Published as part of the Kaldor Centre for International Refugee Law’s Andaman Sea Crisis series on 6 August 2020
The Asia Pacific is experiencing another major test of regional cooperation, reminiscent of the 2015 Andaman Sea crisis. In the first four months of 2020 there were more boat movements in the Andaman Sea than in all of 2019. The onset of the COVID-19 pandemic has amplified the vulnerability of forced migrants in refugee camps, on the move and at sea.
This article explores the governance and policy developments in regional institutions since 2015. In particular it focuses on four key developments: the agreement of two Global Compacts on Refugees and Migration, changes within the Association of Southeast Asian Nations (ASEAN), changes within the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (Bali Process), and the establishment of the Track II Asia Dialogue on Forced Migration (ADFM).
Having learned from the previous crisis, institutions in the region have taken steps to improve their capacity to address irregular migration. However, faced with another crisis, we are not seeing a different response.
1.Background to the 2015 Andaman Sea crisis
Five years ago, the world was horrified by images of thousands of Rohingya and Bangladeshi people stranded on trawlers in the Andaman Sea. The twin factors of a dramatic increase in boat movements and a sudden crackdown on trafficking and smuggling networks by the Thai Prime Minister led smugglers and traffickers to abandon boats full of people, adrift without food, water or medical care. Thousands were stranded in the open water, some for weeks. Some boats made it to Malaysia and Indonesia and disembarked, others were pushed back to sea by Thai, Indonesian or Malaysian authorities.
Widespread media coverage and international outcry ultimately prompted action. On 20 May 2015, Foreign Ministers of Indonesia, Malaysia and Thailand met in Putrajaya, Malaysia. They “called on ASEAN to play an active role in addressing the issue in an effective and timely manner” and recommended “an emergency meeting by the ASEAN Ministerial Meeting on Transnational Crime to address the crisis.” This emergency meeting was convened on 2 July 2015, by which time most of those stranded at sea had disembarked.
Rather than through formal institutions such as ASEAN, the crisis was ultimately addressed through ad hoc multilateral cooperation. The key response was a Special Meeting on Irregular Migration in the Indian Ocean arranged by the Thai government. The meeting was held on 29 May 2015 and attended by the five most affected countries (Bangladesh, Thailand, Myanmar, Indonesia and Malaysia) along with 12 other countries, UNHCR, IOM and UNODC. At this meeting Malaysia and Indonesia agreed to: “provide humanitarian assistance and temporary shelter to those 7,000 irregular migrants still at sea provided that the resettlement and repatriation process will be done in one year by the international community.” While some states offered financial support, and some migrants chose to return to Bangladesh, few resettlement places were ultimately made available to those identified as refugees, placing the burden on the hosting countries.
Other examples of ad hoc cooperation include the roundtable convened by Indonesia in November 2015 on root causes of irregular migration of persons. The meeting focused on areas for practical cooperation on addressing root causes, building on the 2013 Jakarta Declaration, however was not instrumental in the immediate response to the boat movements earlier in the year.
The 2015 crisis exposed the lack of effective coordinated regional response mechanisms. While the nature of deaths at sea makes it is difficult to say with certainty how many people died as a result of the crisis, UNHCR estimates that at least 370 people died in the Bay of Bengal in 2015. Without the initiative shown by Thailand, Malaysia, Indonesia and others in the region in convening ad hoc meetings, this number would doubtless have been higher. However, such ad hoc resolutions do little if anything to bolster regional capabilities to address future crises. As the ADFM Secretariat wrote on the one-year anniversary of the Andaman Sea Crisis: “a one-off meeting should not be the norm for managing mass displacement events.”
2. The global and regional architecture is more developed than it was in 2015
Over the past five years, a number of international and regional developments have sought to strengthen the region’s capability to respond effectively to mass displacement and movements at sea. In 2018, the international community adopted two landmark Global Compacts: one on Refugees and one on Safe, Orderly and Regular Migration. Previously, in response to the 2015 crisis, the Bali Process instituted a number of specific reforms to improve its capability to respond in the future. To a lesser extent, ASEAN has also bolstered its capacity to protect vulnerable groups, particularly victims of human trafficking. Another significant change to the regional governance landscape is the establishment of the Asia Dialogue on Forced Migration (ADFM), a second track forum designed to advance more effective regional responses to forced migration, which met for the first time in August 2015. This section explores each of these four institutional reforms in more detail, and other efforts in brief below.
