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By Aman Ullah

After years of being a colony, 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, Burma Independence Act”, known as the Nu-Atlee Agreement within the UN Charter on the principle of decolonization. In Article 1, the Government of the UK 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. The object and purposes of the Nu-Atlee Agreement is decolonizing all the peoples living in Burma (Myanmar) and make them citizens of the newly independent State.

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.”

Article 14 of the Nu-Atlee Agreement is the most part of the agreement under international law, in the case of any dispute on the implementation of the agreement, the article states 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”.

Thus, the Nu-Atlee Agreement is an international agreement under the United Nations` system of decolonization. The very object of the Nu-Atlee Agreement is the decolonization of the all peoples living in Burma. Before the independence of Myanmar, all the peoples including the minorities were under the protection of the 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 well-being of them.”

The British parliament approved the Burma Independence Act 1947, a bill to Provide for the independence of Burma as a country not within His Majesty’s dominions and not entitled to His Majesty’s protection, and for consequential and connected matters on December 10, 1947, and Burma formally achieved its independence from Britain on 4 January 1948 and Nu-Atlee Agreement came into force on the day of the independence of Burma.

The Nu-Atlee Agreement is an agreement of decolonization, in other words, State succession of Burma 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.

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 Constitution for this sovereign Independent Republic was completed on 24 September 1947 by the constituent Assembly. Following approval of the Constitution by the British parliament and signing of defense agreement, Burma became free on 4 January 1948. The people of Burma ceased the subjects of British and became independent citizens of independent country. That’s means that, then they will no more to be subjects of Her Majesty Queen Victoria and became independent citizens of independent Burma.

The Section 10 of the 1947 Constitution of the Union of Burma also states: “There shall be but, only one citizenship throughout the Union; that is to say, there shall be no citizenship of the unit as distinct from the citizenship of the Union.”
Under Section 11 of the Constitution of the Union of Burma (1947), as shown below, 
a) every person, both of whose parents belong or belonged to any of the indigenous races of Burma; b) every person born in any of the territories included within the Union, at least one of whose grand-parents belong or belonged to any of the indigenous races of Burma; c) every person born in any of territories included within the Union, of parents both of whom are, or if they had been alive at the commencement of this Constitution would have been, citizens of the Union; d) every person who was born in any of the territories which at the time of his birth was included within His Britannic Majesty’s dominions and who has resided in any of the territories included within the Union for a period of not less than eight years in the ten years immediately preceding the date of the commencement of this Constitution or immediately preceding the 1st January 1942 and who intends to reside permanently there in and who signifies his election of citizenship of the Union in the manner and within the time prescribed by law, shall be a citizen of the Union.
These are the fundamental rights of a citizen according to the Constitution of Union of Burma, 1947. In Article 12 of the Constitution its mentioned that, “Nothing contained in section 11 shall derogate from the power of the Parliament to make such laws as it thinks fit in respect of citizenship and alienage and any such law may provide for the admission of new classes of citizens or for the termination of the citizenship of any existing classes.”

Who are indigenous races was defined in Article 3 (1) of the Union Citizenship Act, 1948, which states: “For the purposes of section 11 of the Constitution the expression any of the indigenous races of Burma shall mean the Arakanese, Burmese, Chin, Kachin, Karen, Kayah, Mon or Shan race and such racial group as has settled in any of the territories included within the Union as their permanent home from a period anterior to 1823 A. D. (1185 B.E.)”. These two categories of people and those descended from them are automatic citizens. They did not require applying to court for naturalization.

In Article 4 (1) of that Act also mentioned that, “Any person, who under sub-section (i), (ii) and (iii) of section 11 of the Constitution, is a citizen of the Union or who, under sub-section (iv) of section 11 of the Constitution, is entitled to elect for citizenship and who has been granted under the Union Citizenship (Election) Act, 1948 a certificate of citizenship, or who has been granted a certificate of naturalization or a certificate of citizenship or who has otherwise been granted the status of a citizen under this Act, shall continue to be a citizen of the Union, until he or she loses that status under the provisions of this Act.

In Article 4 (2) of that Act, (as amended up to 1960) states: “Any person descended from ancestors who for two generations at least have all made any of the territories included within the Union their permanent home and whose parents and himself were born in any of such territories shall be deemed to be a citizen of the Union.”

