1. Statement made by the United Nations [UN] High Commissioner for Human Rights, Zeid Ra'ad Al Hussein, before the UN Human Rights Council in Geneva on 11 September 2017, online: UN News Centre <www.un.org/apps/news/story.asp?NewsID=57490#.WduURFtSyUk>.

2. Statement made by the UN High Commissioner for Human Rights, Zeid Ra'ad Al Hussein, before the UN Human Rights Council [HRC] in Geneva on 5 December 2017, online: UN News Centre <http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22488&LangID=E>.

3. Report of the Detailed Findings of the Independent International Fact-Finding Mission on Myanmar, UNHRC, UN Doc A/HRC/39/CRP.2 (2018).

4. ANGHIE, Antony, “Bandung and the Origins of Third World Sovereignty” in ESLAVA, Luis, FAKHRI, Michael, and NESIAH, Vasuki, eds., Bandung, Global History, and International Law: Critical Pasts and Pending Futures (Cambridge: Cambridge University Press, 2017), 544Google Scholar.

5. OKAFOR, Obiora Chinedu, “After Martyrdom: International Law, Sub-State Groups, and the Construction of Legitimate Statehood in Africa” (2000) 41 Harvard International Law Journal 503Google Scholar at 503–28.

6. The Preamble of the UN Charter (1945).

7. SHAHABUDDIN, Mohammad, “Liberal Self-Determination, Post-colonial Statehood, and Minorities: The Chittagong Hill Tracts in Context” (2013) 1 Jahangirnagar University Journal of Law 77 at 82–3Google Scholar.

8. For an in-depth analysis of why the liberal individualist approach to minority protection was counter-productive by design, see SHAHABUDDIN, Mohammad, Ethnicity and International Law: Histories, Politics, and Practices (Cambridge: Cambridge University Press, 2016) at 136–64CrossRefGoogle Scholar.

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10. India Home Rule League of America, Self-Determination for India (New York: India Home Rule League of America, 1919)Google Scholar.

11. ABRAHAM, Itty, How India Became Territorial: Foreign Policy, Diaspora, Geopolitics (Palo Alto, CA: Stanford University Press, 2014) at 11CrossRefGoogle Scholar.

12. Ibid., at 12.

13. Supra note 10 at 9–10.

14. Ibid., at 10.

15. HIGGINS, Rosalyn, Problems and Process: International Law and How We Use It (Oxford: Oxford University Press, 1994) at 111–14Google Scholar. See also Shahabuddin, supra note 8 at 136–7.

16. UN General Assembly, Declaration on the Granting of Independence to the Colonial Countries and Peoples, Res 1514 (XV), 947th Plenary Meeting, 14 December 1960; General Assembly, Principles Which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information Called for under Article 73e of the Charter, Res 1541 (XV), 948th Plenary Meeting, 15 December 1960; General Assembly, Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, Res 2625 (XXV), 25th Session, 24 October 1970. See also MUSGRAVE, Thomas D., Self-Determination and National Minorities (Oxford: Clarendon Press, 1997) at 69–77Google Scholar, 91–6.

17. CHATTERJEE, Partha, Nationalist Thought and the Colonial World: A Derivative Discourse (London: Zed Books Ltd., 1993 [1985]) at 1–35Google Scholar; CHAKRABARTY, Dipesh, Provincializing Europe-Post-colonial Thought and Historical Difference (Princeton, NJ: Princeton University Press, 2000) at 27–46Google Scholar.

18. Abraham, supra note 11 at 69.

19. Ibid.

20. However, the option of changing territorial borders by voluntarily joining another state or by remaining in a constitutional relationship with the former colonial power remained open. See General Assembly, Principles Which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information Called for under Article 73e of the Charter, principles VI–IX.

21. FRANCK, Thomas M., Fairness in International Law and Institutions (Oxford: Oxford University Press, 1995) at 149Google Scholar.

22. Declaration on the Granting of Independence to the Colonial Countries and Peoples, art. 2.

23. Ibid., arts. 6, 7.

24. The Moroccan delegate's comments at UN Doc A/PV.947 (14 December 1960) 1284, paras. 158–61.

25. Ibid.

26. For details, see Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment of 14 February 2002 [2002] ICJ Rep 3 at paras. 6–15, Judge Ad Hoc Bula, separate opinion.

