The recent persecution of the Rohingya minority in Myanmar has been described by the United Nations Human Rights Council [UNHRC] first as a “textbook example of ethnic cleansing”.1 A few months later, it was described by the Council chief as a potential case of “genocide”:
[G]iven the decades of statelessness imposed on the Rohingya, policies of dehumanizing discrimination and segregation, and the horrific violence and abuse, along with the forced displacement and systematic destruction of villages, homes, property and livelihoods—can anyone rule out that elements of genocide may be present?2
Finally, the August 2018 report of the Independent Fact-Finding Mission on Myanmar established by the UNHRC concluded that the Myanmar army has committed war crimes and crimes against humanity in Rakhine State, and that “there is sufficient information to warrant the investigation and prosecution of senior officials in the Tatmadaw [Myanmar military] chain of command, so that a competent court can determine their liability for genocide in relation to the situation in Rakhine State”.3
International norms devised to protect the rights of minorities and to protect individuals from statelessness, together with the recently developed doctrine of Responsibility to Protect, suggest that international law offers a solution to the tragic predicament of the Rohingya. The problem thus lies in the lack of enforcement. However, this paper is premised upon the general argument that international law, rather than being the solution, has ironically facilitated a number of similar or worse humanitarian disasters in recent times. This is because of how international law constructs post-colonial statehood. Diverse political entities with their own complex characteristics were compelled to adopt a Western concept of “statehood”—which embodies specific ideas of territory, the nation, and ethnicity—in order to gain recognition. As Anghie notes, “the embrace and adoption of the Western concept of the nation-state that was a prerequisite for becoming a sovereign state” demanded a transformation of indigenous perceptions of sovereignty and political communities, and “not all new states were successful in making these changes without experiencing ongoing ethnic tensions and, in some cases, long and devastating civil wars”.4 Similarly, Okafor argues that international legal doctrines such as “peer-review” (as opposed to “infra-review”) in recognizing new states and “homogenization” of states have facilitated the process by which many African states have advanced coercive nation-building and legitimized the construction and maintenance of large centralized states in Africa. In this way, international law and institutions have contributed to incidents of ethnic conflicts in Africa.5
Nation-building projects in most post-colonial states have faced the challenging task of reconciling two diverging forces: “nationalism” and “liberal universalism”. Nationalism not only served as the vehicle of liberation movements against colonial rule, but was also the key to independent statehood. In contrast, post-World War II [WWII] liberal universalism promised a post-ethnic world order and became a template for the internal organization of post-colonial states. The post-WWII phase of international law was indeed set for reaffirming faith in and promoting certain crucial values such as: fundamental human rights, the inherent dignity and worth of individuals, and equal rights of men and women and of nations large and small.6 In this new era, however, “progress” equated to liberal values, and universalism simply meant the imposition of these values on a global scale.7 Thus, since the inception of the UN, an individualist notion of human rights has become the dominant vocabulary through which the concept of “minority” is expressed. It appeared convincing to replace the minority protection system with the human rights regime exclusively centred on the universal protection of individual rights.8
These diverging forces operated within the political boundaries that were arbitrarily drawn by colonial powers and were subsequently inherited by post-colonial states at the time of decolonization. In the absence of stable democratic institutions, subsequent nation-building projects, which resulted in the suppression of ethnic groups who were outside the state-sponsored national culture, often went unchallenged. The difficulties of post-colonial statehood have been most notable in Africa, where boundaries were drawn with no regard for political and social realities on the ground. Similar problems accompanied the independence of Asian countries from colonial rule. The recent Rohingya crisis in Myanmar is an archetypal example of this.
Post-colonial states are essentially products, via colonization and decolonization, of the international legal norms and associated rules crafted by Europe.9 International law has contributed to the formation of post-colonial statehood and the ensuing atrocities, which involve a wide range of issues such as: the drawing of post-colonial boundaries, responses to nationalist aspirations of oppressed minorities, the question of citizenship and statelessness, economic liberalization and prioritization of economic development over human rights, and humanitarian assistance, intervention, and crisis management. The present paper deals with international law on post-colonial boundaries, and demonstrates how the continuation of colonial boundaries in post-colonial Myanmar is intrinsically connected to the Rohingya crisis.
The problem surrounding colonial boundaries has been widely discussed in relation to conflicts in Africa. Those borders have been established in accordance with the legal principle of uti possidetis, which dictates that colonial borders must be respected. This principle has been adopted in order to curtail ongoing ethnic conflict in Africa. Through exploring the origins of uti possidetis and its application to Asia, this paper seeks to demonstrate the questionable legal status of the uti possidetis principle and the fallacy of its conflict-evading potential. Contrary to the conventional wisdom that uti possidetis is essential for settling boundary disputes among post-colonial states and thereby helps in the maintenance of peace and order, I argue that uti possidetis itself is a key problem. Far from being a corrective mechanism to potential “disorder” emanating from decolonization, the continuation of arbitrarily drawn colonial boundaries undermines the legitimate right to self-determination of numerous ethnic minorities in post-colonial states, and often results in violent ethnic conflicts. Its embrace by post-colonial Asian states, in this case Myanmar, has exacerbated rather than curtailed violence. In this vein, this paper also argues that the current violence suffered by the Rohingya cannot be fully understood unless one studies the complex history of Rakhine State and its relationship with pre-colonial Burma, followed by its relationship with the British Empire. It is this history which created the colonial boundaries that are still enforced in ways that preserve the existence of an insecure, post-colonial state which has systematically oppressed the Rohingya people. Genocide is the unfortunate end-result.
