Protection of Refugees and Displaced Persons in the Asia Pacific Region

Angus Francis, Rowena Maguire

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317074250
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The chapters in this book explore the impact of recent shifts in global and regional power and the subsequent development and enforcement of international refugee protection standards in the Asia Pacific region. Drawing on their expertise across a number of jurisdictions, the contributors assess the challenges confronting the implementation of international law in the region, as well as new opportunities for extending protection norms into national and regional dialogues. The case studies span key jurisdictions across the region and include a comparative analysis with China, Indonesia, Thailand, Myanmar, Malaysia, Bangladesh and Australia. This topical and important book raises critical questions for the Asia Pacific region and sheds light on the challenges confronting the protection of refugees and displaced persons in this area. Interdisciplinary in its approach, it will be of interest to academics, researchers, students and policy-makers concerned with the rights and protection of refugees.

Chapter 1
Shifting Powers: Protection of Refugees and Displaced Persons in the Asia Pacific Region

Angus Francis and Rowena Maguire

Introduction

The United Nations High Commissioner for Refugees’ (UNHCR) 2011 statistics on refugee populations residing by region are a stark reminder of the challenge facing states and civil society in the Asia Pacific. In 2011, Africa hosted 2,149,000 refugees; the Americas, Europe, and Middle East and North Africa hosted 513,500, 1,605,500 and 1,889,900 respectively, while the Asia Pacific hosted a staggering 3,793,900.1 The fact that 35 per cent of the world’s refugees reside in the Asia Pacific, coupled with the fact that 84 per cent of refugees displaced in Asia remain in the region,2 raises the questions why so few countries in the region are signatories to the Convention relating to the Status of Refugees (‘Refugee Convention’) or cognate rights instruments3 and why no formally binding regional agreement exists for the equitable sharing of responsibilities for refugees.

Building on earlier works,4 the contributors to this collection take stock of regional and global developments and explore the historical and political environment for the reception of protection norms in the Asia Pacific. They assess the challenges confronting the implementation of international refugee law in the region, as well as the new opportunities for extending protection norms into national and regional dialogues. Lessons are sought from other regional responsibility sharing arrangements. The ways in which non-state actors are mobilizing to achieve their preferred refugee policy outcomes in the region and the extent to which the gap in refugee law in Asia can be filled by an assemblage of existing legal obligations are also considered. The handling of protracted refugee situations in the region is examined, as are the policy responses of states to new refugee crises. The final chapters of the book examine the relevance of environmental forces to forced displacement in the region.

The ‘Asia Pacific’ is a loose geographical identifier, but a more suitable one is difficult to find in a region which, despite having no clear political or geographical boundaries, is interconnected in a myriad of ways, particularly due to the movement of peoples seeking protection or the treatment of displaced people within states. While the editors made every effort to extend the geographical scope of the contributors, the collection merely captures a set of perspectives from a certain number of countries and at a certain time. Despite those limitations, we hope that the collection throws up a variety of views from across the region and that having them together in one place can offer readers a chance to contrast and compare issues and responses.

International Refugee Law and Responsibility Sharing Arrangements

The collection begins by placing developments in the ‘Asia Pacific’ in the context of the fairly rapid evolution of regional arrangements dealing with refugees and other displaced persons. This trend in Europe, Africa and Latin America has had mixed results for those seeking protection. At the international level, the Refugee Convention5 obliges states not to expel or return a refugee to the frontiers of territories where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion (non-refoulement obligation). Since the 1950s, other international human rights instruments have extended non-refoulement to other persons fearing torture or arbitrary deprivation of life or other cruel, inhuman or degrading treatment or punishment upon return to their country of origin.6 The Refugee Convention extends a number of socio-economic rights to refugees,7 which are supported and supplemented by the rights found in the International Covenant on Economic, Social and Cultural Rights.8

While containing an impressive array of rights, as discussed in Penelope Mathew’s chapter in this collection, the Refugee Convention does not establish any clear bases for the equitable sharing of responsibilities for refugees. While the Refugee Convention refers in its preamble to the desirability of international cooperation to deal with unduly heavy ‘burdens’, it does not impose any clear legal obligation on states in this regard. Mathew notes that the lack of responsibility sharing mechanisms has meant that countries nearest the refugee flows have borne the heaviest responsibility for refugees.

