Time to Protect Southeast Asia’s Refugees

This article is part of “Southeast Asia: Refugees in Crisis,” an ongoing series by The Diplomat for summer and fall 2015 featuring exclusive articles from scholars and practitioners tackling Southeast Asia’s ongoing refugee crisis.

Regional cooperation must focus more on protection solutions.
By Sara Davies
September 12, 2015

Between January and March 2015, 25,000 Rohingya reportedly left Myanmar and Bangladesh. By May, UNHCR, the UN’s refugee agency, reported that the volume of Rohingyas seeking asylum had doubled in comparison with the 2014 average for that month. Yet after this mass exodus, there remain hundreds of thousands left vulnerable in Myanmar. According to the United Nations (UN) Office for the Coordination of Humanitarian Affairs (OCHA), Myanmar has 541,100 people in need of humanitarian assistance; 139,000 people displaced within the Rakhine State and 100,000 people displaced in the Kachin state.

There are grounds for thinking that developed states close to the region, such as Australia, Japan and New Zealand, have not yet provided sufficient support to assist the region with enduring resettlement solutions for the Myanmar refugee population. Australia, as the closest wealthy nation to the region, in particular can do more to assist in mustering the region’s energy towards the need for refugees’ protection, an area that has received little attention over the years as countries in the region focus more on deterring asylum seekers.

On 29 May 2015, a Special Meeting on Irregular Migration in the Indian Ocean was held in Bangkok to discuss the plight of Burmese and Bangladeshi asylum seekers. The outcome of the meeting, the Bangkok Declaration, provided three significant outcomes and introduced the possibility of a regional framework for addressing this humanitarian crisis. Much now hinges on the implementation of the Bangkok Declaration and it is imperative that outside states encourage and support these endeavors.

First, the agreement of Indonesia, Thailand and Malaysia to provide temporary shelter, as well as conduct search and rescue missions, was a significant step forward by the region toward responding to the crisis focused on protection.  In the past, as with the Indochinese refugee crisis in the 1970s and 1980s, the end of boat turnarounds came only when Western countries promised resettlement places for those given temporary asylum in the region. There has been no such promise from the West this time. Second, the Declaration calls on all states to assist with providing legal and safe channels for migration. This requires that the region continue pursuing the development of a refugee solution as proposed in the Bali Protocol’s Refugee Framework and at the 2014 Jakarta Dialogue. Third, the Declaration refers to the “root causes” of the problem and the need to ensure that they are addressed. Among the causes identified was the human rights situation in Myanmar. Although not specifically stated, this was understood as a reference to the human rights of Myanmar’s Rohingya people in Rakhine state.

Anne Richard, the United States Assistant Secretary of State for Population, Refugees and Migration, reportedly said at the Bangkok meeting that there had always been a “strong tradition” of the U.S., Canada and Australia taking the lead in tackling humanitarian issues. However, she said the sense was that Australia’s effort has “deteriorated a bit in the last few years.” Indeed, unlike in previous eras when the region was confronted by a refugee crisis, the Australian government has increasingly not been a good regional neighbor in assisting the region with its growing asylum burden.

The last time an Australian government agreed to a large-scale resettlement program for a refugee population in Asia region was in 1989. Under the 1989 Comprehensive Plan for Assessment (CPA), the Asia-Pacific region developed a regional framework whereby developing countries such as Indonesia, Malaysia, Thailand and Philippines hosted Indochinese asylum seekers until they were processed by the UNHCR and then resettled in countries such as Australia, Canada, the United States, France and the United Kingdom. Despite ongoing situations of protracted displacement – namely the minority ethnic populations fleeing Afghanistan and Myanmar, as well as the ongoing insecurity confronted by the minority Tamil population from Sri Lanka – no Australian government in the 1990s or 2000s has attempted to contribute to long-term regional refugee resettlement solutions.

Successive Australian governments have fallen short of their obligation to implement fully the 1951 Convention on refugees by enacting migration excision zones, refusing to resettle onshore asylum seekers, practices of mandatory onshore and offshore detention, and towing boats back to open waters. These practices harm efforts to promote better humanitarian practice in a region where there has been a history of skepticism towards such laws and norms. Australia’s actions concerning asylum seekers and refugees are not that of a state that recognizes the need for reciprocal recognition of a regional responsibility to create shared resettlement intake schemes in other countries in the Asia Pacific.

