protection of refugees and displaced persons in the asia pacific region

Protection of refugees and disPlaced Persons

in the asia Pacific region

law ethics and governance seriesseries editor charles sampford director Key centre for ethics law

Justice and Governance Griffith University Australia

recent history has emphasised the potentially devastating effects of governance failures in governments government agencies corporations and the institutions of civil society lsquogood governancersquo is seen as necessary if not crucial for economic success and human development although the disciplines of law ethics politics economics and management theory can provide insights into the governance of organisations governance issues can only be dealt with by interdisciplinary studies combining several (and sometimes all) of those disciplines this series aims to provide such interdisciplinary studies for students researchers and relevant practitioners

Also in this series

Intellectual Libertynatural rights and intellectual Property

hugh BreakeyisBn 978-1-4094-4711-5

Health Workforce Governanceimproved access good regulatory Practice safer Patients

edited by stephanie d short and fiona McdonaldisBn 978-1-4094-2921-0

Ethics and Socially Responsible Investmenta Philosophical approach

William ransome and charles sampfordisBn 978-0-7546-7581-5

Improving Health Care Safety and Qualityreluctant regulators

Judith healyisBn 978-0-7546-7644-7

Idealism and the Abuse of Powerlessons from chinarsquos cultural revolution

Zhuang hui-yunisBn 978-0-7546-7208-1

Integrity Systems for Occupationsandrew alexandra and seumas Miller

isBn 978-0-7546-7749-9

Protection of refugees and displaced Persons

in the Asia Pacific Region

Edited by

angus francis and roWena MaguireQueensland University of Technology Australia

V

copy angus francis and rowena Maguire 2013

all rights reserved no part of this publication may be reproduced stored in a retrieval system or transmitted in any form or by any means electronic mechanical photocopying recording or otherwise without the prior permission of the publisher

angus francis and rowena Maguire have asserted their right under the copyright designs and Patents Act 1988 to be identified as the editors of this work

Published by ashgate Publishing limited ashgate Publishing companyWey court east 110 cherry streetunion road suite 3-1farnham Burlington Vt 05401-3818surrey gu9 7Pt usaengland

wwwashgatecom

British Library Cataloguing in Publication Data Protection of refugees and displaced persons in the asia Pacific region -- (Law ethics and governance) 1 Refugees--Protection--Pacific Area 2 Refugees-- Civil rights--Pacific Area 3 Refugees--Government policy--Pacific Area i series ii francis angus iii Maguire rowena 3628rsquo7rsquo091823-dc23

The Library of Congress has cataloged the printed edition as followsProtection of refugees and displaced persons in the Asia Pacific region edited By Angus Francis and rowena Maguire pages cm -- (law ethics and governance) includes bibliographical references and index isBn 978-1-4094-5540-0 (hardback alk paper) -- isBn 978-1-4094-5541-7 (ebook) -- isBn 978-1-4724-0155-7 (epub) 1 Refugees--Legal status laws etc--Pacific Area 2 Responsibil-ity to protect (International law)--Pacific Area 3 Humanitarian intervention--Pacific Area 4 Asylum Right of--Pacific Area 5 Forced migration--Pacific Area I Francis Angus editor of compilation ii Maguire rowena editor of compilation KVc145r44P76 2013 342508rsquo3--dc23

2013003633

isBn 978-1-4094-5540-0 (hbk)isBn 978-1-4094-5541-7 (ebk ndash Pdf)isBn 978-1-4724-0155-7 (ebk ndash ePuB)

Contents

List of Figures and Tables viiList of Contributors ix

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

Angus Francis and Rowena Maguire

2 Responsibility Regionalism and Refugees What Lessons for Australia 13

Penelope Mathew

3 Civil Society and the Fight for Refugee Rights in the Asia Pacific Region 35

Savitri Taylor

4 The Search for Protection in Southeast Asia 53 Taya Hunt and Nikola Errington

5 Refugee Protection in China The Issue of Citizenship and Potential Solutions 67

Liang Shuying

6 Prospects for Refugee Rights in Hong Kong Towards the Legalization and Expansion of Protection from Refoulement 75

Kelley Loper

7 Migration and the Refugee Regime in Malaysia Implications for a Regional Solution 95

Amarjit Kaur

8 Challenges and Opportunities in Respecting International Refugee Law in Indonesia 117

Bhatara Ibnu Reza

Protection of Refugees and Displaced Persons in the Asia Pacific Regionvi

9 Irregular Migration Refugee Protection and the lsquoMalaysian Solutionrsquo 135

Peter Billings and Anthony Cassimatis with Marissa Dooris

10 Revisiting the Concept of Protection in International Refugee Law Implications of the Protracted Refugee Situation on the ThaindashMyanmar Border 171

Akiko Okudaira and Hitoshi Nasu

11 Internally Displaced Persons in Northern Thailand Involuntary Relocation and the Need for Regulation 185

Photchanat Intaramanon

12 The International Regulation of Persons Displaced by Climate Change 201

Rowena Maguire and Louise Kruger

13 Conceptualising Climate-Induced Displacement in Bangladesh 225 Mostafa Mahmud Naser

Index 245

List of Figures and Tables

Figures

71 Malaysia foreign workers employed in the main economic sectors 1999ndash2008 (per cent) 108

72 Malaysia foreign workers by country of origin 1999ndash2008 (per cent) 109

73 Immigration Detention Camps (IDCs) in Peninsular Malaysia 2012 111

Tables

31 AsiaPacificrefugeeandasylumseekerpopulationin2011 3632 Table of formal interviews 52

71 Refugee and PIRLS population in Malaysia by country of origin 2000ndash2010 115

81 Number of illegal immigrants in Indonesian Immigration Detention Houses as at March 2012 131

91 RefugeenumbersinSouth-EastAsiaandthePacificRegion 137

111 IDPs in northern Thailand during 1981ndash2005 190

This page has been left blank intentionally

List of Contributors

Peter Billings is a Senior Lecturer at the TC Beirne School of Law the University of Queensland Brisbane and a fellow of the Centre for Public International and Comparative Law He is also the Director of Mooting in the Law School His research interests are in particular areas of public law administrative law immigration and refugee law social welfare law and the law relating to Indigenous Australians

Anthony Cassimatis is an Associate Professor at the TC Beirne School of Law University of Queensland He holds the degrees of Bachelor of Arts and Bachelor of Laws (with First Class Honours) from the University of Queensland and Master of Law from the University of Cambridge In 2004 he was awarded a PhD in law by the University of Queensland His doctoral thesis which examined human rights-related trade measures under international law was published by Martinus Nijhoff in 2007 Anthony teaches administrative law and public international law He is a fellow and member of the executive of the Centre for Public International and Comparative Law at the University of Queensland and is the chairperson of the Red Cross Queensland International Humanitarian Law Committee Anthony is the author or co-author of three books and numerous articles and book chapters on public international law administrative law and legal advocacy

Marissa Dooris BA LLB (Hons) graduated from the University of Queensland in 2012 She works for Corrs Chambers Westgarth Lawyers in Brisbane Marissa was a founding member of the Asylum and Refugee Law Project hosted at the TC Beirne School of Law University of Queensland Nikola Errington completed her combined ArtsLaw degree at Griffith University followed by her Masters in Law through the ANU Nikola worked in a Japanese law firm upon graduation and subsequently took up the position of Legal Officer at the Jesuit Refugee Service Cambodia in 2011 She is currently working in the Protection Unit for UNHCR Somalia based in Hargeisa Somaliland

Angus Francis is the Principal Solicitor at the Refugee and Immigration Legal Service in Brisbane and an Adjunct Professor to the Faculty of Law at the Queensland University of Technology He has taught immigration and refugee law to undergraduate and postgraduate students at various Australian universities for over a decade His research in the area has been published in a number of refereed journals including the International Journal of Refugee Law the Immigration and

Protection of Refugees and Displaced Persons in the Asia Pacific Regionx

Nationality Law Review the Melbourne University Law Review the Australian Journal of Human Rights the Alternative Law Journal and the Australian International Law Journal He has consulted on Australiarsquos asylum policy to major political parties international organizations and Senate inquiries and has worked as a volunteer migration agent and solicitor at the Refugee and Immigration Legal Service (previously SBICLS) on and off since 1990 He was a visiting fellow at the Refugee Studies Centre Oxford University in 1996ndash97 and 2003 His doctoral thesis examining refugee status determination in Australia and other jurisdictions was completed at ANU

Taya Hunt completed her combined Bachelor of LawsBachelor of Arts degree at QUT in 2006 followed by one year as associate to Her Honour Judge Fleur Kingham Taya then worked for a number of years as a refugee lawyer with the Jesuit Refugee Service in Cambodia and Thailand During this time she researched and co-authored a report on refugee status determination and protection space in Cambodia Thailand Malaysia Indonesia and the Philippines Taya currently works as a solicitor for the Refugee and Immigration Legal Service (RAILS) and teaches the RAILSGriffith University Refugee Law Clinic

Photchanat Intaramanon is a lecturer at the Chiang Rai College of Agriculture and Technology as well as lecturing at the Rajabhat Chiang Rai University in Human Rights Photchanat is also the Sub Commissioner on Ethnic Issues for the National Human Rights Commission of Thailand and Director of the Centre for Sustainable Communities

Amarjit Kaur is a professor in the Business School at the University of New England Australia Currently she is engaged in researching an ARC discovery project on Managing the Border Migration Security and State Policy Responses to Global Governance in Southeast Asia She has a background in forced migration with a focus on trafficking and refugee issues in Southeast Asia and immigration Other migration projects include studies of the Indian and Sikh diasporas and evolving diaspora cultures in Southeast Asia (with colleagues at the South Asian studies programme and the Institute of Southeast Asian Studies National University of Singapore) Most recent publications include Wage Labour in Southeast Asia since 1840 Globalisation the International Division of Labour and Labour Transformations (Palgrave Macmillan 2004) Mobility Labour Migration and Border Controls in Asia (Palgrave Macmillan 2006) and three special journal issues titled lsquoMigrant Labour in Southeast Asia Needed not wantedrsquo (2005) 39(2) RIMA

Louise Kruger holds a Bachelor of Arts from University of Queensland and a Bachelor of Law (Hons) from the Queensland University of Technology Louise was the university law medalist in the Faculty of Law at QUT in 2010 Currently

List of Contributors xi

she is employed by Ashurst Australia and is undertaking a secondment at the North Australian Aboriginal Justice Agency in Katherine Northern Territory Australia

Kelley Loper joined the Faculty of Law at the University of Hong Kong in September 2006 She serves as Director of the LLM in Human Rights Programme Deputy Director of the Centre for Comparative and Public Law (CCPL) on the Editorial Committee of Hong Kong Law Journal and as Co-convener of the Emerging Strategic Research Theme on Diversity at the University of Hong Kong She also serves as Chair of the Board of Directors of the Hong Kong Refugee Advice Centre a non-governmental organization which provides legal representation and assistance to asylum seekers

Rowena Maguire is a lecturer in the law school at the Queensland University of Technology and a research affiliate at the Cambridge Centre for Climate Change Mitigation Research Rowenarsquos principal research interests and publications concern international climate and forest regulation and indigenous and community groupsrsquo rights and responsibilities in connection with environmental management She teaches law in context international law and environmental law within the law school at QUT In addition Rowena has worked on a number of donor funded consultancy projects designing and delivering environmental and developmental training programmes for groups from Kenya China Vietnam and the Pacific

