Rights in Exile Programme

Refugee Legal Aid Information for Lawyers Representing Refugees Globally

Refugee Protection in the Asia Pacific Region

 

REFUGEE PROTECTION IN THE ASIA PACIFIC REGION

Resource person: Dr Savitri Taylor is an Associate Professor in the Law School at La Trobe University in Australia.  She is willing to discuss specific issues related to the contents of this page with individuals.

Email: S [dot] Tayloratlatrobe [dot] edu [dot] au 

Twitter: @SavitriTaylor

 

Definition of the Asia Pacific Region

There is no universally adopted definition of the “Asia-Pacific region”.  Unless otherwise stated, the definition adopted for the purposes of this page is the Office of the United Nations High Commissioner for Refugees (UNHCR) operational definition of “Asia & the Pacific” which consists of Central Asia, East Asia and the Pacific, South Asia, South East Asia and South West Asia.  Likewise, UNHCR operational definitions of sub-regions will be used.

 

Relevant International Legal Instruments

As shown in the Table below, many countries in the Asia Pacific region have not been prepared to become parties to the Convention Relating to the Status of Refugees or its Protocol, but some of these countries are at least parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and/or the International Covenant on Civil and Political Rights.  These treaties impose non-refoulement obligations which are not limited in application to “refugees” within the meaning of the Refugee Convention and Protocol and are not subject to exceptions.  Moreover, the principle of non-refoulement is generally regarded as being part of customary international law and thus binding even on states which are not parties to any of the treaties previously mentioned (Cf James Hathaway, The Rights of Refugees under International Law (Cambridge: Cambridge University Press, 2005), 363-7 who questions the correctness of the orthodox view).

 

Table: Treaty parties at 31 October 2017 (NB reservations and declarations not noted)

Country or territory

Refugee Convention* and/or Protocol*

CAT*

ICCPR*

Central Asia

 

 

 

Kazakhstan

Yes

Yes

Yes

Kyrgyz Republic

Yes

Yes

Yes

Tajikistan

Yes

Yes

Yes

Turkmenistan

Yes

Yes

Yes

Uzbekistan

No

Yes

Yes

East Asia & the Pacific

 

 

 

American Samoa (USA)

Yes

Yes

Yes

Australia

Yes

Yes

Yes

China

Yes

Yes

No

Cook Islands

No

No

No

Federated States of Micronesia

No

No

No

Fiji

Yes

Yes

No

French Polynesia (France)

Yes

Yes

Yes

Hong Kong SAR (China)

No

Yes

Yes

Japan

Yes

Yes

Yes

Kiribati

No

No

No

Macau SAR (China)

Yes

Yes

Yes

Marshall Islands

No

No

No

Nauru

Yes

Yes

No

New Caledonia (France)

Yes

Yes

Yes

New Zealand (including Tokelau)

Yes

Yes

Yes

Niue

No

No

No

North Korea

No

No

Yes (but purported withdrawal)

Northern Mariana Islands (USA)

Yes

Yes

Yes

Palau

No

No

No

Papua New Guinea (PNG)

Yes

No

Yes

Samoa

Yes

No

Yes

South Korea

Yes

Yes

Yes

Solomon Islands

Yes

No

No

Tonga

No

No

No

Tuvalu

Yes

Yes

Yes

Vanuatu

No

Yes

Yes

South Asia

 

 

 

Bhutan

No

No

No

India

No

No

Yes

Maldives

No

Yes

Yes

Nepal

No

Yes

Yes

Sri Lanka

No

Yes

Yes

South East Asia

 

 

 

Bangladesh

No

Yes

Yes

Brunei

No

No (but signed on 22 September 2015)

No

Burma (Myanmar)

No

No

No

Cambodia

Yes

Yes

Yes

East Timor

Yes

Yes

Yes

Indonesia

No

Yes

Yes

Laos

No

Yes

Yes

Malaysia

No

No

No

Mongolia

No

Yes

Yes

Philippines

Yes

Yes

Yes

Singapore

No

No

No

Thailand

No

Yes

Yes

Viet Nam

No

Yes

Yes

South West Asia

 

 

 

Afghanistan

Yes

Yes

Yes

Iran

Yes

No

Yes

Pakistan

No

Yes

Yes

 

* The most recent ratification status data (including reservations and declarations) can be obtained by clicking the hyperlinks. 