27. UN Doc S/4382 (13 July 1960) 1; SC Res 143, 14 July 1960; SC Res 161, 21 February 1961.

28. UN Doc A/PV.936 (1960) 1153, paras. 53–5.

29. FRANCK, Thomas M., Nation Against Nation (New York: Oxford University Press, 1985) at 77Google Scholar; see also Anghie, supra note 4 at 544–6.

30. United Nations, Revue des Nations Unies 6, no. 2 (1957), 67.

31. Anghie, supra note 4 at 545.

32. Ibid., at 546; see also POMERANCE, Michla, “Methods of Self-Determination and the Argument of ‘Primitiveness’” (1974) 12 Canadian Yearbook of International Law 38 at 51–2, 55Google Scholar. The vested interest of the Dutch in destabilising the region, and thereby perpetuating its control, cannot be ignored here. Kalana SENARATNE, “Internal Self-Determination: A Critical Third-World Perspective” (2013) 3 Asian Journal of International Law 305 at 331–2.

33. The resolution in favour of West Irian's self-determination was marginally defeated by 53 votes to 41 votes, with nine abstentions. UN Doc A/L.368 (27 November 1961).

34. Franck, supra note 29 at 78.

35. Report of the Secretary-General Regarding the Act of Self-determination in West Irian. UN Doc A/7723, Agenda item 98 (6 November 1969). The same principle was applied, albeit in a different context and without involving any minority claim to the right to self-determination, in the more recent ICJ advisory opinion in the Chagos Island case. Here the court argued that by detaching the Chagos Archipelago from Mauritius (a non-self-governing territory in the Indian Ocean under British administration) before granting the latter independence, the UK violated the principle of self-determination under international law that applied to the entire territory under foreign control. See Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (The Chagos Islands Case), Advisory Opinion, ICJ Reports (2019).

36. Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, 1970. See also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), Advisory Opinion, ICJ Reports (1971), para. 52; Frontier Dispute (Burkina Faso/Republic of Mali) Case, ICJ Reports (1986), para. 25.

37. CRAVEN, Matthew, The Decolonization of International Law: State Succession and the Law of Treaties (Oxford: Oxford University Press, 2007) at 205CrossRefGoogle Scholar.

38. Franck, supra note 21 at 147.

39. See generally LALONDE, Suzanne N., Determining Boundaries in a Conflicted World: The Role of Uti Possidetis (Montreal: McGill-Queen's University Press, 2002) at 10–len Google Scholar.

40. Ibid., at 4.

41. See generally BARROS, James, The Aland Islands Question: Its Settlement by the League of Nations (New Haven, CT: Yale University Press, 1968)Google Scholar.

42. Aaland Islands Case, Report of the International Commission of Jurists entrusted by the Council of the League of Nations with the task of giving an advisory opinion upon the legal aspects of the Aaland Islands question, League of Nations Official Journal, Special Supplement No. 3 (1920) at 9.

43. The Commission of Rapporteurs took into consideration a number of other factors, including the small size of the island community as a claimant of the right to self-determination and the security concerns for both Sweden and Finland. Their report also observed that the sheet of water, the skiftet with its numerous rocks and islets, which separated the islands from the Finnish mainland “would be a bad frontier between two States, extremely arbitrary from a geographical point of view”. Aaland Islands Case, Report of the Commission of Rapporteurs (1921), League of Nations Council Doc B.7. 21/68/106 at 3.

44. Aaland Islands Case, Report of the Commission of Rapporteurs (1921), League of Nations Council Doc B.7. 21/68/106.

45. Lalonde, supra note 39 at 4.

46. For example, the resolution proclaimed by the All-African Peoples Conference held in Accra in December 1958, which called for the abolition or readjustment of colonial frontiers at an early date. Lalonde, supra note 39 at 103.

47. Adopted in Addis Ababa on 25 May 1963, 479 UN Treaty Series 39.

48. “OAU Resolution of Border Disputes” in Ian BROWNLIE, ed., Basic Documents on African Affairs (Oxford: Oxford University Press, 1971) at 360. See also Lalonde, supra note 39 at 104.

49. See for example, Brownlie, supra note 48 at 360; CHUKWURAH, A.O., “The Organization of African Unity and African Territorial and Boundary Problems: 1963–1973” (1973) 13 Indian Journal of International Law 176 at 181Google Scholar; BOUTROS-GHALI, Boutros, The Addis Ababa Charter (New York: Carnegie Endowment for International Peace, 1964) at 29Google Scholar.