Penelope Mathew is the Freilich Foundation Professor ANU Public Policy Fellow at the Australia National University Her primary research interests are international law human rights law refugee law and feminist theory Prior to her appointment at the Freilich Foundation Professor Mathew was a visiting professor and interim Director of the Program in Refugee and Asylum Law at the University of Michigan Law School where she convened the 5th Michigan Colloquium on Challenges in International Refugee Law From 2006ndash2008 she was a legal adviser to the ACT Human Rights Commission where she conducted the Human Rights audit of the ACTrsquos Correctional Facilities Professor Mathew has also taught at the ANU College of Law and Melbourne Law School and she is a past editor-in-chief of the Australian Yearbook of International Law In 2001 Professor Mathew advised the UN High Commissioner for Refugeesrsquo regional office for Australia New Zealand Papua New Guinea and the South Pacific concerning the problems with Australian legislation underpinning the so-called lsquoPacific Solutionrsquo She was also a participant in the third expert panel on refugee law organized by UNHCR during 2001 as part of the lsquoglobal consultationsrsquo on the 1951 Convention relating to the Status of Refugees and in 2010 she participated as an invited expert in the High Commissionerrsquos annual Dialogue In 2008 she was presented with an International Womenrsquos Day award by the ACT government for her outstanding contribution to human rights and social justice

Protection of Refugees and Displaced Persons in the Asia Pacific Regionxii

Mostafa Mahmud Naser is a PhD candidate at Macquarie Law School Currently he is on study leave from the University of Chittagong where he was serving as an assistant professor in law He obtained LLB (Hons) and LLM degrees from the University of London and the University of Chittagong respectively He also holds a Postgraduate Diploma on International Humanitarian Law from the NALSAR University of Law India His areas of interest and specialization include international human rights law international humanitarian law migration and refugee law and international environmental law

Hitoshi Nasu is a senior lecturer in law at the Australian National University teaching international law international security law international humanitarian law military operations law and migration law He holds Bachelor and Masters degrees in political science from Aoyama Gakuin University and a Masters degree and a PhD in law from the University of Sydney He is the author of International Law on Peacekeeping A Study of Article 40 of the UN Charter (Martinus Nijhoff 2009) and a co-editor of Human Rights in the Asia-Pacific Region Towards Institution Building (Routledge 2011) He is currently the lead investigator on an Australian Research Council Discovery Grant for the project entitled Developing Australiarsquos Legal Response to Military and Security Applications of Nanotechnology with Professor Tom Faunce and Dr Margaret Kosal

Akiko Okudaira commenced her PhD studies at the Asia-Pacific College of Diplomacy in February 2010 under the support of the ANU Japan Alumni PhD Scholarship Her thesis revisits the notion of lsquoprotectionrsquo which lies at the heart of the international refugee regime since its inception in 1951 but is one that is undergoing a critical transformation in todayrsquos prolonged nature of human displacement Akikorsquos experience prior to joining the APCD includes working as a research analyst on South East Asian affairs for the Ministry of Foreign Affair of Japan a manager for Japan Association for UNHCR (United Nations High Commissioner for Refugees) and a refugee protectionresettlement intern for the UNHCR Field Office in Mae Sot Thailand She holds an MIS (Adv) in Peace and Conflict Resolution from the University of Queensland as a Rotary World Peace Fellow and an MA in International Communication from Aoyama Gakuin University

Bhatara Ibnu Reza is an operational director and a researcher of IMPARSIAL the Indonesian Human Rights Monitor He is also an expert-member and a spokesperson of the Indonesian Civil Society for the International Criminal Court and a member of the international Coalition for the International Criminal Court He works as a visiting lecturer in international law and international relations in several universities in Jakarta Tangerang and Bandung in Indonesia He has also authored several publications that can be found in the Indonesian Journal of International Law the National Commission of Human Rights Journal and many local publications He is also a writer and an editor in almost all IMPARSIALrsquos

List of Contributors xiii

research and publications including lsquoMilitary Justice Reform in Indonesiarsquo (2007) lsquoReformation in Crossroad The Bill of National Defence Reserve Componentrsquo (2008) lsquoInveighing Death Penalty in Indonesiarsquo (2010) lsquoSecuritization in Papua The Implication on Security Approach towards Human Rights Condition in Papuarsquo (2011) and lsquoThe Dilemma of National Security Regulationsrsquo (2013) He graduated from Trisakti University in international law and holds two Masterrsquos degrees in International Relations from the University of Indonesia and in International Human Rights from the Northwestern University School of Law where he graduated with honours and was enrolled as a Fulbright Scholar

Liang Shuying graduated from Beijing Institute of Political Science and Law (now China University of Political Science and Law) and taught there after graduation and is now Professor there She is Director of the Chinese Society of International Law standing Vice-chairman of the Beijing International Law Society consultant to the Beijing Municipal Peoplersquos Congress on legislation and is listed in the expert database by the NPC Commission of Legislative Affairs She has been invited to foreign-related legislation activities organized by the state and the government many times Professor Liang studied outer space law at the University of Mississippi from 1987 to 1988 In 1995 she was invited to participate in the International Public Law Conference of the United Nations Professor Liang has a strong record in academic research Her main publications include The Treatment of Foreigners in China (a winner of the second prize of Excellent Scientific Research Achievement during the Ninth Five-Year Plan by the Ministry of Justice) Public International Law (as the chief editor winning the Excellent Teaching Material Award in his university) Research on International Legal Issues International Public Law Case Study Guidebook for Self-study University Candidates on International Law A Comprehensive Book of Lawyer Affairs and others

Savitri Taylor is the Director of Research in the School of Law Dr Taylorrsquos own area of research interest is refugee law and asylum policy at the national regional and international level Her most recently completed research project an ARC Linkage Project conducted by Dr Taylor and Professor Sandra Gifford of the La Trobe Refugee Research Centre in partnership with Oxfam Australia and Jesuit Refugee Service Australia looked at the impact of Australiarsquos border control cooperation with Indonesia and PNG on the human rights of asylum seekers and host communities in those two countries Dr Taylorrsquos current research project investigates the feasibility and desirability of an Asia Pacific regional protection framework Dr Taylor is Deputy Editor of the refereed international relations journal Global Change Peace and Security and an Editorial Board member of the refereed law journal Law in Context She is also very involved with the refugee sector in Australia and the region being among other things a member of the Management Committee of the Refugee and Immigration Legal Centre Inc in Victoria and an individual member of the Asia Pacific Refugee Rights Network


Chapter 1

Shifting Powers Protection of Refugees and Displaced

Persons in the Asia Pacific RegionAngus Francis and Rowena Maguire

Introduction

The United Nations High Commissioner for Refugeesrsquo (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 2149000 refugees the Americas Europe and Middle East and North Africa hosted 513500 1605500 and 1889900 respectively while the Asia Pacific hosted a staggering 37939001 The fact that 35 per cent of the worldrsquos refugees reside in the Asia Pacific coupled with the fact that 84 per cent of refugees displaced in Asia remain in the region2 raises the questions why so few countries in the region are signatories to the Convention relating to the Status of Refugees (lsquoRefugee Conventionrsquo) or cognate rights instruments3 and why no formally binding regional agreement exists for the equitable sharing of responsibilities for refugees

Building on earlier works4 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

1 Global Trends 2011 (UNHCR 2011) 13 ltwwwunhcrorg4fd6f87f9htmlgt accessed 5 December 2012

2 ibid p 113 Of the 147 states parties to the Refugee Convention andor its Protocol only six are

from Southeast Asia and East Asia (Cambodia China Japan the Philippines the Republic of Korea and Timor-Leste) Notable states that are not parties to either instrument include Vietnam Myanmar Laos Thailand Singapore Malaysia Indonesia and Mongolia

4 S Kneebone and F Rawlings-Sanaei (eds) New Regionalism and Asylum Seekers Challenges Ahead (Oxford 2007) H Adelman (ed) Protracted Displacement in Asia No Place to Call Home (Ashgate 2008)

Protection of Refugees and Displaced Persons in the Asia Pacific Region2

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 lsquoAsia Pacificrsquo 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 lsquoAsia Pacificrsquo 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 origin6 The Refugee Convention extends a number of socio-economic rights to refugees7 which are supported and

5 Convention relating to the Status of Refugees opened for signature 28 July 1951 189 UNTS 150 (entered into force 22 April 1954) art 33

6 Article 3 of the Convention against Torture contains an express prohibition on return of a person to a place where they are at risk of torture The International Covenant on Civil and Political Rights has an implicit non-refoulement obligation as recognized by the UN Human Rights Committee ARJ v Australia CCPRC60D6921996 (UN Human Rights Committee (HRC) 11 August 1997) 68ndash69

7 For example the rights to wage-earning employment (art 17) self-employment (art 18) housing (art 21) rationing (art 20) and public education (art 22)

Shifting Powers 3

supplemented by the rights found in the International Covenant on Economic Social and Cultural Rights8

While containing an impressive array of rights as discussed in Penelope Mathewrsquos 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 lsquoburdensrsquo 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 Mathewrsquos chapter goes on to explore the regional arrangements that have evolved to deal with refugee flows She observes that lsquoit is apparent that ldquoregionalismrdquo can be used and invoked quite deliberately in ways that do not necessarily go hand-in-hand with responsibility sharing or protection of refugeesrsquo She therefore cautions that when considering regional approaches in the Asia Pacific or elsewhere it is important to consider lsquohow regional arrangements have developed what sort of ldquoregionalismrdquo they embody how they engage countries outside the region whether they share responsibility fairly and whether they result in protection and durable solutions for refugeesrsquo

An lsquoAsia Pacificrsquo Approach to Refugee Protection and Displacement

The lsquoAsia Pacificrsquo 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 Nasursquos 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

8 J Hathaway The Rights of Refugees Under International Law (Cambridge University Press 2005) 499


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 Taylorrsquos 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 Rezarsquos 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 lsquopreoccupied with economic development and with the broader dimensions of managing mixed migration rather than refugee issuesrsquo10 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 lsquotrend away from special and separate

9 Statement by Erika Feller Assistant High Commissioner (Protection) Fourth Bali Regional Ministerial Conference 30 March (UNHCR 2011)

10 R Towle lsquoProcesses and critiques of the Indo-Chinese Comprehensive Plan of Action an instrument of international burden-sharingrsquo (2006) 18 International Journal of Refugee Law 537 568

Shifting Powers 5

approaches to refugees and the victims of forced displacement is likely to continuersquo11

Amarjit Kaurrsquos 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 Malaysiarsquos Foreign Minister indicate the largely Burmese refugee population in Malaysia is associated in policy terms with the two million unauthorized workers in Malaysia12 The same discussion also demonstrates that Malaysiarsquos 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 wage13 Amarjit Kaur traces the politicization of refugees to the Malaysian governmentrsquos tough position on Indochinese refugees in the 1970s and 1980s

Malaysiarsquos approach can be contrasted to the treatment of Indochinese refugees settled in China since the 1970s who generally enjoy basic rights to lsquolife production employment education and medical carersquo14 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 education15 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 Crime16 In his chapter Bhatara Ibnu Reza observes that recent

