Stateless tag, undocumented birth of Rohingya children in Bangladesh and role of ASEAN *SHAMSUDDIN ILLIUS Abstract It is estimated that there is over one million Rohingyas in the 34 refugee camps in Bangladesh who fled brutal violence from Myanmar. Of them, 55 percent are children and everyday there are more 92 children being born in these squalid camps. Bangladesh is not issuing any Birth Registration Certificate (BRC) for these newborns as they are born to those parents living in the camp without any formal refugee status. The article also discusses the role of Association of Southeast Asian Nations (ASEAN) to resolve the prolonged Rohingya Muslim minority identity crisis initiated in 1970s. The article is based on the analysis of legal instruments both Bangladesh and Myanmar to the citizenship of the Rohingya children, some interviews with Bangladeshi experts and government officials and local government representatives to clarify the legal aspects to the status of the children born in Bangladesh refugee camps and the interviews of the newborns' parents.

The published literature and media reports have also been thoroughly reviewed for comparison with legal standards and on stance of ASEAN. Based on above mentioned analysis and empirical findings, the article shows that all children being born to Rohingya mothers are likely to embrace the fate of statelessness. The fate of newborns without any birth record is uncertain too with derisory safeguards. There is no legal impairment to get birth registration for any children born in Bangladesh. With the identity crisis deepening further, the ASEAN members are not coming up with any collective steps to compel its member state Myanmar to solve the problem using its mandate to ensure peace and stability among the member countries.

Introduction During the last two influxes in 2016 and 2017, I witnessed that many Rohingya people had to flee from Myanmar with their infants of different ages. Many children were born during their perilous journey to find a safe (1) home to Bangladesh. Many children were born in jungle, graveyard (2) and valley of the hills. After the influx, on an average 92 (3) Rohingya babies are being born every day in the squalid, flimsy tents of Cox’s Bazar refugee camps in Bangladesh where their parents took shelters.

The children born to Undocumented Myanmar Nationals (UMN) with stateless tag and the government is not maintaining birth record (Birth Certificate) saying they are living here temporarily. The article attempts to find answers to the questions about the status of the newborns in the Bangladesh refugee camps born to the mothers’ of UMN and the Bangladesh laws that regulate their identity and birth records and how the laws are implementing. The article also tries to answer why the birth record is necessary for the safeguard of a child and what role the regional organisation ASEAN is playing to compel its member state Myanmar to resolve the identity crisis. The article is divided into four main sections. The first section is a brief description about the children born in Bangladesh refugee camps and the treatment to them. The second section analyses and describes the status of the newborns to the parents of UMN based on the Bangladesh and Myanmar citizenship laws and research projects and media reports on legal status of the Rohingya in these two countries. The second section also describes the impact of the citizenship laws on the life of Rohingya people. The third section focuses on the birth record of the newborns in the camps and analyses the Bangladeshi laws regarding birth record. This section is also based on some interviews of Rohingyas, local government officials, local public representative, experts and NGOs taken at Rohingya refugee camps in Bangladesh via email and over telephone. A total of 16 Rohingyas were interviewed, the findings of Rohingyas interview and NGOs have been mentioned without disclosing their identities for the safety of the participants. The final section analysis focuses on the role of ASEAN responding to the regional identity crisis based on their principles, research and media reports. Rohingya newborns in Bangladesh refugee camps Among 1.1 million Rohingyas in Cox’s Bazar, 55 per cent are below 18 years of age. There are 136,402 children age between one year and four years, 202,521 children aged between five and eleven and 122,390 children are from 12 to 17 years old in Bangladesh. Moreover, only 34, 172 previously registered refugees from Myanmar in Kutupalong and Nayapara refugee camps. In the last 11 months in the Rohingya refugee camps in Bangladesh, a total of 30,302 babies including 15,173 infant females and 15,129 infant males were born and more 30,000 children are expected to be born in the next ten months. As per the information provided by Refugee Relief & Repatriation Commission of Cox’s Bazar, of them, 39,8,41 are orphans (19,059 boys and 20, 782 girls) while 8,391are unaccompanied children.