 

EXCOM Conclusions

101 countries are members of the Executive Committee of the High Commissioner’s Program (EXCOM), which is responsible for approving UNHCR’s program and budget and also provides advice to the High Commissioner.  At most of its sessions, EXCOM adopts consensus resolutions called Conclusions on International Protection.  While legally non-binding, these EXCOM Conclusions arguably have “strong political authority” (James Hathaway, The Rights of Refugees under International Law, 113-4) and are worth keeping in mind particularly when dealing with Asia Pacific countries which are not parties to the Refugee Convention or Protocol but are members of EXCOM (i.e. Bangladesh, India, Pakistan, and Thailand).

 

The Bangkok Principles on Status and Treatment of Refugees

The Asian-African Legal Consultative Organization (AALCO) is a body which advises its 47 member states on matters of international law.  In 1966, the organization adopted the legally non-binding Bangkok Principles on Status and Treatment of Refugees.  In 1970 it went on to adopt an addendum to the Bangkok Principles dealing with the “right to return” and in 1987 it adopted another addendum dealing with “principles of burden sharing”.

Between 1996 and 2001, the AALCO Secretariat, UNHCR and member states devoted substantial time and resources to discussing and settling upon a revised consolidated text of the Bangkok Principles.  The process culminated in adoption of the legally non-binding Revised Bangkok Principles at AALCO’s 40th session held in June 2001.  The aims of adoption were specified as being, inter alia, to inspire member states to adopt national legislation relating to the status and treatment of refugees and to provide a guide to dealing with refugee problems.  Unfortunately, neither the original nor the revised Bangkok Principles have had much impact on state practice to date.

 

ASEAN Human Rights Declaration

The Association of South East Asian Nations is an inter-governmental organization which was established in 1967.  The ten members of ASEAN are Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand and Viet Nam.  Since 15 December 2008, ASEAN has been governed by the ASEAN Charter, which is a legally binding treaty. 

In November 2012, the ASEAN Heads of State adopted the legally non-binding ASEAN Human Rights Declaration. Article 16 of the Declaration states that “Every person has the right to seek and receive asylum in another State in accordance with the laws of such State and applicable international agreements.”  However, ASEAN members have been reluctant to put asylum seeker issues on ASEAN’s formal agenda because of the perception that it would involve a breach of the Charter principle of non-interference in the internal affairs of member states.

 

The Almaty Process

The Almaty Process was informally inaugurated at a Regional Conference on Refugee Protection and International Migration in Central Asia held in Almaty, Kazakhstan in March 2011.  The Conference was organized by UNHCR, the International Organization for Migration (IOM) and the UN Regional Centre for Preventive Diplomacy for Central Asia and funded by the European Commission.  The five Central Asian republics participated in the conference along with Afghanistan, Azerbaijan, China, Iran, the Russian Federation and Turkey.  Civil society representatives were also present.  At the end of the March 2011 conference, the state participants adopted the legally non-binding Almaty Declaration.  The Declaration emphasized the need to enhance cooperation to control irregular migration in a manner which “preserves the asylum space and is consistent with international law, notably the principle of non-refoulement”.  It also foreshadowed the possible creation of a Regional Cooperation Framework.

In September 2012, officials designated as National Coordinators by Kazakhstan, Kyrgyz Republic, Tajikistan and Turkmenistan met and adopted a proposal for a Regional Cooperation Framework to Address Mixed Movements in Central Asia and a complementary Regional Action Plan.  The proposed Regional Cooperation Framework was described as consisting of “a set of Common Understandings” covering areas where joint action was desirable.  The proposed Regional Action Plan was described as “a menu of concrete actions to be taken in these key areas of Common Understanding” modelled on UNHCR’s 10-Point Plan of Action.