2a) Global Compacts
The two Global Compacts have provided an overarching context within which to work collaboratively on issues of refugees and migration. The genesis of the two Global Compacts is the September 2016 New York Declaration for Refugees and Migrants. Over the ensuing two years, the international community developed the text for two distinct agreements, which were each adopted in December 2018. Although not legally binding, these two compacts provide a good basis for renewed regional coordination and leadership on critical issues concerning refugees and migrants at risk. Considering the current state of global politics, it is hard to imagine similar documents receiving such widespread support today.
The Refugee Compact was drafted by UNHCR in consultation with government and non-government actors, and ultimately adopted in the UN General Assembly in December 2018. It received widespread support: all ASEAN member states and all but one Bali Process member states voted in favour of adopting the Refugee Compact at the General Assembly in December 2018 (the United States voted against both compacts). It has four stated objectives, namely to “(i) ease pressure on host countries; (ii) enhance refugee self-reliance, (iii) expand access to third country solutions and (iv) support conditions in countries of origin for return in safety and dignity.” The Compact also establishes a ‘Global Refugee Forum’ to be convened every four years. The first of these fora was held in December 2019 and resulted in about 1400 separate pledges.
In contrast to the Refugee Compact, the Migration Compact was developed through a process of negotiation with states, and thus is more contested and ultimately had a lower rate of adoption. In our region, the Migration Compact had the support of eight of ten ASEAN member states (Brunei Darussalam did not vote and Singapore abstained), and 36 of 45 Bali Process members. Australia chose not to adopt the Migration Compact, which has been recognised as a missed opportunity, particularly given its position as Co-Chair of the Bali Process, as discussed below. The Migration Compact represents a commitment by states to “enhanced cooperation on international migration in all its dimensions” and contains 23 objectives, including Objective 9 on combatting smuggling, Objective 10 on combating trafficking and Objective 23 on international cooperation.
Ratification of the United Nations Refugee Convention is low in the Asia Pacific region, although some states do have provisions for protection of vulnerable migrants within their national policies, such as the 2016 Indonesian Presidential Regulation, discussed in greater detail here. In this context the existence of documents like the Global Compacts, outlining broadly agreed principles on often fraught issues such as migration and protection, is a significant milestone.
Although the ten member states of ASEAN are all significantly impacted by migration, the regional body’s engagement on migration issues has only developed gradually over time. As ADFM Co-Convenor Sriprapha Petcharamesree, from the Institute of Human Rights and Peace Studies at Mahidol University, has noted, “issues of forced migration have never been properly discussed or addressed in ASEAN by the member states.” However, one priority migration issue within ASEAN has been protection of migrant workers, due to high labour mobility to and from member countries.
There have been some important reforms within ASEAN since 2015; most significantly the signing of the ASEAN Convention Against Trafficking in Persons, Especially Women and Children (ACTIP) and development of the associated Bohol Work Plan. ACTIP entered into force in March 2017, and made Asia the second region (after Europe) to have a multilateral agreement on trafficking in persons. Article 1 recognises the need for cooperation among member states to meet the twin objectives of preventing and combating trafficking in persons and protecting and assisting victims. The Bohol Work Plan – the first ever cross-sectoral work plan developed by ASEAN – has been described as an “innovative and comprehensive approach to [trafficking in persons].”
Implementation of ACTIP, and the ability of member states to put the legal framework into practice, remain key issues. Although ACTIP and the Bohol Work Plan are steps forward for the region, ASEAN bodies remain insufficiently resourced to support member states in effectively implementing their commitments. To date, too few trafficking victims have been identified and supported, or perpetrators prosecuted. Another limitation is that ACTIP, being an ASEAN convention, does not cover Bangladesh and its counter-trafficking efforts, which are important to consider when looking at boat movements in the Andaman Sea. Bangladesh does have its own programs to address human trafficking and migrant smuggling; however, greater coordination and alignment between these and the work of ASEAN would be beneficial.
