According to reports, around February 11, 2021, a fishing boat with around 90 Rohingya refugees onboard set out from Cox's Bazar in Bangladesh purportedly with the aim of reaching the shores of Malaysia. Around February 15, about four days into the journey, the boat's engine broke down and it continued to drift. A distress call was issued on the night of February 20.
Responding to the distress call, sometime around February 25, the Indian Coast Guard rescued the refugees in the Andaman Sea, providing them with food and water. At the time of the rescue, the refugees on board the boat had run out of food and water, several of them were ill and suffering from extreme dehydration. Moreover, at least eight people had already died on the drifting boat.
According to the Indian Ministry of External Affairs, around 47 of the boat's passengers are in possession of UNHCR ID cards stating that they are displaced Myanmar nationals and "persons of concern registered by the UNHCR". Thereafter, Indian officials stated that they were in discussions with Bangladesh to arrange for the return of these rescued refugees to Bangladesh. Since then, the Foreign Minister of Bangladesh has stated that Bangladesh has "no obligation" to accept the rescued Rohingya refugees.
Since their rescue, the refugees are still being provided with food, medical and technical aid on the boat itself. According to reports, the Indian Coast Guard has repaired the vessel but is not permitting it to enter Indian territorial waters, and instead wants the boat to return to Bangladesh. The Human Rights Watch and other NGOs have urged the Indian government to provide refuge in its territory to the rescued—but still stranded—refugees.
In 2020, according to reports, at least 2,400 refugees had attempted the aforesaid treacherous sea journey, while some 200 refugees had lost their lives at sea. International NGOs have been ringing alarm bells about this "boat crisis" for many months, and have called on Asean Member States to "take a comprehensive and coordinated approach to protect vulnerable people".
The reason why I am mentioning these dreadful facts and circumstances surrounding the present crisis is two-fold; firstly, to stress on the severity and direness of the situation, and secondly, to contextualise the forthcoming exposition demonstrating how international law and legal obligations of the respective states evidently are not enough to sufficiently protect these distressed and vulnerable people. With regard to the present situation of the 81 stranded Rohingya refugees, at the outset, it can be stated with reasonable certainty that both Bangladesh and India have acted and seem to be acting in line with their respective international legal obligations.
Fundamentally, there are two international treaties and a rule of customary international law which are applicable in the present situation. Article 98(1) of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and Regulation 33/1 of the 1974 International Convention for the Safety of Life at Sea (SOLAS Convention), cumulatively mandates every ship of every Member State, upon being informed, "to proceed with all possible speed" to rescue or provide assistance to persons who "are in distress at sea" or persons "found at sea in danger of being lost", irrespective of the "nationality or status of such persons or the circumstances in which they are found". Both Bangladesh and India are signatories of the UNCLOS and the SOLAS Convention. India in rescuing the stranded refugees acted in line with its obligations under the aforesaid treaties.
When the rescued persons claim to be refugees or asylum-seekers, or indicate in any way that they fear persecution or ill-treatment if disembarked at a particular place, the international law "principle of non-refoulement" automatically becomes operative. Article 33(1) of the 1951 Refugee Convention defines "non-refoulement" as the prohibition on the return of refugees and asylum-seekers to any place or territory where their life or freedom would be threatened on account of their "race, religion, nationality, membership of a particular social group or political opinion".
Neither Bangladesh nor India are parties to the 1951 Refugee Convention. However, it is now widely understood that the "principle of non-refoulement" is a rule of customary international law; meaning that it must be abided by every state, irrespective of whether they are signatories to the 1951 Refugee Convention or not. The "principle of non-refoulement" is the reason why the Rohingya refugees currently residing in Bangladesh cannot be repatriated to Myanmar without proper safeguards and assurances of their safety, and it is for this very same reason India cannot send the rescued Rohingya refugees to Myanmar.
Now, as important as it is to illustrate what the law mandates, it is equally important to note where it is silent. Therefore, although India cannot repatriate these rescued refugees to Myanmar, India has no legal obligation to take these rescued refugees ashore and shelter them in Indian territory; neither does Bangladesh. Consequently, although India is legally obligated to provide the rescued refugees with the necessary assistance, until one of the states (not exclusively Bangladesh or India) agrees to take them in, they will effectively be living at sea. Hence, it is clear that the rules of international law are not outfitted to effectively deal with this situation.
There is no easy solution to this predicament, at least not for the 81 Rohingya refugees still stuck on a boat at sea. It is obvious that a new, effective, and durable legal or political measure is essential to alleviate the suffering of these stranded refugees. The magnitude and cost in terms of human lives of this humanitarian crisis is colossal. This crisis is not only limited to the Andaman Sea or the Bay of Bengal, but also includes the Mediterranean Sea and other sea passages. Prolongation of the status qou will only result in more stranding and deaths of refugees and asylum-seekers at sea. It seems the world has collectively scraped off its mind the heart-wrenching photo of Alan Kurdi, the three-year-old Syrian boy, lying face-down on a beach in Turkey, after drowning in the Mediterranean Sea on September 2, 2015, along with his mother and brother.
It is not enough for states to justify their unilateral and collective inaction on the basis of the continued absence of appropriate and adequate legal obligations or effective political initiatives. As states pass the buck among one another, people continue to die at sea in the hundreds, if not thousands—and thousands have already perished. This tragedy of epic proportions beseeches compassion, and national, regional and global solidarity.
Farhaan Ahmed is Senior Lecturer in Public International Law at the School of Law, Brac University.
Email: email@example.com; Twitter: @FarhaanAhmed