This article is part of Evolving Threats to Southeast Asia’s Maritime Security, a series of analyses produced by experts convened by the S. Rajaratnam School of International Studies.
How has the threat evolved over the last 20 years?
Migrants, including asylum seekers and refugees, traveling by sea, are neither a new nor insignificant phenomenon. Among the five largest refugee-producing countries is Myanmar with an estimated 1.2 million refugees, mostly Rohingya, of whom more than 100,000 have sought protection in Southeast Asia, often trying to reach Indonesia or Malaysia by making the dangerous journey across the Andaman Sea.
The conflict between the Rohingya, a Muslim minority mainly living in Rakhine, and the Burmese government can be traced back to differing political positions held during the Second World War. The tensions intensified in 1982, when the Rohingya lost their citizenship rights and privileges. Since 2012, when a riot erupted in Rakhine between Buddhists and Muslims, the world has witnessed gross human rights violations against the Rohingya, causing more than 700,000 people to flee from Rakhine in 2017 alone. As of January 2021, UNHCR had registered 866,457 Rohingya refugees from Myanmar in neighboring Bangladesh, where the government offered temporary sanctuary. However, as the capacities in Bangladesh are starting to wear out, many Rohingya have endeavored secondary migrations. According to UNHCR estimates between 2012 and 2015, 112,500 Rohingya refugees traveled to Malaysia by land or boat, and approximately 1,800 died on those journeys from various causes.
These journeys cannot be made without the support of facilitators. Over the last decade, transnational networks have emerged in Myanmar, Bangladesh, Thailand, Malaysia, and Indonesia to facilitate the migration of Rohingya. These networks involve a myriad of actors, including state officials, opportunistic middlemen, and hired hands who operate either on a regular or a one-off basis. Journeys can take weeks, sometimes months, particularly when intensified border patrols or police investigations cause unexpected interruptions, and many Rohingya suffer extreme deprivation and exploitation along the way. Moreover, facilitators often deliberately put journeys on hold so that they and their associates can collect additional payments from family members or friends of the passengers in Malaysia, who are usually the sponsors of the passages.
The specifics of the irregular passages of the Rohingya, which in many cases include false promises, deception, negligence, exploitation, and various forms of abuse, make it very difficult to determine whether they are instances of people smuggling—defined as a one-off voluntary encounter between a client and a transporter for the sake of unsanctioned border crossings—or human trafficking, characterized as an ongoing process of exploitation initiated by the need to cross borders. Both smuggling and trafficking networks thrive on the vulnerability of the Rohingya as stateless people denied proper protection by any state in South and Southeast Asia. While some high-ranking smugglers/traffickers were arrested and sentenced by Thai courts, serious investigations into this matter in Malaysia remain absent. However, in 2020, Indonesia started to criminalize rescuers (fishermen who came to the rescue of Rohingya stranded at sea) as people smugglers.
What are the primary governance tools that are being used in response to the threat?
Rohingya refugees started arriving by boat to Indonesia in the late 2000s, many reaching Aceh’s coast through the Straits of Malacca. A humanitarian crisis unfolded in May 2015, when between 7000 and 8000 refugees became stranded at sea without food or water after they had been abandoned by their smugglers. At first, Thailand, Malaysia, and Indonesia refused to allow Rohingya refugees stranded at sea to disembark in their respective territories. Responding to international pressure, Malaysia and Indonesia agreed to offer those stranded people a temporary retreat instead of pushing them back into the sea, as they had already done in several cases. In May 2015, the foreign ministers of Indonesia and Malaysia announced a “solution to the crisis of influx of irregular migrants” and offered to provide humanitarian assistance. While humanitarian assistance was a short-lived approach, border securitization was fully embraced by all neighboring states.
In April 2020, a second Andaman Sea Crisis appeared when Malaysia started pushing back Rohingya refugee boats, using as an excuse its restrictive border measures introduced in response to the novel coronavirus (COVID-19). The Bangladesh coastguard later intercepted a boat of Rohingya refugees that had been turned away from Malaysia and quarantined its passengers at Bhasan Char, an uninhabited island off the southern coast of Bangladesh. A total of 382 starving refugees were rescued, but survivors reported that at least 30 people had died at sea. According to official statements, Malaysia turned back 22 Rohingya boats in May to June 2020. Similar pushbacks were reported for Indonesia.