Anne McNevin has argued that Australian governments have also failed to creatively think about how to use aid programs to promote humanitarian intake schemes for countries in the region. This is a valid point when considering that Philippines, Malaysia and Thailand have in the past taken thousands of refugees from Indochina (Philippines, Malaysia), Cambodia (Malaysia), Indonesia (Malaysia and Philippines) and Myanmar (Thailand) for permanent settlement in the 1970s, 1980s, 1990s and 2000s. It would be wrong to argue that the Southeast Asian region does not accept refugees because so few countries have signed the 1951 Convention (Cambodia, China, Japan, Philippines and East Timor are signatories). But it is true to say that the region has very strict controls (even in 1951 Convention states like China, Japan and Philippines) governing who is taken for resettlement – as does Australia.

For these reasons there is considerable merit in former UNHCR official Erika Feller’s argument that in the Asia Pacific region a creative interpretation of protection obligations is essential. Regional cooperation must be as concerned with protection as it has been with deterring asylum seekers from resorting to people smugglers.

The Bali Process is a framework for cooperation on all areas of migration (originally, irregular migration, people smuggling and trafficking) among migrant source, transit and resettlement states. It is co-chaired by the Australian and Indonesian governments and was established at the 2002 Bali Process Regional Ministerial Conference. In 2011, a Regional Cooperation Framework was concluded by the participating governments. This non-binding agreement was described as a crucial breakthrough in the region for three reasons (Feller 2011; Taylor 2012). First, it acknowledged that refugees and asylum seekers have a right to protection. This is novel for the region, especially given that so few states have adopted the 1951 Convention. Second, there was recognition of the right to non-refoulement (Article 31 in 1951 Convention, as well as the Convention on Torture and International Covenant on Civil and Political Rights, people are not to be returned to their country of origin if in fear of their life or persecution). Third, there was discussion about the creation of practical arrangements to reflect the framework’s principles.

However, with this 2011 Agreement the devil is possibly in the details. And this is why we have seen little progress on the protection principles promoted in 2011. The Agreement refers to the need for asylum seekers to access refugee processing arrangements, and for refugees to have the chance to seek a durable solution (voluntary repatriation, settlement in the region or resettlement outside the region). These are the agreed principles, but the ‘practical arrangements’ for realizing the principles are another matter. These involve issues such as full engagement with source countries to prevent irregular movement; building capacity for processing in the region primarily through an international organization; giving practical force to the agreed “principles” of burden-sharing and collective responsibility, and ensuring that arrangements should promote “human life and dignity” while promoting orderly, legal and regular migration.

The capacity of this framework to deliver on the protection goals identified in 2011 hinges on Australia’s performance, as the convener of the process, the region’s wealthiest state, and the country with the longest humanitarian intake scheme in the region. However, Australia has increasingly exhibited a lack of willingness to lead the region with its refusal to expand the humanitarian intake scheme as suggested by its own 2012 Expert Panel on Asylum Seekers, and with the adoption of a range of domestic laws designed to deny the right of people to claim asylum and refuge in Australia.

Ultimately, a genuine regional refugee protection framework will require more than just fine words and action against people smugglers.  It will require expansive development assistance and a shared resettlement scheme amongst those who take part in framework.  What has been persistently lacking is a genuine commitment to protection. In practice, systems based on deterrence are not likely to deliver the protection that is needed to erode the people smugglers’ business model. Only the facilitation of safe and legitimate avenues for protection can do that.

This is what plagues the current Bali Process, and other regional frameworks such as the Bangkok Declaration.  All too often regional cooperation has focused more on transference of the problem than on the need for protection solutions. In the last two years this has become clear with the Australian government looking to shed its responsibility to protect asylum seekers and refugees by transferring populations to developing neighboring states such as Nauru, Papua New Guinea and Cambodia, and denying asylum seekers the opportunity to ever resettle in Australia. This is a harmful trend for the region and risks undermining efforts to prioritize protection. Only by engaging in regional cooperation which prioritizes the protection of asylum seekers and refugees will enduring solutions be found. The Bangkok Declaration points in the right direction but much more work is needed and the region’s partners need to play a proactive role. Deterrence is not protection. Unless states fulfill their responsibility to protect refugees and asylum seekers, through regional cooperation, the region will continue to lurch from one refugee crisis to another and the death toll of refugees lost at sea and buried in mass graves will continue to grow.

Sara Davies is Associate Professor, Centre for Governance and Public Policy, School of Government and International Relations, Griffith University, and an Adjunct Associate Professor, School of Social Sciences, Monash University. Until Ocdtober 2015 was a Senior Research Fellow, School of Law, Queensland University of Technology

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