Review and Commentary: Resolving Policy Conundrums: Enhancing Humanitarian Protection in Southeast Asia by Marie McAuliffe

In May 2015, a humanitarian crisis unfolded in the Bay of Bengal and Andaman Sea when thousands of Rohingyas and Bengalis from Myanmar and Bangladesh were left stranded on boats by human traffickers in horrific conditions. The crisis continued for several weeks during which Malaysia, Thailand and Indonesia initially refused to let the boats disembark and hundreds died for lack of food and water or from violence on board. Ironically, the crisis was the direct unintended result of a crackdown by the Thai government on trafficking networks in Thailand, as traffickers abandoned the vessels filled with passengers at sea for fear of being caught by law enforcement. While overshadowed in numbers and media attention by greater migration flows in the Mediterranean Sea toward Europe, the Bay of Bengal remains one of the global hotspots for irregular maritime migration. In 2015, mixed maritime movements originating from the Bay of Bengal were reported to have resulted in deaths at a fatality rate three times higher than in the Mediterranean Sea.

In Resolving Policy Conundrums: Enhancing Humanitarian Protection in Southeast Asia, Marie McAuliffe presents a case study on the policy responses to the May 2015 crisis as context for “discussions of humanitarian protection in Southeast Asia, and of Rohingya maritime migrants in particular.” (p. 4). This post reviews the findings of the report and provides further observations by drawing on recent developments in the region. 

Key findings of the report

The report first identifies key conundrums facing policymakers in the region, acknowledging the challenge in finding “the right policy balance between influencing behaviour and responding to changes in behaviour” (p. 4). For example, how can systems and processes be enhanced without creating the pull factor that results in increased asylum flows? How can human smuggling and trafficking be reduced and border management strengthened without undermining humanitarian obligations?

Next, it provides an overview of the complex migration patterns and processes in Southeast Asia and the regional migration policy context. Migration flows within the region are often irregular, mixed (involving people with and without international protection needs), and linked to broader elements such as income or development disparity (p. 5-6). Recent UNHCR data on asylum flows and at-risk populations in Southeast Asia, indicates that the Rohingya – Muslim minorities originating from Rakhine state in Myanmar who have been subjected to long-term persecution described by some as “pregenocide conditions” – is the largest asylum-seeking group in the region and the largest stateless population in the world (p. 7-8)[1].

McAuliffe points out that while the Association of Southeast Asian Nations (ASEAN) is the principal multilateral forum in the region addressing migration, it focuses mainly on skilled labor migration and on labor-focused trafficking and smuggling, with little attention to forced migration. The policy discourse in Southeast Asia tends to focus on “irregular migration” and migrant workers, with little explicit reference to “asylum seekers” or “refugees.” This lack of focus on protection of forced migrants translates to a lack of “protection infrastructure” in the region. Countries such as Malaysia, Thailand and Indonesia, which host the largest populations of refugees in the region, lack a national protection framework and are not party to the international refugee instruments (p. 12-14). According to McAuliffe, the absence of protection frameworks could also be seen as a means of maintaining the status quo and discouraging migration incentives within the region. However, public sentiment across countries in the region is generally sympathetic toward refugees and migrants, and this may also affect policymakers’ political calculus.

The report then outlines the policy and operational responses to the May 2015 crisis at the national, regional and international level. McAuliffe notes that the initial national-level responses from directly affected states and regional-level responses were “fragmented, uncoordinated, and inconsistent” (p. 19). For example, government officials confirmed “help on” policies (which involved intercepting boats in their territorial waters, providing humanitarian supplies, then redirecting them to another destination) while it was simultaneously reported that local fishermen were rescuing and assisting migrants in Indonesia and Malaysia. The first coordinated response issued in a statement by Malaysia, Indonesia and Thailand on May 20 was limited to immediate humanitarian priorities of rescue, relief and temporary shelter. Protection-related assistance was largely left to UNHCR and IOM, who played a critical role throughout the crisis, both by issuing public statements urging Southeast Asian governments not to push back boats and by engaging in relevant discussions between states. The first multilateral forum on the crisis was a Special Meeting on Irregular Migration in the Indian Ocean hosted by the Thai government on May 29 (“Bangkok Special Meeting”). This was attended by 17 countries (including Myanmar who initially refused to attend), and resulted in 17 proposals for immediate response, prevention of irregular migration, and addressing root causes. These included intensifying search and rescue operations at sea, establishing a joint task force to ensure necessary support, strengthening cooperation on law enforcement to combat people smuggling and trafficking, and improving the livelihoods of at-risk communities in countries of origin. An “emergency ministerial meeting” convened much later by ASEAN on July 2 focused on efforts to counter smuggling, trafficking and irregularity (p. 20).