Abdus Salam, Cox’s Bazar Civil Surgeon of Directorate General of Health Services (DG HS) under Ministry of Health and Family Affairs (during a telephonic interview on November 8, 2018) said, “Over 35,000-40,000 children were born in the camps since August 25, 2017. The number of expecting women stands at 30,000 till November 08, 2018.”

Describing the condition about the camps and the children The United Nations International Children's Emergency Fund (UNICEF) states that “The babies are taking their first breath in appalling conditions, away from home, to mothers who have survived displacement, violence, trauma and, at times, rape. These children born in the camps far from the best start in life” (4).

All these children born to stateless Rohingya mothers in no-man’s land and Bangladesh territory, including the refugee camps in Cox’s Bazar, are likely to be tagged as stateless (5). Myanmar and Bangladesh do not recognise these newborns as their citizens. Myanmar called them “illegal interlopers” (6) from Bangladesh and not the citizen (7) of Myanmar while as per Bangladesh's law; they are “aliens” in Bangladesh territory. The government also categorises (8) them as ‘Rohingya intruders’, ‘illegal foreigners’, ‘illegal Burmese’, ‘undocumented Myanmar nationals (UMN)’, and ‘economic migrants’. Moreover, the Bangladesh government does not issue any BRC to these newly born children. The fate of the newly born Rohingyas without any birth record is uncertain. Besides, Myanmar’s discriminatory state policies that lie at the root of the crisis. The 1982 Citizenship law of Myanmar stripped the citizen rights of the Rohingya children. Since then the identity crisis for the Muslim minority leads to a prolonged problem while Myanmar government has been conducting cleansing operation and committing “crimes against humanity” (9). The Association of Southeast Asian Nations (ASEAN), a regional organization, mandated to ensure peace and stability among the countries, has not yet taken any bold step against its member country Myanmar citing the principle of non-interference in internal affairs among its member countries. 1982 Myanmar Citizenship law and systematic campaign The systematic campaign against Rohingyas, an ethnic minority in Myanmar's northern Rakhine state of Myanmar has come to a head which commenced in 1962.

General Ne Win, the Myanmar military commander and politician, had designed the campaign to drive out the Rohingyas from Rakhine state (formerly Arakan state) after usurping the power by staging a military coup in 1962 (10). Earlier, the Rohingya community was recognized as an indigenous ethnic nationality of Burma, with members of the group many (11) Rohingyas served as representatives in the Burmese Parliament, as well as ministers, parliamentary secretaries. When Ne Win came to power in 1962, the status of Myanmar Muslims started changing. Among his first steps was to oust Muslims from the Myanmar army. Then he cancelled the Rohingya language programs, an ethnic language program had been broadcast on the Burmese Broadcasting Service in 1965. In 1974, he changed the name of Arakan State (13) to Rakhine State, an ethnically motivated name. As per a longstanding plan of the Myanmar military, General Ne Win first started Operation Nagamin (Dragon King) in 1977 to dissolve Rohingya social and political organisations and drive the minorities out of that country in the name of screening “foreigners”. To oust the Rohingya, the Tatmadaw used forced eviction, gang rape and murder against the Rohingya ethnic minority. Then successive governments conducted the other drives. The country stripped the citizenship rights of this minority group enacting a Citizenship Law in 1982. Every Rohingya children born after the 1982 Citizenship Law becomes stateless. Rohingyas are not recognises one of the 135 ethnic groups (13) living in Myanmar. They have been living for centuries (14) in the western state of Rakhine, in Myanmar for a long time. However, they are not recognised as an ethnic group. To make matters worse, they have been persecuted for decades by the Myanmar government saying they are “illegal interlopers” “virus” from neighboring country Bangladesh. Even they urged the international community not to use the term “Rohingya” with and attempt to erase (16) them. Myanmar nationality law recognizes three categories of citizens; citizen, associate citizen and naturalised citizen. Under this law, full citizenship is primarily based on membership of the “national races” who are considered by the State to have settled in Myanmar prior to 1824, the date of first occupation by the British. Despite generations of residence in Myanmar, the Rohingya are not considered to be amongst these official indigenous races and are thus effectively excluded from full citizenship. Full citizens are descendants of residents who lived in Burma, before 1823 or were born to parents who were citizens at the time of birth.

