By Penelope Matthew
August 24, 2015
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. All articles in the series can be found here.
Prior to being eclipsed by the Syrian refugee crisis, Asia was the region hosting the highest number of refugees. Yet few countries in this region are party to the 1951 Convention relating to the Status of Refugees and/or the 1967 Protocol. Sovereignty, sensitivity concerning ethnic minorities, and different levels of economic development are among the reasons for this situation. However, without a commitment to a principled bottom line, it will be difficult to achieve regional cooperation on refugee issues with those states, like Australia, which may have a greater capacity to protect refugees. As it is, even states parties to the Refugee Convention are quite willing to forego the opportunity to cooperate for better outcomes for refugees. In this short piece, I sketch some of the history of refugee protection in the region and discuss why cooperation is lacking and advocate for one good idea that governments should explore.
The practice of states in the Southeast Asian region is generally to grant temporary refuge with minimal rights protection. This ignores the fact that many of them are party to human rights treaties that protect against refoulement or return to irreparable harm and which lay down standards applicable to all human beings regardless of migration status. In addition, the ASEAN Human Rights Declaration gives some recognition to the right to seek and receive asylum. (Although the provision contains a ‘clawback clause’ that refers to international agreements and the law of the state concerned, these sorts of clauses are usually ‘read down’ in order to ensure that the right in question is meaningful.) The ASEAN Human Rights Declaration means that Southeast Asian states cannot deny that refugees require protection as a matter of international law, having indicated that they believe this is a fundamental human right.
Responses to asylum seekers appear to have varied according to mode of arrival and perceptions as to the eventual destination of the asylum seekers. This is evidenced by a comparison of the response to Rohingya boat arrivals and plane arrivals from the Middle East. The Rohingya are an extremely oppressed group who are deprived of their citizenship by law and in practice, through deprivation of their human rights. The persecution of Rohingya is exactly the kind of situation to which the Refugee Convention and its system of ‘surrogate’ protection was intended to respond. However, states within the region have responded with boat push-backs.
Their response has been a reprise of the actions taken at various points during the Indochinese refugee outflow that followed the end of the Vietnam War. In the case of the Indochinese refugee crisis, the strategy of pushbacks was an effective one. It helped to secure the agreement of many Western countries, such as the United States, Canada, Australia, France and Germany, to resettle the tens of thousands refugees who were arriving in Southeast Asia.
It remains to be seen whether the strategy will be similarly effective today. Malaysia and Indonesia recently agreed that they will shelter Rohingya and Bangladeshi boat arrivals for a year, saying that they expect assistance with resettlement. However, times have certainly changed from the Cold War context of the 1979 Meeting on Refugees and Displaced Persons in South-East Asia and they are also different from the period of operation for the 1989 Comprehensive Plan of Action for Indochinese Refugees, which came into play just months prior to the fall of the Berlin Wall. During the Cold War, commitment to refugees from Communist countries was a driving force for the United States, and the United States took a leadership role in pressing for humane solutions to the outflow of Indochinese refugees.
The treatment accorded to Rohingya boat arrivals in the region may be compared and contrasted with the treatment accorded to asylum seekers from Middle East who are often in transit on their way to Australia. In the recent past, many asylum seekers from the Middle East have arrived by plane in Malaysia because of the relative ease of entry into Malaysia and have then sought to reach Australia on boats organized by people smugglers. The presence of these asylum seekers has been tolerated in Southeast Asian states and they may approach the United Nations High Commissioner for Refugees for determination of refugee status. But they do not enjoy rights such as the right to work. It is therefore not surprising that many are determined to use the services of people smugglers.
There have been tentative steps towards regional cooperation under the auspices of the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime, in particular the endorsement of a Regional Cooperation Framework and the establishment of a Regional Support Office in Thailand. However, the co-chairs of the Bali Process, Indonesia and Australia have been at loggerheads over a number of issues, including Australia’s own program of intercepting boats and returning boats to Indonesian waters.
Australia played a significant role in the Comprehensive Plan of Action for Indochinese refugees, and after the fall of Saigon in 1975 it resettled 150,000 Vietnamese asylum seekers – as was fitting given its involvement in the Vietnam War. However, its approach shifted in the late eighties with the second ‘wave’ of ‘boat people’ and government policy is now overwhelmingly focused on deterrence, rather than cooperation to ensure lawful and therefore safe means of movement. Consequently, Prime Minister Abbott’s response to the Rohingya boat crisis in 2015 has been to rule out resettlement offers from Australia. Australia has also cut back on resettlement from Indonesia. And it has entered into agreements with Nauru, Papua New Guinea and Cambodia to relocate asylum seekers who have sought to reach Australia by boat. Australia is now focused not on regional cooperation, but regional deterrence.
It is questionable whether Australia’s focus on unilateralism and (limited) bilateralism is sustainable. The financial cost is enormous. The risks to safety of life at sea involved in the interception program are also ever-present. Boats have reportedly wrecked on Indonesian shores, and poverty-stricken Indonesian villagers have come to the rescue.
The Australian government has sought to evade scrutiny by maintaining a policy of secrecy with respect to ‘on water’ operations. This policy may backfire, prompting citizens to wonder what the government has to hide. The most recent allegations to emerge are that Australian officials may have paid the crew of a smuggler’s boat to return to Indonesia. The refusal to confirm or deny the allegations has simply led to more speculation that the allegations are true.
A more flexible, collaborative and, in my view, more promising diplomatic response to the offer by Malaysia and Indonesia to shelter Rohingya asylum seekers would have been to offer to twin resettlement offers from Australia with commitments to local integration by those two countries, and to also seek commitments by those countries to become party to the Refugee Convention and the 1967 Protocol. The approach of strategically linking resettlement with local integration in this way has been suggested by respected scholars and advocates such as W. Courtland Robinson and Keane Shum, and the strategic use of resettlement is constantly recommended by the United Nations High Commissioner for Refugees (UNHCR).
Such an approach could meet the needs of Rohingya asylum seekers and lay a foundation for meaningful refugee protection in the region. Higher levels of protection in these countries could undermine the market for people smugglers. Further, perhaps if one of these key states were to become party to the Refugee Convention and Protocol, others might follow suit.
Unfortunately, the Australian government’s approach appears to appeal to the Australian electorate and it will therefore continue for the foreseeable future. Instead of encouraging a collaborative approach that builds refugee protection in the region, we may continue to see a race to the bottom as states follow what Astri Suhrke has aptly named the ‘seductive logic of unilateral action’. The results for refugees and our sense of common humanity are unthinkable.
Penelope Matthew is the Dean and head of the Law School at Griffith University. Her main research areas are human rights, refugee law, femminist theory and international law. She is the author of numerous publications including Reworking the Relationship Between Asylum and Employment (2012, Routledge). The author would like to acknowledge the support of the Australian Research Council for her research into regionalism, responsibility and refugees. The views expressed here are her own.
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