Other promising developments within ASEAN are the recent renewed commitment to the ASEAN-Australia Counter-Trafficking Program, and the April 2019 release of Regional Guidelines and Procedures to Address the Needs of Victims of Trafficking in Persons, Especially Women and Children, developed by the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children.
Significantly, ASEAN has also been playing a role in Rakhine State. In late 2018, the Government of Myanmar invited the ASEAN Coordinating Centre for Humanitarian Affairs (AHA Centre) to “despatch a needs assessment team to identify possible areas of cooperation in Rakhine State to facilitate the repatriation process.” At its Bangkok Summit in November 2019, ASEAN established an Ad-Hoc Support Team to assist repatriation and reaffirmed its support for “a more visible and enhanced role of ASEAN”. The ASEAN Emergency Response and Assessment Team and the AHA Centre have been active in working to advance the repatriation process with both Myanmar and Bangladesh, including conducting a Preliminary Needs Assessment in Rakhine State and visiting Cox’s Bazar. The AHA Centre has traditionally worked on emergency response to natural disasters, and the Preliminary Needs Assessment was criticised for a lack of focus on protection concerns. The impact of ASEAN’s involvement in the repatriation process so far remains unclear, and progress remains slow. Suggestions have been made to boost the AHA Centre’s capacity to handle protection related issues, potentially in partnership with others.
2c) Bali Process
The Bali Process was established in 2002, is led by Indonesia and Australia, and over the years has grown to include 45 member countries, four international agencies (UNHCR, IOM, UNODC and ILO), 18 observer countries and nine observer agencies. The group continues to be co-chaired by Australia and Indonesia, with a Steering Group comprised of Australia, Indonesia, Thailand, New Zealand, UNHCR and IOM. An Ad Hoc Group was established in 2009 and now comprises 16 ‘most affected countries’ plus UNHCR, IOM and UNODC.
Following the Andaman Sea crisis, the Bali Process recognised it lacked the mechanisms and policies necessary to respond effectively. The Bali Declaration, made following the sixth Ministerial Meeting on 23 March 2016, recognised the need to “provide safety and protection to migrants, victims of human trafficking, smuggled persons, asylum seekers and refugees, whilst addressing the needs of vulnerable groups including women and children and taking into account prevailing national laws and circumstances”. This commitment was reaffirmed by the Bali Process in its 2018 Declaration.
In 2016 the Bali Process also conducted a review into its response to the Andaman Sea Crisis, which found that “at the time there was little functioning capability to deal with root causes of displacement in the affected countries, and that there was little functioning capability to deal with the consequences for the region when mass displacement occurs”. The review recognised the “need for more agile and timely responses by Bali Process members”.
In direct response to this crisis, the Bali Process created a new emergency response mechanism – the Consultation Mechanism – as well as an operational level Task Force on Planning and Preparedness. These mechanisms aim “to standardise various national approaches, develop early warning capabilities and coordinate action” in order to facilitate an effective response to another crisis. The Consultation Mechanism is non-binding and voluntary. The circumstances necessary to warrant triggering the Mechanism are i) circumstances must be related to irregular migration, people smuggling or trafficking in persons; ii) more than one member country is affected; and iii) significantly affected countries are members of the Bali Process. Triggering the mechanism authorises Co-Chairs to consult or convene meetings to discuss urgent irregular migration issues, as well as formulate possible regional responses.
It sadly did not take long before circumstances necessitated the first test of these new mechanisms. The sudden escalation in violence in Rakhine State on 25 August 2017 led to a mass exodus of Rohingya from Myanmar to Bangladesh. In response, on 13 October 2017, the Bali Process Co-Chairs activated the Consultation Mechanism, which facilitated confidential dialogue between the Bali Process Steering Group and affected countries. As a result of triggering the Consultation Mechanism, the Co-Chairs remain engaged on the issue, and have undertaken two ‘good offices’ visits to Myanmar and Bangladesh in May 2018 and November 2019.
