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Caught between the sea and the land: the dilemma of stateless indigenous seafarers

International media attention on indigenous sea nomadic populations increased dramatically after the Indian Ocean tsunami that struck the coast of Thailand in 2004. Most examined traditional knowledge of the ‘sea gypsies’ that enabled them to take shelter on inland hills and warn others of the impending danger, soaked with romantic depictions of lives dominated by the sun and sea. Very little, however, focused on their extreme marginalization as communities denied the right to nationality by both the Thailand and Myanmar governments.

The group in question were Moken, an indigenous seafaring people whose ancestral territories are found in the 800 islands of the Mergui Archipelago, off Myanmar’s southern coast, continuing into Thailand’s Andaman Islands off Ranong and Phang Nga provinces. Their marine nomadic lifestyles have similarities with others in Southeast Asia, including the Orang Laut of the western Thai-Malay peninsula to the Riau Archipelago and the Sama-Bajau of Sabah, Malaysia, eastern Indonesia and the southern Philippines. These are generally broad classifications, however, belying much ethnic and linguistic diversity.

Sea nomadic groups have been adept at avoiding the influences of the state, travelling across maritime boundaries and refusing to be held to any one nation’s laws. Historically, living on the sea was a tactic to avoid conflict, disease, taxation and other limitations that came from mainland settlement. That is not to say they that they did not have significant ties with land-based groups, as trade in marine resources has been a cornerstone of these interactions for centuries.

But the mainland world has now caught up with them. Over the past few decades, as borders became more established, with governments focused more on maritime security and environmental conservation, the lifestyles of seafaring indigenous groups became more restricted. Some groups were targeted for terrestrial sedentarization programmes as early as the 1950s, an approach frequently replicated on other sea nomadic populations in the ensuing decades. Many of those who have settled and integrated have been accepted as nationals of their respective states. Others have found no easy path to citizenship.

Moken of Thailand and Myanmar

Moken are one of Thailand’s three traditionally sea nomadic populations, along with Moklen and the Urak Lawoi. While their origins are disputed, a recent study of Moken mitochondrial DNA suggest that the Moken originated in coastal mainland Southeast Asia, moving into the island areas several thousand years ago.

According to the Chumchon Thai Foundation, an NGO working with Moken, there are 2,100 Moken in Thailand In Myanmar, estimates suggest there are at least 3,000 living on islands of the Mergui Archipelago. It is unknown exactly how many Moken are stateless, but they remain more vulnerable to statelessness than Thailand’s Moklen or Urak Lawoi, who have maintained a more land-based existence and have integrated more firmly with the Thai state.

Amendments to the Thai Nationality law in 2008 removed some restrictions that were preventing Moken and other indigenous peoples from being eligible for citizenship. Still, applicants must provide proof of birth and domicile in Thailand, either through a birth certificate or, where that is not available, witness testimony, hospital records or a DNA test establishing connection with a Thai citizen. Such documentary evidence is very difficult to provide, as many Moken either did not have their births registered or registration was refused by some local hospitals and civil servants.

Without citizenship or Thai government identification, Moken are vulnerable to a host of rights violations. They typically struggle to access the low cost subsidized healthcare system, for example: many go without treatment unless the situation is dire, and then they are hit with large medical bills that they cannot afford. While all children irrespective of their citizenship or lack of citizenship have the right to attend public schools in Thailand, many face discrimination based on their ethnicity or lack the basic supplies to attend, while others drop out early to help their parents earn a livelihood.

Their insecure legal status makes them prey to middle men that coerce Moken into low paid, dangerous or illegal employment, particularly those that exploit their ability to stay underwater for long periods. These include diving for rarities such as sea cucumbers and abalone, or working on fishing boats that use dynamite to catch fish, staying under water with the support of surface air supplied through tubes using diesel-run compressors. Because of this unsafe diving technique and pushing to unsafe depths, it is common for Moken men to suffer from decompression sickness, leading to death or disablement while others have died or lost limbs from the exploding dynamite. They are not compensated for their injuries or inability to work.

While there is no figure available on the number of Moken at risk of statelessness, one case study from 2012 reported that the islands of Koh Lao, Koh Chang and Koh Phayam had 600 Moken people that were not yet determined eligible for citizenship, but instead had been given the ‘zero card’. Approved for issuance to the Moken in 2010, the card does not allow them free movement outside their district, access to health services, social security or labour protection.

Moken are known as Salon or Selung in Myanmar, where they are considered one of the 135 ‘national races’ that are automatically eligible for citizenship. Despite this, many have not been able to acquire Myanmar nationality. In the 1990s, faced with forced relocation and settlement, many fled to the seas. Their remoteness and movement across borders have prevented access to civil documentation to confirm their nationality, while human rights groups have documented reports of abuse, intimidation and violence by Burmese authorities, including being shot at and killed by the Burmese navy.

