Malaysia is back at it again, denying the entry of overloaded boats of Rohingya refugees and pushing them back to sea. On April 16, it was reported that the Malaysian navy intercepted a boat with around 200 Rohingya refugees and prevented the boat from entering Malaysian waters, under the justification that such measures were part of prohibition for foreigners from entering the country.
The Covid-19 pandemic has forced countries to restrict the movement of people within their territories, including their borders. The opportunities for refugees and asylum-seekers to flee persecution and seek safety have become even more restricted, making it harder for them to access their rights. Those measures seem reasonable and necessary in order to protect public health within their territories, but does prioritising citizens mean that countries can abandon their duty to rescue refugees when they are in distress?
This dilemma has been consistently faced as the refugee crisis seems to be showing no signs of diminishing. In Asean, a similar situation occurred in 2015, when over 5,000 Rohingya refugees were abandoned in the middle of the sea and denied entry by Thailand, Malaysia, and Indonesia, creating a phenomenon called "maritime ping-pong". The justification was focused on immigration and security considerations, and not the international law obligation for Asean countries as non-State Parties to the 1951 Refugee Convention. However, such a duty to rescue is not automatically waived under the law of the sea regime to which most Asean member are states parties.
Article 98 (2) of the UN Convention on the Law of the Sea (UNCLOS) regulates that coastal state must "promote the establishment, operation and maintenance of adequate and effective SAR services that are concerned with safety inside and above the sea". A similar obligation for coastal state is enshrined in Article 2.1.10 of the Convention on Maritime Search and Rescue (SAR Convention), which is to provide SAR services for each person in distress at sea in the SAR region of the country, regardless of nationality, status, or condition of the person. It is then reiterated in Article 3.1.9 of the SAR Convention and Rule 33 Chapter 5 of the Convention for the Safety of Life at Sea (SOLAS Convention) that coastal states have an obligation to regulate the disembarkation of people rescued at sea as soon as it's reasonably practicable.
Refugees and asylum-seekers in over-capacity boats are often found with a lack of food, clean water, and without any tool or experts for sea navigation. Such conditions constitute the definition of "distress" under international law. In practice, states often conduct interceptions of these boats, including by Malaysia recently. Malaysian authorities who intercepted such boats must ensure the security and humane treatment of the people aboard them, including by providing necessary protection and assistance to refugees and migrants classified as persons in distress, according to Article 9 of the Migrant Smuggling Protocol.
Once persons in distress are rescued, they must be brought to a "place of safety", according to the International Aeronautical and Maritime Search and Rescue Manual (IAMSAR Manual) by the International Maritime Organization (IMO). This refers to a place where the lives of the persons in distress are not threatened. Based on IMO guidelines, the country responsible for the SAR area where persons in distress are found and rescued has an obligation to provide a place of safety or arrange that the place of safety is provided, including in other territories. However, in a pressing situation, rescued persons are entitled to be granted temporary rights of disembarkation by the government responsible for the SAR area where persons in distress are found.
This is to further conduct assessment of the rescued persons, including their status, as instructed in the IMO Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea. The utmost priority for the authorities is to ensure that any operation or procedure that impedes the giving of assistance to that person is not carried out.
Malaysia is a state party to the three conventions, meaning that Malaysia is bound by the obligations to rescue refugees at sea as persons in distress, grant them temporary disembarkation to further carry out administrative procedures for status assessment, and arrange places of safety for them. This arrangement should adhere to the principle of non-refoulement which is widely accepted as customary international law, meaning that the authorities cannot return persons rescued at sea to places where their lives are threatened. Besides, since Malaysian authorities have intercepted the boats before eventually pushing them back to the sea, they are obliged to ensure the security and humane treatment of the refugees, including necessary protection and assistance.
Putting the lives of refugees on the line constitutes not only a violation of the conventions, but also a violation of the principle of non-discrimination. Thailand and Indonesia that have neighbouring SAR areas with Malaysia should reactivate solidarity to rescue refugees at sea and help grant them temporary disembarkation and give them humanitarian assistance.
Covid-19 should not be a justification to turn our backs from these refugees as every human being matters regardless of their status and nationality.
Asean can take the lead in reactivating the commitment in the Putrajaya Statement, to prioritise rescuing refugees found at sea and granting them temporary shelter.
Dominique Virgil Tuapetel is executive director of Sandya Institute, a non-profit organisation on peace and human rights.