The full Task Force on Planning and Preparedness has met five times since its creation, most recently in February 2020, as COVID-19 was beginning to spread around the globe. This theme of this meeting was ‘cooperative frameworks to address irregular maritime movement.’ At the meeting, the group reaffirmed its core principles, including non-refoulement and saving lives at sea. Despite the meeting being held so recently and on such a pertinent topic, it has not translated into measurable improvement in the ability of countries to cooperate in responding effectively to those stranded at sea. A virtual ad hoc policy experts gathering of the Task Force on Planning and Preparedness was held on 14-16 July 2020, however at the time of writing the co-chairs statement is yet to be made public.
Beyond mechanisms directly linked to the Andaman Sea review, the Bali Process has also been active in building longer-term capacity of members to address drivers of forced migration through the work of the Regional Support Office and Government and Business Forum. The Regional Support Office works to support and strengthen practical cooperation on refugee protection and international migration, including through developing policy guides, trainings and information sharing. The Government and Business Forum seeks to work with the private sector and governments to expand legitimate labour market pathways, promote ethical business practices and strengthen policy and legislative frameworks that counter trafficking and smuggling. In this context we should also note Australia’s 2018 Modern Slavery Act, which now requires businesses to report on risks of modern slavery in their supply chains or operations.
2d) Asia Dialogue on Forced Migration
The ADFM was established by the Centre for Policy Development (CPD) in Australia and has been run by a Secretariat of policy think tanks in Thailand (Institute of Human Rights and Peace Studies, Mahidol University), Indonesia (Indonesian Institute of Sciences (LIPI) and until recently Malaysia (Institute of Strategic and International Studies Malaysia).
The ADFM builds trust and cooperation among key actors in the region, often on difficult or fraught topics. The forum brings together senior officials and experts from nine regional countries, UNHCR, IOM, ASEAN and the Bali Process, each of whom participate in their personal capacity and under the Chatham House Rule of non-attribution. Since its establishment in 2015 the ADFM has met nine times in the region; in Bangladesh, the Philippines, Thailand, Malaysia, Indonesia and Australia.
A central feature of the Dialogue is that it aims to provide governments and institutions with practical, implementable ideas, rather than offering general advocacy. This pragmatic orientation means the format, content and timing of meetings are designed to ensure they make most of existing opportunities. For example, by scheduling the ADFM’s second meeting in Bangkok in January 2016, immediately before the Bali Process senior officials’ meeting held there, and six weeks before the Bali Process Ministerial Meeting, the dialogue was able to provide timely space for creative policy debate and discussion and allow for the participation of senior officials.
At its fourth meeting in March 2017, the ADFM accepted the request from the Bali Process to become an ongoing source of policy advice on forced migration. ADFM advice to Bali Process Co-Chairs ahead of their sixth Ministerial Meeting was important in decisions made at that meeting, including establishing the Consultation Mechanism and to authorise the Andaman Sea Review. The ADFM assisted in conducting this review. The review’s recommendations were adopted by Bali Process senior officials in November 2016. The ADFM Secretariat also recommended the activation of the Bali Process Consultation Mechanism after discussions at the ADFM’s fifth meeting in September 2017.
The ADFM has also worked with ASEAN, including advising on the establishment of a focal point system for more effective implementation of ACTIP, which was endorsed by the ASEAN Ministerial Meeting on Transnational Crime in September 2017 and is being implemented by the ASEAN Senior Officials Meeting on Transnational Crime. The ADFM has also advised on the two global compacts on migrants and refugees at conferences in Bangkok and Geneva.
The remit of the ADFM is broad; however, given the timing of its first meeting in August 2015, just a few months after the Andaman Sea Crisis, it has maintained a strong focus on how the region can better respond to the mass displacement of the Rohingya. To this end, the ADFM Secretariat and a team of researchers conducted an assessment of the risk of human trafficking, migrant smuggling and related exploitation arising from the mass displacement of Rohingya in Cox’s Bazar. The assessment found that the risk factors for trafficking were high within the camps and likely to increase unless urgent steps were taken to address both the immediate needs of the displaced Rohingya and their long-term prospects, namely through pursuit of safe, dignified, voluntary and sustainable repatriation to Myanmar.