The events of May 2015 highlighted the important conclusion that the existing policies and practices in the region do not meet the needs of policymakers, migrants or the public, nor adequately balance the need to prevent displacement and protect those displaced (p. 25). While the crisis evoked positive regional cooperation and leadership, there are areas in which cooperation on protection in the region can be further enhanced. It is here that the report offers its most valuable contributions as McAuliffe proposes several policy recommendations with practical suggestions for future action (p. 25-28). These include enhancing protection systems and processes in the region, improving the lives of at-risk populations in Myanmar and Bangladesh to mitigate some of the drivers of forced migration, encouraging Myanmar to respect and recognize the rights of the Rohingya through bilateral and multilateral engagement, and reducing migrant smuggling and human trafficking through enhanced data collection and sharing. Clearly, some of these recommendations may garner more political support and prove more practically actionable than others. The initial responses of the receiving states during the May 2015 crisis suggest that it was not the moral humanitarian imperative of the situation that ultimately spurred them to positive action but the intense negative international attention it attracted. Host countries in the region may only be incentivized to take such steps if it is in their political and reputational interests to do so, and then “subject to assurances by the international community to provide the necessary support”[2] either in financial assistance or offers of resettlement.[3] Similarly, the need to address root causes of displacement in Myanmar is the “heart of the matter[4] but given the political sensitivity of the issue and ASEAN’s principle of “non-interference,” progress on this front remains a challenge.

Further developments in regional protection at sea

According to UNHCR data on the composition of passengers that officially disembarked between May and July 2015, roughly 50% of those that landed in Indonesia and Thailand, and 30% of those that landed in Malaysia were Rohingya; the rest were Bangladeshi migrants, most of whom were repatriated. This mixed composition highlights the need for effective screening mechanisms to identify the most vulnerable individuals in need of international protection while upholding the fundamental human rights of all on the move. In Malaysia, for example, the Rohingya refugees were taken into detention upon arrival where they remained for over a year while UNHCR advocated for their release. In May 2016, 36 vulnerable individuals were resettled to the U.S., 316 others were released shortly after and are now living in refugee communities.

In the immediate aftermath of the crisis, it was predicted that boat journeys would resume once the monsoon season ended in October, as was usual practice, and that there was danger of another humanitarian disaster at sea if countries were not adequately prepared. However, there have been no large-scale movements in the Bay of Bengal since the events of May 2015. UNHCR reported that 1,600 refugees and migrants were estimated to have departed by sea in the second half of 2015, and mixed maritime movements in the first half of 2016 were limited to isolated attempts by several hundred people trying to reach Malaysia and Australia. By comparison, an estimated 31,000 people attempted such movements in the first half of 2015.

Based on information from refugees interviewed by UNHCR, the sharp decline was due to intensified interdiction efforts in both departure and arrival countries, greater awareness of the risks of the journey, and lack of legal status in destination countries.[5] The response of the affected states in the immediate aftermath of the crisis was to greatly strengthen law enforcement and border control measures, particularly in Bangladesh and Thailand, resulting in smugglers and potential passengers exercising greater caution in the wake of heightened scrutiny over movements at sea. It is believed that this also resulted in costs for travel becoming prohibitive for many refugees, with smugglers passing on the higher costs now required to circumvent authorities and demanding full payment prior to departure.

However, there also seemed to be increasing recognition among Southeast Asian states of the need to address the protection of migrants and refugees alongside more restrictive measures.[6] In November 2015, the countries party to the Jakarta Declaration on Addressing Irregular Movement of Persons held a roundtable discussion to identify root causes, explore potential responses, and foster regional cooperation, including by strengthening existing multilateral mechanisms such as the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (“Bali Process”). In December 2015, Thailand chaired a follow up meeting to the Bangkok Special Meeting held earlier on May 29, and tabled a draft “Action Agenda” on concrete actions to address the problem of irregular migration for the five most affected countries (Bangladesh, Indonesia, Malaysia, Myanmar, and Thailand). Measures discussed during this second meeting included progress on the establishment of the ASEAN Trust Fund to assist those affected by irregular migration, the signing of the ASEAN Convention against Trafficking in Persons, Especially Women and Children, and progress within the Bali Process Working Groups – measures which are in line with McAuliffe’s recommendations for enhancing regional protection systems and responding to immediate humanitarian issues stemming from migration[7]. The draft Action Agenda was further discussed on the side-lines of the Ad Hoc Group Senior Officials’ Meeting of the Bali Process in February 2016. In March 2016, at the sixth ministerial meeting of the Bali Process, the members adopted a Ministerial Declaration (“the Bali Declaration”) pledging to take a comprehensive regional approach to managing irregular migration by strengthening cooperation on search and rescue at sea, predictable disembarkation, temporary protection and legal pathways for refugees and migrants.[8] The Bali Process Strategy for Cooperation outlines activities to advance key recommendations of these regional meetings such as regional biometrics data exchange, a joint information campaign, strengthening law and justice frameworks and developing tools to harmonize regional approaches to refugee protection and migration management. While the planning and implementation of these activities are still in initial stages, they are consistent with McAuliffe’s recommendations on improving border management capacity while enhancing humanitarian obligations in the region. In contrast with previous proposals for regional action which largely focused on reducing human trafficking and addressing irregular migration, as highlighted by McAuliffe in her report, the Bali Declaration acknowledges the importance of a comprehensive approach “including victim-centered and protection-sensitive strategies, as appropriate” and “the need to grant protection for those entitled to it… and in all cases, the principle of non-refoulement should be strictly respected.” This shift in policy towards protection considerations suggests that there is, as McAuliffe puts it, “cause to be cautiously optimistic.”

