RIGHT TO ADEQUATE STANDARD OF LIVING

In document IIDMAN RIGHTS FOR THE STATELESS: A CASE STUDY OF THE ROHINGY A IN MALAYSIA (halaman 66-69)

CHAPTER 3: KEY PROVISIONS OF INTERNATIO NAL DOCUMENTS

3.8 RIGHT TO ADEQUATE STANDARD OF LIVING

It is not uncommon to find that many Rohingya live in dismal living conditions. Human

being has the right to be able live without shame and unreasonable obstacles to attain a respectable standard of living. This would mean having no obstacles in having access to food and water, clothing, housing142, health care and education. With high unemployment

U9[nternational Law Commission. ··Draft Articles on. ationality of Natural Persons in Rdation to the Succession of States-With Commentaries··. Yearbook ofche fnternanonal Law Comm1ss1on. Volume II. 1999. page 40

t•o "t\kn and women of tltll age. without any limitation due to race. nationality or rdigion. have the right to marry and to B und a tamily. They ar.: entitl.:d to equal rights as to marriage. during marriag.: and at its dissolution··.

111 From a ditTerent perspectiv.:. the Convention on the Nationality of Married Women states that neither the marriage nor the dissolution of it may render a woman to be statdess. The member states are also prohibited ti·om withdrawing nationality because a woman marries or divorces a statdess person. This is .:choed in CED.-\W and the European Conwntion on 1 ationality \ hi..:h also prevents women. by virtue ol' a marriage. to be rendered stateless.

112 Eide .. \shjorn. ··The Right to an Adequate Standard of' Living Including the Right to Food''. Rosas (ed) EconomiC. Soc1al und Cul1ural R1ghcs. t\lartmus :'-iijholl" l'ubltsh.:rs. IJordrecht: 1995. ~9-9l

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rates, low paying jobs and restrictions to movement, the Rohingya find themselves with little option. They are unable to secure a respectable living.

The 1954 Convention is poorly drafted in this respect and places no article that directly protects stateless people. The Convention loses its effectiveness as it cannot provide a guarantee. At most, the Convention states that when products are at a shortage, the stateless people are to enjoy equal treatment in receiving rations (Article 20). This does not prove to be of much use as the Rohingya are facing a crisis at this very moment.

Further, at the time of shortage, it would be more difficult for the Rohingya to assert that they need the goods because of the shortage itself 143 This statement originally pertained to refugees and the 1951 Convention but it is applicable to the identically worded text of the article in the 1954 Convention. This shows that the 1954 Convention is outdated.

Drafted after World War Two, it focuses more on rationing when the world was recovering from the effects of the war. In contrast, Article 21 of the Convention which covers housing is more relevant for the troubles they are facing today. It applies to all housing matter that is "regulated by laws or regulations or is subject to the control of public authorities".144 It is written in broad terms, allowing it be relied upon in any housing dispute regulated by the government such as purchase, rent, transfers and assignment to any social welfare initiative taken by the government to provide housing.145 Unfortunately, like most other provisions, the pre-condition to invoke this right is for lawful residence and upon meeting that requirement, they will only be entitled to that right as another non-national. There is no guarantee for housing or shelter of any sort, and there is nothing on the quality of housing, however temporary, that must be given. In the end, this does not become so very different from Article 13. It is also brings dangerous

143 Hathaway. op. ell. 470

144 Article 21 ofth~ 1954 Convention

11! Robinson. op. cu. 67

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possibilities because under Article 21, if they have fulfilled the precondition, they are ranked equally as other non-nationals. But ifthis necessity was seen as means to provide public relief under Article 23, the government would be given a higher level of protection.

The ICESCR is more effective. The basic necessities are clearly stated in Article 11 paragraph 1 ICESCR.146 In paragraph 2, the ultimate result if all are to be free from hunger is for all necessary action to be taken to prevent, if not, reduce hunger. This is strongly worded and although the integral feature of this Covenant is progressive realisation, there is an express and firm obligation that is placed on the states to take all necessary measures to ensure that the stateless will have adequate food and the people will not suffer from starvation even during times of disaster. 147 Article 11 also protects the right to water by ensuring that even stateless people have access to the minimum essential requirement of water for personal use, to prevent diseases and for the water facilities to be available without any discrimination. This is seen as such an important right that there are six core obligations devoted to the right to water. In regards to housing, the ESC Committee has explained that it means more than just providing shelter. It should be adequate housing, a place where there is the right to live in security, peace and dignity. The Committee on the Elimination ofRacial Discrimination asks states to guarantee equal enjoyment of the right to adequate housing for non-citizens. 148 Therefore, it can be concluded that the international human rights framework is more effective in protecting the rights of the stateless compared to the 1954 Convention.

146 Article 11. paragraph 1 of the lntemational Covenant on Economic. Social and Cultural Rights

1 17 ESC Committee. General Com111ent I:!: The nght to adeq11ate food. 12 Mav 1999. para. I J

148 Committee on the Elimination of Racial Discrimination. General Recol//11/endatron 30: Olscmmnatlon agwnst .Von-C/1/::ens.

i'<ew York: I lktober 2004. para. 32

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In document IIDMAN RIGHTS FOR THE STATELESS: A CASE STUDY OF THE ROHINGY A IN MALAYSIA (halaman 66-69)