Good Faith at Sea: Non-Refoulement, Maritime Interdiction and Malaysian Practice Under International Law

Malaysia intercepts and turns back Rohingya vessels in the Andaman Sea while party to neither the 1951 Refugee Convention, its 1967 Protocol, the Convention against Torture, nor the International Covenant on Civil and Political Rights, and the doctrinal literature on non-refoulement at sea, being largely European and Australasian, leaves this non-party setting under-examined. The article makes three contributions. First, through doctrinal analysis ordered under Article 38(1) of the Statute of the International Court of Justice, it establishes that the customary prohibition of refoulement binds Malaysia and that its return-to-torture core is best treated as peremptory, admitting no persistent-objector defence. Second, it shows that the prohibition reaches conduct at sea through effective-control jurisdiction and that the rescue duty under Article 98 of the United Nations Convention on the Law of the Sea reinforces rather than displaces it, because a place of safety read in good faith cannot be a place of persecution. Third, it develops good faith, through pacta sunt servanda, systemic integration, and the prohibition of abuse of rights, as an anti-evasion principle. Assessed against these standards, the provide-and-send-away pattern documented from 2015 to January 2025, on a route that remained in use into 2026, is irreconcilable with Malaysia’s obligations.