I. INTERNATIONAL LAW AND POST-COLONIAL BOUNDARIES
Following the Great War, when the then US President Woodrow Wilson declared the right to self-determination as one of the governing principles of the Paris Peace Conference of 1919, the Indian Home Rule League of America submitted a petition to the Great Powers of the Conference, arguing for India's independence under this principle.10 Abraham argues that the petition was also a response to the Wilsonian idea of self-determination that subjugated peoples need to “conform to the identity of one people-one land-one state to be accepted as having legitimate claim to political personhood”.11 Without these elements, protagonists of anti-colonial nationalist movements in general “sought to redefine the prime criterion for independent statehood as unified political control over a defined piece of land, or territorial sovereignty”.12 In order to refute the proposition that India is not a “nation” due to its racial and cultural diversity, the petition put forward what it called a “modern” understanding of the nation based on Lord Acton's proposition on the subject: a nation is a moral and political being, developed in the course of history by the action of the state and the idea that a nation itself should constitute a state is contrary to modern civilization.13 Based on Acton's proposition and relying on the promising prospect of the principle of federalism to unify multiple nationalities within the post-colonial Indian state, the petition concluded that “to require races of India to coalesce into a nation with one religion and one tongue, is midsummer madness”. Instead, a territorially defined Indian nation-state was the solution.14 The petition fell on deaf ears, as we know, but the interwar principle of self-determination solidified the idea of the sovereign, territorially bound nation-state, wherein the majority obtained control of state apparatus, while the minority found itself in a position of perpetual subordination, often under minority protection treaties.
In the aftermath of WWII, the idea of self-determination was primarily expressed through decolonization. In fact, as Higgins demonstrates, before the claim for decolonization gained prominence in the discourse on self-determination, the mention of self-determination in the UN Charter simply meant the equal rights of all states to non-interference in their internal affairs.15 It was through the activism of the new states of Asia and Africa in the General Assembly that the concept of self-determination turned into the moral and legal force behind decolonization.16
However, at the same time, the nationalist elites who often represented the majority interest in these countries saw themselves as the legitimate and sole successors of the colonial powers, and conceived of the colonial state as a necessary mode of transition to a “modern” post-colonial state.17 Abraham notes that, as early as 1947, in the Asian Relations Conference in Delhi, all the delegates reached a consensus on the absolute acceptance of the nation-state mould.18 Consequently, it also emerged that:
[t]he Asian political entities soon to be free were uniformly represented as states composed as national majorities joined by ethnic or cultural minorities. … Communities marked by difference from these national majorities were being recast as aliens and outsiders, notwithstanding their long residence in these countries. … Under these circumstances, all that could be hoped for was goodwill on the part of majority communities leading to legal and constitutional protections for these “new” minorities. The Asian Relations Conference made it clear that political independence for Asia would mean a state dominated by a nation defined in terms of an autochthonous majority community.19
The normative need for continuity from the colonial state to the post-colonial nation-state to be governed by nationalist elites and the pragmatic need to avoid letting chaos arise from decolonization were both addressed by the international law principle of uti possidetis, which states that colonial borders are to be maintained for post-colonial states. Thus, while the ethnic notion of self-determination in the Paris Peace Conference of 1919 attempted to undo established borders in order to create states along ethnic lines, the post-WWII application of uti possidetis principles cemented the territorial borders that had been arbitrarily drawn by the colonial powers20 and enforced the multi-ethnic composition of the post-colonial states.21
The Colonial Declaration of 1960 proclaimed that “[a]ll peoples have the right to self-determination” and that “by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”.22 But at the same time, the Declaration stipulated that all states shall faithfully and strictly respect the sovereign rights of all peoples and their territorial integrity, and also made it explicit that “[a]ny attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations”.23 As a comment made by the Moroccan delegate during the drafting process of the Declaration revealed, the Asian and African states that drafted the Declaration were concerned about the attempts by colonial powers—in line with their long-standing policy of “divide and rule”—to carve up colonies that were in the process of achieving independence.24 The emphasis on territorial integrity was a clear attempt to counter such colonial practices. However, this has simultaneously restricted the application of self-determination to various minority groups and their nationalist aspirations for independent statehood, thereby reinforcing the colonial borders in Asia and Africa.
As a matter of fact, General Assembly debates on the draft Declaration were taking place at a time when the crisis involving the Katangese secessionist attempt was unfolding. The Katanga crisis was explicitly referred to in the debate to highlight the salience of the provisions on territorial integrity in the Declaration.25 When the Republic of Congo gained independence from Belgium in 1960, the mineral-rich province of Katanga also declared its independence from Congo with the active support of and protection from the Belgians.26 Following the outbreak of a civil war, the Congolese government sought assistance from the UN, which asked Belgium to immediately withdraw its troops from Congo.27 The UN position on the Katanga issue made it very clear that the right to self-determination belonged to Congo as a whole and any breach of its territorial integrity was not permissible under any claim of self-determination by any other group. The Katanga case, in this sense, exemplifies an international consensus regarding the continuity of colonial boundaries and its limiting effect on the right to self-determination of other subnational groups in the new post-colonial state.
Similarly, in the General Assembly debate on the Colonial Declaration, the Indonesian delegate made frequent references to the situation in West Irian (New Guinea) to highlight the importance of territorial integrity in the context of the right to self-determination.28 Following more than 300 years of Dutch rule, a short period of Japanese occupation between 1942 and 1945, and Indonesia's independence in 1949, Indonesia's former colonial power, the Netherlands, disputed the legal status of West Irian on the grounds that the 700,000 inhabitants of the island were racially and culturally distinct from the Indonesians.29 On the other hand, Indonesia argued that the foundation of the nation had a territorial, rather than a racial, basis and was rooted in common suffering endured during Dutch colonial rule.30 This territorial argument had some relevance, in that, as Anghie notes, given the artificiality of the boundaries of most post-colonial states, relying on race as the legitimate basis of the post-colonial nation state would dismantle almost all Asian and African states.31 Additionally, Indonesia also relied on the colonial ideology of “civilization” to argue that the “people of West Irian were too ‘primitive’ to exercise the right of self-determination in a conventional way”, a comment that offended many African nations.32 Although the Dutch position following the adoption of the Colonial Declaration—a position which was also supported by a group of francophone African states—was in favour of granting the people of West Irian the right to self-determination, Indonesia successfully used the General Assembly to press the demand for its territorial integrity under international law,33 and finally turned to open realism by invading the island in May 1962.34 Under US mediation, the people of West Irian obtained the right to express their free choice to decide on their political future. However, the actual expression of this right was limited as it took place under the direct influence of Indonesia—only slightly more than one percent of the total West Irian population were selected by the Indonesian Administration as special delegates, all of whom overwhelmingly voted in favour of Indonesian rule. Despite knowledge of these irregularities, the UN refrained from taking any further action in this regard.35
Likewise, subsequent General Assembly Resolutions, as well as decisions of the International Court of Justice [ICJ], also unequivocally declared the primacy of the territorial integrity of states over ethnic claims for self-determination.36 As Craven notes, “the old opposition between self-determination and uti possidetis lost its decisive import by reason of the impossibility of self-determination meaning anything but independence within inherited borders—once the ‘self’ had been identified, any determination could operate only within the parameters of its own existence”.37 Franck sees this pattern as a move towards “reconciliation”—in his words:
The disintegration of Spanish imperialism in America produced the norm of uti possidetis. The end of the German, Austrian, and Ottoman empires [in the interwar period] gave rise to self-determination. In the post-1945 era, uti possidetis and self-determination were redefined and synthesised into a doctrine of decolonization.38
In this “reconciliation”, however, uti possidetis clearly trumped the principle of self-determination as far as minority groups, now entangled in post-colonial states, were concerned.