The ADFM met most recently in February 2020 in Dhaka, Bangladesh, shortly before the COVID-19 pandemic shut down international travel. Prior to the meeting, the ADFM Secretariat led a smaller group of senior officials and experts to Cox’s Bazar, to follow up on its trafficking risk assessment and observe how the situation had changed since then. The statement the ADFM Secretariat released after the meeting expressed concern that “the risks of further people movement, trafficking and the prospect of loss of life, remain high, and are likely to grow with time” and this concern has only grown in the weeks and months since their time in Bangladesh.
2e) Other noteworthy efforts
Although not covered in depth here, it is also worth noting that there have been other important actors and work focusing on this issue over the past five years, such as the work of UNHCR and IOM in strengthening national protection frameworks in the region. In 2016, IOM officially joined the United Nations network, allowing greater alignment of work between agencies. In 2019, UNHCR decentralised its regional programming, in part to strengthen alliances with regional agencies and respond more rapidly to emergencies. Meanwhile, the final report of the Advisory Commission on Rakhine State put forward 88 recommendations in August 2017 to address political, social, economic and humanitarian challenges in Rakhine State.
3. The stakes are now higher
At the same time that regional institutions have been working to improve their capacity to respond to mass displacement, challenges in the region have intensified. Indeed, two major factors have dramatically changed the lay of the land and raised the stakes for responding to forced migration challenges.
3a) World’s largest refugee camp
The Asia Pacific region now hosts the largest refugee camp in the world. There are approximately one million Rohingya living in camps in Cox’s Bazar District, Bangladesh. Most fled their homes in Myanmar in August 2017, with about 500,000 crossing the border within the first month. The Government of Bangladesh has delivered a generous and effective humanitarian response to date, hosting the displaced Rohingya for nearly three years. The support of international donors and the humanitarian sector has helped to stabilise the crisis and provide ongoing support to both the Rohingya and Bangladeshi host community, although the Joint Response Plan remains critically underfunded.
As we approach the third anniversary of the 2017 Rohingya crisis, both Bangladesh and Myanmar remain publicly committed to voluntary, safe, dignified and sustainable repatriation of displaced persons. Yet progress has been slow. Irregular movements by sea and land are also continuing, and there are concerns about the shrinking protection environment for Rohingya living elsewhere such as Saudi Arabia and India. Concerns about the risk of trafficking, smuggling and exploitation continue to grow the longer the situation stagnates without a feasible resolution on the horizon, particularly given recent measures to restrict internet access and build a fence around the camps. The ADFM Secretariat again highlighted these concerns in a press release after their Dhaka meeting.
3b) A global pandemic
The onset of the COVID-19 pandemic has had harmful repercussions for migrants and refugees around the world. Many countries have focussed their attention inward, using border closures and travel bans in an attempt to manage migration to protect public health. Resources and officials working on forced migration have been diverted to the pandemic response. These trends will expose many vulnerable migrants, asylum seekers and refugees to greater risks, and so test the recently signed global compacts and their spirit of international cooperation.
Those living in crowded refugee camps such as Cox’s Bazar are unable to follow public health guidelines like social distancing. The first case of COVID-19 was confirmed in the camps on 14 May 2020, and “as of 23 July 2020 there have been 64 confirmed cases in the refugee camps, and six fatalities. The Cox’s Bazar host community has seen 3,166 confirmed cases and 52 deaths.”
Among the unintended consequences of various national public health responses is increased risk of human trafficking. Not only are border closures likely to lead people to seek out smugglers to facilitate movement, but stay-at-home public health orders make it harder for media and other agencies to monitor the situation and support vulnerable groups. Loss of employment among migrant workers who are forced to return home to limited economic prospects will make some more vulnerable to false offers of employment by those seeking to exploit the desperate.
Worryingly, the 2016 Review into the Bali Process’s response to the Andaman Sea crisis found that: “it was the media reporting to the world on the ships stranded at sea, the discovery of graves and more profoundly the lack of coordination and agreement in the region that prompted action”. Now that the world’s attention is focussed on COVID-19, and in many cases journalists are confined to their homes, it’s already evident that public pressure is not as strong and effective as it was in 2015.
