The Protection of Refugees in Southeast Asia

A Legal Fiction?

Sébastien Moretti

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000543735
• Edition: 1
• Topic: Social Sciences
• Subtopic: Ethnic Studies
• Index: Social Sciences

This book offers a comprehensive and detailed analysis of refugee protection in Southeast Asia from an international law perspective. It examines both the legal and policy frameworks pertaining to the protection of refugees in the region as well as the countries' response to refugee movements from the Indochinese refugee crisis in the mid-1970s to the most recent developments. It covers important aspects of refugee protection, such as access to territory, non-refoulement, the treatment of refugees, the concept of refugee as applied in the region, burden-sharing and durable solutions to the plight of refugees.

The analysis focuses specifically on the main countries of asylum within the Association of Southeast Asian Nations that are not parties to the 1951 Refugee Convention, namely Thailand, Malaysia and Indonesia. Using an international law perspective based on the doctrine of the 'two elements' (practice and opinio juris ), the author argues that these states have long recognized that people fleeing persecution, armed conflict and generalized violence, namely refugees, should be protected. This in turn demonstrates that they recognize the existence and relevance of the international refugee regime despite their refusal to accede to the Refugee Convention.

Offering a different perspective on the links between international refugee law and refugee protection in Southeast Asia, this book will be of interest to researchers and practitioners in the fields of international relations, international refugee law, international human rights law, migration governance and Southeast Asian Studies.

1 Introduction

DOI: 10.4324/9781003243816-1

The Convention relating to the Status of Refugees,¹ adopted in 1951 and supplemented by the 1967 Protocol, is the most comprehensive and universal instrument adopted to date to safeguard the fundamental rights of refugees and regulate their status in countries of asylum. Yet many countries, about a quarter of the World’s states, are still not willing to accede to it.² The main gap regarding these two instruments is to be found in the Asia-Pacific, where a majority of states – 24 out of 44 – remain outside the Convention’s refugee regime.³ Moreover, unlike in other regions there is not even a regional refugee instrument in Asia or Asia-Pacific. This lack of a formal legal framework regulating the protection of refugees at the regional as well as at the national levels has generally been regarded as an evidence that countries concerned ‘reject’ even the most basic tenets of international refugee law.

1 Convention relating to the Status of Refugees (opened for signature 25 July 1951, entered into force 22 April 1954) 189 UNTS 150 and Protocol relating to the Status of Refugees (taken note of by UNGA 16 December 1966, entered into force 4 October 1967) 606 UNTS 267. 2 For ratification of treaties, see <https://treaties.un.org/Pages/ParticipationStatus.aspx> accessed 22 September 2020. 3 There is no universally agreed definition of the ‘Asia-Pacific’ region. The United Nations Economic and Social Commission for Asia and the Pacific counts 53 member states, including France, the Federation of Russia, the Netherlands, the United Kingdom and the United States, which are arguably not part of the Asia-Pacific but are members for other reasons. See ESCAP Member States and Associate Members, <www.unescap.org/about/member-states> accessed 17 January 2021. The Office of the United Nations High Commissioner for Refugees (UNHCR) also excludes Armenia, Azerbaijan, Georgia and Turkey from the region.

While refugee movements have always been first and foremost a regional issue, the question of how different regions of the world respond to refugee movements remains ‘grossly understudied’.⁴ This book contributes to filling this gap by analysing more specifically the issue of refugee protection in Southeast Asia. Among the ten members of the Association of Southeast Asian Nations (ASEAN), namely Brunei Darussalam, Cambodia,⁵ Indonesia, Laos, Malaysia, Myanmar,⁶ the Philippines, Singapore, Thailand and Vietnam, only two have acceded to those instruments. The Philippines did so in 1981 and Cambodia in 1992.⁷ The analysis in this book focuses specifically on the ASEAN countries that are not parties to the Refugee Convention (the ‘non-signatory’ states’), in particular Thailand, Malaysia and Indonesia. These three countries are those that have been most affected by refugee movements in Southeast Asia over the past decades and those among the non-signatory states in the region whose practice in the field of refugee protection is most relevant from the point of view of the development of regional and international refugee law. By comparison, Laos, Myanmar and Vietnam have traditionally been refugee-producing countries, while Singapore and Brunei Darussalam have received (and accepted) very few refugees.⁸

4 Ademola Abass and Francesca Ippolito, ‘Introduction – Regional Approaches to the Protection of Asylum Seekers: An International Legal Perspective’ in Ademola Abass and Francesca Ippolito (eds), Regional Approaches to the Protection of Asylum Seekers: An International Legal Perspective (Ashgate 2014) 2. 5 The country took the name ‘Kingdom of Cambodia’ in 1993 and still retains this name. When the Khmer Rouge came to power in 1975, they named the country ‘Democratic Kampuchea’, a name that was used until they were ousted following a Vietnamese invasion, which proclaimed the ‘People’s Republic of Kampuchea’ in 1979. This book uses the term ‘Cambodia’ to refer to the country. 6 In 1989, the regime officially changed the name of the country in English to Myanmar or ‘Republic of the Union of Myanmar’ in full. It was previously known as Burma and continues to be referred to as such by some authors and organizations. This book uses the official name. 7 Timor-Leste is also part of Southeast Asia. However, we do not consider Timor-Leste in this book since it is not a member of the ASEAN (although its membership application is being considered) and since it is a party to the Refugee Convention and its Protocol (to which it acceded in 2002). Moreover, Timor-Leste is essentially a country of origin of refugees, while this book focuses on the practice of the main countries of asylum in Southeast Asia. 8 UNHCR recorded an average of three refugees and asylum seekers in Singapore for the period from 2000 to 2021, with no refugees and asylum seekers recorded in Brunei Darussalam during the same period. See UNHCR, Population Data <www.unhcr.org/data.html> accessed 19 January 2021.