Uti possidetis originated from Roman law, and arose in cases in which two individuals disagreed as to ownership of property. It was a provisional remedy based on possession, pending a final judicial determination. The principle reappeared in the early eighteenth century together with the concept of the status quo post bellum (the state of possession existing at the conclusion of war), though still connected with the concept of possession.39 The modern formulation of the uti possidetis principle is traditionally associated with the decolonization of Central and South America in the nineteenth century. When the newly independent Latin American states mutually agreed, in some cases, to adopt former Spanish administrative lines as their new international boundaries, the practice came to be seen as the implementation of the uti possidetis principle.40
The principle of uti possidetis reappeared again in the interwar period in relation to the dispute between Finland and Sweden over the Aaland Islands (Ahvenanmaa in Finnish). Finland, including the Aaland Islands, had been a part of the Swedish administrative region of Åbo (Turku) for more than six centuries since 1159. It was only in 1809 that Tsarist Russia under Alexander I seized control of Finland from the Swedish kingdom. Following the Bolshevik Revolution of 1917 and the ensuing disintegration of Tsarist Russia, Finland declared independence from Russia. The Aalanders demanded the recognition of their right to break away from Finland and reunite with their co-ethnics in Sweden.41 The League of Nations assigned the task of determining whether the dispute was international in nature, and therefore fell under the jurisdiction of the League, to a Commission of Jurists. This Commission questioned the proposition of an ipso facto application of the uti possidetis principle:
The Aaland Islands were undoubtedly part of Finland during the period of Russian rule. Must they, for this reason alone, be considered as definitely incorporated de jure in the State of Finland which was formed as a result of the events described above? The Commission finds it impossible to admit this.42
However, the Commission of Rapporteurs, appointed subsequently by the League to pave the way for a solution to this dispute, held the opposite view on the grounds, inter alia, of the uti possidetis principle, which was subject to guarantees obtained from the Finnish government for the protection of the Swedish language and culture of the islanders.43 In the opinion of the Rapporteurs, since the Aaland Islands were part of the Finnish Province of Åbo Björneborg under Tsarist Russia, upon Finnish independence, the application of the uti possidetis principle should guarantee Finland's pre-independence territory.44 The League Council adopted the view of the Rapporteurs and finally recommended that the Aaland Islands should belong to Finland.
Against this backdrop, the centrality of the uti possidetis principle in the international legal imagination regarding the boundaries of new states soon obtained a stronger foothold in the context of African decolonization. When the member states of the Organisation of African Unity [OAU, now known as the African Union] pledged to respect the colonial boundaries existing at the time of independence in 1964, the ICJ and many commentators viewed the resolution as further evidence of the role of uti possidetis in the process of decolonization.45 Although, prior to independence, many African political parties advocated the readjustment of these artificial boundaries to accord with local realities,46 such revisionist claims lost traction as African colonies started emerging as independent states and prioritized a peaceful transition to statehood. Article 3(3) of the Charter of the OAU affirmed every member's adherence to “respect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence”.47 At a meeting in Cairo the following year, the OAU adopted a resolution reaffirming the importance of “the strict respect by all member States of the Organisation for the principles laid down in Article III, paragraph 3 of the Charter” and declared “that all member States pledge themselves to respect the frontiers existing on their achievement of national independence”.48 The Katanga experience was surely fresh in the minds of African leaders.