Sama Dilaut

Often referred to as Bajau Laut, Sama Dilaut are the diverse semi-nomadic and often migratory groups that have traditionally roamed the islands of the Sulu-Sulawesi Sea located between the southern Philippines, the coast of Sabah, eastern Malaysia, and Sulawesi and east Kalimantan, Indonesia. Their range reaches as far as the Arafura Sea off the coast of Papua, Indonesia, as well as north to the South China Sea. There are settled populations of Sama Dilaut throughout the region, mostly in Indonesia and the Philippines, but also some in Sabah, Malaysia, as well as a small population of mobile family groups, but – like the Moken and others – there are no clear estimates of their numbers.

In Semporna, a district on the eastern coast of Sabah, a significant population of Sama Dilaut reside. The Eastern Sabah Security Command began conducting an official census of the Sama Dilaut in 2016, but their findings have not yet been released. They estimated that there were approximately 1,800 families in Semporna. Other data complied from the Semporna District Office and the Sabah Parks authority further suggested that the community amounted to a total of 8,344 people, of whom around 45 per cent (3,776) were believed to lack citizenship. In another study, 40 per cent of the population residing in Tun Sakaran Marine Park, off the coast of Sempora, were Baja Laut. While these data were not disaggregated for Sama Dilaut ethnicity, of the total population of the park, only 17 per cent were Malaysian citizens, 43 per cent had some sort of official or unofficial documentation, and the remaining 4o per cent had no documentation, placing them at a high risk of statelessness.

Historically, Sama Dilaut have maintained a nomadic lifestyle in the waters between Philippines and Sabah, with some Sama Dilaut choosing to settle on coastal areas in recent years. Clashes on the island of Mindanao and the islands of the Sulu archipelago between the government of the Philippines and the Moro National Liberation Front in the 1970s led many Sama Dilaut to flee the area to the safer waters of Semporna, joining a pre-existing population of Sama Dilaut. Many were provided with an IMM13 residency permit which was renewable yearly for a fee. Although it allows holders to live and work in Sabah, it limits travel and does not allow access to public education or subsidized healthcare. Children of IMM13 holders were entitled to apply for IMM13 based on the status of their parents although many card holders were not aware and did not obtain any documentation for their children; others were unaware of the requirement to renew their cards.

The Malaysian Federal Constitution however does have safeguards against statelessness. It states that any child born in Malaysia who is not born the citizen of another country, and cannot acquire citizenship from another country within one year of birth, can be a citizen. Yet this provision has not been successfully implemented in practice, given the lack of procedural guidance for applicants relying on this provision. The Malaysian courts recently reviewed this provision and imposed a heavy evidential requirement on applicants to prove that they are not a citizen of any other country. The issue is further complicated in Sabah, as it maintains autonomy from the federal government over immigration matters.

Similar to the situation of the Moken, without citizenship the Sama Dilaut are marginalized, excluded and denied their rights. Unlike Thailand though, their children are not permitted to attend public schools in Sabah, nor can they access subsidized health care, leaving their children exposed to preventable diseases like diarrhea and pneumonia. They are also vulnerable to forced evictions and arbitrary detention.

In 2013, the situation was exacerbated when over two hundred armed militants, the followers of a claimant to the Sulu sultanship, invaded eastern Sabah in the attempt to ‘reclaim’ the area. After a month-long showdown with Malaysian security, the area was designated as the Eastern Sabah Security Zone (ESSZone). Sama Dilaut were targeted for security crackdowns, imprisoned and deported to the Philippines, maligned as illegal criminals in national media. As a result, many Sama Dilaut fled to other areas, only to be caught in Indonesian waters for illegal fishing. In 2014, over five hundred Sama Dilaut were detained in east Kalimantan, the majority of whom did not have identification.

An uncertain future

The broader discrimination faced by indigenous seafarers is manifested in its most extreme form through statelessness and a lack of a nationality documentation, leaving them on the margins, with no hope of their situation ever being resolved. Nomadic sea populations are among the most at risk, as they are forced to abandon their traditional lifestyle to fit in with the demands of the modern nation state. Without safeguards for their rights, their distinct cultures and lifeways are directly under threat. A balance must be struck between gaining the benefits of lives as citizens, but also having their rights as indigenous peoples protected as well.

Thailand, Malaysia, Indonesia and the Philippines all have some level of indigenous rights protection. Very rarely has this protection been effectively extended to nomadic seafarers, however, as these rights frameworks are applied to land-based groups and become more complex in the realm of traditional marine territories. Their role in the protection and conservation of marine areas has been largely denied, tied to their precarious legal status, compounded by discrimination by the wider society. Indonesia in particular protects the rights to traditional fishing, but these rights are only applicable to Indonesian citizens.

In the meantime, despite the attention they have generated in recent years, indigenous seafarers are still invisible, increasingly pushed out of their old traditions while unable to integrate as citizens on land. Until their situation is properly acknowledged and resolved, the chance of a better future for themselves and their children remains only a distant possibility.

Nicole Girard

Photo: Indigenous sea nomads off the coast of Semporna, Malaysia. Credit: Imran Kadir.