4. The current crisis: Are we any better off than we were in 2015?
Tragically, this special series could not be more timely. Five years after the Bali Process Review recognised the “need for more agile and timely responses” to mass displacements, boats of vulnerable migrants are again adrift in the Andaman Sea. In the first four months of the year alone, at least 135 Rohingya have died or gone missing in the Andaman Sea and Bay of Bengal. Boat movements rose between March and May: UNHCR estimates 1,800 people have disembarked so far this year, and 200 people remain stranded at sea.
Echoing the experience of 2015, many Rohingya who have now reached safety report being stranded at sea for months. One boat is known to have disembarked in Malaysia and another safely disembarked in Aceh, Indonesia. Others have been intercepted and pushed back to sea, or have returned to Bangladesh, where approximately 300 are understood to have been quarantined on Bhasan Char island since May. International agencies have expressed concerns in the past about the viability of the island to support a population, given its flood-prone nature.
Although the numbers are not currently at the scale of 2015, the unprecedented context of the COVID-19 pandemic and mass displacement in Cox’s Bazar create the conditions in which the situation could certainly get much worse. Despite the steps outlined above to strengthen the region’s ability to respond collaboratively and effectively to just these types of situations, we are once again seeing a prioritising of national interest over coordinated action.
While the Global Compact on Refugees, supported by all states in the region, affirms the principle of international solidarity, burden- and responsibility-sharing. These principles have unfortunately not been on show in the region’s response to those most vulnerable, stranded at sea. ASEAN has held numerous regional and bilateral meetings since the COVID-19 crisis began, and issued no less than nine joint statements between February and June on issues ranging from food security, defence cooperation and tourism. However, the boat movements have not been on the official agenda. On 26 June 2020, ASEAN leaders met virtually for their first ASEAN Summit since the pandemic hit, but the boat movements were absent from the resulting Chairman’s Statement.
The ADFM Secretariat convened a virtual meeting of senior experts in late April to address the implications of COVID-19 on forced migration, including responses to the new Andaman Sea crisis. Following the meeting, the Secretariat made recommendations to Australian and Indonesian Governments as Co-Chairs of the Bali Process. Those recommendations outlined how the Bali Process could use the reforms of recent years to elevate senior official and ministerial engagement on boat movements and other issues of concern, particularly in light of COVID-19 and its impact on displaced populations, in order to facilitate more effective regional responses.
On 6 May, UNHCR, UNODC and IOM called on states in the region to “uphold the commitments of the 2016 Bali Declaration as well as ASEAN pledges to protect the most vulnerable and to leave no one behind”. Former UN Secretary General Ban Ki-Moon also called for the Bali Process Co-Chairs to activate the Consultation Mechanism, and also to ASEAN to do more to support refugee resettlement and the response in Cox’s Bazar. The Bali Process has made no public statement on the matter as yet, but Australian and Indonesian senior officials have convened discussions about the issue.
In June, Australian Foreign Minister Marise Payne reaffirmed Australia’s commitment to the international community and “constructive, multilateral engagement”. It is thus timely that the ADFM Secretariat is taking forward a proposal supported by its members at its last meeting to conduct a strategic assessment of future regional priorities for forced migration responses, including review of progress on Bali Process initiatives since the 2016 Bali Declaration. Such an assessment could shine a light on implementation gaps and areas to prioritise for more effective future responses, including mapping future forced migration scenarios and ongoing drivers of displacement.
It is certainly challenging at the moment for governments and diplomats to transition rapidly to working together in a virtual, travel-constrained environment. Innovative and creative uses of technology will be essential if regional institutions are to fulfil their mandates during the pandemic.
At the five-year anniversary of the Andaman Sea crisis, regional institutions have built greater capacity to respond more effectively to mass displacement, human trafficking and migrant smuggling. However, for these reforms to be credible, they have to be put into practice. Faced with a displacement crisis coupled with a global pandemic, regional institutions have once again seemingly failed to respond effectively to protect the most vulnerable. Will anything have changed by the ten-year anniversary?