It is widely believed that this acceptance of the continuity of the colonial borders represents the Latin American principle of uti possidetis applied in the African context.49 Thus, through the operation of international law, the boundaries of colonial Africa, which were drawn at the Berlin Conference of 1883 to 1885 based on astronomical or mathematical criteria or by reference to prominent physical features and without regard for demographics or culture, came to be the permanent boundaries of post-colonial African states. As Griffiths notes:
[t]he political map of colonial Africa was virtually complete by 1914 and there has been little subsequent change. During the next 50 years, that colonial boundary mesh would become the almost exact basis for territorial division of independent Africa which would then be fossilised by the resolution of the Organisation of African Unity in 1964.50
This view that the uti possidetis principle should be applied in governing post-colonial territorial delimitation was shared by the ICJ Chamber in the Burkina Faso v. Mali case, in which the Chamber declared that uti possidetis was a “general principle” and a “rule of general scope” for all cases of decolonization.51 Although the first use of the principle in the decolonization of the Latin American colonies involved only a single colonial power, i.e. Spain, the principle of uti possidetis, the Chamber held that it “is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs”.52 The Chamber thus concluded: “It was for this reason that, as soon as the phenomenon of decolonization characteristic of the situation in Spanish America in the 19th century subsequently appeared in Africa in the 20th century, the principle of uti possidetis … fell to be applied.”53
However, this depiction of uti possidetis as the general principle of international law to be applied in all decolonization situations has been challenged in recent scholarship. Ahmed, for example, argues that, even in the Latin American context, the key purpose of the uti possidetis principle in the nineteenth century was to avoid any possibility of terra nullius, thereby ensuring the unification of the entire Latin America in the face of the renewed threat of Spanish imperialism.54 The argument therefore follows that uti possidetis was not a general principle of international law at the time of African decolonization, and “did not give rise to the concept of intangibility of inherited frontiers, and was as such inapplicable to Africa on independence”.55 Hence, by accepting the pre-existing frontiers in the absence of any binding international rules, African states created new customary rules, an achievement that the ICJ erroneously undermined in the Frontier case by imposing the uti possidetis principle on Africa as a binding general principle of international law.56
Similarly, after examining many of the constitutions of and treaties between Latin American states in the period following independence, Lalonde challenges the mainstream position that the Latin American states consistently accepted the uti possidetis principle in determining their new boundaries.57 She highlights various conflicting versions of the principle within Latin America, such as uti possidetis juris (claimed by most Spanish colonies) and uti possidetis de facto (claimed, for example, by Brazil, which happened to be a Portuguese colony), as evidence of inconsistent state practice.58 These conflicting claims, together with practical difficulties encountered in the application of the principle and international awards based on alternative principles, led Lalonde to conclude that uti possidetis never achieved the status of a general principle of international law emanating from the Latin American experience of decolonization.59 Likewise, she found that the application of uti possidetis in the African context was driven by a practical sense of necessity, rather than by the legally binding nature of the principle.60
Yet uti possidetis continued to dominate the international legal imagination in relation to boundary-drawing. The principle was applied even in a non-colonial context following the break-up of the Socialist Federal Republic of Yugoslavia [SFRY]. When Lord Carrington, the President of the Conference on Yugoslavia, referred the question of whether the Republics’ declaration of independence amounted to secession from the SFRY to the Badinter Commission, the Commission held that:
[I]n the case of a federal-type state, which embraces communities that possess a degree of autonomy and, moreover, participate in the exercise of political power within the framework of institutions common to the Federation, the existence of the state implies that the federal organs represent the components of the Federation and wield effective power.61
Given that the Republics had declared their independence, and the composition and workings of the essential organs of the Federation ceased to meet the criteria of participation and representation inherent in a federal state, the Commission decided in Opinion number 1 that the SFRY was in the process of dissolution.62 This Opinion was accompanied by the recognition of the Republics as independent states by the European Community and the US, subject to the provisions stipulated in the twin declarations on the guidelines for recognition of these states.63 The Opinion of the Commission and the recognition policy of the West cemented the statehood of these new states, thereby turning an ostensibly ethnic conflict into an international conflict—an issue of Serbian aggression. As a corollary, the Commission declared in Opinion number 3 (concerning the question of whether the internal boundaries between Croatia and Serbia and between Bosnia and Herzegovina and Serbia should be regarded as frontiers for the purpose of public international law) that in the circumstances of the emergence of new states following the dissolution of the SFRY, both the external and internal frontiers of the SFRY had to be respected.64 The Commission categorically mentioned that this conclusion followed from the principle of respect for the territorial status quo, and in particular from the principle of uti possidetis, which, though initially applied in settling decolonization issues, was recognized as a general principle, as stated by the ICJ in the Burkina Faso-Mali case.65 In other words, the internal boundaries of the SFRY were converted to protect international frontiers, and these could only be altered by an agreement. In an approving note, Pallet writes that the application of this principle was indispensable for maintaining peace.66
Thus, the Commission moved away from the conservative, ethnicity-oriented political organization of these new states and offered a liberal international legal vision of a post-conflict regional order in the Balkans. By viewing the dissolution of the SFRY as a break-up of the federal units and endorsing the existing boundaries of the republics, the Commission envisaged Bosnia and Herzegovina as a non-ethnic unit in which the Bosniak, Croat, and Serb ethnic groups would continue to live together.67 The Commission's liberal non-ethnic vision of the nation-state was essentially in conflict with the conservative ethnic notion of the right to self-determination as claimed by Bosnian Serbs and Croats, who were keen to join their co-ethnics in Yugoslavia and Croatia, respectively. The Commission had to address this issue formally when Lord Carrington requested the Commission's opinion on whether the Serbian population in Croatia, Bosnia, and Herzegovina, as one of the constituent peoples of Yugoslavia, had the right to self-determination. In conformity with its earlier opinions, the Commission held in Opinion number 2 that “whatever the circumstances, the right to self-determination must not involve changes to existing frontiers at the time of independence (uti possidetis juris) except where the states concerned agree otherwise”.68 In this regard, the Commission did not deviate from the general international legal attitude towards this issue, as we have seen in relation to a number of cases and international instruments, especially in the context of decolonization. At the European level, the International Commission of Jurists in the Aaland Island case declared the right to self-determination, in the conservative sense, legally inapplicable as long as it challenges state sovereignty and international peace and stability.69 Similarly, although the Helsinki Final Act (1975) of the Organisation for Security and Co-operation in Europe [OSCE] recognized that the right to self-determination goes beyond the colonial context, it nonetheless reiterated the primacy of the norms of territorial integrity and the preservation of existing boundaries in international law.70 Thus, the Badinter Commission endorsed the uti possidetis principle as the governing principle of international law in the process of decolonization, and went even further by reinforcing the application of this principle in delimiting international boundaries beyond the colonial context.
In other words, despite the questionable universality of the uti possidetis principle, the principle continued to dominate the international legal imagination regarding the making of post-colonial boundaries. The proposition that the continuation of colonial boundaries would avoid territorial conflicts between and among post-colonial states invariably informed all post-colonial and non-colonial boundary settlements for new states. Even those who were sceptical of the universality of the uti possidetis principle recognized the pragmatic relevance of the principle. Thus, while Ahmed refuses to accept the application of the Latin American uti possidetis principle in the context of African decolonization as a general principle of international law, he nonetheless does not reject the continuity of colonial boundaries—understood as a unique and novel creation of an African customary international law—due to the pragmatic need of avoiding “chaos” emanating from decolonization.71
This consensus on the pragmatic need for the continuation of the colonial boundaries, along with the normative pull of the doctrine in general, is problematic. This is because, far from being a corrective to potential “chaos”, the continuation of arbitrarily drawn colonial boundaries undermines the legitimate right to self-determination of numerous ethnic minorities in post-colonial states, and often results in violent ethnic conflicts. As we shall see in the following section, the boundaries of present-day Myanmar were crafted by the British colonial administration. These boundaries were then used by default in post-colonial Myanmar in complete defiance of historical realities. I will demonstrate that the principle of the continuation of colonial borders for post-colonial statehood has deprived the Rohingya of their right to self-determination, and has culminated in the present Rohingya crisis.