A second Ministerial level regional conference was held in Almaty in June 2013.  It appears that the original goals of this conference were to endorse the Regional Cooperation Framework and Regional Action Plan proposals and to decide on the operating modalities of an on-going Almaty Process.  As things transpired, the June 2013 conference communique formally endorsed a document titled The Almaty Process: Operating Modalities but in relation to the September 2012 Regional Cooperation Framework proposal simply noted that it “could be used as a basis for developing a broader regional cooperation framework”. 

The Operating Modalities document contemplates the establishment of a Support Unit for the Almaty Process with a composition yet to be determined.  In the meantime, the UNHCR and IOM offices in Kazakhstan are undertaking Support Unit functions.  Almaty Process Ministerial Conferences are supposed to be held on a biennial basis and senior officials are supposed to meet annually.

The Almaty process presently has seven members: Afghanistan, Azerbaijan, Kazakhstan, Kyrgyz Republic, Tajikistan, Turkey, and Turkmenistan.

 

The Bali Process and Cognate Initiatives

The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (Bali Process) was inaugurated at a Ministerial level conference co-chaired by Australia and Indonesia in February 2002.  Forty five states and territories are “Bali Process” members.  All of the countries in UNHCR’s operational sub-regions of East Asia and the Pacific, South Asia, South East Asia and South West Asia are members as are Iraq, Jordan, Syria, Turkey, the United Arab Emirates and the United States of America.  Several other countries participate as observers.  IOM, UNHCR, and the United Nations Office on Drugs and Crime are also Bali Process members, with ten other intergovernmental organizations and processes able to participate as observers.

At the Fourth Regional Ministerial Conference of the Bali Process, Ministers agreed to a legally non-binding Regional Cooperation Framework (RCF) which is set out in the Final Co-Chairs’ Statement of 30 March 2011.  In the Final Co-Chairs’ Statement, it was also stated that Ministers saw the UNHCR discussion paper entitled Regional Cooperative Approach to address Refugees, Asylum-Seekers and Irregular Movement, which was presented at the Ad Hoc Group UNHCR Regional Cooperation on Refugees and Irregular Movements Workshop in Manila on 22 to 23 November 2010, as being a “useful foundation for operationalizing the framework” (para. 23).

A Regional Support Office was established in September 2012 to facilitate the operationalization of the RCF.  It is located in Bangkok but is under the co-management of Australia and Indonesia.

On 20 August 2013, Ministers from 13 source, transit and destination countries meeting in Jakarta adopted the legally non-binding Jakarta Declaration on Addressing Irregular Movement.  Although the meeting was not held under Bali Process auspices, the Jakarta Declaration references the Bali Process and the RCF.  Like the RCF, the Jakarta Declaration is primarily focused on border control.  However, UNHCR gave the Declaration an enthusiastic reception, because, like the RCF, it affirms a commitment on the part of the states concerned to a protection-sensitive approach to cooperation.

On 29 May 2015, high-level representatives from 17 regional countries participated in a Special Meeting on Irregular Migration in the Indian Ocean in Bangkok, along with representatives from UNHCR, IOM and UNODC.  Representatives of several other countries were present as observers.  The meeting had been called by the Thai Government in response to a sharp rise in irregular sea movement mostly by stateless Rohingya from Burma and Bangladeshis, though use of the term “Rohingya” was resolutely avoided in order to secure the participation of the Burmese Government.  The meeting resulted in “proposals and recommendations [being] put forward” for protection of people stranded at sea; prevention of irregular migration and the smuggling and trafficking of people; and addressing (unspecified) root causes.  The participants also agreed to continue discussions bilaterally and regionally, including through the Bali Process.  UNHCR described the meeting outcomes as “positive”, but also alluded to the elephant in the room saying “[a] key part of the solution lies in addressing the root causes of flight, including citizenship issues in Myanmar.”  A second Special Meeting on Irregular Migration in the Indian Ocean was held on 4 December 2015 with no discernible outcome.

