This article examines the irregular sea migration of Rohingya Muslims who flee from Myanmar to escape state-sponsored persecution. Reflecting on the recent deaths of thousands of Rohingya Muslims who sought protection in neighbouring countries, such as Thailand, Malaysia, and Indonesia, the author analyses the question of States’ right to border control via their obligations to irregular sea migrants under the UN Convention on the Law of the Sea, the International Convention on Maritime Search and Rescue, the International Convention for the Safety of Life at Sea, the Refugee Convention and various other international human rights instruments.
The article examines the plight of the Rohingya refugees of Myanmar and Asian States’ responses, in particular, the cases of Thailand, Malaysia, Indonesia and India’s Andaman Islands. The article describes how Thailand has adopted a number of draconian measures to prevent Rohingya refugees arriving on Thailand’s shores, including pre-border interception and a highly criticized boat ‘push back’ policy. The author notes that in the case of Malaysia, there is no asylum system, and even if Rohingyas were granted refugee status, under Malaysia’s general immigration law, they are not distinguished from other undocumented workers and are, rather, considered as migrants who entered the country “illegally” and thus face the constant threat of deportation. Indonesia has also denied the right of asylum to Rohingyas. The author explains that Rohingya men, rescued by the Indonesian Coast Guard, were transferred to Bangladesh following a prolonged detention at naval camps on the northern part of the archipelago. In the case of India's Andaman Islands, Indian officials have been lax in monitoring the organized migrant smuggling operations in their territory.
The author concludes that Rohingya refugees are not treated as refugees who must be accorded protection but are considered undesirable aliens who are to be prevented entry into various States’ territory through pre-border interception or are to be repatriated back to their country of origin.
The article advocates a paradigm shift from individual state responsibility to regional burden sharing. Countries in the region must make an effort to establish systematic refugee identification processes as well as an effective appeals system. The author also suggests that national programmes for the integration of Rohingya refugees should be advanced and that there must be a renewed commitment by South and South-East Asian States to ratify the various international legal instruments, particularly the 1951 Refugee Convention and the 1976 Protocol.
The strength of the article is its analysis of how Rohingya refugees are turned into “illegal” immigrants by the countries to which they seek refuge. The author highlights the poor treatment of Rohingya refugees who are unable to claim asylum in Asian States because they are effectively blocked from landing or repatriated to their home country.