By Aman Ullah
On 17 October 1947, Prime Ministers, U Nu of Burma and Clement Attlee of the UK signed a treaty formally for the recognizing the independence of the Union of Burma, “Treaty between the Government of the United Kingdom and the Provisional Government of Burma”, known as the Nu-Atlee Agreement within the UN Charter on the principle of decolonization. In Article 1 of the Nu-Atlee Agreement, the Government of the United Kingdom recognizes the Republic of the Union of Burma as a fully Independent Sovereign State.
The Nu-Atlee Agreement was very important as to the determination of the nationality status of the peoples and races in Burma. In the Article 3 of the Nu-Atlee Agreement, a citizen of Burma (Myanmar) defined:
“Any person who at the date of the coming into force of the present Treaty is, by virtue of the Constitution of the Union of Burma, a citizen thereof and who is, or by virtue of a subsequent election is deemed to be, also a British subject, may make a declaration of alienage in the manner prescribed by the law of the Union, and thereupon shall cease to be a citizen of the Union. The Provisional Government of Burma undertake to introduce in the Parliament of the Union as early as possible, and in any case within a period of one year from the coming into force of the present Treaty, legislation for the purpose of implementing the provisions of this Article.”
The Nu-Atlee Agreement is an agreement of decolonization, in other words, State succession of Burma (Myanmar) from the British Empire. The effect of change of sovereignty upon the nationality of the inhabitants of the territory has a long history under the Customary International Law before the establishment of the United Nations. The territorial transfer is usually based on a treaty, and the agreement made between the ceding and cessionary State will, as a rule, include provisions concerning the nationality of the inhabitants of the ceded territory.
Special nationality provisions which have been included in almost all the Peace Treaties during and since the 19th century in the Peace Treaties of the past hundred years, a combination of the two principles of Domicile and Descent would appear to be the most- usual basis on which the problems of nationality were to be solved, and more especially during the course of the fifty years preceding the World War I.
In the absence of treaty provisions, physical presence on the territory, which is subject to the change of sovereignty, must be considered as the determining criterion. The last problem connected with territorial change is whether there is an obligation under international law to grant persons (to the inhabitants of the transferred territory) a right of option to retain their original nationality or to leave the transferred territory. Most of the treaties of cession and multilateral treaties dealing with the cession of territories (Peace Treaties) or questions arising from such cession contain provisions for the exercise of this right; it has, however, in some instances been limited to specific groups (national or religious minorities). Persons exercising the right to opt for their former nationality were, as a rule, compelled to leave the transferred territory.
The Burma Independence Act, 1947 provided, inter alia, that a person who ceased to be a British subject under the Act and who upon independence neither became, nor became qualified to become, a citizen of the independent country of Burma had the right of election of its citizenship. In general, no minorities of Myanmar had the option to refuse the nationality of new on the date of decolonization.
In decolonization cases, British practice was to include the provisions, relating to the acquisition of the nationality of the new state, in their respective independence Act or Order itself. Such provisions are based upon the substantial connection between the person concerned and the territory of the new state. The option to refuse the nationality of the new state is rarely given to them. In this way, the British system succeeded to avoid the possibility of dual nationality and statelessness under the principle “leaving no one behind.”
The very object of the Nu-Atlee Agreement is the decolonization of the all peoples living in Burma. Before the independence of Burma, all the peoples including the minorities were under the protection of the Article 73 of the United Nations` Charter by the General Assembly Resolution66 (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 well-being of them.”
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 Burma. Peoples of Burma used their right of self-determination under the erga omnes provisions of the UN Charter on decolonization by the Nu-Atlee Agreement. Erga omnes is a Latin phrase which means “towards all” or “toward everyone”. In legal terminology, erga omnes rights or obligation are owed toward all.
The ordinary meaning of the Nu-Atlee Agreement is the right of the peoples to self- determination as a whole in Burma. Denationalization of the minorities in Burma by the Article 3 of the 1982 Burma Citizenship is, in fact, the modification of the Article 3 of the Nu-Atlee Agreement, and this modification, when analyzed under the Article 31 of the Vienna Conventions on the Law of Treaties (VCLT), is null and void in two different senses.
1. First, there needs an agreement between the parties for any kind of modification for the Nu-Atlee Agreement but as the Nu-Atlee Agreement is an international agreement on decolonization, the modification should not be the breach of any jus cogens norms against the rights of the peoples of self-determination who gained their independence from colonial administration and became citizens of the new State.
2. Secondly, the object and purpose 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 Burma Citizenship Law 1982, this is against the “object and purposes” of the Nu-Atlee Agreement and its ordinary meaning which can never be sacrificed. Even the approval of the United Kingdom for this kind of a modification which may cause the statelessness of the decolonized peoples could not be accepted as legal and valid by not only the United Nations but the international community as a whole. And even, the United Nations Security Council does not have any authority of any kind for the modification that can cause statelessness of the peoples who gained their citizenship by the implementation of the Article 73 of the United Nations` Charter.
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 nternational 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”, which is the very basic principle of the current International Law system, starts approximately with the emerge of agreements in the past of humankind. Pacta is the plural of pactum which means agreements and sunt servanda means must be kept in Latin.