By Alifa Salsabila, SH (Picture: The Diplomat)
“Unaccepted where they are, unable to return whence they came” by Leon Gordenker (1987, p. 213) is articulating what had just happened in Malaysian maritime territory on April 26, 2020. The situation depicted the Rohingyas refugees and asylum seekers feeling Myanmar trying to reach Malaysian shores were denied entry to the country and sent back to the sea, which later was “received” by Bangladesh authorities. The rejection was based on the country’s consideration of pandemic, which resulted in the “fear of Covid-19 infection,” as the Malaysian officials said. Unfortunately, the attention of a pandemic and the excuse of fear of the infection could not justify and eliminate the Malaysian international responsibility to this international humanitarian issue and justify its indecorous and inappropriate action to the Rohingyas.
Arguably, refugees and asylum seekers are the living individuals whom the international community is committed to safeguarding, for the sustain of “jus cogens.” In international law, jus cogens is often interpreted as a compelling norm and is considered to have the highest position or primary source of norms governing international relations. This concept gives rise to the view that there are norms in international law that cannot be excluded under any circumstances (Brownlie, 1998, p. 515) so that in the event of conflict whereas jus cogens and other norms meet, the norm that has the degree of jus cogens must be the first and foremost prioritized one without questioning other stances such as whether different norms are more specific than the jus cogens ones (Saraswati, 2017, p. 166).
Refugees and Asylum Seekers
On the very basis, asylum seekers are individuals who seek international protection based on particular reasons, consideration, and have not yet been granted any statuses of asylum. Meanwhile, refugees are people who, by and under international (refugee) law, are granted the status of “refugee” after being forced to flee their home country due to safety and life-threatening persecutions that endanger their lives and well-being based on specific reasons limited only to persecutions based on race, religion, nationality, membership of a particular social group or political opinion which transform “them” into becoming the international community’s responsibility and put them monitored under the international legal regime. The status of “refugee” articulates a failure that the home country performs: the inability or unwillingness to provide a good, decent living environment and protection for people who once were their national responsibility. Hence, refugees are struggling to find other kinds of protections just to survive the harsh life they have been experienced. And morally speaking, this kind of protection is what the international legal regime creates to provide and is being demanded by the international community: international protection to the refugees and the asylum seekers. But, the cases of refugees and asylum seekers like Rohingyas are being rejected due to a fear of infection, another failure then evidently arises in the realm of the international community.
“The Rejection Over Fear” and “Obligation to Proper Responses”
An expert explains, “pandemics of infectious disease are not just events in which some infectious ‘bug’ spreads throughout the world. Pandemics are events in which the population’s psychological reactions to infection play an essential role in both the spreading, containment of the disease, and influence the extent to which widespread emotional distress and social disorder occur” (Taylor, 2019, p. 2). In other words, it is very natural for people to worry about their health, safety, and well-being in the face of a pandemic and perform different behavior from the normal standards which are driven by their psychological forces in a pandemic. But critically speaking, with or without a pandemic, are not these things the small parts of human nature that refugees and asylum seekers perform? They are solely struggling to survive the life itself.
Many people outline domestic problems such as security, economies, and cultures when taking in refugees and asylum seekers. But not many have outlined its international framework and how it is supposed to be under the international legal regime. International law is demanding the international community to provide international protection as its global responsibility.
But theoretically speaking, the failure to respond fleeing refugees coming to territories of other sovereigns is, most of the time, determined by “the political and international nature of the problem” (Haddad, 2008, p. 3). Consequently, this situation is adding another failure to the existing one with the country’s inability and unwillingness to protect the refugees and the asylum seekers at the very first place. International protection, hence, becomes the most needed response to fill in the absence of national protection, for at the very least, until a new nationality is obtained.