Due to the lack of a specific legal framework, refugees in the main countries of asylum in the region are generally considered as ‘irregular migrants’ and as such they may be the object of measures such as arrest, detention and deportation. Against this backdrop, one can wonder how to ensure the protection of refugees in a context where there is no specific legal and/or policy framework for this purpose. What national and regional mechanisms or initiatives – if any – are in place to ensure the protection of refugees in those states, including in the context of large-scale movements? While more research is certainly needed to better understand the difference between the level of legal entitlements and the treatment of people who need international protection in non-signatory countries, it would be wrong to assume that the treatment of refugees in such countries is necessarily worse than in countries that are parties to the Refugee Convention.

Using an approach based on international law and centred around the practice of states and the notion of opinio juris, which refers to the conviction of a state that it is bound by a rule of international law, this analysis reveals that Southeast Asian states, despite their refusal to accede to the Refugee Convention, do recognize international refugee law. This is evidenced by the fact that they often provide a form of protection to those who have found refuge in their territories, in spite of their irregular status, and that this corresponds to a certain extent to the standards provided for under the Refugee Convention to people who are ‘lawfully’ present on the territory of a state.⁹ Yet these countries have sought to respond to the protection needs of refugees without giving the impression that they were compromising with issues of national sovereignty or the principle of non-interference in the internal affairs of other states. In maintaining these seemingly contradictory policies, it is argued, these states seek to maintain a ‘legal fiction’ according to which they preserve full sovereignty over their borders while in reality they largely accept the constraints and limits imposed by international refugee law.

9 Research along the same lines has also been conducted in the Middle East, another subregion of Asia characterized by a low level of ratification of the Refugee Convention and/or its Protocol. See for instance, Maja Janmyr, ‘No Country of Asylum: “Legitimizing” Lebanon’s Rejection of the 1951 Refugee Convention’ (2017) 29:3 IJRL 438–465; Martin Jones, ‘Expanding the Frontiers of Refugee Law: Developing a Broader Law of Asylum in the Middle East and Europe’ (July 2017) 9:2 Journal of Human Rights Practice 212–215.

1.1. An historical overview of refugee movements within Southeast Asia

While regional specificities of international refugee law in Africa and Latin America have been embedded in regional frameworks, no similar initiative has yet been taken in Asia, despite the fact that the continent has experienced several large-scale influxes of refugees since the middle of the past century. In 1947, the partition of India led to the displacement of some 14 million people. Two years later, the victory of the Chinese Communist Party drove nearly 1.5 million soldiers, civil servants and civilians associated with the Kuomintang to the island of Taiwan, with many more making their way to Southeast Asia. In March 1971, some 10 million people were forced into exile in India, fleeing the violence that led to the partition of Pakistan and the creation of Bangladesh. In 1978, more than 200,000 Rohingya – a predominantly Muslim ethnic group from Rakhine State, Myanmar – sought refuge in Bangladesh, claiming persecution at the hands of the Burmese Government. The following year, some 6 million Afghan refugees moved to Pakistan and Iran following the invasion of their country by the Soviet Union.

During the same period, the situation in Southeast Asia was taking a dramatic turn with a significant increase in the number of refugees from Indochina looking for asylum in other countries across the region. The context at the time was exceptional, with the Indochinese refugees fleeing the newly communist governments established in Vietnam, Laos and Cambodia in the midst of the Cold War. The ASEAN states, at the time Indonesia, Malaysia, Thailand, the Philippines and Singapore, found themselves at the forefront of the crisis, bearing the consequences of proxy wars led by other more powerful states outside the region. It was feared in particular that Thailand, which was exposed to the arrival of a large number of asylum seekers from Laos and Cambodia, would be the next ‘domino’ to fall. However, it is the situation of the Vietnamese asylum seekers – the so-called “boat people” – that attracted the most international attention. This was due in particular to the regional ambit of the crisis, as they landed in great numbers on the shores of most countries in the region.

With an estimated 3 million people fleeing Indochina, the so-called Indochinese refugee crisis represented a ‘mammoth refugee crisis’ which spanned for more than 20 years.¹⁰ According to the United Nations High Commissioner for Refugees (UNHCR), the crisis marked ‘a turning point in the contemporary history of refugee situations’,¹¹ due to both the significant number of displaced persons and its particularly long duration. The Indochinese crisis proved exceptionally problematic because of the difficulties identifying durable solutions for the refugees. Local integration had been ruled out by the countries concerned on account of various social, economic and security considerations, while repatriation to communist countries, in part...

Table of contents

• Cover Page
• Half Title Page
• Series Page
• Title Page
• Copyright Page
• Contents Page
• Foreword Page
• Preface Page
• List of cases Page
• List of international, regional and national instruments Page
• List of abbreviations Page
• 1 Introduction
• 2 Explaining Southeast Asian resistance to the ratification of the 1951 Convention
• 3 A ‘legal limbo’? Overhauling the normative framework for the protection of refugees in Southeast Asia
• 4 Access to protection
• 5 The refugee concept in Southeast Asia
• 6 The treatment of refugees in Southeast Asia
• 7 The search for solutions
• 8 Conclusion: reconciling Southeast Asia with international refugee law
• Annex: overview of the ratifications by Southeast Asian States of the main international human rights instruments
• Index