Blog post by Sreetapa Chakrabarty, an Assistant Professor in Political Science at the Directorate of Distance Education, Rabindra Bharati University, West Bengal, India. She is also a Ph.D research scholar at the Department of Political Science, Rabindra Bharati University, focusing on Rohingya refugee children in South Asia.
The rescue of 396 Rohingya refugees from a ship stranded at the Bay of Bengal and the death of many of those refugees after their failed attempt to reach Malaysia and Thailand in April 2020 has highlighted the plight of migrants at sea at a time when humanitarian concerns should be at the helm. “Because of the Covid-19 pandemic, the border and coastguards of all of the countries have ramped up their vigilance. Hence, the refugees on the boat couldn’t get down on the Malaysian shore”, Al-jazeera reported, quoting Loiuse Donovon, UNHCR spokesperson. Along with the shortage of food, drinking water and medicines, there were reports of sexual assault from the captain of the ship. According to the testimony of Moahmmad Salam, one of the rescued Rohingyas, “we twice tried to disembark in Malaysian coast but were chased away by their navy. Then the ship tried to take us to Thailand where the Thai navy also barred us from landing.” In another instance, on 16 April 2020, Malaysia denied entry to a boat with about 200 Rohingya refugees on board including men, women and children, justifying this stance in the name of Covid-19 fears and preventive measures.
Is this a case of history repeating itself? These incidents seem to take us back to 2015 when overwhelming media revelations of Rohingya deaths at sea led the international community to seriously focus on the refugee crisis as an overwhelming humanitarian crisis. As is well-documented, the last few decades have witnessed a hardening of the stance of states towards Rohingya refugees, particularly with states like India and Bangladesh who have tightened their citizenship legislations and ramped up their securitization policies. So ultimately where do the boat people of South Asia stand? Is the international community waiting to unearth another series of mass graves as it was discovered from Songla, Thailand in the Andaman Sea Refugee Crisis in 2015?
At a time when the global pandemic has rendered millions of refugees and migrants across the world all the more vulnerable, the condition of Rohingya refugees at sea has presented myriad challenges anew before the global system of protection for refugees and migrants. Behind the sacrosanct promises of a better life across those raging seas, there seems to lie death, destruction and drudgery for the stateless, floating people of South Asia. This blog post explores how the already marginalized and stateless Rohingya languishing at sea have been practically rendered rightless at a time when the entire world is facing the Covid-19 pandemic. To illustrate this I draw attention to relevant elements of international law of the sea and put forward my views on the need for a comprehensive regional framework to address the plight of the refugees and migrants at sea.
International law of the sea
Let us now look into some of the International legal mechanisms and try to understand how the present situation is actually a violation of local, regional, national and international frameworks which have been designed to protect the human rights of every person including the refugees and migrants at sea. Part 1 of Article 98 of the United Nations Convention on the Law of the Seas (UNCLOS) has clearly enunciated that:
Every state shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers: (a) to render assistance to any person found at sea in danger of being lost, (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him.
Further, Article 98 (2) lays down that:
Every coastal state shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighboring States for this purpose.
A number of South and South-East Asian countries like India, Bangladesh, Malaysia, Indonesia and Thailand and others are parties to the SOLAS convention (International Convention for the Safety of Life at Sea). The amendments to the SOLAS convention which entered into force in July 2006, added the following to chapter V of the convention – “this obligation to provide assistance applies regardless of the nationality and status of such persons or the circumstances in which they are found”. Further, the amended version of the Convention on Maritime Search and Rescue at Sea (SAR) clearly provides that the conduct of a search and rescue operation is the responsibility of the state in which search and rescue area the ship is found in jeopardy.