11 ibid12 lsquoMalaysia finds ldquoconflictrdquo in UN Refugee Conventionrsquo Australia Network

Newsltwwwabcnet aunews2012-11-12an-malaysia-speaks-on-refugee-treatment4367642gt accessed 5 December 2012

13 ibid14 Chinarsquos relation with UNHCR (Ministry of Foreign Affairs of the Peoplersquos

Republic of China 2003) ltwwwmfagovcnengwjbzzjggjsgjzzyhy25942600t15188htmgt accessed 29 June 2011

15 Regional Operations Profile mdash East Asia and the Pacific (UN High Commissioner for Refugees 2011) ltwwwunhcrorgcgi-bintexisvtxpagepage=49e487cd6gt accessed 19 June 2011

16 Q Zhang Address to the Fourth Bali Process Ministerial Conference on People Smuggling Trafficking in Persons and Related Transnational Crime Bali 30 March


Indonesian immigration law changes which grant broad powers of border control and detention make no allowance for refugees Meanwhile Australiarsquos 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 security17 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 lsquoimmigrant countryrsquo and therefore little attention has been given to Chinarsquos immigration system including the admission and residence of refugees18 Yet as China engages more in foreign trade and world affairs a substantial revision of Chinarsquos immigration and refugee laws and policies appears inevitable19 There is a possibility that this may lead to greater controls on refugees as the immigration control ethos driving the restrictive asylum policies of European and North American states enters regional forums and the immigration debate in China subsuming refugee protection within a response to the lsquoglobal problemrsquo of lsquoillegal immigrationrsquo20 The example of US European and Australian restrictive practices is not lost on Chinarsquos commentators21

National security also figures prominently in Chinarsquos policy towards North Korean refugees who are viewed as undermining Chinarsquos security and relationship with its traditional Communist ally China claiming that it is obliged to return North Korean refugees to North Korea under a 1985 mutual security arrangement22 Taya Hunt and Nikola Errington in their chapter observe a similar tendency in other countries in the region such as Cambodia (which is a party to

ltwwwbaliprocessnetfilesBRMC20IV20China20Statementpdfgt accessed 18 June 2011 TMH Thayeb lsquoPaper to the Fourth Bali Regional Ministerial Conference on People Smuggling Trafficking in Persons and Related Transnational Crimesrsquo (Bali 29ndash30 March 2011)

17 A Francis lsquoRemoving Barriers to Protection at the Exported Border Visas Carrier Sanctions and International Obligationrsquo in J Farrall and K Rubenstein(eds) Sanctions Accountability and Governance in a Globalised World (Cambridge University Press 2009)

18 Q Wei lsquoComparison of foreigner administration systemsrsquo (2006) 23(5) Journal of Political Science and Law 91

19 ibid 9520 S Lin lsquoIllegal immigration a global problemrsquo (2002) 6 Population and Economics

9 G Wang and J Qu lsquoHow to put illegal immigration to an endrsquo (2002) 2 Hebei Law Science Journal 92 G Liu lsquoThe latest development of immigration law ndash on the transformation of Chinarsquos emigration and immigration lawrsquo (2008) 5 Journal of the Henan Province Institute of Politics and Law 64

21 ibid22 North Korean Refugees in China and Human Rights Issues International Response

and US Policy Options (Congressional Research Service 2007) 11 ltwwwfasorgsgpcrsrowRL34189pdfgt accessed 5 December 2012

Shifting Powers 7

the Refugee Convention) where lsquoprotection is largely determined by international alliances and internal political pressuresrsquo

As remarked by the UNHCR Regional Representative for China and Hong Kong lsquoas one of the Permanent Members of the UN Security Council China is in an opportune position to further enhance refugee protection in China and play a leading role in the regionrsquo (emphasis added)23 There is growing interest in international refugee law among scholars in China including a growing awareness in the academy of other regional and national approaches to refugees24 Professor Liang Shuyingrsquos contribution in this collection highlights both the historical engagement of China with refugee protection especially during the CPA and future challenges

Professor Liangrsquos chapter notes that China has hosted more than 200000 Indochinese refugees from Vietnam Laos and Cambodia since the 1970s25 China has displayed a longstanding engagement with the international refugee protection regime In 1958 China was the first Asian state to join the UNHCRrsquos newly established advisory body the Executive Committee of the High Commissionerrsquos Programme (ECOSOC Resolution 672)26 China acceded to the Refugee Convention and its 1967 Protocol on 24 September 1982 At the time there were only two other states parties from Southeast Asia and East Asia (the Philippines and Japan) Despite these successes Chinarsquos refugee policy has come under criticism due primarily to its handling of North Korean refugees27

As Kelley Loperrsquos chapter illustrates concerns have also been raised about the application of the Refugee Convention in the Hong Kong Special Administrative Region Art 40(2) of the Refugee Convention provides that a state party may extend the Convention to all or any of the territories lsquofor the international relations of which it is responsiblersquo China extended the Convention to the Macau Special

23 S Liang International Refugee Law [Guoji Nanmin Fa] (Intellectual Property Press 2009) 2

24 A Zhang lsquoProblems of public international law confronted by refugee protection and measures against itrsquo (2007) Tribune of Political Science and Law 163 S Liang lsquoOn principle dealing with illegal-entry refugeersquo (2008) 6 Legal Science Magazine 2 S Liang International Refugee Law [Guoji Nanmin Fa] (Intellectual Property Press 2009) K Gan lsquoThe lack of a legal system of refugee protection and its establishment in Chinarsquo (2010a) 28(1) Science Economy Society 151 K Gan lsquoThe basic principles of international protection of refugeesrsquo (2010b) 27(1) Journal of Chongqing Technology and Business University 98 K Gan lsquoThe Amsterdam Treaty and the development of EU refugee policyrsquo (2010c) 25(3) Journal of Yunnan Finance amp Economics University 123 L Hao lsquoThe research on the EU common legal system of refugee and asylumrsquo (2010) 28(7) Hebei Law Science 166

25 See also S Liang International Refugee Law [Guoji Nanmin Fa] (Intellectual Property Press 2009) 269

26 Japan and Thailand joined in 1979 the Philippines in 1991 and South Korea in 2000

27 A Francis lsquoChinarsquos refugee policy pathways to reformrsquo (2011) 17(1) Australian Human Rights Journal 29


Administrative Region (lsquoMacau SARrsquo) after resuming sovereignty over Macau in 199928 However while Chinarsquos Central Peoplersquos Government is responsible for the foreign affairs relating to the Hong Kong Special Administrative Region of the Peoplersquos Republic of China (lsquoHKSARrsquo) under Art 13 of the Basic Law the Central Government is yet to extend the Refugee Convention to the region ndash a fact that has attracted criticism from several UN human rights treaty bodies29 The Convention against Torture on the other hand applies in both the Macau SAR and the HKSAR

In her chapter Kelley Loper explores the efforts of lawyers in Hong Kong to extend the protection afforded to a sub-set of persons fearing torture if returned She concludes that significant strides have been made in the absence of the Refugee Convention and cautions against blanket assessments that there is no refugee law in Asian states Her argument is supported by developments in Macau SAR The Macau SAR introduced a refugee law in 2004 which establishes a number of procedural rights30 including the Commission for Refugees to investigate claims to refugee status31 access to interpreters and guaranteed lsquolegal protectionrsquo in lsquogeneral termsrsquo (although it is not clear whether this includes access to legal aid and legal representation) a right of appeal with suspensive effect from the decision of the Chief Executive refusing to recognize refugee status to Macaursquos Tribunal de Segunda Instacircncia (Court of Appeal)32 and express application of the Coacutedigo do Procedimento Administrativo (Code of Administrative Procedure) the Coacutedigo de Processo Administrativo Contencioso (Code of Administrative Procedure Litigation) and the Lei de Bases da Organizaccedilatildeo Judiciaacuteria (Law on the Organization of the Judiciary)33

Indonesia is another country critical to the future of the Refugee Convention in the region especially within the ASEAN In his chapter Bhatara Ibnu Reza argues strongly for Indonesiarsquos engagement with the Refugee Convention pointing to the number of national regulations and international legal instruments ratified by Indonesia that acknowledge the principles stated in the Refugee Convention On the other hand he also outlines the challenges confronting Indonesia Indonesia is a transit country for asylum seekers travelling to Australia a country with an increasingly tough border policy Indonesia also appears to be following the lead of the border security and anti-people smuggling movement taking place at the

28 On 27 April 1999 the government of Portugal informed the UN Secretary-General that the Refugee Convention applied to Macau Upon resuming sovereignty over Macau later that same year China notified the UN Secretary-General that the Refugee Convention will also apply to the Macau SAR

29 K Loper lsquoHuman rights non-refoulement and the protection of refugees in Hong Kongrsquo (2010) 22(3) International Journal of Refugee Law 404 438

30 Regime de reconhecimento e perda do estatuto de refugiado Lei No 1200431 ibid art 6132 ibid art 2033 ibid art 391

Shifting Powers 9

regional and international level He queries whether the Bali Process largely engineered by Australia to prevent irregular movement within the region is the appropriate or likely forum for Indonesia and other ASEAN countries to pursue protection issues At the same time he acknowledges the lack of forums within ASEAN itself for Ministers and leaders to debate these questions As he points out the non-interference principle that is at the heart of the ASEAN Charter means it is likely that ASEAN members will continue to have difficulty reaching consensus on these issues especially where asylum seekers are coming from fellow member countries

Thus the future of refugee protection in the Asia Pacific whether at the regional or domestic level is presently subject to traditional norms of state sovereignty and non-interference overlaid by pervasive regional and global trends towards border security In addition in many countries in the region there are domestic political forces pushing against a more generous approach to refugees There appears to be some linkage between national attitudes and the slow progress toward greater regional cooperation Parallels can also be drawn in this collection to the development of national and regional responses to other forms of displacement in the region

Environmental Displacement in Asia Pacific Emerging Legal Protections

The Guiding Principles on Internal Displacement have not been of high use in the Asia Pacific In 2009 the African Union adopted a Convention on Internally Displaced Persons which is largely reflective of the soft law guiding principles mentioned above Internally displaced populations within the Asia Pacific lack international regional and national recognition as a distinct group of vulnerable persons Photochanat Intaramamonrsquos chapter examines life after resettlement for internally displaced ethnic minorities in Northern Thailand Conservation projects in Northern Thailand are responsible for the displacement of many ethnic populations Such groups are often relocated to areas with poor soils and very limited infrastructure The two case studies considered in this chapter again highlight the lack of economic and social rights for displaced populations While human rights protections and constitutional protections are available to internally displaced persons the vulnerable nature of many internally displaced groups results in a lack of awareness or understanding of their rights and as such more formal protection of internally displaced persons would assist in ensuring that the rights of such communities are upheld Many of the Small Island States within the Pacific are at extreme risk of coastal inundation as a result of sea level rise associated with a warming Earth Low lying nations in the Pacific such as Tuvalu and Bangladesh in Asia are examples of nations very likely to see climate driven migration The chapter by Rowena Maguire and Louise Kruger considers the different models of protection being debated at the international level to protect populations displaced by climate change Suggestions have been put to broaden the definition of refugee


within the Refugee Convention rely upon human rights laws or use the adaption regime within the climate change regime as the source of legal obligations and rights for populations displaced in connection with climate change It seems that the international climate change regime will become the body responsible at the international level to assist those displaced by climate change34