II. THE ROHINGYA AND THE MAKING OF POST-COLONIAL MYANMAR
Rakhine State, located in western Myanmar, is one of the poorest states in Myanmar, and is fraught with ethnic conflicts between the Buddhist Rakhine and the minority Rohingya communities. Most Rohingya are Muslims, while a minority follow Hinduism. Although Rakhine State as a whole faces discriminatory treatment from Myanmar, the Rohingyas in northern Rakhine experience double the discrimination as they have been historically subjected to oppression by Rakhine Buddhists as well. Out of around one million Rohingyas in Myanmar, nearly 700,000 are currently refugees in neighbouring Bangladesh, following successive military crackdowns. The worst crackdown, being almost genocidal in nature, was the one which took place in August 2017.
During British rule, Rakhine State was known as “Arakan”. The Rohingya were called “Indo-Arakanese”. In the Bengali literature of the medieval period, Arakan was referred to as “Roshang”.72 The historian of medieval Bengal, Abdul Karim, argues that the word “Rashang” turned into “Rohang” due to colloquial usage, and the people of the area thus came to be known as “Rohingi” or “Rohingya”.73 The specific reference to the Rohingya as Muslims is a relatively recent phenomenon.
Arakan, separated from the rest of Myanmar by a chain of mountains, maintained a distinct political identity for most of its history. In the official British narrative of the first Anglo-Burma War of 1824 to 1826, the century-old fort in Arakan and its defence arrangements received an admiring mention.74 Independent Arakan kingdoms can be traced back to antiquity, and the last of them was established in 1430, with its capital in Mrauk U.75 Situated on the border between Buddhist and Muslim Asia, the kingdom had strong economic, trade, and other relations with the Sultanate of Bengal.76 The relationship between the Arakan kingdom and the Bengal Sultanate deepened when the Arakanese King Min Saw-Mun (also known as Narameikha) was temporarily deposed by the Burmese and forced to take refuge in Bengal under the protection of Sultan Ghiasuddin Azam Shah. During his twenty years of exile in Bengal, the Arakanese king was so influenced by the co-existence of Persian, Arabic, and Bengali cultures and traditions in Bengal that upon his return to power in 1426, with the help of Sultan's army, the Arakanese king took several thousand Muslim courtesans and skilled persons from the Bengal Sultanate with him.77 According to Phayre, the restored Arakanese king agreed to be a tributary to the Sultan of Bengal and even adopted an Arabic name and title for himself, i.e. Sulaiman Shah or Sawmun Shah, in fulfilment of the promise made to the Sultan.78 The practice continued for nearly two hundred years to show the matching grandeur of the Sultan of Bengal.79 However, the influence of the Bengal Sultanate did not last for long. As Phayre notes, Sawmun Shah's successor, his brother Meng Khari (known as Ali Khan), did not submit to the authority of the Sultan. Instead, taking full advantage of the weakness of the Sultanate, he took possession of territories in Bengal (e.g. Ramu in present-day Cox's Bazar). Later, his son Basoahpyu annexed the port city of Chittagong in 1459 and kept it under Arakanese control until the Mughals took it back.80
The medieval Bengali poet Syed Alaol (1607–73), the court poet of the King of Arakan, in his epic Padmabati (1652) described Mrauk U as a truly cosmopolitan city where people of all faiths and races from all places had gathered.81 Buddhism reached Arakan earlier than the interior parts of Burma. Given that Arakanese Buddhism served as an inspiration for Buddhism in the rest of Burma, the Swiss Pali scholar and archaeologist Emanuel Forchhammer called Arakan the “Palestine of the Farther East” in an 1891 publication.82 Islam was introduced to Arakan at the beginning of the ninth century as Arab merchants arrived and traded in local Arakanese markets. Smart's Burma Gazetteer records that in the early ninth century “[s]everal ships were wrecked on Ramree island and the crews said to have been Mohammedans were sent to Arakan proper and settled in villages”.83 The Arab merchants gradually connected Arakan to the trade routes with the Middle East and the Far East, thereby paving the way for long-lasting Arab and Islamic influence in Arakan.84 As Charney notes, these merchants did not form a well-organized community, given that they were small in number.85 However, he argues that large-scale Muslim settlement took place in the sixteenth and seventeenth centuries when the Arakanese and Portuguese communities started to raid southern Bengal, transferring thousands of Bengalis to Arakan as slaves. The Portuguese took approximately 147,000 captives between 1617 and 1666.86
François Bernier's Travels in the Mogul Empire (1656–1668) indicates that, for many years, the kingdom of Arakan was the home of several Portuguese settlers, a great number of Christian slaves, and half-caste Portuguese or other Europeans from various parts of the world.87 Many of them were involved in piracy. The King of Arakan, who lived in perpetual dread of the Mughals, kept these foreigners as advance guards for the protection of his frontier, even permitting them to occupy the Chittagong seaport (in the south-eastern part of Bengal) within the Mughal territory.88 These pirates also invaded neighbouring seas, entered numerous arms and canals of the Ganges, and ravaged the islands of Lower Bengal.89 Thus, when the Mughal Emperor Aurungzeb's uncle, Shaista Khan, was sent to Bengal as the General of the Army, and later elevated to the rank of the Governor of Bengal, his natural priority was to free Bengal from the cruel and incessant destruction wrought by these pirates. Shaista Khan finally managed to free the port city of Chittagong from the control of the pirates by threatening the use of force and offering them the prospect of a better life in Dhaka.90 However, in 1757, the defeat of the regime in Bengal against the British in the Battle of Plassey paved the way for the British East India Company's rule, first in Bengal and gradually in the rest of India.