What are the primary harms the threat poses to regional stakeholders?
First, Rohingya passengers are often held hostage at sea by their transporters who are trying to extort higher payments from their families before proceeding with the passage to Malaysia. Second, Rohingya are prevented from disembarking by the naval forces of potential transit and destination countries and pushed back to sea, in a collective disregard of international law often described as a three-way game of “human ping pong”. Preventing their attempts to reach land is, therefore, responsible for the extended periods Rohingya are forced to spend at sea and the consequent deaths from undernourishment, dehydration, and disease.
In light of the territorial basis of asylum, it is required that people must enter the territory of a state other than their own to claim refugee protection. Once a person has reached the territory of another state, the state in question is not only obliged to avoid refoulement (sending people back to where they fear for their lives) but also from penalizing asylum seekers for irregular entry. Given these limitations, more and more potential receiving states make use of preemptive measures and maritime patrols in order to prevent asylum seekers from reaching land. Although neither Thailand, Indonesia, nor Malaysia have ratified the 1951 Refugee Convention, they are still bound to the non-refoulement principle under international customary law.
Violations of the non-refoulement principle often have no consequences for states resorting to such approaches. Instead, frequently, justifications for the Rohingya deaths at sea fall back to the ancient idea of the sea as a dangerous space. The justification of refugee deaths as “natural deaths” also persists because border control regimes tend to trump international maritime conventions, as well as other international human rights law. These so-called “policies of non-assistance” are responsible for asylum seekers and migrant boats in distress being cast adrift and ignored by search and rescue authorities, as non-rescue is employed as the ultimate border protection mechanism. Prevented from disembarking by the very same states that refuse to meet their international rescue obligations, Rohingya boats are forced to keep roaming the sea until they vanish beneath the waves, manage to return to Bangladesh, or are rescued by fishermen.
How has maritime awareness developed to reduce the threat?
To understand the duties of states concerning the rescue of passengers in distress at sea, their disembarkation, and the rights of refugees stranded at sea in particular, it is necessary to consider the interplay between international maritime law, human rights law, and refugee law, which together form a patchy legal framework. The code of conduct for rescue operations is enshrined in several international conventions, for example, the 1974 Safety of Life At Sea Convention (SOLAS), the 1979 International Maritime Search and Rescue Convention (IMSAR) and the 1982 United Nations Convention on the Law of the Sea (UNCLOS). According to the SOLAS Convention, ships’ captains should provide swift aid to a vessel in distress and should record the reasons if they fail to do so. The IMSAR Convention makes it obligatory for coastal states to coordinate rescue operations. UNCLOS stipulates that help must be given to those in distress. For this purpose, search and rescue (SAR) zones have been established across the high seas, delimiting the geographic areas within which particular states have a legal responsibility to coordinate SAR operations. Because of multiple state and non-state actors responsible for rescues, as well as the overlapping juridical responsibilities for SAR zones, questions often arise about who should be held responsible for the failure to rescue people at risk at sea. Despite the fact that international conventions on the law of the sea have progressively regulated maritime interactions and boundaries, commercial use, and SAR obligations of states and seafarers, adherence in Southeast Asia lags behind.
What additional context is necessary to understand the maritime security challenges associated with maritime refugees?
Most countries in Southeast Asia still lack a common and comprehensive approach responding to cross-border forced displacements. In fact, the region is considered to have the weakest normative refugee protection framework in the world apart from the Middle East. Although the 2012 ASEAN Human Rights Declaration does mention “the right to seek and receive asylum in another State in accordance with the laws of such State and applicable international agreements,” the ASEAN member states’ response to the issue of forced migration has mainly adhered to the so-called ASEAN Way, characterized by non-interference, dialogue, and a consensus style of decision making. Regional cooperation is considered as one of the answers for maritime refugee movement in the region and beyond, since hardly any single country can deal with forcible mass displacements on its own.