In international law, responsibility is divided into “liability” and “answerability.” As liability, responsibility is understood as an entity that has violated its obligations and becomes liable to be held responsible by receiving “negative response” such as “punishment, censure, or enforced compensation,” and as answerability, responsibility is explained as “not necessarily imply that a wrong has been done since a person may respond to a charge by offering a valid justification for their conduct, thereby deflecting any imputation of wrongdoing” (Janmyr, 2013, p. 105).
International protection can be understood through various interpretations and standards. But generally speaking, as being defined by the UN Security Council, “protection” can mean physical protection, legal protection, general assistance, or “protection by publicity” which at the end of the day, it makes international protection can be understood as a protection that sets out a common ground of protection to the well-being of the protected.
The Rohingyas, Malaysia, International, and ASEAN Community
The Rohingyas are a Muslim, ethnic, minority group residing in Rakhine State, Western Myanmar (Mohajan, 2018, p. 19) bordering Bangladesh. Not only the life of the Rohingyas are put at stake, but it is also learned that the term “the Rohingyas” alone, which refers to this particular minority group sharing the same identity, has been disputable since the very beginning of the Rohingyas presence in the country. For Myanmar’s government and most of the citizens, the Rohingyas are referred as “Bengalis,” which identifies the origins of Rohingyas as laborers and merchants who were migrating from India to Myanmar in the nineteenth century under the British colonial rule and making them, the Rohingyas, is then believed to be “illegal immigrants” (Southwick, 2018, p. 119) residing in Myanmar.
Malaysia, as a member of the Association of Southeast Asian Nations (ASEAN), is also tied to the burden and responsibility to respect the ASEAN Community. By rejecting entry to the Rohingyas, who were not able to choose where they were heading to only to seek sanctuary, arguably, Malaysia is also neglecting the ASEAN Community itself.
As a matter of fact, the refugee movements of the Rohingyas in the ASEAN region are not a “new problem” in ASEAN Community. Yet, none of the focuses of the ASEAN Community has ever really touched the urgency to solve this “problem” of persecutions to the Rohingyas. On the other hand, Myanmar, as the home country of the Rohingyas as well as a member of ASEAN, insists on keeping the matters of the Rohingyas as domestic and internal, which implies the manner of “non-intervention” that ASEAN long keeps and preserves.
The absence of a regional human rights mechanism in ASEAN itself is, directly and indirectly, driving and keeping the lack of human rights issues addressing within the region. ASEAN is “geographically, politically, and culturally too diverse for human rights to be managed effectively by a single overarching mechanism”—adding another obstacle in solving the Rohingyas “problem” through ASEAN way as well as in ASEAN Community—which is quite contradictory to human rights values that are based on and demand universality.
As a part of the international community, even though Malaysia is a non-state party to the 1951 Convention and thereby is not, by treaty, legally bound to the Convention, Malaysia is still bound to the principle of non-refoulment that is embedded in the Convention. The principle functions as a (customary international) law that puts Malaysia to still be obligated to respect the law, as Malaysia is a part of the international community and also the ASEAN Community.
Media coverage, in fact, has recorded that many Rohingyas who fled their home country, Myanmar, were already “thrown here and there” by neighboring countries due to rejection against them long before the Covid-19 pandemic outbreak. Even though on the surface, it seems that the fear over pandemic is understandable, in its foundation, the response of rejection is not to be carried out. Therefore, the rejection of the Rohingyas due to fear of infection is utterly unjustified.
Malaysia is bound to the international responsibility to provide international protection to refugees and asylum seekers to extent and degree that are relevant for a non-state party to the 1951 Convention in commitment and accordance to the international legal regime. With or without a pandemic, it can never efface the trait of “refugees” and “asylum seekers” in an international landscape that they become the living reminder of international responsibility to a failed system of a country that takes place in modern society as well as a reminder to us as parts of the international community that we are not going to fail our shared system too.
Alifa Salsabila, SH is an American Studies graduate student at Universitas Gadjah Mada. Currently, Alifa is a research intern in Research Division, ASEAN Studies Center UGM. Alifa could be reached at her email: firstname.lastname@example.org.