"Let Them Drown": State's Obligation of Non-Refoulement Vis-A-Vis The Entry of Refugees Through Waterways

Abstract

Under the current regime of international law, and even positively promoted in customary international law of which the status is undoubtedly obligatory, States have the exclusive obligation of non-refoulement for refugees seeking asylum in its territory. Meanwhile, a lot of fluxes in numbers of asylum seekers come through waterways – mainly boats of refugees. The very existence of those boats in itself arguably entails obligation for coastal states to exercise jurisdiction accordingly in its territory, especially its search and rescue (“SAR”) territory. The sudden influx of number of refugees, however, for States are especially worrisome. It has reached a systematic crisis level rather than an emergency. It is unquestioned that States’ position in response to this is to think of refugees as burden to its wealth and security. This may lead to instances where States leave the refugees as they are, floating on water, or in other words; let them drown. One particular question then arises; is it not violating States’ fundamental obligation to treat people in its jurisdiction’s right to life? This paper will elaborate on States’ obligation to conduct SAR under current regime for boats in its jurisdictional area, as well as the conjunction to States’ jurisdiction in order to secure States’ obligation to ensure human rights of people and refugees, especially to its obligation of non-refoulement.