Left to Die at Sea: State Responsibility for the May 2015 Thai, Indonesian, and Malaysian Pushback Operations
Forthcoming, Volume X of the Irish Yearbook of International Law
35 Pages Posted: 12 May 2017
Date Written: April 11, 2017
In May 2015, 8,000 migrants were abandoned by their smugglers in the Andaman Sea and Bay of Bengal, left adrift in conditions of malnourishment, suffocation, dehydration, starvation, and violence. Many of those on board were members of Myanmar’s minority Rohingya population, who lack citizenship, endure systematic discrimination, have limited access to education and healthcare, and cannot move around freely. Their plight was worsened by the crudely-termed game of ‘human ping pong’, involving the Thai, Malaysian, and Indonesian authorities repairing the vessels, providing the migrants with food and water, and escorting them beyond their territorial seas. The death toll is unknown, however Amnesty International estimates that these actions resulted in hundreds or even thousands of deaths.
The scope of protection under international law to which these people were entitled is unclear. First and foremost, none of the states specially affected by this crisis are party to the 1951 Refugee Convention, which contains the refugee definition, sets out the rights associated with refugee status, and prohibits states from engaging in refoulement. The relative lack of Asian states’ participation in the Refugee Convention is particularly regretful in this context, as the Rohingya are clearly victims of persecution based on race and would thus most likely qualify as refugees if the Refugee Convention were applicable. Thus Asia is sometimes described as having ‘rejected’ refugee law. In comparison, Europe is seen as having the most developed regional system of protection for those who choose to migrate by sea, as all states are party to the 1951 Refugee Convention and the European Court of Human Rights judgment of Hirsi explicitly states that push-back operations at sea engage the 1950 European Convention on Human Rights (ECHR). Consequently, there is significant literature on refugee protection in Europe, whereas very little has been written in relation to Asia. Likewise, although the term ‘migrant crisis’ makes regular headlines, much of the media and political attention, and indeed many of the other papers in this volume, have focused predominately on refugees in Europe.
Keywords: Refugee Convention, Thai, Indonesian, Malaysian, Migrants, Sea, Asia, Europe
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