50. GRIFFITHS, Ieuan L.L., The Atlas of African Affairs, 2nd ed. (London: Routledge, 1995 [1984]) at 51Google Scholar.

51. ICJ Reports 1986 at 565.

52. Ibid.

53. Ibid.

54. AHMED, Dirdeiry M., Boundaries and Secession in Africa and International Law: Challenging Uti Possidetis (Cambridge: Cambridge University Press, 2015) at 20–4CrossRefGoogle Scholar. He relies on a number of cases that support this claim: Colombian-Venezuelan Frontier case, Reports of International Arbitral Awards (RIAA), VI 1922, 223; Case Concerning a Dispute Between Argentina and Chile Concerning the Beagle Channel (1977) [Beagle Channel case] XXI RIAA 1 at 81–2; Case Concerning the Land, Island and Maritime Frontier Dispute (Judgment, 1992), ICJ Rep 315 at 387 [El Salvador/Honduras case]; Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea (Judgment, 2007), ICJ Rep 659 at 707 [Nicaragua/Honduras case].

55. Ahmed, supra note 54 at 46.

56. Ibid., at 11–46.

57. See generally Lalonde, supra note 39 at 24–60.

58. Ibid., at 31–4.

59. Ibid., at 58–60.

60. Ibid., at 103–37.

61. Cited in PELLET, Alain, “The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples” (1992) 3 European Journal of International Law 178 at 182CrossRefGoogle Scholar.

62. Ibid., at 183. In Opinion No. 8 on 8 July 1992, the Commission declared that the process of dissolution of the Socialist Federal Republic of Yugoslavia [SFRY] was complete. See Arbitration Commission Opinion No. 8 (1992), (1993) 4 European Journal of International Law 87–8.

63. See the “Declaration on the ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’” (16 December 1991), (1993) 3 European Journal of International Law 72; Declaration on Yugoslavia (Extraordinary EPC Ministerial Meeting, Brussels, 16 December 1991), (1993) 3 European Journal of International Law 73.

64. Arbitration Commission Opinion No. 3 (1991), (1992) 3 European Journal of International Law 185. The Commission specifically referred to the principles stated in the UN Charter in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (General Assembly Resolution 2625 (XXV)) and in the Helsinki Final Act.

65. Ibid. See also Frontier Dispute (Burkina Faso and Mali) Case, ICJ Reports (1986).

66. He further asserts that “the principle is not as rigid as some might feel it ought to be. Stability does not mean intangibility. Although States are prohibited from acquiring a territory by force, they might freely decide, as the Committee made clear, to a modification of their frontiers ‘by agreement’.” Pellet, supra note 61 at 181. For a critical perspective on the “Badinter frontiers Principle”, see RADAN, Peter, “Post-Secession International Borders: A Critical Analysis of the Opinions of the Badinter Arbitration Commission” (2000) 24 Melbourne University Law Review 50 at 50–76Google Scholar.

67. Shahabuddin, supra note 8 at 207.

68. Arbitration Commission Opinion No. 2 (1991), (1992) 3 European Journal of International Law 184.

69. Supra note 42; cf. supra note 44. However, the Commission held that the right to self-determination can be applied when statehood itself was in question.

70. Cf. Principles IV, VI, and VIII of the Helsinki Final Act.

71. For the opposing argument, see MUTUA, Makau W., “Why Redraw the Map of Africa: A Moral and Legal Inquiry” (1995) 16 Michigan Journal of International Law 1113Google Scholar.

72. For instance, Syed Alaol's reference to Arakan as “Roshang” in his epic Padmabati (1651), or in Abdul Karim Khandkar's preamble to his translation of the Persian story Dulla Majlish in 1698. HOQUE, Mofidul, ed., The Rohingya Genocide: Compilation and Analysis of Survivors’ Testimonies (Dhaka: Center for the Study of Genocide and Justice, 2018) at 64–5Google Scholar.

73. KARIM, Abdul, The Rohingyas: A Short Account of Their History and Culture (Dhaka: Jatiya Sahitya Prakash, 2016)Google Scholar cited in Hoque, supra note 72 at 66. The Buddhist Rakhines were, however, popularly known as “Maghs” to the Bengalis.

74. WILSON, Horace H., Narrative of the Burmese War, 1824–1826 (London: W. H. Allen and Co., 1852) at 155–6Google Scholar.

75. The Advisory Commission on Rakhine State, Towards a Peaceful, Fair and Prosperous Future for the People of Rakhine [Final Report of the Advisory Commission on Rakhine State, also known as the Annan Commission], August 2017 at 18.