This however is likely to raise a number of challenges as migration is in most cases driven by a variety of economic political and environmental factors Limiting protection to those communities migrating as a direct result of climate change will require the development of criteria to distinguish those migrating predominately as a result of climate change versus those migrating for a combination of factors one of which may be climate related Given that the primary role of the international climate regime is mitigation of greenhouse gas emissions and promotion of technologies and practices that assist communities to adapt to climate change it is reasonable to assume that the issue of environmentally driven displacement may well become too broad for the international climate change to manage alone The development of regional protection frameworks for communities displaced by climate change in the Asia Pacific will need to be given more serious contemplation in the future

Environmentally driven displacement can arise from a number of weather or climatic changes Causal factors associated with climate or environmental migration include sudden onset disasters such as floods cyclones and earthquakes and slow onset disasters such as drought and sea level rise Mostafa Naserrsquos chapter explores the socio-economic conditions of Bangladesh and how certain types of climatic impacts interact with human mobility The low lying topography high population density poverty incidence and dependence on natural resources and services has resulted in Bangladesh being classified as one of the most vulnerable nations worldwide to climate change This chapter usefully traces the socio-economic conditions of Bangladesh and how certain types of climatic impacts interact with human mobility The chapter again highlights the lack of legal implementation of social and economic rights for populations vulnerable to climate change in Bangladesh Displacement connected with climate change in Bangladesh will require regional solutions as the high population density of Bangladesh is likely to result in migration across state borders Groups migrating in this manner will at present have no firm rights at either a regional or international level

Conclusion

This collection poses a number of critical questions for the Asia Pacific why should the Asia Pacific seek a regional approach to refugee flows What form

34 See article 14(f) of the Cancun Adaptation Framework Outcome of the work of the Ad Hoc Working Group on long-term Cooperative Action under the Convention Draft Decision CP 16

Shifting Powers 11

should a regional arrangement take What lessons can be learnt from other regions The collection also places these questions in the context of developments at the international and national levels To what extent are states in the region engaging with the Refugee Convention and other cognate rights instruments Why should states in the region ratify these instruments and implement domestic reforms What countervailing forces might also be acting on states What is the impact of civil society The collection also seeks to draw attention to the parallel issues that arise for other forms of displacement in the region most particularly the emerging question of environmental displacement While the collection does not purport to offer definitive answers to these questions it is hoped that the perspectives offered here will shed considerable light on the challenges confronting the protection of refugees and displaced persons in the Asia Pacific


Chapter 2

Responsibility Regionalism and Refugees What Lessons for Australia1

Penelope Mathew

Introduction

This paper explores regional responsibility sharing arrangements for refugees Under these arrangements countries within or reacting to developments in a particular region may agree to take up distinct roles with respect to the protection of refugees Examples of these roles include lsquoprocessingrsquo claims or determining who is and who is not a refugee offering temporary refuge while a lsquodurable solutionrsquo is found for the refugee resettling refugees on a permanent basis from places of temporary refuge and financing the protection of refugees Critical analysis of such arrangements is urgently required in the context of ongoing debate in Australia about reception of refugees and persons claiming to be refugees (lsquoasylum seekersrsquo)

The debate has intensified over the last three years with the Australian governmentrsquos thwarted efforts to establish a lsquoregional processing centrersquo in Timor Leste2 and to transfer 800 asylum seekers to Malaysia3 and the recent decision to return to offshore processing on Nauru and Papua New Guinea4

The chapter begins with a parochial focus The latest developments in Australiarsquos thinking on regional cooperation with respect to asylum seekers are outlined5 The chapter then turns to examine two key concepts ndash responsibility sharing and regionalism ndash and compares two examples of regional responsibility sharing arrangements before drawing some conclusions

1 This research was supported under the Australian Research Councilrsquos Discovery Projects funding scheme (project number 120102224) The author also thanks Mr Tristan Harley for reviewing the paper for additional research and for translation of documents from Spanish

2 J Gillard lsquoMoving Australia Forwardrsquo (Speech delivered at the Lowy Institute Sydney 6 July 2010)

3 Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement AustraliandashMalaysia signed 25 July 2011

4 Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth)

5 Australian Government Report of the Expert Panel on Asylum Seekers (Commonwealth of Australia 2012)


Regionalism through Australian Eyes

Discussions in Australia about regional solutions to refugee problems over the past decade have focussed on how to prevent asylum seekers from moving to Australia and on transferring asylum seekers to other countries in the region In 2001 the lsquoPacific Solutionrsquo was adopted whereby the Australian government sent asylum seekers to Nauru or Papua New Guinea while their claims for refugee status were determined6 This arrangement was formally ended by the Rudd government in 2008

However with an increasing number of unauthorized arrivals by sea the Gillard government proposed first to establish a lsquoregional processing centrersquo on Timor Leste7 and when Timor did not agree to the centre the government negotiated a memorandum of understanding with Malaysia for the return of 800 unauthorized boat arrivals in exchange for Australia accepting 4000 persons recognized by the United Nations High Commissioner for Refugees (UNHCR) as refugees in Malaysia8

This arrangement was stymied by a ruling of the High Court of Australia9 which found that the provision of the Migration Act 1958 (Cth) permitting the Minister for Immigration and Citizenship to make a declaration enabling the transfer of asylum seekers to other countries required the declared countries to have legal protections in place for refugees and asylum seekers as a matter of international or domestic law10

Two attempts to enact new legislation bypassing the possibility of further judicial review of the arrangements for sending asylum seekers to another country failed However in mid-2012 the Prime Minister convened an expert panel11 on asylum seekers to

6 P Mathew lsquoAustralian Refugee Protection in the Wake of the Tamparsquo (2002) 96 American Journal of International Law 661 M Crock lsquoAustraliarsquos Tampa Incident The Convergence of International and Domestic Refugee and Maritime Law in the Pacific Rimrsquo (2003) 12 Pacific Rim Law and Policy Journal 49 S Taylor lsquoThe Pacific Solution or a Pacific Nightmare The Difference between Burden Shifting and Responsibility Sharingrsquo (2005) 16 Asian-Pacific Law and Policy Journal 1 A Francis lsquoBringing Protection Home Healing the Schism between International Obligations and National Safeguards created by Extraterritorial Processingrsquo (2008) 20 International Journal of Refugee Law 273

7 Gillard (n 2)8 Arrangement between the Government of Australia and the Government of Malaysia

on Transfer and Resettlement AustraliandashMalaysia signed 25 July 2011 cls 5 79 Plaintiff M702011 v Minister for Immigration and Citizenship Plaintiff M106 of

2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 (M70)10 ibid [61ndash5] (French CJ) [117ndash20] (Gummow Hayne Crennan and Bell JJ) [240ndash

44] (Kiefel J)11 Australian Government (n 5)

Responsibility Regionalism and Refugees What Lessons for Australia 15

provide advice and recommendations to the Government on policy options available and in its considered opinion the efficacy of such options to prevent asylum seekers risking their lives on dangerous boat journeys to Australia

The report endorses a regional approach to the issues which involves both lsquoincentivesrsquo and lsquodisincentivesrsquo to encourage use of orderly migration paths These are outlined in Chapter 3 of the report which is entitled lsquoAn Australian Policy Agendarsquo Part A of Chapter 3 sets out lsquoproposed changes to Australian policy settings to encourage use of regular pathways for international protection and established migration programsrsquo Key recommendations include increasing resettlement of refugees12 An immediate increase from 13750 humanitarian places to 20000 is recommended with an increase to 27000 in five years also suggested This recognizes that migration by irregular means occurs because it is frequently difficult for refugees to use channels of migration authorized under domestic law

Another important recommendation is that Australia should double current expenditure on capacity-building and focus this aid on lsquoprograms in support of building [a] regional framework for improved protections registration processing integration resettlement returns and other prioritiesrsquo13 This recognizes that asylum seekers move on to Australia because their rights as refugees are not protected in many of the countries to which they first flee which is consistent with previous research14 However the Report approaches the issue of onward movement as one of both push and pull factors making the questionable claim that lsquostability existing diasporas employment or education prospects the availability of an established refugee determination system and perceived livelihood opportunitiesrsquo are all lsquopull factorsrsquo15 Clearly the absence of these factors can often be described in terms of denial of human rights If asylum seekers are never recognized as refugees have no legal status and are unable to support themselves these are accurately described as push factors

A third recommendation by the panel is that lsquoAustralia promote more actively coordinated strategies among traditional and emerging resettlement countries to create more opportunities for resettlement as a part of new regional cooperation arrangementsrsquo16 This recognizes the need for other countries that have resettlement programmes to also increase their programmes in order to offer the possibility of

12 ibid Recommendation 213 ibid [328] Recommendation 314 By Invitation Only Australian Asylum Policy 14 (10(c) (Human Rights Watch

2002) S Taylor and B Rafferty-Brown lsquoWaiting for Life to Begin the Plight of Asylum-Seekers Caught by Australiarsquos Indonesian Solutionrsquo (2010) 22 International Journal of Refugee Law 558

15 Australian Government (n 5) [121]16 ibid Recommendation 13


durable solutions to refugee situations and lessen the need for people to use people smugglers Only 22 such countries offered resettlement during 201117

Part B of the Report sets out lsquomeasures to discourage the use of irregular maritime travel to Australiarsquo18 The key recommendation from this part is the introduction of legislation to enable offshore processing19 In order to circumvent the High Courtrsquos decision regarding the Malaysia agreement and the subsequent political impasse in which the Opposition insisted upon a return to the Pacific Solution the recommendation proposes that lsquothe legislation should require that any future designation of a country as an appropriate place for processing be achieved through a further legislative instrument that would provide the opportunity for the Australian Parliament to allow or disallow the instrumentrsquo The Report also stipulates that lsquoprotection and welfare arrangements consistent with Australian and Nauruan responsibilities under international law including the Refugees Conventionrsquo should be in place20 In particular there should be no arbitrary detention

Following the release of the Report the Opposition agreed to support the passage of the Migration Amendment (Regional Processing and Other Measures) Act 2012 (Cth) The Act is a recycled and amended version of the Migration Amendment (Offshore Processing and Other Measures) Bill 2011 (Cth) The fact that all references in the Bill to lsquooffshorersquo were changed to lsquoregionalrsquo could indicate that the passage of the Act is regarded as the first step to real regional cooperation as envisaged in the Report21 However if the elements of Part A are not fully implemented the change in language may demonstrate that Australia regards the region merely as a place in which it may undertake offshore processing

The Oppositionrsquos agreement to the passage of the legislation probably hinged on a number of factors The legislation would enable them to disallow an instrument which designated Malaysia as the relevant country providing they could attain a majority of seats in either House of Parliament to block it Given the hung parliament resulting from the 2010 election and the fact that governments usually do not hold a majority in the Senate an Opposition would generally be able to do so

The Report itself and the public mood for some resolution of the political deadlock may also have contributed to the compromise In addition the Report made clear that more work was required in order for the Malaysia arrangements to proceed For example the Report states22