The recommendations agreed upon in Bangkok and Bali in the wake of the May 2015 crisis are encouraging developments and provide a way forward for the coordinated regional approach required to enhance the humanitarian protection of refugees and migrants at sea. The current lull in maritime movements presents a window of opportunity for countries in the region to move forward on these commitments without the acute pressure of an ongoing crisis. A coordinated approach throughout the region, coupled with protection-sensitive measures for returns and removals to deter irregular movement, could mitigate the potential for one country to become a magnet for migration flows. This could be further mitigated by encouraging solutions to address root causes through the enhancement of development potential and stabilization of key areas of origin. At the time of writing however, implementation of measures such as the creation of a Task Force to respond to crisis and emergency situations[9] and the promised ASEAN Trust Fund are yet to be seen. This is as recent reports of a bloody crackdown in Rakhine state caused thousands of Rohingya to flood the Bangladesh border, only to be refused entry by border guards.[10] Unless the root causes of displacement are addressed, people will continue risking their lives on smugglers’ boats to seek safety and stability elsewhere.[11] It is important that next steps be taken now, and expeditiously, to ensure collective momentum is not lost and to prepare for future movements in the region.

REFERENCES:

[1] In addition to the 810,000 in Myanmar, there are significant Rohingya populations in Malaysia, Thailand and Indonesia, with the largest Rohingya refugee population residing just outside the region in Bangladesh (32,000 in refugee camps and an estimated 200,000 living undocumented among the local population). UNHCR Global Trends 2014, http://www.unhcr.org/en-us/statistics/country/556725e69/unhcr-global-trends-2014.html

[2] Ministry of Foreign Affairs of the Kingdom of Thailand, May 29, 2015, Summary Special Meeting on Irregular Migration in the Indian Oceanhttp://www.mfa.go.th/main/contents/files/media-center-20150529-175942-231858.pdf

[3] Qatar pledged $50 million and Saudi Arabia $10-20 million to Indonesia. Saudi Arabia and the United Arab Emirates pledged unspecified amounts towards a humanitarian fund proposed by the Malaysian government to assist migrants involved in the crisis. The United States indicated it was willing to assist UN agencies with processing centers and resettlement. See McAuliffe, Marie. 2016. Resolving Policy Conundrums: Enhancing Humanitarian Protection in Southeast Asia. Washington, DC: Migration Policy Institute (p. 26 and p. 30).

[4] UNHCR. 2015. Bay of Bengal boat movements manageable with regional cooperation, December 4, 2015, http://www.unhcr.org/en-us/news/press/2015/12/56619f0e6/unhcr-bay-bengal-boat-movements-manageable-regional-cooperation.html

[5] UNHCR Regional Office for South-East Asia. 2016. Mixed Movements Update for South-East Asia January – June 2016, August 2016,  http://reliefweb.int/sites/reliefweb.int/files/resources/UNHCR%20-%20Mixed%20Movements%20Update%20for%20South-East%20Asia%20-%20Jan-Jun%202016.pdf;

UNHCR Regional Office for South-East Asia. 2016. Mixed Maritime Movements in South-East Asia in 2015, February 2016, http://reliefweb.int/sites/reliefweb.int/files/resources/UNHCR%20-%20Mixed%20Maritime%20Movements%20in%20South-East%20Asia%20-%202015.pdf

[6] Moretti, Sebastian. 2016. UNHCR and the migration regime complex in Asia-Pacific: Between responsibility shifting and responsibility sharing. Geneva: UNHCR.

[7] The Bali Process Working Groups on Trafficking in Persons and on Disruption of Criminal Networks involved in People Smuggling and Trafficking in Persons.

[8] UNHCR. 2016. UNHCR welcomes Ministerial Declaration in Bali, calls for new compact to absorb refugees in region, March 23, 2016,  http://www.unhcr.org/en-us/news/press/2016/3/56f259336/unhcr-welcomes-ministerial-declaration-bali-calls-new-compact-absorb-refugees.html

[9] Ministry of Foreign Affairs of the Kingdom of Thailand, May 29, 2015, Summary Special Meeting on Irregular Migration in the Indian Oceanhttp://www.mfa.go.th/main/contents/files/media-center-20150529-175942-231858.pdf

[10]Looi, Florence. 2016. UN: Rohingya may be enduring ‘crimes against humanity, Al Jazeera, November 30, 2016,  http://www.aljazeera.com/news/2016/11/rohingya-enduring-crimes-humanity-161130052743649.html

[11] UNHCR, 2016. UNHCR calls for safer alternatives to deadly Bay of Bengal voyages, February 23, 2016, http://www.unhcr.org/56cc51c76.html

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