees and forcibly displaced persons to their places of origin in Myanmar, and to give returnees freedom of movement and unimpeded access to livelihoods, social services, including health services, education and shelter, and to compensate them for all losses.”
The protection provided under the UN 1951 Refugee Convention and its 1967 Protocol is not automatically permanent. A person may no longer be a refugee when the basis for his or her refugee status ceases to exist. This may occur when refugees integrate or become naturalized in their host countries and stay permanently in the case if the refugees cannot repatriate to their home countries. When the status of refugee is lost, the relation with the United Nations comes to an end. The United Nations is no more related to the legal right to return of the people who lost their refugee status.
To prevent the cease of the Myanmar refugees` relation with the United Nations, in particular the Rohingya in case of changing of their nationality because of the failure of the Government of Myanmar for not fulfilling of his responsibility for the Article 3 of the Nu Atlee Agreement, there exists an obligation of the Human Rights Council to create a mechanism for the follow up of its resolutions to protect the erga omnes right to return back of the Myanmar refugees in case of losing their status of being refugee in the future including their next generations.
To achieve this, the Human Rights Council should ask the Office of the United Nations High Commissioner for Refugees to create a special database to register the Myanmar refugees and their next generations in order to guarantee their erga omnes right to return back to Myanmar in the future to prevent the legal gap on the loss of the status of being a refugee to be used as a tool as a kind of mechanism for changing the demography in Myanmar.