Meanwhile, the last independent kingdom of Arakan, after thriving for more than 350 years as a prosperous trading hub, came under Burmese control in 1784. By the late eighteenth century, the Burmese had developed a sense of proto-nationalism with a common language, a common religion, and a common set of legal and political ideas and institutions; even a shared written history existed throughout the core area of the Ava kingdom (from Upper Burma to Mandalay).91 Consolidated and unified, the Ava Kingdom enjoyed unprecedented power internally and externally and, by the turn of the nineteenth century, the court of Ava could claim a series of spectacular successes on the battlefield.92 It was as part of this expansionist campaign towards the Western front that the annexation of Arakan took place.93 This annexation was indeed a massive operation, conducted under the command of the Crown Prince, with three land forces of 13,706 armed men, 1,103 horsemen, 5,804 gunners, 300 cannons, 8,412 visses 94 of gun powder, and 41,686 cannonballs, as well as a naval force of 1,848 gunners, 4,396 armed men, 165 boats carrying cannons, 633 cannons, 41,400 cannon balls, 769,500 gun shots, and 16,185 flints.95 Political prisoners and criminals were also sent along with the regular forces.96 On 20 January 1785, the Arakanese capital city was taken, and its king and many of his followers were captured. As soon as the victory was reported to the Burmese king, he ordered a great celebration on 26 January 1785 to mark this triumph over Arakan.97
The war against Arakan was officially conceived as a religious war—a mission to re-Buddhicize Arakan.98 Since the influence of Buddhism was waning in Arakan, the now-powerful Buddhist Kingdom of Ava took on the responsibility of re-establishing Buddhism in the region. Like many imperial powers throughout history who have brought historic artefacts to their centres of power as a physical demonstration of authority and as a part of the official narrative of a glorious past and its revival under their leadership, the Burmese king moved Mahamuni (the iconic Great Image of Buddha) from Kyauktaw in North Arakan to Amarapura, the capital of Ava (presently in Mandalay).99 A Royal Order of Burma dated 16 October 1784 makes the point clear: “[The] Crown Prince shall march as Commander-in-Chief of Arakan Campaign to restore proper conditions in Arakan for the prosperity of the Buddha's Religion.”100 Although instructions on the conduct of Burmese forces in this campaign prohibited the forcible taking of any young women or taking anything from the local people without payment, the Crown Prince was explicitly instructed to “clear the place of all bad characters” so that Buddhism might prosper again in Arakan.101 A series of Buddhist missions were also sent to Arakan following the annexation with the task of re-Buddhicizing the area, and local authorities were repeatedly ordered to extend full support to these missions so that they could build Ordination Halls at places of their choice.102 Various other political changes were also imposed. A Royal Order of 14 October 1787 clarified that, since Arakan was now part of the Burmese kingdom, the people of Arakan must not continue using their former seals and coins.103
Unsurprisingly, following the Burmese invasion, large numbers of the native population “fled from the cruelty and oppression of their conquerors, and either found an asylum in the British territory of Chittagong, or secreted themselves amongst the hills and thickets, and alluvial islands along its southern and eastern boundaries”.104 These Arakanese occasionally launched attacks on the invading Burmese in Arakan from Chittagong, thereby triggering tension between the Burmese kingdom and its new neighbour, the British.105 At the same time, Myint-U notes, this conquest brought a significant number of ritualists, astronomers, and other learned men from Arakan into the Ava court. The Arakanese had close contact with centres of knowledge in India and the wider Islamic world, and introduced important religious and secular texts on science, medicine, and astrology to the Burmese.106
With military, cultural, and intellectual rejuvenation, the Burmese kingdom engaged more assertively, though still cautiously, with the British. Captain T.H. Lewin, the Deputy Commissioner of the Chittagong Hill Tracts under the Government of Bengal from 1866 to 1869 and from 1871 to 1874, recorded two letters dated around 24 June 1787 and sent by the King of Burma and the Rajah of Arakan to the British administration in Chittagong (among the earliest written communication between them). The first letter, from the Rajah of Arakan (now a vassal of the Burmese king) stated:
[Some inhabitants of Arakan] have absconded and taken refuge near the mountains within your border, and exercise depredations on the people belonging to both countries. … It is not proper that you should give asylum to them or the other Mughs who have absconded from Arracan, and you will do right to drive them from your country, that our friendship may remain perfect, and that the road of travellers and merchants may be secured. If you do not drive them from your country and give them up, I shall be under the necessity of seeking them out with an army, in whatever part of your territories they may be.107
To substantiate this threat of invasion, the Rajah mentioned in the same letter that he took similar actions previously when the British refused to hand over another Arakanese fugitive named Keoty.108 The second letter came from the King of Burma himself:
As the country of Arracan lies contiguous to Chittagong, if a treaty of commerce were established between me and the English, perfect unity and alliance would ensure from such engagements. I therefore have submitted it to you that the merchants of your country should resort hither for the purpose of purchasing pearls, ivory, wax, and that in return my people should be permitted to resort to Chittagong for the purpose of trafficking in such commodities as the country may afford; but as the Mughs [from Arakan] residing at Chittagong have deviated from the principles of religion and morality, they ought to be corrected for their errors and irregularities … I have accordingly sent four elephants’ teeth under the charge of 30 persons, who will return with your answer to the above proposals and offers of alliance.109