76. Ibid.

77. Hoque, supra note 72 at 62.

78. Arthur Purves PHAYRE, History of Burma (London: Trubner & Co., 1883) at 78.

79. Hoque, supra note 72 at 62. This was also a common practice in the Chakma tribe of the hill tracts of Chittagong under the control of the British East India Company. For example, the eighteenth-century Chakma chief was named Sher Daulat Khan, his son Jan Baksh Khan, and his deputy Rono Khan. SHAHABUDDIN, Mohammad, “The Myth of Colonial ‘Protection’ of Indigenous Peoples: The Case of the Chittagong Hill Tracts under British Rule” (2018) 25 International Journal on Minority and Group Rights 210 at 231CrossRefGoogle Scholar.

80. Phayre, supra note 78.

81. Alaol specifically mentions people from Arabia, Egypt, Syria, Turkey, Abyssinia (Ethiopia), Rome, Khurasan (greater Persia), Uzbekistan, Lahore, Multan, Sindh, Kashmir, Deccan, Hindustan (North India), Bengal, Karnal, Malaya, Kochi, Achi, and Karnataka. Hoque, supra note 72 at 64.

82. FORCHHAMMER, Emil, Report on the Antiquities of Arakan (Rangoon: Government Printing and Stationary, 1891) at 3Google Scholar.

83. SMART, R.B., Burma Gazetteer (Rangoon: Government Printing and Stationary, 1917) at 19Google Scholar.

84. Hoque, supra note 72 at 61.

85. Michael W. CHARNEY, Where Jambudipa and Islamdom Converged: Religious Change and the Emergence of Buddhist Communalism in Early Modern Arakan (Fifteenth to Nineteenth Centuries), PhD dissertation, University of Michigan (1999) at 147.

86. Ibid., at 164–5.

87. François BERNIER, Travels in the Mogul Empire (1656–1668) (Histoire de la dernière révolution des états du Grand Mogol, 1671), trans. Irving BROCK, rev. ed. Archibald CONSTABLE (Westminster: Archibald Constable and Company, 1891).

88. Ibid.

89. Ibid.

90. Ibid.

91. Thant MYINT-U, The Making of Modern Burma (Cambridge: Cambridge University Press, 2001) at 88.

92. Ibid., at 94.

93. Ibid.

94. A viss is a Burmese unit of measurement for weight, equivalent to approximately 1.6 kilograms.

95. For details, see TUN, Than, ed., The Royal Orders of Burma, AD 1598–1885, part IV (1782–1787) (Kyoto: Kyoto University Centre for Southeast Asian Studies, 1988) at 75–83Google Scholar.

96. Royal Orders of 28 September 1784 and 2 October 1784, ibid.

97. Royal Orders of 26 January 1785, 54, supra note 95.

98. See generally TUN, Than, “Paya Lanma (Lord's Highway) over the Yoma (Yakhine Range)” (1985) 25 Journal of Asian and African Studies at 233–41Google Scholar.

99. Tun, supra note 95 at xvii. The raft that brought Mahamuni arrived at the Amarapura jetty on 27 April 1785.

100. Ibid., at 75, 83.

101. Ibid., at 83, 84.

102. Royal Orders of 25 July 1787 152 and Royal Orders of 3 October 1787 180, ibid..

103. Ibid., 182.

104. Wilson, supra note 74 at 3–4; see also ULLAH, Akm Ahsan, “Rohingya Refugees to Bangladesh: Historical Exclusions and Contemporary Marginalisation” (2011) 9 Journal of Immigrant & Refugee Studies 139 at 143CrossRefGoogle Scholar.

105. Wilson, supra note 74 at 3–4.

106. Myint-U, supra note 91 at 96.

107. LEWIN, Thomas Herbert, The Hill Tracts of Chittagong and Dwellers Therein with Comparative Vocabularies of the Hill Dialects (Calcutta: Bengal Printing Company Ltd., 1869) at 29Google Scholar.

108. Ibid. This Burmese claim can be corroborated by the official British narrative of the first Anglo-Burma War. Wilson, supra note 74 at 8.

109. Lewin supra note 107 at 30–2.

110. Ibid., at 32.

111. MACFARLANE, Charles, A History of British India, from the Earliest English Intercourse to the Present Time (London: George Routledge & Co., 1853) at 355Google Scholar.