Citizenship law of Burma (Myanmar) 1982, article-3, “Nationals such as the Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine or Shan and ethnic groups as have settled in any of the territories included within the State as their permanent home from a period

anterior to 1185 B.E., 1823 A.D. are Burma citizens.” Article-4 said “The Council of State may decide whether any ethnic group is national or not.” Article 44; (C) “Be able to speak well one of the national languages; (D) said “be of good character.”

But Rohingyas speak in Rohingya dialect similar to the Language of Chittagonion in Bangladesh. The Myanmar termed the Rogingyas as “dirty Muslims” (16) and “terrorists” (17). The Myanmar citizenship law of 1982 does not consider Rohinyas as a ‘national race’ of the country and thus have been denied citizenship. The people who settled in Myanmar before 1823 are considered national race. As the law denies these newborns as their citizens, they are born with a permanent identity of being stateless. The law leads to an increase in statelessness over generations. Refugee in Bangladesh Due to the discriminatory policies of the Myanmar government and the systematic campaign (18) against the Rohingyas since 1970s, hundreds of thousands Rohingyas were compelled to flee their homes to the neighboring countries like India, Malaysia, Indonesia and Thailand while most of the Rohingyas fled to Bangladesh facing state-sponsored genocide (19). Since Burma’s independence in 1948, Rohingyas have been denied many rights in their homeland. Literally the Rakhine has become an open air prison (20) for the Rohingya as they are facing targeted persecution, restriction of their movement, restriction on marriage, births, education, healthcare facilities and confiscation of their properties. The successive Burmese governments also inflicted over 15 systematic military crackdowns (in 1975, 1978, 1989, 1991–92, 2002, 2016 and 2017) to drive Rohingyas out of the country. During 1978 and 1992, Bangladesh had signed Repatriation Agreements with Myanmar. Till 2008, over 423,000 refugees were repatriated to Myanmar. However, those agreements showed that Myanmar recognizing Rohingyas as legal residence (21) of the Myanmar, the repatriation brought no change in the attitude of Myanmar government and military towards Rohingya people. Many Rohingya people fled violence twice-thrice (22). In 1978, during the clearance Operation Nagamin (Dragon King) to clear the illegal “Bengali Interlopers” by Myanmar Army, about 220,000 Rohingya people have taken shelter in Bangladesh. Following a “1978 Repatriation Agreement” in between the Bangladesh and Myanmar governments, some 187,250 Rohingya refugees were repatriated from Bangladesh by December 1979. Due to widespread forced labour, rapes (23) torture, killing and religious persecution, another 250,000 Rohingya people fled to Bangladesh in between 1991 to 1992. Following another agreement signed between the two countries titled “Joint statement by the foreign ministers of

Bangladesh & Myanmar” issued at the conclusion of the official visit of the Myanmar Foreign Minister to Bangladesh 23 - 28 April 1992 some 236,599 refugees were sent back to Myanmar till 2008. It is alleged that the repatriation processes were not followed properly in 1997. Besides, 33,148 documented Rohingya refugees are currently living in two registered Rohingya refugee camps in Kutupalong and Nayapara areas of Cox’s Bazar in Bangladesh. In 2014, it was estimated that there were 200,000-500, 000 unregistered Rohingyas in Bangladesh. Following the military crackdown in Rakhine in October 2016, another batch of around 74,000 Rohingyas fled to Bangladesh. As a fallout of the clearance operation of military in Rakhine which lasted from August 25, 2017 to October 2018, a total of 7,31,769 Rohingyas crossed over to Bangladesh to escape the atrocities committed by the Myanmar security forces, local Buddhist mobs and people from other groups in Rakhine. The extent of devastation in Rakhine in 2017 has crossed all the previous record. Though Bangladesh has provided shelter to over one million Rohingyas on humanitarian grounds, Bangladesh has not signed The 1951 Refugee Convention. Moreover, Bangladesh has not any domestic refugee regime. The Rohingya people are usually considered ‘illegal foreigners’ under the Foreigners Act 1946 and the they are stranded in 34 designated refugee camps in Cox’s Bazar. There is restriction on their movement (24) without any formal legal refugee status. Is Bangladesh Citizenship law applicable to Rohingyas born in Bangladesh? There are different categories of citizenship of Bangladesh as well—by birth, descent; migration and naturalisation—do not allow Rohingyas to be citizens of Bangladesh. A child born in Bangladesh to alien parents cannot be a citizen of Bangladesh by birth or by descent. A Rohingya child born to two Rohingya parents cannot be a Bangladeshi citizen. However, if a child is born to parents one of whom is a Bangladeshi citizen, he/she can acquire Bangladeshi citizenship. In such a situation, it remains unclear whether the citizenship would be automatic or must be granted by the government.