The threats were in fact real—almost immediately after this correspondence, a force of armed Burmese entered Chittagong from Arakan. This incursion was reported to the Governor-General Lord Cornwallis in the same month, June 1787, by the Chief of Chittagong.110 Again in 1795, a Burmese Army of 5,000 men invaded Chittagong to pursue some rebellious Chiefs from Arakan.111 It is therefore evident that tension was building between the Burmese and the British authorities around the emigration of certain Arakanese Chiefs and the ensuing Burmese raids into the British territories. At the macro level, there was a general sense of fear within the Burmese power-circles about the East India Company's incessant expansion in India. During the first two decades of the nineteenth century, the Burmese sent a number of missions to the Mughal court and established contacts with Nepal, Punjab, and the Marathas, to allegedly suggest the formation of an anti-British alliance, although no such alliance was actually formed.112 The principal aim of the Burmese was to annex the area to the north of Arakan. A Burmese Royal Order of 16 September 1817 revealed their claim to a large area under British control: “It is not correct [for the East India Company] to take Chittagong, Panwa (Cossimbazar), Dacca and Murshidabad, as English; they are Arakanese and as Burmese has now taken Arakan, these places become Burmese; the English has no right to collect taxes there.”113 A similar claim was made in an earlier Royal Order of 18 February 1817, stating that the Company should send back all Arakanese fugitives in Chittagong.114
A combination of frontier troubles and increasingly belligerent designs by the Burmese on adjacent British territory led to the first Anglo-Burma War of 1824 to 1826. The war was so significant in opening many new and interesting regions to European access that the Government of Bengal published a series of official documents about the war. The Oxford Professor of Sanskrit, H. Horace Wilson, was entrusted with the task of collecting, editing, and publishing these documents.115 The British defeated the Burmese and the two sides met on 3 October 1825 to determine the terms of peace.116 As principal conditions of peace, the British demanded the cession of the four provinces of Arakan, and the payment of two crores117 of rupees as indemnification for the expenses of the war. One crore was to be paid immediately, and the Tennasserim provinces (the present-day Tanintharyi Region of Myanmar, bordering Thailand) were to be retained until the liquidation of the other. “The court of Ava was also expected to receive a British resident at the capital, and consent to a commercial treaty, upon principles of liberal intercourse and mutual advantage.”118 The court of Ava's refusal of these demands led to another round of war and another round of defeat for the Burmese.119 The court of Ava finally submitted to British demands and concluded a treaty on 24 February 1826, allowing the British to annex Arakan and Tennasserim and subsequently incorporate them into British India.120
This was a significant moment in the political future of Burma, for the first-ever precise boundaries of Arakan were drawn up by the British in the aftermath of this war. Indeed, following the annexation of Arakan by Burma in 1785, the Burmese attempted to demarcate boundaries between Mrouk U and Thandwe on the Arakan side and Salin beyond the Arakan Mountain Range in the east. As the Royal Order of 14 October 1787 reveals, the key motivation for this was to revive the land route from Mrouk U to Ba Ai across the Arakan Range. Mrouk U officers were given the responsibility of keeping this road open and well maintained down to Dalet, and Thandwe (Sandoway) officers had the same responsibilities from Dalet to Ba Ai.121 Hence, some sort of internal boundary demarcation was necessary. Two more Royal Orders issued on 26 November 1787 and 14 December 1787 indicate further attempts at a more detailed account of the demarcation of boundaries between Mrouk U, Thandwe, and Salin based on pre-war Arakanese records of 1783.122 Various local headmen lodged complaints against the proposed demarcation, which led to a Royal Order for further investigation into the matter.123 These Burmese attempts at boundary demarcation were inward-looking and different in nature from what the British would achieve following the war of 1825. The boundaries drawn by the British demarcated the lines between Arakan, the Burmese Kingdom, and the Tennasserim, as well as Arakan's administrative boundary with Bengal.124 In other words, the precise territorial demarcation of Arakan and its external boundaries with both the kingdom of Burma and colonial India were essentially created by the British.
Burmese defeat in two more Anglo-Burma Wars in 1852 and 1885 resulted in complete British control over all of Burma. In 1886, Burma formally became a province of British India. Although there was a Rohingya community in Arakan before the Burmese invasion of 1785, its size increased rapidly during colonial times as a result of the British policy of expanding rice cultivation in Arakan.125 Rice cultivation required intensive labour, and the need for a trained agricultural workforce was primarily met by Muslim workers from Bengal. While many of these workers came on a seasonal basis, some settled down permanently, thereby altering the demographic composition of the area. As various censuses of British Burma reveal, from the 1880s to the 1930s the size of the Rohingya community in Arakan doubled from about thirteen to twenty-five percent of the Arakan population.126 Around that time, many Rohingyas who left Arakan following the Burmese conquest of 1785 returned under British protection.127 The same pattern could be seen during WWII: when the Japanese occupied Burma in 1942 and expelled the British from Arakan, a sizeable proportion of the Rohingya fled Arakan and took refuge in Bengal.128 In this sense, the political fate of the Rohingya since the first Burmese conquest of 1785 was linked to the rise and fall of British colonial power.
It is, therefore, no surprise that, during the colonial policy discourse in the 1930s on separating Burma from Indian colonial administration and making it a Crown colony, the issue of immigration appeared to be the Burmese nationalist leaders’ main concern.129 In the British Parliamentary Roundtable Conference of 1931 to 1932, the statement of delegates representing the majority interests of Burma highlighted immigration as the root cause behind the suffering of the majority.130 The statement concluded that the “diseased condition” of Burmese society created by uncontrolled immigration could be cured only by severing ties with the Indian administration and offering the Burmese the right to self-government.131
It soon became clear during the round-table discussions that the delegates representing minority interests were not keen on separating from India.132 The delegate for the Indian community in Burma demanded:
[A]dequate and effective representation in the Legislative Council and the executive appointments; that it shall have adequate representation in the public services of the country, and that the constitution of Burma shall be such as to prevent any majority community from abusing their legislative power with a view to enacting laws which would create discrimination between one citizen and another.133
To justify this position, the spokesperson for the delegation offered a detailed account of the extent to which the Indian community was in charge of many important aspects of Burmese economic life. Ironically, this also served as a substantiation of the frustrations that the majority delegation expressed during the conference.