17 Global Trends 2011 (UNHCR 2011) ltwwwunhcrorg4fd6f87f9htmlgt accessed 22 August 2012

18 Australian Government (n 5) 4719 ibid Recommendation 720 ibid [346]21 ibid part A ch 322 ibid [364]


[t]he adequacy of protections for asylum seekers set out in the Arrangement and measures of accountability for their implementation should be strengthened to meet a range of concerns There should also be a commitment to working towards developing these protections further Provisions for UAMs [unaccompanied minors] and for other highly vulnerable asylum seekers need to be more explicitly detailed and agreed with Malaysia

One of the contentious aspects of the Report is its endorsement of a lsquono advantagersquo concept under which the position of unauthorized arrivals lsquoin relation to refugee status and resettlement would not be advantaged over what it would have been had they availed themselves of assessment by UNHCR within the regional processing arrangementrsquo23

There is no satisfactory end-point to the time which asylum seekers would be required to wait on Nauru or Papua New Guinea as there are insufficient resettlement places for the worldrsquos refugees and it is questionable to what extent resettlement from within the region would improve with the increase of Australiarsquos humanitarian intake from 13750 to 20000 places It may also be questionable whether Nauru or Papua New Guinea would agree to host people for an indefinite period

There is a serious risk of mental health problems as a result of the uncertainty for asylum seekers which would only be mitigated by the proposal to transfer vulnerable cases to Australia which is recommended on an interim rather than permanent basis24 Finally while the Report stresses that the aim is not to punish asylum seekers sent to Nauru or Papua New Guinea25 it fails to deal with the fact that under international refugee law there is a prohibition on penalization for unauthorized entry

Article 31 of the Refugee Convention provides that

1 The Contracting States shall not impose penalties on account of their illegal entry or presence on refugees who coming directly from a territory where their life or freedom was threatened in the sense of article 1 enter or are present in their territory without authorization provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence

The report itself states that lsquodepending on the circumstances transit through third countries may still constitute coming directly from a territory where a refugeersquos life or freedom was threatenedrsquo26 As Goodwin-Gill27 has stated

23 ibid [350]24 ibid [348]25 ibid [341]26 ibid 8027 GS Goodwin-Gill lsquoArticle 31 of the 1951 Convention relating to the Status

of Refugees Non-penalization Detention and Protectionrsquo in E Feller V Turk and F


refugees are not required to have come directly from their country of origin Article 31 was intended to apply and has been interpreted to apply to persons who have briefly transited other countries who are unable to find protection from persecution in the first country or countries to which they flee or who have lsquogood causersquo for not applying in such country or countries

The non-penalization provision does not rely on comparison with the position of other people Even if there were to be a comparator the relevant comparator would be the lucky few who manage to enter Australia on a visa Indeed the different treatment meted out to unauthorized arrivals may violate international human rights relating to equality and non-discrimination such as Article 26 of the International Covenant on Civil and Political Rights28

The report has effectively endorsed the concept that there is a refugee lsquoqueuersquo or at least that through the creation of an additional 4000 resettlement places a year in the Australian resettlement quota there is now a queue The idea that there is a queue involves a deferral of responsibility on the basis that neither Australia nor the world can or will do more to offer refugees protection and durable solutions in the near future It is therefore important to examine what such efforts to share responsibility might look like

Responsibility Sharing in Theory

International refugee law does not yet establish clear bases for the equitable sharing of responsibilities for refugees The first lsquouniversalrsquo instrument for the protection of refugees the Convention relating to the Status of Refugees (lsquoRefugee Conventionrsquo) imposes on countries that agree to its terms the obligation of non-refoulement ndash that is the obligation not to return a refugee to a place of persecution29 This obligation ensures that the parties do not become complicit with refugeesrsquo persecutors and is an important extension of human rights principles However the lack of responsibility sharing mechanisms means that the country nearest the refugee flow may bear responsibility for refugees with little or no assistance from other countries

The Refugee Convention refers in its preamble to the desirability of international cooperation to deal with unduly heavy lsquoburdensrsquo but does not impose any clear legal obligation in this respect Rather the Refugee Convention seeks to preserve state sovereignty by remaining silent on the question of a refugeersquos right to

Nicholson (eds) Refugee Protection in International Law UNHCRrsquos Global Consultations on International Protection (Cambridge University Press 2003) 185 185

28 International Covenant on Civil and Political Rights opened for signature 16 December 1966 999 UNTS 171 (entered into force 23 March 1976)



enter state territory or if granted entry to gain more than temporary protection as a refugee

There are three recognized lsquodurable solutionsrsquo for refugees local integration in the first country to which the asylum seeker goes (the lsquocountry of first asylumrsquo) permanent resettlement in a third country and voluntary repatriation to the country of origin However the solutions are not expressed as legal obligations within the Refugee Convention Thus grant of citizenship in a country of asylum is not compulsory and resettlement remains discretionary This lacuna means that countries of first asylum are left to shoulder most of the lsquoburdenrsquo without assistance Refugees themselves are treated as an unwelcome lsquoburdenrsquo and are frequently confined to camps and denied basic rights such as the right to work or the right to education

Interestingly an expert meeting organized by the UNHCR in 2011 focused on lsquointernational cooperationrsquo instead of either lsquoresponsibilityrsquo or lsquoburdenrsquo sharing in order to ensure that practical measures were in fact adopted30 Nevertheless the meeting stressed that international obligations must be met and that cooperative arrangements lsquoshare and do not shift burdens and responsibilities among statesrsquo31 It is therefore important to explore what it means to cooperate lsquoresponsiblyrsquo

As 80 per cent of the worldrsquos refugees are sheltered in the developing world32 it seems that responsibility for refugees is not shared fairly at present if one takes the view that responsibilities should be shouldered by those countries with the most capacity and responsibility is measured in terms of refugees hosted (as opposed to financial contributions for example) However as Kritzman-Amir33 notes there is little discussion in the scholarly literature as to why responsibility sharing should take place as it is assumed (understandably) that the status quo imposes unfair burdens on developing countries She offers a number of different moral theories of responsibility sharing including a lsquoremedial responsibilityrsquo approach which would see responsibility falling to the states most capable of remedying the morally concerning situation of refugees34

There has been a vigorous debate in the scholarly literature as to whether developed states may effectively contract out of their obligations with respect to asylum by funding protection of refugees in the developing world Peter Schuck created controversy when he suggested that states should have quotas of refugees

30 Amman Expert Meeting Expert meeting on International Cooperation to Share Burdens and Responsibilities Amman Jordan 27 and 28 June 2011 ltwwwunhcrorgrefworlddocid4e9fed232htmlgt accessed 20 August 2012

31 ibid [8]32 UNHCR (n 17) 33 T Kritzman-Amir lsquoNot in my Backyard on the Morality of Responsibility Sharing

in Refugee Lawrsquo (2009) 34 Brooklyn Journal of International Law 355 36334 ibid 366ndash71


that could be traded in a refugee market35 Similarly Hathaway and Neve attracted a critical response when they suggested a system of lsquocommon but differentiated responsibilityrsquo36 Under their system temporary refugee protection would be offered within the region of the refugee flow which would generally be in the global South37 This temporary protection would be supported by funding from developed countries which would also play a residual resettlement role in the case of persistent protection needs38

The carrot for Northern states was the possibility of returning asylum seekers to the South thereby avoiding the possibility of fraud costs of refugee status determination and mechanisms designed to deter asylum seekers39 Hathaway and Neve argued this trade-off is necessary so that refugees are not lsquoheld hostagersquo to a process of social transformation in which racism and xenophobia against refugees are tackled40 Other academic commentators41 have argued that neglect of the necessity and means for social transformation may lead to a further decline in refugee protection

Anker Fitzpatrick and Shacknove maintain that powerful developed countries may simply lsquocherry-pickrsquo aspects of the Hathaway-Neve model42 For example they might choose to have offshore processing but to neither offer resettlement places nor properly fund refugee protection in the developing world Australiarsquos past practice with the lsquoPacific Solutionrsquo seems a good illustration of that point and it remains to be seen whether the revived Pacific Solution will be an improvement

Juss has argued for the notion of cultural competence to inform refugee protection systems43 Cultural competence may be described as the ability to satisfactorily negotiate cross-cultural interactions Culturally competent responsibility sharing systems value incorporate and adapt to diversity Mechanisms that resist intake of refugees because of racial difference for example are not culturally competent because they reject diversity

Any mechanism that proceeds on the basis of a misconception like the refugee lsquoqueuersquo also displays a lack of cultural competence since it fails to take account

35 PH Schuck lsquoRefugee Burden-Sharing a Modest Proposalrsquo (1997) 22 Yale Journal of International Law 243

36 JC Hathaway and RA Neve lsquoMaking International Refugee Law Relevant Again A Proposal for Collectivized and Solution-Oriented Protectionrsquo (1997) 10 Harvard Human Rights Journal 115 144

37 ibid 14638 ibid 147ndash839 ibid 14640 ibid 13941 S Juss lsquoTowards a Morally Legitimate Reform of Refugee Law the Uses

of Cultural Jurisprudencersquo (1998) 11 Harvard Human Rights Journal 311 D Anker J Fitzpatrick and A Shacknove lsquoCrisis and Cure a Reply to HathawayNeve and Schuckrsquo (1998) 11 Harvard Human Rights Journal 295

42 Anker Fitzpatrick and Shacknove (n 41) 30443 Juss (n 41)


of refugeesrsquo experiences The reality is that only around 1 per cent of the global refugee population benefits from resettlement In 2011 for example the figure was less than 1 per cent44 Meanwhile lawful migration as a tourist student or business person is often difficult given the extra scrutiny towards visa applicants from known refugee-producing countries

Regionalism

In addition to identifying what we mean when we talk about responsibility it is important to question the role of regionalism What does regionalism mean in practice and how effective can it be in combating a problem of global proportions How regional are refugee problems and in what sense have regional arrangements for refugees dealt with the matter in a way that we can describe as regional and with what global effects

Significantly the Refugee Convention is an instrument directed to the resolution of one regional refugee problem With a Eurocentric heritage the Refugee Convention was adopted in the aftermath of World War II as a response to the Holocaust and to persons fleeing Communist countries As such it defines a refugee as a person with a well-founded fear of persecution for reasons of race religion nationality membership of a particular social group or political opinion45 Originally a person could only be a refugee as a result of events occurring before 1 January 1951 States parties could also limit their obligations to cover only those persons who became refugees as a result of events occurring in Europe46 The Refugee Convention was therefore regional in that it dealt primarily with European problems although it sought to open up global solutions for those refugees

The second lsquouniversalrsquo instrument the 1967 Protocol relating to the Status of Refugees47 lifted the temporal and geographical restrictions on the refugee definition overcoming some of the Eurocentrism of the Convention but it did not extend the definition This explains the development of regional instruments to protect the lsquonewrsquo (non-European) refugees Africa and the Americas have adopted extended definitions of refugee-hood that include persons fleeing indiscriminate violence48

44 UNHCR (n 17)45 Refugee Convention art 1A(2) as modified by the 1967 Protocol relating to the

Status of Refugees opened for signature 31 January 1967 606 UNTS 267 (entered into force 4 October 1967)

46 Refugee Convention art 1B47 Protocol relating to the Status of Refugees opened for signature 31 January 1967

606 UNTS 267 (entered into force 4 October 1967)48 Convention Governing the Specific Aspects of Refugee Problems in Africa

opened for signature 10 September 1969 1011 UNTS 45 (entered into force 20 June 1974) art 1(2) (lsquoAfrican Conventionrsquo) Cartagena Declaration on Refugees Colloquium