Although such a child is entitled to Bangladeshi citizenship, the authorities are reluctant to register and provide such citizenship. There are no known cases where a child born to one Bangladeshi parent and one Rohingya parent acquired Bangladeshi citizenship using this legal provision.

Rohingya newborns without any documents, fresh identity crisis

Accurate information is not available regarding births, deaths and marriages in the camps. The majority of women deliver their babies in the shelters, and as there is no formal system of registration, many of the births go unrecorded.

The children born to stateless parents with a stateless tag are staring at a bleak future, as the Bangladesh government is not issuing any birth registration, marriage registration and death registration certificates. Though the birth registration is not obligatory to acquire citizenship, it is the primary identification of the children and fundamental human rights (25) specified in the United Nations Convention on the Rights of the Children (UNCRC). It will have the names of parents, address, and place of birth and the date of birth. Without registration means a children entering into the world without any identity documents. Earlier, since 1992 till March 2017, Union Parishad Chairman (Local administration) issued 6285 birth certificates (26) for Rohinya children. However, the birth registration has been issued for the children born to the parents of 34,172 previously registered refugees from Myanmar in Kutupalong refugee camp and Nayapara refugee camp. Since 2017 issuing birth registration for the children of the registered refugee also remained stopped. The local administrations are directed not to issue any birth, marriage and deaths certificates to these unregistered Rohingyas. Some refugee tries to manage birth registration certificates, Bangladesh national identity cards, and even passports with the nexus of local public representative and middlemen for their children for accessing to education and other services. Sometimes they are not being success as they were given ‘fake’ birth certificates. The local administrations are directed not to issue any birth, marriage and deaths certificates to these unregistered Rohingyas.

“Birth registration is the State’s first official acknowledgement of the child’s existence and is the means to secure other child rights such as access to health care and education. In addition, birth registration protects children from exploitation because it enables the use of legal age limits for employment, marriage, recruitment for armed forces and criminal responsibility. With the birth certificate, the age of the child can be verified,” said the UNCRC.

In case of any repatriation, those Rohingyas who entered Bangladesh with the national identity (NID) card of Myanmar issued in 1978, or the temporary citizen card issued in 1991, or the green card issued in 2015 may return to their country of origin. But the fate of the newly born Rohingya children without any birth record is uncertain.

The Rohingya parents also apprehend that the future of the children born with stateless tag and without any formal documents will be unable to identify the birthplace and the parents.

A Rohinya, father of six months old female child of Rohingya Refugee camp in Ukhiya of Cox’s Bazar said, “My daughter is six-month old. She has no birth registration or none has come to us for doing so. Myanmar is persecuting us saying we are not the citizens of Myanmar. Now my daughter will have to bear with the same stigma. If my daughter has no birth registration how I would prove her as my son?”

Expressing gratitude to Bangladesh for the shelter, he said, “Nobody is thinking to resolve the issue.” Father of seven months old children of the same camp echoed the same.”

The Rohingyas registered and unregistered both said sometimes they need BRC here for accessing into education, healthcare facilities of their children.

According to ‘The Births and Deaths Registration Act 2004’ of Bangladesh, any foreigner living in Bangladesh and also any refugee taking shelter in Bangladesh, however, has the right to get birth registration.

Abdus Salam, Civil Surgeon of Cox’s Bazar Affairs (during a telephonic interview on November 8, 2018) said, “We cannot issue birth certificate to them as we did not recognize them as refugee. We are giving them emergency humanitarian assistance based on humanitarian grounds. We are working so that they could return to their country soon.”