At the Sixth Regional Ministerial Conference of the Bali Process, Ministers adopted the legally non-binding Bali Declaration on People Smuggling, Trafficking in Persons, and Related Transnational Crime of 23 March 2016.  The Declaration emphasizes that irregular migration “requires a comprehensive regional approach, based on the principles of burden sharing and collective responsibility” (para 3). It refers to the need “to address the root causes of irregular movement” (para 4), “to enhance safe and orderly migration pathways” (para 4), and to take a “victim-centred and protection sensitive approach” to managing irregular migration, including through improved identification of those in need of protection and the grant of protection to them (para 5).  The Declaration encourages member states “to identify more predictable disembarkation options” for irregular maritime migrants (para 5) and also says:

“We encourage member states to explore potential temporary protection and local stay arrangements for asylum seekers and refugees, subject to domestic laws and policies of member states. We acknowledge the need for adequate access to irregular migrants wherever they are, by humanitarian providers especially the UNHCR and the IOM, as appropriate. We encourage member states to explore alternatives to detention for vulnerable groups.” (para 6)

The Declaration goes on to encourage the implementation of law enforcement responses to people smuggling and trafficking (para 8), welcome the provision of both resettlement places and “appropriate local solutions” for refugees (para 9) and recognize that “timely, safe and dignified return of those found not to be entitled to international migration is an important element of orderly migration” (para 10). It also foreshadows a “mechanism of the Bali Process to facilitate timely and proactive consultation to respond to emergency situations” (para 14).

UNHCR welcomed the Bali Declaration in a statement which also calls for “a new compact that finds creative ways to absorb people in need of international protection within the region”.

In March 2017, Australia and Indonesia announced the establishment of a Bali Process Government and Business Forum which is intended to enable government-business cooperation in combating human trafficking and related exploitation.  The Forum met for the first time in August 2017.

In September 2017, at the instigation of the co-chairs, the Bali Process Steering Committee (consisting of Australia, Indonesia, Thailand, New Zealand, UNHCR and IOM) decided to trigger the consultation mechanism foreshadowed in the Bali Declaration in response to a new outflow of Rohingyas from Burma, mainly to Bangladesh.  As a first step, senior officials of Bangladesh, Burma and Steering Committee members had a confidential meeting in Jakarta on 13 October 2017 at which they agreed to continue to engage in non-public dialogue on the issue.

 

Australia’s Role in the Region

On 15 June 2015, the United Nations High Commissioner for Human Rights said:

“Australia’s response to migrant arrivals has set a poor benchmark for its regional neighbours. The authorities have also engaged in turn-arounds and push-backs of boats in international waters. Asylum-seekers are incarcerated in centres in Papua New Guinea and Nauru, where they face conditions that the Special Rapporteur on Torture has reported as amounting to cruel, inhuman or degrading treatment as defined by CAT. They also violate the Convention on the Rights of the Child, as the Australian Human Rights Commission has justifiably declared. Even recognized refugees in urgent need of protection are not permitted to enter Australia, which has set up relocation arrangements with countries that may be ill-prepared to offer them any durable solution.

Such policies should not be considered a model by any country.”

The arrangements to which the High Commissioner was referring are described below.

 

Australia’s Arrangements with Nauru and Papua New Guinea

In August 2012, the Australian government procured amendments to the Migration Act 1958 (Cth) giving the Minister for Immigration the power to designate a country as a “regional processing country” as long as he or she thinks it is in the national interest to do so.  The only safeguard against an inappropriate designation is the power which federal parliament has to disallow the legislative instrument making the designation.

The legislative amendments cleared the way to establish capacity on Nauru and PNG to process the asylum claims of unauthorized maritime arrivals (UMAs) transferred from Australia.  The governments of Nauru and PNG agreed to such capacity being established and UMAs arriving in Australia after 13 August 2012 were warned that they “risk[ed] transfer to a regional processing country”.

On 29 August 2012, Australia and Nauru signed a legally non-binding Memorandum of Understanding (MoU) relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues.