However, despite this clarity in law, several problematic dimensions continue to exist beyond these legal parameters. First of all, not all states across the world and in this context – within South Asia -, have acceded to or ratified the amended versions of these maritime treaties and humanitarian conventions. Further, although the SAR convention, as already mentioned, provides that the conduct of a search and rescue operation at sea is the responsibility of the concerned state, such operations can often lead to major dangers like human rights violations of the migrants at sea. Most importantly, especially within the South Asian context, the sea has barely been considered from a regional perspective. Therefore, although records of migrant deaths and atrocities at sea exist, there is clearly a lack of regional policies and initiatives in South Asia which would address the sea refugee crisis from a humanitarian perspective. The inclusion of regional initiatives in South Asia’s protection regime for refugees and migrants would in my opinion ensure a better implementation of the basic rights of migrants, refugees and stateless populations, whether at land or at sea.
Rohingyas at Sea
With respect to the plight of the Rohingya at Sea, Phil Robertson, Deputy Asia Director, Human Rights Watch has said that “the Covid-19 pandemic does not create a justification for risking the lives of refugees on overcrowded boats”. The HRW has directed Malaysia to allow the refugees ashore, provide health facilities, appropriate health monitoring and health care without any form of discrimination and has recognized that this pushback approach of Malaysia is a violation of the principle of non-refoulement (Article 33 of the 1951 Refugee Convention) under International customary law, where a state cannot forcibly send back refugees and migrants back to a place where the risk of being persecuted is prominent. With respect to the deaths of Rohingyas at Sea, it has been observed by Clare Algar, Senior Director for Research, Advocacy and Policy at Amnesty International that –”‘the battle against Covid-19 is no excuse for regional governments to let their seas become graveyards for desperate Rohingya people”.
The recent declaration of the Special ASEAN Summit on Coronavirus disease 2019 on 14th April 2020 provides that “we called for further enhancement of a caring and sharing ASEAN community where ASEAN Member States help each other in this challenging time”. What kind of care leads to such mass atrocities in the name of protection measures? The declaration in its resolution no.(ii) provides for emergency assistance and support to the ‘nationals’ of ASEAN member states in crisis situations like this. However, there is not even any latent indication what is to be done for those who are the non-nationals of ASEAN countries – be it the refugees, economic migrants or stateless populations, which is concerning given the fact that South Asia is a host to a large portion of the world’s refugee and migrant populations.
Recent developments suggest that a few of the rescued Rohingya refugees have been sent to the flood-prone, muddy island of Bhasan Char without any facility for healthcare and basic minimum needs, in order to prevent the possible spread of corona virus among the refugee camps in Bangladesh. However, this seems to be an attempt to ward off any sort of responsibility as pointed out by Brad Adams of Human Rights Watch – “Bangladesh faces the tremendous challenge of assisting Rohingya boat people while preventing the spread of Covid-19, but sending them to a dangerously flood-prone island without adequate health care is hardly the solution”.
As reported by the International Organization for Migration (IOM), with regard to the Mediterranean Sea alone 1,283 deaths have occurred in the year 2019, which doesn’t account for a large number of ‘ghost boats’ which have gone missing en route to Europe. As far as the Rohingya refugees are concerned, their plight has worsened in the past few years, aggravated by an increasing number of unaccounted deaths and atrocities at sea. It is high time that a comprehensive regional framework addressing the plight of refugees at the sea is initiated in South Asia and urgently, because it is already being apprehended that Covid-19 may be just used as a justification for tightening surveillance mechanisms and citizenship provisions and subject the migrant community to further suppression. Such a regional framework in South Asia needs to specially address the plight of the refugees at land and at sea during this time when almost all nation states are under lockdown and reflect on ways of addressing the large scale arrival of refugees in ships and vessels at coastal areas and borders during times of this pandemic. The issue of atrocities and deaths of migrants at sea needs to be addressed at local, national and global levels, given the fact that no matter what the securitization policy of a state is, each and every state continues to be bound by international humanitarian law.
The Government of Bangladesh refuses to accept any more refugees on the ground that it has already borne a far greater share of the burden in the refugee crisis than any other nation in the region. Malaysia, on its part, is not allowing the boats carrying Rohingya refugees to dock amid the scare generated by the coronavirus pandemic. As a consequence, these boats have nowhere else to go. But, the Rohingya refugees deserve a humane response on the basis of rights and dignity if one attaches minimum attention to international refugee law, international human rights law and international humanitarian law.
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