112. Myint-U, supra note 91 at 99.

113. TUN, Than, ed., The Royal Orders of Burma, AD 1598–1885, part VII (1811–1819) (Kyoto: Kyoto University Centre for Southeast Asian Studies, 1988) at 136Google Scholar.

114. Ibid., at 103.

115. Wilson, supra note 74.

116. The British were represented by Major General Sir A. Campbell, Commodore Sir J. Brisbane, Brigadier-General Cotton, Captain Alexander, Brigadier McCreagh, Lieutenant-Colonel Tidy, and Captain Snodgrass. The chiefs representing the government of Ava were: Sada Mengyee Maha Mengom-KyeeWoongyee, Munnoo Rutha Keogong Lamain Woon, Mengyee Maha Menla Rajah Atwenwoon, Maha Sri Senkuyah Woondok, Mengyee Maha Menla Sear Sey Shuagon Mooagoonoon, Mengyee Attala Maha Sri Soo Asseewoon; ibid., at 204–5.

117. One crore means 10 million.

118. Supra note 74 at 205.

119. Ibid., at 210–57.

120. Ibid., at 257. See also Myint-U supra note 91 at 100.

121. Tun, supra note 95 at182.

122. Ibid., at 196, 203.

123. Ibid., at 203.

124. Myint-U, supra note 91 at 220.

125. Supra note 75 at 18. This was in line with the general British colonial policy of encouraging settlement cultivation as opposed to the traditional slash and burn cultivation in all the hill regions of South Asia. This policy was necessary for the colonial administration to ensure a stable generation of revenue. See Shahabuddin, supra note 79 at 210–35.

126. Report on the Census of British Burma, Part I: The Enumeration and Compilation of Results, 1881; Report on the Census of India 1931, vol. XI: Burma, Part I, 1933.

127. Ullah, supra note 104 at 143.

128. PITTAWAY, Eileen, “The Rohingya Refugees in Bangladesh: A Failure of the International Protection Regime” in Adelman, H., ed., Protracted Displacement in Asia-No Place to Call Home (Surrey: Ashgate, 2008), at 83–105Google Scholar.

129. The British decision was primarily driven by student uprisings for national autonomy, which were in turn triggered by the economic depression of the 1930s and the ensuing economic hardship in the country. The decision was also motivated by the need to protect the jewel in the crown of the British Empire—India. Burma was seen as a handy buffer zone in the face of an increasing French presence and influence in Southeast Asia. The separation of Burma from India was officially recommended by the authors of the Montagu-Chelmsford Report, by the Statutory Commission, and by the Government of India. The Burma sub-Committee of the Indian Round Table Conference, 1930, endorsed the principle of separation. See House of Commons Parliamentary Papers, Proceedings of the Burma Round Table Conference, 27 November 1931 to 12 January 1932 (London: His Majesty's Stationery Office, 1932) at 18 [Proceedings of the Burma Round Table Conference].

130. Statement read by U Ba Pe, and signed by U Chit Hlaing, U Ba Pe, U Maung Gyee, U Ohn Ghine, U Tun Aung Gyaw, U Ba Si, Dr. Thein Maung, Miss May Oung, U Tharrawaddy Maung Maung, Tharrawaddy U Pu, and U Ni. Proceedings of the Burma Round Table Conference, ibid. at 31.

131. Ibid., at 32.

132. Ibid., at 20–5.

133. Statement read by N.M. Cowasjee, ibid., at 47.

134. Ullah, supra note 104 at 141.

135. Refer to the full title of the Act. See also art. 1.

136. Myint-U, supra note 91 at 220.

137. India Office Records and Private Papers, “Letter from U Hla Tun Pru, Chairn, All Arakan Representative Working Committee to the Secretary of State for Burma, dated 21 June 1947”, IOR/M/4/2503 at 18–19.

138. Government of Burma Press Communique published in The Times of Burma, 20 November 1947. India Office Records and Private Papers, “Law and Order: Arakan (12 April–1 December 1947)”, IOR/M/4/2503.

139. India Office Records and Private Papers, “Burma Office Minute Paper (B/C 1235/47)”, IOR/M/4/2503 at 10–11.

140. Ibid.

141. Ibid., at 12.

142. Art. 2 of the UN Charter; General Assembly, Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, Res 2625 (XXV), 25th Session, 24 October 1970. Principles of unilateral humanitarian intervention, the responsibility to protect, and remedial self-determination are often seen as “legitimate” (as opposed to legal) exceptions to the general rule of non-intervention and territorial integrity in exceptional cases.

143. Supra note 75 at 18.

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