However these instruments have the same defect with respect to responsibility sharing as the universal instruments The African Convention49 is innovative in that it permits a state in difficulty to call on the African Union for assistance and obliges African Union states to take lsquoappropriate measuresrsquo but neither the African Convention nor the Cartagena Declaration50 which applies in Latin America impose more concrete obligations of responsibility sharing However Cartagena has been built upon and countries in the Latin American region are actively trying to share responsibilities This will be explored when considering regional refugee arrangements in practice

In Europe the region in which the universal refugee instruments began life the argument that unauthorized arrivals are drawn by strong economies such as Germanyrsquos has led to the establishment of a lsquoresponsibility sharingrsquo mechanism the Dublin II Regulation51 which places responsibility for determining refugee status in cases of unauthorized entrants on lsquogatewayrsquo countries such as Greece As these gateway countries have allowed the lsquobreachrsquo of Europersquos external borders unauthorized asylum seekers are returned to and their claims determined in the first European country that they entered

Regionalism in the form of the Dublin II Regulation does not share refugees but leaves the burden to lie where it initially fell The consequences for refugee protection are undesirable Greece has been found not to protect refugees In the landmark decision of MSS v Belgium and Greece the European Court of Human Rights determined that the country of first asylum (Greece) and the second country to which the asylum seeker had travelled (Belgium) were liable for the resulting human rights violations when refugees were returned under the Dublin II Regulation52 The Court of Justice of the European Union has come to a similar conclusion53

Thus it is apparent that lsquoregionalismrsquo can be used and invoked quite deliberately in ways that do not necessarily go hand-in-hand with responsibility sharing or protection of refugees In part then the debates over the meaning of both

on the International Protection of Refugees in Central America Mexico and Panama 22 November 1984 (lsquoCartagena Declarationrsquo) ltwwwunhcrorgrefworlddocid3ae6b36echtmlgt accessed 17 September 2012

49 Convention Governing the Specific Aspects of Refugee Problems in Africa (n 48)50 Cartagena Declaration (n 48)51 Council Directive 201195EU of 13 December 2011 on standards for the

qualification of third-country nationals or stateless persons as beneficiaries of international protection for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted [2011] OJ L 3379 (lsquoDublin II Regulationrsquo as revised in 2011)

52 MSS v Belgium and Greece Application No 3069609 (ECHR 21 January 2011)53 Case C-41110 and C-49310 NS v Secretary of State for the Home Department

and ME and others v Refugee Applications Commissioner Minister for Justice Equality and Law Reform [2011] ECJ ltwwwunhcrorgrefworlddocid4ef1ed702htmlgt accessed 17 September 2012


responsibility and regionalism involve a question as to how to create issue linkages that stick including issue linkages between regions Betts has argued that securing NorthndashSouth cooperation in the refugee context will involve credible issue linkage between refugee protection on the one hand and lsquostatesrsquo perceived interests in areas such as migration security development and peacebuilding on the otherrsquo54 He argues that lsquostates have not contributed to refugee protection for its own sake but have done so insofar as contributing to this global public good has simultaneously offered linked private benefits in other areasrsquo55 Further Betts argues fairly convincingly that the UNHCRrsquos attempt to make these linkages in the initiative it called Convention Plus failed because states did not buy into the linkages ndash in particular the message that local integration would stop irregular migration flows was not believed56 By contrast he has argued that a grand bargain might be struck between North and South whereby targeted development assistance that helps both refugees and citizens of Southern countries may well be effective57

Regional Refugee Arrangements in Practice

It is important when looking at past practice to think about how regional arrangements have developed what sort of lsquoregionalismrsquo 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 This section of the chapter provides a sketch of some of the issues raised by two regional arrangements the Comprehensive Plan of Action for Refugees58 and the Mexico Declaration and Plan of Action to Strengthen International Protection of Refugees in Latin America59

54 A Betts lsquoNorth-South Cooperation in the Refugee Regime The Role of Linkagesrsquo (2008) 14 Global Governance 157 174

55 ibid 174ndash556 ibid57 A Betts lsquoDevelopment Assistance and Refugees Towards a NorthndashSouth Grand

Bargainrsquo (Oxford Refugee Studies Centre Department of International Development University of Oxford 2009)

58 UN General Assembly Declaration and Comprehensive Plan of Action of the International Conference on Indo-Chinese Refugees Report of the Secretary-General (A44523) 22 September 1989 A44523 ltwwwunhcrorgrefworlddocid3dda17d84htmlgt accessed 17 September 2012

59 Mexico Declaration and Plan of Action to Strengthen International Protection of Refugees in Latin America 16 November 2004 ltwwwunhcrorgrefworlddocid424bf6914htmlgt accessed 11 August 2012 (hereafter referred to as either the Mexico Declaration and Plan of Action or the Mexico Declaration or Mexico Plan of Action as appropriate) The Mexico Declaration and Plan of Action has been endorsed by the Organization of American States OAS General Assembly Resolution lsquoProtection of Asylum Seekersrsquo 36th sess 4ndash6 June 2006 OAS Doc AGRES2232(XXXVI-006) [3]


The Comprehensive Plan of Action for Indochinese Refugees

The Comprehensive Plan of Action for Indochinese Refugees (CPA) is a very important regional responsibility sharing agreement in the Southeast Asian region The CPA developed during the Indochinese refugee crisis of 1975ndash96 is sometimes praised as a lsquoqualified successrsquo in terms of responsibility sharing60 Under the CPA thousands of Vietnamese along with Laotians had their claims determined in places of first asylum in the region Indonesia the Philippines Malaysia Thailand and Hong Kong

If determined to be refugees they were then resettled If determined not to be refugees they were returned to Vietnam where the UNHCR monitored returneesrsquo safety In addition an Orderly Departure Program operated within Vietnam which enabled the migration of many more thousands of Vietnamese some of whom would have met the definition of a refugee Some of the elements namely temporary asylum in exchange for resettlement and the Orderly Departure Program had been introduced in the late 1970s However refugee status determination or lsquoscreeningrsquo and the move to repatriate unsuccessful claimants were new elements

The successes of the CPA are that it stopped the push-back of boats from countries like Thailand and ensured that lsquoboat peoplersquo were allowed to land and receive temporary asylum It opened up resettlement places from countries like Australia and it permitted Australia to maintain the appearance of control over its borders by limiting spontaneous boat arrivals61 Monitoring of returnees by the UNHCR was extensive62 Finally it permitted the partial rehabilitation of Vietnam in the eyes of the international community particularly Western developed countries To some extent the arrangement also shows Western countries especially Australia developing cultural competence Indeed Australiarsquos ability to resettle many thousands of Vietnamese boat people has been described as the first real test of the demise of the White Australia Policy63

On the other hand refugee status determination was flawed and inconsistent Asylum seekers were often detained for periods as long as three years and resettlement worked very slowly64 In addition there are serious questions about

60 R Towle lsquoProcesses and Critiques of the Indo-Chinese Comprehensive Plan of Action an Instrument of International Burden-Sharingrsquo (2006) 18 International Journal of Refugee Law 537 WC Robinson lsquoThe Comprehensive Plan of Action for Indo-Chinese Refugees 1989ndash1997 Sharing the Burden and Passing the Buckrsquo (2004) 17 Journal of Refugee Studies 319

61 N Viviani The Long Journey Vietnamese Migration and Settlement in Australia (Melbourne University Press 1984)

62 Robinson (n 60) 33163 Viviani (n 61)64 Lawyers Committee for Human Rights Hong Kongrsquos Refugee Status Review Board

Problems in Status Determination for Vietnamese Asylum seekers (Lawyers Committee for Human Rights 1992) A Helton lsquoRefugee Determination under the Comprehensive Plan of Action Overview and Assessmentrsquo (1993) 5 International Journal of Refugee Law


whether the Orderly Departure Program which stifled clandestine departures operated as a mechanism to keep some potential refugees trapped in Vietnam65 The way in which lsquovoluntaryrsquo repatriation was promoted including by making conditions in the camps more difficult with the risk of constructive refoulement ndash that is decisions to return under duress ndash has also been criticized66 Finally it is questionable whether and to what extent a long-term commitment on the part of countries in Southeast Asia to the principles of refugee protection has developed since most of these countries have still not ratified the Refugee Convention or the Refugee Protocol Davies67 has offered a very critical assessment of the CPA arguing that it served mainly to legitimate the rejection of asylum seekers as lsquoeconomic migrantsrsquo Given the particular context in which the CPA was adopted when the US had various interests that encouraged its commitment to the CPA it may also be questionable whether the CPA could be repeated68

The Mexico Declaration and Plan of Action

The Mexico Declaration and Plan of Action was adopted by 20 Latin American countries in 2004 and has recently been re-endorsed in the 2010 Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americas69 The Brasilia Declaration contains some new elements such as the protection of stateless persons and attention to the needs of trafficking victims and unaccompanied minors

Like the CPA a particular refugee crisis informed the Mexico Plan of Action namely the Colombian refugee crisis This crisis which has its roots in ongoing conflict in Colombia has produced at least 3 million Colombian refugees and internally displaced persons Critically safety cannot be assured to Colombians who have fled just over the border a factor which has been identified as one trigger for the development of a regional approach including resettlement in solidarity

554 Robinson (n 60) 328ndash9 J Stuyt lsquoThe Comprehensive Plan of Action for Indochinese Refugees A NGO approachrsquo (1991ndash92) 11 Chinese (Taiwan) Yearbook of International Law and Affairs 34 39

65 J Kumin lsquoOrderly Departure from Vietnam Cold War Anomaly or Humanitarian Innovationrsquo (2008) 27 Refugee Survey Quarterly 104 114ndash16

66 Robinson (n 60) 32367 SE Davies Legitimising Rejection International Refugee Law in Southeast Asia

(Martinus Nijhoff 2003)68 Refugee Council of Australia 2011 Developing an Asia-Pacific Refugee Protection

Framework 557ndash8 ltwwwrefugeecouncilorgaurisub2011ndash12-IntakeSub-Sec4pdfgt accessed 22 August 2012

69 Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americas (lsquoBrasilia Declarationrsquo) 11 November 2010 ltwwwunhcrorgrefworlddocid4cdd44582htmlgt accessed 11 August 2012


from countries of first asylum70 Brazil an emerging democracy and economic leader in the region proposed the regional solidarity resettlement programme

In addition to the concept of resettlement in solidarity the Mexico Plan aims to reinforce refugee protection and durable solutions generally in the region and there are two other elements based on solidarity which work to achieve this the lsquocities of solidarity programmersquo and lsquoborders of solidarity programmersquo

The aim of the cities of solidarity is to improve local integration and self-sufficiency of refugees in urban areas Goals specifically mentioned in the Plan of Action are to foster generation of sources of employment in particular the establishment of micro-credit systems expediting documentation and simplifying procedures for recognition of foreign qualifications71

The borders of solidarity are a particularly interesting contrast to the conception of borders as a fortress prevailing in many other regions The plan expresses the lsquocommitment of Latin American countries to keep their borders open in order to guarantee the protection and security of those who have a right to enjoy international protectionrsquo72 As Jubilut and Carneiro73 write

this approach was clearly a departure from the dominant views around the world regarding the security-refugee dilemma where borders security is traditionally linked to tighter controls In a context where armed militias were infiltrating neighbouring countries it was a very innovative and daring approach