The governments of Australia and PNG, in fact, had a legally non-binding MoU relating to the Transfer to and Assessment of Persons in Papua New Guinea, and Related Issues in place between them since 19 August 2011.  After amending the Migration Act in 2012, the Australian government entered into further negotiations with the PNG government which resulted in the signing on 8 September 2012 of an updated version of the MoU.

Of particular note in the present context, Australia’s MoUs with both Nauru and PNG referenced the RCF in their preamble and one of the stated objectives of each MoU was “to continue discussions as to how the [Assessment Centre (PNG)/Regional Processing Centre (Nauru)] might over time undertake a broader range of functions under the regional cooperation framework”.

On 10 September 2012, the Australian Minister for Immigration designated Nauru as a regional processing country despite UNHCR expressing concern.  On 9 October 2012, the Minister designated PNG as a regional processing country.  Again, the designation was made despite UNHCR expressing concern.  Both designations were approved by federal parliament and are in force.

On 19 July 2013, the Prime Ministers of Australia and PNG announced that the two countries had entered a Regional Resettlement Arrangement (RRA).  The arrangement was later formalized in a new MoU which replaced the one signed on 8 September 2012.  Pursuant to the RRA, UMAs arriving in Australia following 19 July 2013 can be transferred to PNG for processing of asylum claims and, if found to be refugees, will be resettled in PNG or another “participating regional, including Pacific Island, state” but not in Australia.  On 3 August 2013, the Prime Minister of Australia and the President of Nauru announced that they had signed a new MoU to replace the one signed on 29 August 2012.  The new MoU provides for UMAs arriving in Australia to be transferred to Nauru for processing of asylum claims and for their resettlement in Nauru if found to be refugees, subject to the case-by-case agreement of the Nauruan government.  Australia’s current Coalition government pressed ahead with the implementation of the MoUs with both Nauru and PNG. 

Thus far, Nauru has only been prepared to grant 20 year visas to transferees whom it recognizes as refugees (extended from first five and then ten years).

At the beginning of 2015, the PNG government informed transferees that those recognized as refugees by PNG would be granted refugee visas, which would need to be renewed annually, and would be able to apply for citizenship after eight years of residence.  However, resettlement commenced only after Cabinet endorsed PNG’s National Refugee Policy in October 2015. 

On 26 April 2016, the PNG Supreme Court ruled that amendments to the PNG Constitution intended to enable the detention of transferees at a processing centre built on the Lombrum naval base on Manus Island PNG were invalid and that such detention was therefore unconstitutional and illegal.  The court ordered the illegal detention to be brought to an end.  The following day, the PNG Prime Minister announced that the processing centre would be closed and the Australian government would be asked to make “alternative arrangements” for the asylum seekers held at the processing centre.  He added that those found to be “legitimate refugees” were welcome to settle in PNG if they wished to do so.  Subsequently, the transferees, who continued to live in the processing centre compounds, were given the same (restricted) freedom of movement as others living on the Lombrum naval base.  On 13 March 2017, the PNG Supreme Court held that, as a result of the new arrangements, the PNG government had complied with its April 2016 order to end the illegal detention of the transferees.  Nevertheless, on 8 April 2017, the Prime Ministers of Australia and PNG agreed to work towards closing the Manus process centre by 31 October 2017.  Residents of the centre were informed that by that date they would have to move to designated alternative accommodation in Lorengau, the main town on Manus Island, where services would be provided.  Recognised refugees were given the option of being transferred to Nauru instead.  Those found not be refugees were given the option of assisted voluntary repatriation, with the eventual alternative being forced repatriation.  Australia is underwriting the costs of these arrangements as required by the RRA.  At 5pm on 31 October, all contractors, Australian officials and PNG immigration officials left the Manus processing centre, electricity and water were cut off and all service provision ceased.  However, as at 2 November 2017, 606 transferees were still refusing to leave the centre saying that they feared for their safety outside it.  Compounding their dilemma, if they had all been prepared to relocate, the capacity of the alternative accommodation then available would have been exceeded.