Penelope Mathew’s chapter goes on to explore the regional arrangements that have evolved to deal with refugee flows. She observes that ‘it is apparent that “regionalism” can be used and invoked quite deliberately in ways that do not necessarily go hand-in-hand with responsibility sharing or protection of refugees’. She therefore cautions that, when considering regional approaches in the Asia Pacific or elsewhere, it is important to consider ‘how regional arrangements have developed, what sort of “regionalism” they embody, how they engage countries outside the region, whether they share responsibility fairly and whether they result in protection and durable solutions for refugees.’

An ‘Asia Pacific’ Approach to Refugee Protection and Displacement?

The ‘Asia Pacific’ has been slow to engage with the Refugee Convention. The region has also not seen the development of any lasting regional arrangement. The Comprehensive Plan of Action, developed in response to the displacement of thousands of Indo-Chinese refugees in the 1970s and 1980s, is often held up as an exemplar of regional and global cooperation. However, as chapters in this collection highlight, while the CPA encapsulated the cooperation of countries of origin, countries of first asylum and resettlement countries, it was premised on a short form of temporary protection in countries of first asylum (Malaysia, Hong Kong, Indonesia) in return for large numbers of resettlement places in the US, Canada, Australia and so on. The likelihood that the CPA could act as an ongoing model dissipated with the drying up of resettlement places and the withdrawal of UNHCR funding. Today, the effects of few resettlement places and lack of access to local integration in countries of first asylum has led to protracted displacement situations across the region, including on the Thai-Myanmar border as discussed in Akiko Okudaira and Hitoshi Nasu’s chapter in this collection.

The UNHCR has advanced a protection component in the regional discussions on people smuggling and border control (the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime).9 This included co-hosting with the Philippines a workshop on Regional Cooperation on Refugees and Irregular Movements in Manila in November 2010, following a recommendation of the Bali Process Third Meeting of Ad Hoc Group Senior Officials held in Bali earlier that year. Savitri Taylor’s chapter highlights the extents to which civil society has gone to put refugee protection on the Bali Process agenda. Authors in this collection are cautiously optimistic concerning the Regional Cooperation Framework agreed to by Ministers in March 2011 and the establishment of a Regional Support Office on 1 July 2012 in Bangkok.

Taya Hunt and Nikola Errington point to other instances of regional cooperation, including the Emergency Transit Agreement signed by the Philippines government, the UNHCR and the International Organization for Migration (IOM) in October 2009, and the Regional Cooperation Model established over ten years ago between the Australian and Indonesian governments. Bhatara Ibnu Reza’s chapter on Indonesia, on the other hand, highlights the lack of engagement with protection issues at the sub-regional by the influential Association of Southeast Asia Nations (ASEAN).

The fact remains that many states in the region remain reluctant to sign up to Refugee Convention and there remains no binding regional instrument on responsibility sharing, nor is one likely any time soon. The linkage between domestic and regional engagement with the Refugee Convention is an important theme of this collection. A typical explanation for the lack of engagement with the Refugee Convention is that many states within the region, particularly in Southeast and East Asia, had little or no role in its development. However, when one compares the willingness of African countries to develop regional instruments and institutions, implementing and in fact extending the base protection found in international law, both in the areas of refugee protection and the protection of internally displaced persons, the historical justification for the lack of regional engagement on these issues in the Asia Pacific begs further explanation.