Importantly the Mexico Declaration and Plan of Action eschews the language of a lsquoburdenrsquo adopting the words lsquoresponsibilityrsquo and lsquosolidarityrsquo instead74 indicating some degree of cultural competence and a commitment to human rights protection Indeed the Declaration requests that the media lsquopromote the values of solidarity respect tolerance and multiculturalismrsquo75

The solidarity reflected in the Declaration is arguably mainly intra-regional rather than inter-regional in part because the reality is that most refugees sheltered in the Americas are from the Americas On the other hand the UNHCR76 has pointed out that

70 LL Jubilut and WP Carneiro lsquoResettlement in Solidarity a New Regional Approach towards a More Humane Durable Solutionrsquo (2011) 30 Refugee Survey Quarterly 63 65ndash6

71 Mexico Plan of Action (n 59) ch 3 pt 172 Mexico Declaration (n 59) preamble [8]73 Jubilut and Carneiro (n 70) 7474 Mexico Plan of Action (n 59) ch 3 pt 375 Mexico Declaration (n 59) preamble [9]76 Background Document Refugee Protection and International Migration in

the Americas Trends Protection Challenges and Responses for Regional Conference on Refugee Protection and International Migration in the Americas ndash Protection Considerations in the Context of Mixed Migration (UNHCR 2009) 15 ltwwwunhcrorgrefworldpdfid4c59329b2pdfgt accessed 22 August 2012


almost all countries in the hemisphere receive asylum-seekers and refugees from other regions outside the continent For countries such as the United States of America Canada and Brazil so-called extra-regional refugees generally make up the larger part of the refugee population In the case of Brazil for instance nearly 80 per cent of the refugee population is composed of extra-regional refugees mainly from Angola and the Democratic Republic of Congo

As the Mexico Plan of Action recognizes some South American countries are emerging as places of resettlement for extra-regional refugees While in practice the main beneficiaries of the resettlement element in the Mexico Plan have been Colombians other groups have benefitted including a group of 100 Palestinians who had been stranded in a refugee camp in Jordan and were resettled in Brazil77

The Plan of Action enunciates several important features of a responsibility sharing system that is designed to ensure protection and it is very practically oriented For example it acknowledges the need to implement international law at the domestic level with proper measures in place to protect refugee rights noting that some of the national refugee protection mechanisms lsquoare still at incipient stages of development and require greater human technical and financial resources to be operative including training on international refugee law so as to guarantee fair and efficient proceduresrsquo78

It envisages the development of a Handbook on Procedures and Criteria for Application of the Refugee Definition of the Cartagena Declaration79 along with development of training programmes80 It also recognizes that effective protection means that asylum seekers lsquowill not be obliged to seek protection in third countries through secondary andor irregular movementsrsquo81 while stressing that the main aim is protection of refugees82 The Plan of Action goes on to consider the need for new strategies to achieve self-sufficiency and local integration83 stating that what is important is lsquoa geographic approach instead of a population approach so that receiving communities benefit on equal footing with refugees and other persons in need of protectionrsquo84

There have been both progress and setbacks in implementing the Mexico Plan of Action There has been an uptick in legislative and practical implementation of refugee rights Numerous countries have implemented new refugee laws and

77 Jubilut and Carneiro (n 70) 8378 Mexico Plan of Action (n 59) ch 1[6]79 ibid ch 2 pt 180 ibid ch 2 pt 281 ibid ch 1 [8]82 ibid ch 3 pt 183 ibid ch 1 [9]84 ibid ch 1 [10]


policies85 and many countries have signed up to the cities of solidarity programme86 Finally all the countries in the Southern cone have entered agreements with the UNCHR to resettle refugees87

One illustration of the highlights and low points is the situation of Colombians in Ecuador which hosts the largest number of refugees in the region On the upside there has been a large increase in refugee recognition in Ecuador with 54500 recognized refugees as of June 201188 compared with a few hundred in 200089 The enhanced recognition procedure which achieved this remarkable result took just one day to process each application90 However there have been some recent regressions On 30 May 2012 President Rafael Correa issued Decree 1182 under which inter alia the Cartagena definition no longer applies and restrictive deadlines for refugee status applications are imposed91 The decree has been subjected to constitutional challenge

Security in border areas is still a great concern and effective protection of and access to socio-economic rights is still very problematic with discrimination against Colombians playing a prominent role in those problems92 One promising development on this front is the adoption in September 2010 of the Brazil-Ecuador Agreement for Integration of Colombian Refugees under which Brazil agreed to support the integration of 15000 Colombians in Sucumbios in Ecuador by funding projects including education and water and sanitation infrastructure93

85 El Plan de Accioacuten de Meacutexico para Fortalecer la Proteccioacuten Internacional de los Refugiados en Ameacuterica Latina Principales Avances y Desafiacuteos Durante el Periacuteodo 2005ndash2010 (UNHCR [ACNUR] 2010) 2 ltwwwpamacnur2010comgt accessed 22 August 2012

86 A Durango and S Aguilar lsquoldquoCiudades Solidariasrdquo Trabajan para Integracioacuten de Refugiados en las Ameacutericasrsquo (2010) ltwwwacnurorgt3noticiasnoticiaciudades-solidarias-trabajan-para-integracion-de-refugiados-en-las-americasgt accessed 20 August 2012

87 UNHCR Resettlement Handbook (UNHCR 2011) ltwwwunhcrorgpages4a2ccba76htmlgt accessed 22 August 2012 However Chile has been reviewing its participation

88 UNHCR country operations profile ndash Ecuador (UNHCR Ecuador 2012) ltwwwunhcrorgpages49e492b66htmlgt accessed 20 August 2012

89 A Guglielmelli White In the Shoes of Refugees Providing Protection and Solutions for Displaced Colombians in Ecuador New Issues in Refugee Research Research Paper No 217 2 (UNHCR 2011)

90 ibid 491 A Appelbaum lsquoWorld Refugee Day Perspectives from Ecuadorrsquo (Asylum Access

19 June 2012) lthttprealizingrightswordpresscom20120619world-refugee-day-2012-perspectives-from-ecuadorgt accessed 22 August 2012

92 Guglielmelli White (n 89) 5ndash693 lsquoBrazil helps ease Local Integration of Refugees in Northern Ecuadorrsquo (UNHCR

2011) ltwwwunhcrorg4d5d4afd6htmlgt accessed 22 August 2012


Comparing Regions and Responsibility Sharing Models for Refugees

Unlike the CPA which is a completed chapter it is difficult to draw firm conclusions about the success or otherwise of the Mexico Plan of Action in terms of concrete protection and durable solutions for refugees However there seems to be a different ethos well-encapsulated in what Jubilut and Carneiro describe as the lsquospirit of Cartagenarsquo94 This of course is a reference to the 1984 Cartagena Declaration on Refugees which saw the adoption of a broad definition of refugee that encompasses people fleeing from generalized violence Though formally non-binding the Declaration states that the 10 Latin American countries which adopted it are to apply it as a set of norms and the Declaration was endorsed by the Organisation of American States (OAS) and has now been implemented by legislation in many Latin American states95 This is quite a contrast to the situation in most of Southeast Asia and perhaps the difference lies in the different histories of the regions

The Cartagena Declaration draws on a deep history of human rights and asylum in the region The American Declaration on the Rights and Duties of Man96 adopted by the OAS predates the Universal Declaration of Human Rights97 by seven months Article 27 of the American Declaration goes beyond Article 14 of the Universal Declaration and grants a right to seek and receive asylum Similarly Article 22(7) of the American Convention on Human Rights98 enshrines a right to seek and be granted asylum However both provisions say that asylum will be in accordance with national and international laws and the full implications of these provisions have not been ruled on by the Inter-American Commission on Human Rights or the Inter-American Court of Human Rights

In a case involving the US programme of interdicting Haitians the Commission simply confirmed that the references to relevant international law in the American Declaration included the Refugee Convention and the protection against refoulement and that this extended to the High Seas99 However there is an undoubted tradition of grant of asylum as evidenced in several cases before the International Court of Justice regional agreements on asylum and the many constitutions in the region

94 Jubilut and Carneiro (n 70) 6895 Fourteen countries have implemented the Cartagena Declaration in legislation

Argentina Belize Bolivia Brazil Chile Colombia El Salvador Guatemala Honduras Mexico Nicaragua Paraguay Peru and Uruguay

96 American Declaration on the Rights and Duties of Man OAS Res XXX adopted by the Ninth Conference of American States (1948) OAS doc OEASerLV14

97 Universal Declaration of Human Rights GA Res 217A (III) UN GAOR 3rd sess 183rd plen mtg UN Doc A810 (10 December 1948)

98 American Convention on Human Rights 22 November 1969 OAS Treaty Series No 36 (1970) ILM 99 (entered into force 18 July 1978)

99 Haitian Center for Human Rights v United States of America (1997) Case 10657 Inter-Am CHR Report No 5196 13 March 1997 [155ndash63]


which recognize the right to asylum100 Ecuadorrsquos grant of diplomatic asylum to WikiLeaks founder Julian Assange might also be considered a recent illustration

Of the 35 member states in the OAS only five remain entirely outside the universal regime of international refugee law Cuba Barbados Grenada Guyana and St Lucia are not party to either the Refugee Convention or Refugee Protocol Another member Saint Kitts and Nevis is a nominal participant being party only to the Refugee Convention and maintaining the original temporal limitations on the Refugee Convention The other 29 OAS members are either party to the Refugee Protocol (US and Venezuela) or party to both the Refugee Convention and the Refugee Protocol

There has also been a steady growth in concern about the rights of migrants generally within the OAS system101 and some important jurisprudence For example in the advisory opinion of the Inter-American Court of Human Rights on the Juridical Condition and Rights of the Undocumented Migrants102 the Court considered the rights of unauthorized workers at work in light of non-discrimination norms and workersrsquo rights provisions in the OAS Charter the American Declaration the American Convention the International Covenant on Civil and Political Rights and the Universal Declaration103 The Court was unanimous in its opinion that the lsquomigratory statusrsquo of a person was irrelevant to the question of rights at work104 The Court also declared that equality and non-discrimination norms are now jus cogens105

In contrast in the Asian region many countries are not party to either the Refugee Convention or the Refugee Protocol This is accompanied by relatively low participation in universal human rights instruments more generally and there is no generally applicable regional human rights arrangement The Association of South East Asian Nations (ASEAN) adopted the Intergovernmental Commission for Human Rights which has since drafted the non-binding ASEAN Human Rights Declaration106 There is also a Commission for the Promotion and Protection of the Rights of Women and Children which uses relevant international treaties as a basis for its mandate107

100 Jubilut and Carneiro (n 70) 66101 UNHCR (n 76) 38ndash42102 Juridical Condition and Rights of the Undocumented Migrants (Advisory

Opinion) [2003] Inter-Am CHR 17 September 2003 103 ibid [60]104 ibid [8ndash11]105 ibid [101]106 ASEAN Intergovernmental Commission on Human Rights 2009 Terms of