The Union Parishad, a local government body, usually issues the birth registration.

Jahangir Kabir Chowdhury, Chairman of Rajapalong Union Parishad of Ukhiya Upazila (sub district) in Cox’s Bazar (During a telephonic interview on November 10, 2018) said, “We don’t register the birth and deaths of the Rohingyas as they are not citizens of Bangladesh. We need directives from the government for their registration.”

If the Myanmar started recognizing the Rohingyas as their citizens, then a question may arise regarding the birth records and marriage records of the parents of Rohingya people.

Ashraful Azad, assistant professor of the international relations department at the University of Chittagong and expert on Rohingya refugee and migration issue (During a telephonic interview on November 08, 2018) said, “Issuing birth registration certificate does not mean citizenship. The birth registration is a record of birth where the child was born, place, date and the information of parents. As per the Bangladesh birth registration law, anyone born in Bangladesh will get the birth registration certificates.”

“The Rohingya children may show the birth registration certificate as identity document to acquire citizenship. It may be needed for a person in whole life to prove as first registration to enter in the world.”

However, Ashraful Azad said, “There is no relation between the birth registration and refugee status.”

“Myanmar is not recognizing them as citizens. If Myanmar announces to recognize them as citizens in future, then the Myanmar government may look for ways to strip them of the right to citizenship. So, birth certificate is an important document for future references,” added Azad.

How ASEAN Responding? The ASEAN, a regional organization, uncannily keeps mum and failed to take any serious action against its member country Myanmar over the gross human rights violation including widespread killings, rapes, mass arson, and arbitrary arrest.

ASEAN parliamentarians for Human Rights suggested that its member state Myanmar in 2017 crackdown was completely or partially burned down 360 Rohingya villages (28), and conservative estimates place the death toll at a minimum of 6,700. There has been raging protest all over the world against the Rohingya persecution. The UN warned Myanmar army that he will have to face trial for perpetrating genocide against Rohingya Muslims. The UN report also accused the Myanmar de-facto leader Nobel Peace Prize winner Aung San Suu Kyi, as she "contributed to the commission of atrocity crimes." The atrocities of Myanmar armed force what UN has termed it as a “textbook example of ethnic cleansing (29). The United States and some EU countries imposed sanctions on Myanmar military in response to “crimes against humanity” and “genocide” (31) at Rakhine in Myanmar. Though the stateless Rohingya people are swelling constantly, the ASEAN is yet to offer a collective response to solve the identity crisis of the Rohingyas. Of the 10 ASEAN countries, only Malaysia and Indonesia rebuked Myanmar for their treatment to the Rohingya minority. The Fundamental Principles (31) of ASEAN is “Non-interference in the internal affairs of one another.” However, it is not “internal matter” (33) of Myanmar it also connected with whole ASEAN region as well as South Asia and Middle East. Along with ASEAN countries – Malaysia, Thailand, Indonesia—Bangladesh, India, Pakistan, Saudi Arabia and many more countries (34) are experiencing the crisis. ASEAN said it is gravely concerned (35) “over the alleged acts of violence detailed in a recent UN Human Rights Council report on the Rohingya crisis.” However, the organization believes that the solution to the crisis is lies with the Myanmar government. The organization says, it wants to help Myanmar on repartition process but it cannot come up with any steps against the country. The ASEAN is mandated to ensure peace and stability among the countries and principles of the United Nations Charter they can put pressure on Myanmar to solve the identity crisis or to amend the law on humanitarian ground and regional peace and stability.

Being an organization of trade and development including education, agriculture, communications, platform, it can impose economic sanctions on the country as well. To solve the prolonged crisis, the ASEAN countries should swing into action and exert pressure on Myanmar to amend the 1982 Citizenship Law and to enact the law as realistic and international standard. Myanmar is one of the parties of the UNCRC, using the safeguards of the UNCRC to the children United Nations and the ASEAN can put pressure on Myanmar. Being a party of the UNCRC means Myanmar is bound to protect the children beyond race, and religion or abilities if needed to rectify law as well. As per the safeguard of the UNCRC, Myanmar is obliged to ensure nationality of the children. The ASEAN member states those are yet to ratify the 1951 Refugee Convention and its 1967 Protocol, they can do it. The ASEAN should pressure on Myanmar to resettle the displaced Rohingyas in their homes with dignity as well.