 

Australia’s Arrangement with Cambodia

The legally non-binding Memorandum of Understanding between the Government of the Kingdom of Cambodia and the Government of Australia, Relating to the Settlement of Refugees in Cambodia was signed on 26 September 2014.  It will remain in effect for four years unless terminated earlier by either party giving six months’ written notice (clause 17).

The MoU, which makes reference to the agreement on regional cooperation reached at the Fourth Ministerial Conference of the Bali Process, provides for the permanent settlement in Cambodia of persons recognized as refugees in Nauru who also “meet the entry and settlement requirements of the Kingdom of Cambodia” (clause 4).  The MoU emphasizes that such settlement must be voluntary on the part of the refugees and that the “number of Refugees settled, and the timing of their arrival into Cambodia under this MOU, will be subject to the consent of the Kingdom of Cambodia” (clause 5).  The Cambodian government indicated that it would be trialing the arrangement with three to four people in the first instance.  The first four refugees to be settled under the arrangement arrived in Cambodia on 4 June 2015.  A fifth refugee was settled in Cambodia in November 2015, a sixth in November 2016 and a seventh in May 2017.

The MoU provides for settled refugees to be given permanent resident status under Cambodian law (clause 8) and to be treated in accordance with Cambodia’s Refugee Convention obligations (clause 9).  The Operational Guidelines accompanying the MoU make specific reference to freedom of movement, access to public education, work rights, and family reunion.

Australia has agreed to assist Cambodia to provide “settlement services for the integration of Refugees into the Cambodian community” (clause 10).  The services are supposed to be “commensurate with local community standards” and “delivered at a location outside of Phnom Penh” (clause 10).  The Operational Guidelines accompanying the MoU elaborate on the services to be provided and state that they will be provided for an initial period of 12 months with the need for extension being assessed on a case-by-case basis.  Disquietingly, Operational Guideline 25 additionally provides that, within 12 months of settlement, “Australia will help facilitate the process of voluntary repatriation of the Refugees under the MOU to their country of nationality, or to another country where the Refugee has a right to enter and reside, as consented or requested by the Refugee.”  In fact, four of the seven refugees have since returned home.

As well as undertaking to “bear the direct costs of the settlement arrangements” (clause 12), Australia is providing an additional AUD 40 million in development assistance to Cambodia over four years in exchange for its cooperation (clause 11).

UNHCR has stated that it is “deeply concerned” at the precedent set by the Australia-Cambodia Arrangement which it describes as “a worrying departure from international norms”.

 

Australia’s Arrangement with the United States

On 13 November 2016, the Australian government announced that UMAs, who had already arrived and been transferred to Nauru or PNG, would be considered for refugee resettlement in the United States by officials of that country upon referral by UNHCR.  After taking office in January 2017, President Trump reluctantly agreed to honour the deal to resettle up to 1,250 refugees who passed the United States’ strict vetting process.  As at 23 October 2017, 25 refugees from PNG and 29 from Nauru had been given places in the United States resettlement program for the fiscal year ending 30 September 2017 and Australia anticipated that more would be given places in the resettlement program for the fiscal year ending 30 September 2018.

 

Civil Society Initiatives

The Asia Pacific Refugee Rights Network (APRRN) is a network of civil society organizations and individuals with a commitment to advancing refugee rights in the Asia Pacific region.  APRRN, which was established in November 2008, engages in information sharing, mutual capacity building and advocacy.  It has developed its own Vision for Regional Protection.  APRRN is developing a Research and Consultation Strategy and a Plan of Action to support achievement of its Vision.

Another civil society initiative is the Asia Dialogue on Forced Migration (formerly called the Track II Dialogue on Forced Migration) which commenced in August 2015 and consists of a series of meetings convened by the Centre for Policy Development and partner organizations.  The Co-Chairs’ Statement of the Senior Official’s Meeting which preceded the Sixth Regional Ministerial Conference of the Bali Process welcomed input from the Dialogue and supported a recommendation made by it to review the region’s response to the previous year’s Indian Ocean irregular migration crisis and to draw lessons from it.  The recommendation found its way into the Ministerial Conference Final Co-Chairs’ Statement, though without acknowledgement of its provenance.

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