Looking ahead: Human rights standards in the context of protection at sea

This statement was issued on 19 May 2015 by the heads of the United Nations High Commissioner for Refugees (UNHCR), the United Nations Office of the High Commissioner for Human Rights (OHCHR) and the International Organization for Migration (IOM) along with the Special Representative of the Secretary General for International Migration and Development. In light of recent developments in this same maritime area, it could have been made any time in 2020. Indeed, the Office of the High Commissioner for Human Rights raised its concerns in April 2020 about boats that had repeatedly sought a safe harbour in the Bay of Bengal but that had been subject to dangerous interception practices with severe consequences for the health and rights of those on board. Other UN agencies expressed their deep concern in May this year about the fate of ‘boats full of vulnerable women, men and children… again adrift in the same waters, unable to come ashore, and without access to urgently needed food, water, and medical assistance’. Hundreds of vulnerable people have died at sea. 

Five years on from the crisis in the Andaman Sea, it is glaringly evident that those who are compelled to seek safety and dignity through this maritime route face the same tragic combination of inaction and indifference today as was evident in 2015. Also remaining structurally similar to 2015 are the governance gaps in the operational response to this maritime movement. What is different this year is that the crisis at sea has taken place amidst the backdrop of a global pandemic. In the Asia Pacific region, responses to COVID-19 invariably included the closure of international borders. Indeed, in some countries in the region, these borders have remained firmly shut throughout 2020. Pushbacks from their ports of boats full of desperate people and the refusal to launch adequate search-and-rescue operations were justified to various extents by governments in Malaysia, Thailand, Bangladesh and Indonesia in terms of virus control. With the eyes of the region turned to the devastating socio-economic effects of the pandemic, there was little attention to the boats adrift on the high seas and the suffering men, women and children they carried.

Search for maritime protection solutions

The apparent paralysis of those mechanisms, such as the Bali Process Consultation Mechanism and its Task Force on Planning and Preparedness, created in 2015 precisely to avoid such an outcome happening again, has been noted. While the 2016 Bali Declaration on People Smuggling, Trafficking in Persons and Related Transnational Crime encourages States to work to identify more predictable disembarkation options (para.5, emphasis added), as recently as February 2020 the Task Force on Planning and Preparedness agreed on the primacy of saving lives at sea and not endangering the life and safety of persons in responding to irregular maritime migration. Yet, faced with the unfolding reality of another maritime crisis, the Bali Process Co-Chairs have insisted that it was designed as a forum for policy dialogue, information-sharing and technical assistance, rather than an operational response to specific situations at sea.

In the absence of the reliable and regional response that was needed, a stop-gap ‘whole-of-society’ approach to protection at sea was instead evident at least in Aceh, where over the summer months of 2020, local fisherfolk communities again stepped in to fill the search-and-rescue gap, rescuing and bringing to shore hundreds of desperate people. 

International borders and international human rights standards

Experience from this region and around the world tells us that ever stricter and harsher border controls rarely mean better protection of human rights. Policy measures that seek above all to curtail migration are resulting in migration journeys becoming longer and more fragmented, fluid and dangerous. The focus on ‘combatting trafficking’ along the Andaman Sea routes, for instance, often diverts attention from the reality that Rohingya and others who use these routes are compelled to rely on facilitated movement in the absence of secure, regular pathways, and that this compulsion can render them vulnerable to abuse and exploitation. 

Often extending far from the physical border, governance measures put in place by States to control borders include activities related to detection, interception, search and rescue and disembarkation, immediate assistance, screening, interviewing, identification of situations of vulnerability and appropriate referral, reception, detention, and return.

International borders can be dangerous places, particularly for asylum seekers and migrants in vulnerable situations. Viewing border governance solely as an issue of national security, and borders as zones of exemption from human rights obligations, can lead to unfavourable human rights outcomes, whether these are human rights violations by State officials or abuses by private actors. States are entitled to exercise jurisdiction at their borders as part of their sovereign prerogative to determine their migration policies, but they must do so with full respect for their human rights obligations, because international human rights laws apply equally at international borders. 

In 2014, the Office of the United Nations High Commissioner for Human Rights (OHCHR) published the Recommended Principles and Guidelines on Human Rights at International Borders with the aim of translating the international human rights framework into practical border governance measures and providing guidance to States and other stakeholders on how to integrate a human rights-based approach in their border governance laws, policies and practices. The Principles and Guidelines advocate a human rights-based approach deriving from the core international human rights instruments and anchored in the interdependence and inalienability of all human rights. They seek to establish accountability between duty bearers and rights holders, emphasising participation and empowerment, and with particular focus on migrants facing situations of vulnerability, marginalisation or exclusion. They recognise that States have legitimate interests in implementing border controls, including in order to enhance security and respond to transnational organized crime, but recognise also that States have voluntarily assumed human rights obligations which constrain their border control activities. In addition, they seek to emphasise the role that States play in protecting human rights in the context of border governance, and show how a human rights-based approach can enhance the effectiveness of border governance processes. 

Cooperation to save lives at sea 

States have recognised the value of the OHCHR Principles and Guidelines in implementing Objective 11 of the Global Compact for Safe, Orderly and Regular Migration. While the Global Compact on Refugees should play an important role in addressing the protracted displacement of the Rohingya refugees who are compelled to take to the seas in search of protection, the Global Compact for Migration provides detail on actions States can take to resolve maritime migration challenges. Accordingly, in its Objective 8, States have committed to ‘cooperate internationally to save lives and prevent migrant deaths and injuries through individual or joint search and rescue operations, standardized collection and exchange of relevant information, assuming collective responsibility to preserve the lives of all migrants in accordance with international law’. 

Rescue at sea is one of the oldest principles of the law of the sea and a well-established principle of customary law. It is important to recall that rescue is not considered to have been completed without ensuring that those rescued are taken to a place of safety, which at sea implies disembarkation. There are no universally agreed criteria for disembarkations, but guidance indicates that these should be carried out promptly and to a place where safety, rights and well-being can be guaranteed. Any operations and procedures such as screening and status assessment of rescued persons that go beyond rendering assistance to those in distress should not be allowed to hinder the provision of such assistance or unduly delay disembarkation. 

Objective 8 of the Global Compact for Migration agrees on the importance of developing procedures and agreements on search and rescue of migrants as a means of protecting lives and upholding rights (the text specifically mentions the prohibition of collective expulsion and the guarantee of due process and individual assessment, as well as the more operational requirement to enhance reception and assistance capacities). The lack of common and agreed Standard Operating Procedures on disembarkation and cooperative regional arrangements on search and rescue appears to be a key gap in the governance of maritime migration in the Asia-Pacific region. Appearing soon on the horizon will be the first Regional Review of the Global Compact for Migration, scheduled to take place on 10-12 March 2021. At this intergovernmental meeting, Member States of the United Nations from the Asia-Pacific region will have a chance to take stock of the progress they have made in implementing this important new framework, and to identify key challenges, opportunities, gaps and emerging issues, as well as promising practices and lessons learned over the two years since adoption of the Global Compact for Migration. Could this discussion, taking place as it will in accordance with the people-centred guiding principles of the Global Compact for Migration, offer an opportunity for Member States and other stakeholders to make a fresh start on ensuring meaningful and human rights-based protection in the Andaman Sea?