A senior UNHCR official in the region observed in 2006 that the region is ‘preoccupied with economic development and with the broader dimensions of managing mixed migration, rather than refugee issues’.10 Regional forums, such as the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime and the Asia-Pacific Consultations on Refugees, Displaced Persons and Migrants, have tended to focus on immigration control and policing borders. He concluded that the regional ‘trend away from special and separate approaches to refugees and the victims of forced displacement is likely to continue’.11

Amarjit Kaur’s chapter on Malaysia shows a continuing correlation between the treatment of asylum seekers by Malaysian authorities and the politicization of foreign labour and unauthorized migrants. Recent pronouncements by Malaysia’s Foreign Minister indicate the largely Burmese refugee population in Malaysia is associated in policy terms with the two million unauthorized workers in Malaysia.12 The same discussion also demonstrates that Malaysia’s reluctance to join the Refugee Convention is due in part to the perceived disparity between the socio-economic rights accorded to refugees under the Convention and the rights afforded to its own citizens, particularly in relation to the minimum wage.13 Amarjit Kaur traces the politicization of refugees to the Malaysian government’s tough position on Indochinese refugees in the 1970s and 1980s.

Malaysia’s approach can be contrasted to the treatment of Indochinese refugees settled in China since the 1970s, who generally enjoy basic rights to ‘life, production, employment, education and medical care’.14 Yet for non-Indochinese refugees processed by the UNHCR Beijing, there is no right to employment and the UNHCR provides assistance in terms of food, basic accommodation, health care and primary education.15 North Korean refugees in the PRC have no right to employment and no access to the UNHCR.

In their chapter, Taya Hunt and Nikola Errington argue that lack of access to employment, education and health care in countries often informs decisions of asylum seekers to move on from the country of first asylum. They also highlight the varying standards of legal representation and processing available to asylum seekers in countries with refugee status determination and the need for the UNHCR to grant access to legal representatives both in terms of protecting the individuals concerned but also as a precedent for country refugee status determination.

Alongside economic development, the region is strongly focused on national security concerns, including border security. States regularly voice these concerns in the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime.16 In his chapter, Bhatara Ibnu Reza observes that recent Indonesian immigration law changes, which grant broad powers of border control and detention, make no allowance for refugees. Meanwhile, Australia’s recent return to offshore processing in third countries (see the contributions by Mathew, Billings and Kaur) highlights a trend in industrialized states toward restrictive asylum policies based on border security.17 Thus the historical ambivalence of many countries in the region to refugee protection is increasingly overlaid with what must be viewed as an almost global trend toward restrictive asylum policies.

China is a typical example of these countervailing forces. China has not viewed itself as an ‘immigrant country’ and therefore little attention has been given to China’s immigration system, including the admission and residence of refugees.18 Yet, as China engages more in foreign trade and world affairs, a substantial revision of China’s immigration...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Figures and Tables
• List of Contributors
• 1 Shifting Powers: Protection of Refugees and Displaced Persons in the Asia Pacific Region
• 2 Responsibility, Regionalism and Refugees: What Lessons for Australia?
• 3 Civil Society and the Fight for Refugee Rights in the Asia Pacific Region
• 4 The Search for Protection in Southeast Asia
• 5 Refugee Protection in China: The Issue of Citizenship and Potential Solutions
• 6 Prospects for Refugee Rights in Hong Kong: Towards the Legalization and Expansion of Protection from Refoulement
• 7 Migration and the Refugee Regime in Malaysia: Implications for a Regional
• 8 Challenges and Opportunities in Respecting International Refugee Law in Indonesia
• 9 Irregular Migration, Refugee Protection and the ‘Malaysian Solution’
• 10 Revisiting the Concept of Protection in International Refugee Law: Implications of the Protracted Refugee Situation on the Thai–Myanmar Border
• 11 Internally Displaced Persons in Northern Thailand: Involuntary Relocation and the Need for Regulation
• 12 The International Regulation of Persons Displaced by Climate Change
• 13 Conceptualising Climate-Induced Displacement in Bangladesh
• Index