The Union Citizenship Act, 1948 was promulgated on 4 January 1948, as Act No. 66. The Union Citizenship (Election) Act, 1948 was promulgated on 3 May 1948, as Act No. 26. The aim of the first Act was first to define citizens and their rights. The Aim of the Union Citizenship (Election) Act was to solve the problem of immigrants who were already in Burma when Burma regained independence and they were to elect for Burmese citizenship if they so desired.”

Under all those laws and Acts mentioned above, the Muslims of Arakan who prefer to identify themselves in their own language as ‘Rohingya’ are not only one of the indigenous races of Burma but also full citizens of the Burma. Their citizenship matter was settled before the independence of Burma. They are de jure citizens of the country.

Being one of the indigenous races and bona fide citizens of Burma, the Rohingyas were enfranchised in all the national and local elections of Burma except 2015 election: – during the later colonial period (1935-1948), during the democratic period (1948-1962), during the BSPP regime (1962-1988), 1990 multi-party election held by SLORC and 2010 General Election held by SPDC. Their representatives were in the Legislative Assembly, in the Constituent Assembly and in the Parliament. As members of the new Parliament, their representatives took the oath of allegiance to the Union of Burma on the 4thJanuary 1948. Their representatives were appointed as cabinet ministers and parliamentary secretaries.

However, Burmese successive Regimes has engineered series of armed operations, with frequent state patronized communal riots, one after another, resulting in massive drive of Rohingyas from their homeland of Arakan. As a result about 2 million Rohingyas have been expelled or have to leave their ancestral homeland for their lives since 1942.

The successive Burmese Military Regimes try to expel entire Rohingya people by means of murder, torture, arbitrary arrest and detention, executions, rape and sexual assault, military and paramilitary attacks on civilians, robbery and extortion, destruction of cultural and religious buildings and monuments, destruction of homes, confinement of civilians in camps, purposeful starvation, and some others in the most in human manner.

Since General Ne Win took over the power from the civilian government in March 1962 introduced a series of anti-Muslim laws. Since 1974, the launched several Immigration Operations of different categories including the one which is known as the ‘Sabe Operation’. During this operation periods tens of thousands of Rohingyas’ National Registration Cards (NRCs) were seized without any legal authority, on various pretexts which were never returned, for which hundreds and thousands of Rohingya were classified as foreigners alleging illegal immigrants from Bangladesh.

In 1978, the government launched an anti-Rohingya military operation in the pretexts of checking illegal immigrant in the name of ‘King Dragon’. As a result, about 300,000 Rohingyas had sought refuge across the border in southern Bangladesh amidst widespread reports of army brutality, rape and murder. Under international pressure, Burma agreed to “take back” most of them in the repatriation agreement with Bangladesh. However, 3 years later; the Burmese government passed the 1982 Citizenship Law, a legal instrument, which may make all the Rohingya illegal status.

The National Coalition Government of the Union of Burma (NCGUB) states that the 1982 citizenship law was designed specifically to deny citizenship to the Rohingya. According to the Benjamin Zawacki , a Senior Legal Advisor for Southeast Asia, “The system anchor is the 1982 Citizenship Law, which in both design and implementation effectively denies the right to a nationality to Rohingya people.”

The 1982 Citizenship Law created three categories of citizens, whereby only full citizens enjoyed full citizenship rights and the other two types were disenfranchised. The categories are as follows:
a) Full citizens: These consist primarily of the members of eight ethnic groups presumed to have settled in Burmese territory before 1823 (the First Anglo-Burmese War). These eight ethnic groups were later categorized into 135 sub-types through an administrative instruction. Full citizenship is also accessible for a) persons who were citizens on the date the law entered into force, b) persons both of whose parents hold a category of citizenship (including at least one parent full citizen), c) third generation offspring of associate and/or naturalized citizens.

b) Associate citizens: associate citizens are those who applied for citizenship under the 1948 Union Citizenship Act and before the enactment of the 1982 Citizenship Law, but do not belong to the abovementioned 135groups.

c) Naturalized citizens: these are persons who do not belong to the recognized ethnic groups and acquired it citizenship after 1982.