Is a bleak future waiting for Rohingya children? The majority of the Rohingyas have taken shelter in Bangladesh fleeing persecution to save their lives are children with limited access to education (36) healthcare facilities, clean water or toilets. Born in the camps with impaired intellectual development, the hapless children are suffering from extreme malnutrition. A staggering 40 percent (36) Rohingya refugee children are stunted.

The survivors are being targets of human trafficker (38) for sex trade, unpaid domestic work, forced marriages and even bonded labour.

Every day 92 children are born with the stateless tag as they are born to the parents who were persecuted from their homeland. The fate of the children is hanging in the balance as they do not belong to any state. Moreover, they are denied of any identification like birth certificates form the country where they are born leading them to a more uncertain future, a lost generation (39). It’s like angel born with dark future.

Conclusion The article shows the that the babies born to the UNM Rohingya mothers have a stateless tag due to the discriminatory policies of Myanmar government and the 1982 Myanmar citizenship law. A bleak future is waiting for the children born in the Bangladesh camps, as there is no formal system of birth, death and marriage registration for these people. The proof of parents, birth and birthplace is leading them to another challenge.

The decision of Bangladesh to providing refuge to 1.1 million refugees on humanitarian ground is laudable. However, not issuing BRC to the Rohingya newborns will cause many problems in

the end. It may lead them to an ordeal of identity crisis in future and shrinking hope of leading a normal life.

Refugee children without any birth registration and the possible implications of repatriation and living in Myanmar after repatriation requires further research. It requires a further research if the unrecorded people, spreading to Bangladesh as well as other countries, will pose a security challenge.

Although ASEAN is mandated to ensure peace and stability among the member countries they could solve the root causes of the Rohingyas identity crisis through holding talks or exerting pressure on their member state Myanmar.

*Shamsuddin Illius is the In-charge, Chittagong Bureau, The Independent, Bangladesh. He is covering the Rohingya refugee crisis for The Independent since 2016. The journalism project has been done under the Hong Kong Baptist University Journalism Fellowship Scheme 2018.

** Birth Registration Certificate

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39. The Guardian, online, “'Lost generation': Unicef warns on fate of Rohingya children,” August 23, 2018. < https://www.theguardian.com/world/2018/aug/23/lost-generation-unicef-warns-on-fate-of-rohingya-children>

40. Foreigners Act 1946 (Bangladesh). 24 Foreigners Order 1951 (Bangladesh). 25 Foreigners (Parolees) Order 1965 (Bangladesh).

41. Jakia Ahmed, “What happens to Rohingya children born in Bangladesh?” Dhaka Tribune, 24 September 25, 2017, < https://www.dhakatribune.com/bangladesh/2017/09/25/happens-rohingya-children-born-bangladesh>

42. Shamsuddin Illius, “BANGLADESHI PASSPORT FOR ROHINGYAS: ’Local govt reps ‘play the cronies’ The Independent, 19 February2018, < http://www.theindependentbd.com/printversion/details/137884?fbclid=IwAR1cA42s_6zhDDzFdibULrOzvyLkDayovT5VDSU_PzylHiMoqM9CM8OcwKI>

43. Shamsuddin Illius, “‘243 Rohingyas’ get into voters’ list’ The Independent, 9 September 2018, < http://www.theindependentbd.com/arcprint/details/165501/2018-09-09>

44. Suchitra Mallick, “DSCC accused of issuing birth certificates to Rohingyas, probe body formed” Dhaka Tribune, 28 March 2018. < https://www.dhakatribune.com/bangladesh/dhaka/2018/03/28/dscc-accused-issuing-birth-certificates-rohingyas-probe-body-formed>

45. Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137

46. Convention Relating to the Status of Stateless Persons, opened for signature 28 September 1954, 360 UNTS 117 (entered into force 6 June 1960); Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into force 13 December 1975).