The British finally separated Burma from British India in 1937, making it a Crown colony of Britain, and granted the colony a new constitution calling for a fully elected assembly. With this split between British India and British Burma, the border between the two took on a semi-international status for the first time.134 In the aftermath of WWII and following fierce nationalist resistance to British rule, Burma achieved independence in January 1948 under the Independence Act (1947), British legislation, “as a country not within His Majesty's dominions and not entitled to His Majesty's protection”.135 However, the boundaries of this newly independent nation, crafted by His Majesty's colonial administration, remained as they were. The semi-international boundaries became the fully international borders of Burma. The administrative boundary between Arakan and Bengal, as well as Tennasserim's boundary with Siam (Thailand), became international frontiers of post-colonial Burma. As Myint-U asserts, over the first couple of decades of colonial rule in Upper Burma following the third Anglo-Burma War of 1885:
[T]he remainder of the new country's frontiers were carefully negotiated and surveyed: in deciding what was Assam, Burma, Tibet and China, the diplomats and cartographers of Fort Williams [in Calcutta] set the Indian–Burmese–Chinese borders of today. Modern Burma thus included the entire heartland of the old kingdom … or the land of the “Myanma”. But the map also included some, though not all, of her erstwhile tributaries and frontier regions, as well as places never even claimed let alone ruled by the Court of Ava.136
Although the Arakan kingdom remained independent for hundreds of years before the British occupation of Arakan in 1825, and was under Burmese rule for a mere forty years, the right to self-determination or any other alternative political future for the people of Arakan in general and the Arakanese Muslims (the Rohingya) in particular was never given a serious thought during the decolonization process. On the eve of Burma's independence, separatist movements demanding at least an autonomous status for Arakan as a whole went from strength to strength throughout 1947. A mass meeting held on 15 June 1947 in Rangoon specifically highlighted the historical existence of Arakan as an independent kingdom for nearly 4,000 years and its geographical separation by mountains from Burma proper, and concluded that it should be granted the absolute right of determining its own destiny as an autonomous state.137 When one of the key figures behind the movement advocating for the Arakan kindgom's independence, a Buddhist monk called U Seinda, was arrested, violence broke out throughout Arakan to the extent that a combined military and police operation was ordered by the Government of Burma. The Government consistently branded such separatist movements as communist anarchy, robbery, mass looting, or simply lawlessness.138 In the British official circle at the Burma Office, however, there was an awareness of the ongoing separatist movement and the Government of Burma's efforts to obscure it. A Burma Office Minute Paper of 8 July 1947 reveals this fact.139 The said Paper also indicates recognition of the relevance and historical basis of the Arakanese demand for self-determination. Nevertheless, the British took the side of the ruling Burmese elites in the Government and discredited the separatist movement as a creation of the main Burmese opposition party for their own vested interest.140 Burma crafted by the British colonial administration including Arakan within its territory was seen as the only natural make-up of the nascent post-colonial state. Importantly, in his note on the Minute Paper (dated 9 July 1947), the Under-Secretary for Burma, Arthur Henderson, specifically mentioned that “the separatist movement in Arakan as a whole must be distinguished from that among the Moslems of North Arakan”, but he never deviated from the perception of Arakanese separatism as a menace from political opposition in Burma.141
The incorporation of Arakan into independent Burma was unfortunately seen as the default position. As in the case of many other ethnic minorities within new post-colonial states in Africa and Asia, the political future of the Rohingya was thus permanently subordinated to the state of Burma, the latter being the legitimate subject of international law and legally protected against challenges to its territorial integrity.142 The source of legitimacy of the post-colonial boundaries of present-day Myanmar, though unjust and an outcome of colonial imagination and convenience, is international law. This is a stark reminder of how international law perpetuates colonial legacies, further disempowering already vulnerable groups, such as the Rohingya, and leading to serious humanitarian catastrophes.
However, political resistance to the incorporation of Arakan into Burma followed shortly after. Not long after Myanmar's independence in 1948, a rebellion led by Rohingya Muslims erupted in Arakan, demanding equal rights and an autonomous Muslim area in the north of the state.143 The Burmese nationalists also claimed that, at the time of Burma's independence, the Rohingya not only formed their own army, but also approached Muhammad Ali Jinnah, the key architect of the Islamic Republic of Pakistan, “asking him to incorporate Northern Arakan into East Pakistan [present-day Bangladesh]”.144 These events were in turn used by the Burmese ruling elites as excuses for questioning the Rohingyas’ political allegiance to Myanmar. In post-independence Myanmar, the Rohingya have always been referred to as “Bengali foreigners”, and therefore denied citizenship. It is ironic that Myanmar claimed territorial sovereignty over Arakan without actually giving citizenship to a group of people who have been living there long before the creation of the state in its present form. The Rohingya currently make up the largest community of stateless persons in the world. Myanmar even has an official policy of not using the term “Rohingya”, as this might potentially endorse the indigenous origin of the community. During a recent meeting with the US Ambassador Scot Marciel in October 2017, the Myanmar army chief Senior General Min Aung Hlaing referred to the Rohingya as “Bengalis” and commented that British colonialists were responsible for the problem: “The Bengalis were not taken into the country by Myanmar, but by the colonialists; … they are not the natives.”145 Since independence, various forms of government oppression and the systematic marginalization of the Rohingya have met with organized and armed resistance by a fraction of the Rohingya, though the degree and nature of such resistance has varied. The 2017 crackdown in Arakan by the Myanmar army, in collaboration with local Rakhine Buddhist civilians, was a brutal and disproportionate response to one such armed attack by the Arakan Rohingya Salvation Army against Myanmar's security forces.
The continuation of colonial boundaries in the politico-legal imagination of post-colonial statehood is an established norm of international law. Although some international lawyers challenge this general application of the uti possidetis principle as a legally binding rule of international law, they nonetheless accept the pragmatic need for this principle, i.e. to maintain peace and stability. Ironically, as the example of the Rohingya crisis reveals, what seemed to be a solution at the time of decolonization turned out to be a recipe for humanitarian catastrophe.
Nevertheless, it would be inappropriate to conclude that the uti possidetis principle is the obvious reason behind this kind of crisis in post-colonial states in general. Various other important elements, such as international law's ambivalence with minority rights, evasiveness vis-à-vis the right to self-determination for minority groups, limited involvement with the question of citizenship and statelessness, or neo-liberal economic premise, also played a part in contributing to such crises. There is also a need for further research on how nation-building projects and the suppression of ethnic groups go unchallenged in post-colonial states in the absence of stable democratic institutions. Moreover, international law often fails to offer any adequate protection to vulnerable groups in society due to its normative reliance on individualism as well as weak enforcement mechanisms. The Rohingya crisis in Myanmar provides a perfect illustration of these arguments, serving as a powerful reminder of the deep, enduring crisis of post-colonial statehood and its problematic engagement with international law. The foregoing discussion on the role of international law in the making of post-colonial boundaries and the Rohingya crisis in Myanmar sets the necessary premise for the development of a larger project on post-colonial statehood and international law. Therein lies the normative significance of the present paper beyond the Rohingya crisis.