A major humanitarian crisis involving the Rohingya community is unfolding in the Bay of Bengal. The UNHCR has recorded that between “January to November 2022, 1,920 people, mostly Rohingya, travelled by sea from Burma and Bangladesh, compared to only 287 in 2021. In 2022 so far, 119 people have died during this crossing”.

The above trends continue, and during the last few weeks numerous media reports inform that hundreds of Rohingya people embarked on boats are in distress and are awaiting humanitarian assistance. The United Nations High Commissioner for Refugees (UNHCR) and Human Rights Watch has called upon the Bay of Bengal littoral countries, particularly the Thai government, to provide humanitarian assistance to the stranded refugees whose boat began to leak when it was off the coast of Ranong, in southern Thailand. The relatives of passengers had accused the Thai Navy of not helping them; however, a Thai navy officer, who spoke on condition of anonymity, told Reuters by phone that the boat had not entered Thai waters and was currently in Indian territory. This was refuted by the Indian Coast Guard who stated that although they had information about a stranded boat with people on board, but “it was not in Indian waters” and was unaware of its exact location.

Meanwhile, 154 people, ostensibly belonging to the Rohingya community, were rescued from a sinking boat by a Vietnamese oil service vessel rescued in the Andaman Sea. These were handed over to the Myanmar Navy. A more recent report notes that as many as 160 Rohingya people who undertook a voyage from Chittagong in Bangladesh are seeking permission to disembark on humanitarian grounds on Malaysian shores. Apparently the Asia Pacific Refugee Rights Network and Amnesty International had appealed to the Malaysian government and the Royal Malaysian Navy, but have not received any response from the Malaysian authorities.

Unlike the above averseness to provide assistance by Bay of Bengal littorals, Indonesian authorities permitted 200 people in North Aceh to disembark and provided shelter including basic amenities. Similarly India has been allowing refugees from Sri Lankan who arrived by the sea route and landed in Indian Territory. Since March this year nearly 200 people have fled Sri Lanka due to ongoing economic crisis. Meanwhile, Australia conducted “first deportation by sea” after intercepting a vessel carrying 46 Sri Lankans close to their shores amid sharp criticism at home over its “harsh immigration policy” wherein as many as 183 asylum seekers from Sri Lanka were sent back home.

Similarly, in November, nearly 100 Tamils were found marooned on Diego Garcia Island in the Indian Ocean. The boat in which they arrived was repaired and they were “escorted into open sea by Ministry of Defence personnel towards Sri Lanka” which attracted condemnation for “putting the lives of Tamil refugees, including children, at risk by enabling onward travel from Diego Garcia on a vessel that lacked basic safety equipment”.

The Tamil community in Sri Lankan has in the past undertaken treacherous and perilous voyages across the seas as far as Canada , majorly during 2009 and 2010 to British Columbia, and in the 1980s and 1990s as near as India across the Palk Bay to reach Indian shores. The latter has continued, albeit in very limited numbers, and can be expected to carry on as long as the economic crisis in Sri Lanka continues.  

It is fair to argue that the Bay of Bengal is the center of gravity of a sea based humanitarian crisis. Some littoral countries have been reluctant to provide assistance purely on the grounds that the refugee boats are not in their waters.

In this context, it is useful to recall Article 98 of the 1982 UNCLOS that mandates signatories the “duty to render assistance” and obligates every State and master of a ship flying its flag, among other issues, “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”.

Furthermore, the Resolution 70/235 “Oceans and the law of the sea” adopted by the General Assembly on 23 December 2015, notes with “grave concern the recent proliferation of, and endangerment of lives through, the smuggling of migrants by sea” and “… underscores the necessity to address such situations in accordance with applicable international law,..” In this context, the Security Council Resolution 2240 (9 October 2015) aimed at “cooperation to combat smuggling of migrants and human trafficking in Libya’s territorial sea and on the high seas off the coast of Libya” is noteworthy wherein Malaysian statement “underscored that the text called for action to stop human smugglers and traffickers while prioritizing the safety and security of migrants…noted that the current challenge posed by networks of smugglers also applied to South East Asia, adding that the implementation of the resolution would provide many countries with the necessary support.”

Besides, the International Convention for the Safety of Life at Sea, 1974 (SOLAS); International Convention on Maritime Search and Rescue, 1979 (SAR); 2004 Amendments to SOLAS and SAR Conventions; Resolution A.949 (23) Guidelines on the treatment of persons rescued at sea; and the FAL.3/Circ. 194 on Principles relating to administrative procedures for disembarking persons rescued at sea are significant instruments to address issues of assistance to migrants/distressed persons at sea are significant legal instruments with regard to migrants at sea. Also, the UN High Commissioner for Refugees (UNHCR) “Legal considerations on the roles and responsibilities of States in relation to rescue at sea, non-refoulement, and access to asylum” is an important document in this context.

Above all, the principles concerning international protection of human beings as spelt in international humanitarian law, should be clearly understood and necessarily adhered to and operationalized including in domestic laws.

Dr Vijay Sakhuja is Consultant Kalinga International Foundation, New Delhi.