Citizens are persons who belong to one of the national races (Kachin, Kayah (Karenni), Karen, Chin, Burman, Mon, Rakhine, Shan, Kaman, or Zerbadee) or whose ancestors settled in the country before 1823, the beginning of British occupation of Arakan State. If a person cannot provide evidence that his ancestors settled in Burma before 1823, he or she can be classified as an associate citizen if one grandparent, or pre-1823 ancestor, was a citizen of another country. Those persons who qualified

Associate and Naturalized citizens – often still referred to as being of “mixed blood”– have lesser rights concerning political participation, education, health, freedom of movement and property.

The first citizenship law of Burma, the 1948 Union Citizenship Act limited Burma citizenship to the eight ethnicities identified as “indigenous races of Burma”. Afterward, the Burma framework on citizenship law of 1982 constitutes a unique, exclusive, ethnic citizenship regime in the country.

Acquisition of nationality follows almost exclusively ethnic and jus sanguinis, descent-based criteria with barely any possibility for naturalization of foreigners. Indeed, the legal meaning of “naturalized citizen” in Burma in practice relates primarily to descent-based criteria (from the country’s indigene) and not to naturalization procedures. In essence, one of the main characteristics of a “naturalized” or an “associate” citizen in Myanmar is that he or she does not belong to one of the eight legally recognized ethnic groups, later sub-divided into 135 groups through an administrative instruction), considered to be genuine citizens.

The 1982 citizenship law sought to further define the country’s indigene by addressing what the regime perceived as a historical wrong: the incoming of migrants during the colonial area and to relegate anyone not belonging to the indigenous population to a lower citizenship status.

The law signified a further shift towards an exclusively ethnic conception of citizenship when compared to the 1947 Constitution of Burma, the 1948 citizenship legal framework, which had defined belonging to the indigenous races as criteria for accessing citizenship but had in addition provided for naturalization through residence as well as ius soli.

The Article 3 of the Burma 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.

Burma citizenship of 1982 is based on the Doctrine of State Continuity (DSC), by codifying the year 1823 as the critical date for the main point for acquiring citizenship, one year before the First Anglo-Burmese War and the first colonization of the coastal Arakan by the British Empire.

State Continuity is defined as situations in which a State retains its international personality despite territorial changes. For DSC: 
1. First, there are those situations in which a State continues to exist both in law and fact, irrespective of changes in territory or form of government. This may raise nationality problems in the areas affected by changes. 
2. Second, there are situations where one State has been factually replaced by another, but subsequently regains its independence and the responsibility for its international relations. International law may not have recognized the replacement of’ such a State or, at least, may have provided the possibility of disputing it, but important questions arise in relation to nationality, both during the period of such non-recognition and subsequently.

Legality of use of force and acquiring any territory by conquest as a right of the states at the date of colonization of Burma by the British Empire nullifies the DSC of Burma Citizenship Law 1982 under the concept of the inter-temporal law. At the date of the conquest of Burma, the existent international law gave the right to colonize Burma and with the creation of the UN, Burma gained his independence from the UK by the Nu-Atlee Agreement as the process of decolonization under the Charter of the UN.

If Burma defines the colonization or the conquest of Burma was illegal beginning from the First Anglo- Burmese War 1824 then the same acquirement can be used against Burma for the conquest of Kingdom of Arakan. Arakan had been an independent kingdom before it was conquered by the Kingdom of Burma in 1784. If Burma government today claims DSC in the sense that the conquest of Burma was illegal beginning from 1824 to use DSC to legitimize Article 3 of his citizenship law 1982, then the same claim can be forwarded against Burma for the illegal acquisition of the territory of Kingdom of Arakan by the decolonization process in 1948 and some people can claim themselves as the descendant of the citizens of the Kingdom of Arakan by the DSC to demand independence from Burma.

In this sense, Burma cannot validate the Article 3 of the Burma Citizenship Law 1982 by the DSC under inter-temporal law or nullify the obligations rising from the Nu-Atlee Agreement.

The Nu-Atlee Agreement should also be analyzed accordingly to the Vienna Convention on the Law of Treaties, which is a binding ratified treaty obligation for Burma. Burma ratified the Vienna Conventions on the Law of Treaties (VCLT) on 16 September 1998, and part of the treaty.

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 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.

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. 

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.