Reference ltwwwaseansecorgDOC-TOR-AHRBpdfgt accessed 12 October 2011 ASEAN Human Rights Declaration lthttpwwwaseanorgnewsasean-statement-communiquesitemasean-human-rights-declarationgt accessed 21 May 2013

107 Commission for the Promotion and Protection of the Rights of Women and Children Mandate ltwwwaseanorgdocumentsTOR-ACWCpdfgt accessed 12 October 2011


Regional commitments to human rights have generally accompanied regional cooperation in political forms The OAS was established in 1948 and provided the platform from which the American regional human rights system could be launched In Asia by contrast economic cooperation has predominated over cooperation in other areas The lsquoAsian valuesrsquo challenge to the universality of human rights contributed to this108 and yet it has also been asserted that the sheer diversity in the huge region that is Asia hampers efforts to establish more region-wide forms of cooperation in social areas However arguments along these lines have been attacked as unjustified exceptionalism109

As far as refugee protection is concerned Australia is an island in a sea of legal protection gaps New Zealand Samoa the Solomon Islands Tuvalu Timor Leste Papua New Guinea the Philippines South Korea Japan Cambodia Fiji and belatedly Nauru are party to the Refugee Convention andor Refugee Protocol but many other countries in the arc from the Middle East through Asia to Australia are not Even if party compliance with the obligations is not necessarily assured

Those countries which are not party often do tolerate refugees on their territories but there are wide variations in the quality of treatment In Indonesia and Malaysia for example there is no right to work or to access education and substandard detention conditions are also frequent110

Australiarsquos role in the region is an interesting one Obviously it is different to many countries in the Asian region because it is developed and it is still largely a country peopled by European migrants Australia has played a role more akin to that of the US in the Americas generally or Germany in Europe with respect to refugee protection than the role that Brazil seems to be playing in the Americas The US has focused on building a fence to shield it from Mexican immigrants although there has been a recent amnesty for young undocumented immigrants and a safe third country agreement with Canada111 Similarly Germany while being in so many ways such a solid citizen of the EU has in the past focussed on shielding itself through the Dublin II Regulation from perceived economic migration Similarly Australia has been promoting perceived Australian self-interest in some of its efforts

108 PJ Eldridge The Politics of Human Rights in Southeast Asia (Routledge 2002) 32ndash5

109 B Saul J Mowbray and I Baghoomians lsquoResistance to Regional Human Rights Cooperation in the Asia-Pacific Demythologizing Regional Exceptionalism by Learning from the Americas Europe and Africarsquo in H Nasu and B Saul (eds) Human Rights in the Asia-Pacific region ndash Towards Institution Building (Routledge 2011)

110 Refugee Council of Australia 2011 Developing an Asia-Pacific Refugee Protection Framework 18ndash20 20ndash22 ltwwwrefugeecouncilorgaurisub2011-12-IntakeSub-Sec4pdfgt accessed 22 August 2012

111 Agreement between the Government of Canada and the Government of the United States of America for cooperation in the examination of refugee status claims from nationals of third countries 5 December 2002 ltwwwcicgccaenglishdepartmentlaws-policysafe-thirdaspgt accessed 17 September 2012


It is clear that many neighbouring Asian countries think Australia has been somewhat two-faced in its efforts to promote regional refugee protection112 On the one hand in the context of the Bali Process on People Smuggling Trafficking in Persons and Related Transnational Crime113 the UNHCR successfully inserted a refugee protection agenda The statement by the Co-Chairs Australia and Indonesia from the Fourth Bali Regional Ministerial Conference endorsed a non-binding regional cooperation framework underpinned by five core principles including principles relating to consistent assessment processes and provision of durable solutions114 On the other hand both the proposal for a processing centre on Timor and the Malaysia swap proposal had strong elements of shielding Australia from refugee flows rather than true responsibility sharing115 The return to the Pacific Solution also shares this characteristic even if articulated as a means to stop deaths at sea There is little evidence yet of a spirit of Cartagena in Australian policy-making although the implementation of some of the lsquoincentivesrsquo identified in the expert panelrsquos report would go some way towards its development

Concluding Remarks

Australia needs to do more to focus on solidarity within the region rather than using the region as a buffer if it wishes to contribute to an Asian equivalent of the Cartagena spirit Currently while Australia may sit geographically in Asia it is all too evident that Australia is in a mind-set from another region ndash the region we might just call the Global North The predominant concern of that region is arguably containment of unwanted migrants so that they stay in the Global South As Gibney has argued regionalism as embodied in the Dublin II Regulation is an lsquoengineered regionalismrsquo that seeks to contain refugees and asylum seekers116 It seems clear that there is a sizable proportion of the Australian public which thinks it is simply possible to lsquostop the boatsrsquo and is prepared to spend tax-payer dollars on that instead of thinking more creatively

112 Refugee Council of Australia 2011 (n 110) 4113 The Bali Process (co-chaired by the Governments of Indonesia and Australia)

The Bali Process on People Smuggling Trafficking in Persons and Related Transnational Crime (the Bali Process) ltwwwbaliprocessnetgt accessed 17 September 2012

114 Co-Chairsrsquo Statement Fourth Bali Regional Ministerial Conference on People Smuggling Trafficking in Persons and Related Transnational Crime Bali Indonesia 29ndash30 March 2011 [16]

115 S Taylor lsquoRegional Cooperation and the Malaysia Solutionrsquo (2011) Inside Story lthttpinsideorgauregional-cooperation-and-the-malaysian-solutiongt accessed 22 August 2012

116 M Gibney lsquoForced Migration Engineered Regionalism and Justice between Statesrsquo in S Kneebone and F Rawlings-Sanaei (eds) New Regionalism and Asylum Seekers Challenges Ahead (Berghahn 2007) 58


The ultimate question is why are the Americas including its main economic player Brazil and other countries developing well economically such as Chile and Argentina able to take the leap into solidarity offering both development assistance and resettlement with a view to strengthening refugee protection and durable solutions Is it because the leading economies in South and Central America are not firmly part of the Global North Is it because of a region-wide commitment to asylum Is it because this commitment is mainly intra-regional These are questions that need to be explored further


Chapter 3

Civil Society and the Fight for Refugee Rights in the Asia Pacific Region1

Savitri Taylor

There is a simple story about how the world is governed which goes like this The world is divided into states The rules which regulate relations within the borders of a state are created and enforced by its government and in democratic states at least derive their normative force from the fact that the government is chosen by the citizens of the state and governs on their behalf There is also a body of rules which is made by statesrsquo governments and regulates relations between them by consent enabling them to coexist and sometimes even to cooperate The problem with this simple story is that as the world becomes increasingly interconnected and interdependent its explanatory power is diminishing to the point where we need to start looking at what is actually happening in the real world for the purpose of coming up with stories which might explain it better

In this chapter I examine a particular factual situation which states in the Asia Pacific region perceive as a problem of transnational governance to be resolved by inter-state agreement and demonstrate that the actual story of governance is one in which civil society actors are also participants The research methodology used is participant observer2 supplemented by review of relevant documents and formal in-depth interviews with key informants3

1 Some parts of this chapter are revised and updated versions of content in S Taylor lsquoSharing responsibility for asylum seekers and refugees in the Asia Pacific regionrsquo in S Juss (ed) The Ashgate Research Companion to Migration Theory and Policy (Ashgate 2013)

2 This chapter is informed by my participation in the Asia Pacific Consultation on Refugee Rights 3 in Bangkok in November 2010 and the UNHCR-NGO Consultations (and civil society preparatory meetings) in Geneva in JunendashJuly 2011 as well as my interactions with relevant Australian and regional civil society entities (CSEs) international organizations and Australian government departments over a period of years

3 See Table 32 (Appendix)


The Problem

At the end of 2011 the Asia Pacific region hosted 32 per cent of the worldrsquos 11300090 refugees and asylum seekers as shown in Table 314 The majority of refugees and asylum seekers in the region remain in the country in which they first seek asylum This means that the burden of hosting them tends to fall disproportionately on the countries closest to refugee source countries

Table 31 Asia Pacific refugee and asylum seeker population in 2011

Number ProportionBangladesh 229671 63China 301048 82India 188636 52Iran 886913 243Pakistan 1704324 466All others 344531 94Total 3655123 1000

Source UNHCR 2012

The vast majority of refugees and asylum seekers in the Asia Pacific region live in fear of refoulement They live without work rights and without any other means of accessing adequate food housing health care education and other basics for themselves and their families They often also face various kinds of mistreatment at the hands of local authorities or local communities Over and above all this however they experience the profound psychological distress which comes with having their lives placed on hold

Since the kind of circumstances which cause people to flee their country of origin tend to be ongoing in nature what most refugees need in order to restart their lives is integration in their country of refuge or resettlement in a third country However most countries in the Asia Pacific region refuse to contemplate local integration as a general rule and globally less than 10 per cent of refugees who have been assessed by the Office of the United Nations High Commissioner for Refugees (lsquoUNHCRrsquo) as needing resettlement can actually be resettled each year5

Unsurprisingly a small minority of refugees and asylum seekers in the region take matters into their own hands and move irregularly in search of effective

4 Global Trends 2011 Annexes (UNHCR 2012) Table 15 UNHCR Resettlement Handbook (UNHCR 2011) 7 10 ltwwwunhcrorg

pages4a2ccba76htmlgt accessed 22 August 2012

Civil Society and the Fight for Refugee Rights in the Asia Pacific Region 37

protection and a durable solution to their plight However from the perspective of states the crossing of borders without permission is a challenge to sovereign authority that cannot be tolerated One way of dealing with irregular movement would of course be to address the human insecurity which prompts it States in the region have disappointingly focused instead on finding ways of deterring and disrupting irregular movement Although they have displayed great enthusiasm for cooperating with each other in that pursuit states are fortunately not the only actors that matter

Policy Contestation in a Globalized World

As the story I am about to tell is one in which I am a participant as well as an observer I will not purport to present a lsquoview from nowherersquo6 but rather shall disclose my multiple identities and affiliations I am a Sri Lankan born Australian citizen of Sinhalese ethnicity and Buddhist background and am the mother of a sixth generation Australian I am a lawyer an academic and a secular humanist I am a member of the Committee of Management of the Refugee and Immigration Legal Centre Inc (RILC) a member of the Refugee Council of Australia (RCOA) and a member of the Asia Pacific Refugee Rights Network (APRRN)7 The one thing I am not however is atypical In a globalized world many people have multiple identities and belong to multiple communities which are not always contained within state borders

Since this is a story told from my perspective I will begin at home in Australia The asylum seeker policy of the Australian government supposedly represents the collective will of the Australian people but in reality does not even represent the will of all members of the governing Australian Labor Party8 The contrary will of those in the Liberal National Coalition parties and the Australian Greens is on display every time Federal Parliament is in session

Not so many years ago it would have been inconceivable for the Federal Opposition to interact directly with foreign governments for the purpose of achieving implementation of its preferred policy for dealing with asylum seekers Today such interaction has become business as usual9 In other words globalization

6 T Nagel The View from Nowhere (Oxford University Press 1986)7 The opinions expressed this chapter are my own and not necessarily those of any of

the organizations with which I am associated8 See for example Submission to the Expert Panel on Asylum Seekers (Labor for

Refugees 2012) ltwwwrefugeecouncilorgaursubsub-ep1207-LFRpdfgt accessed 5 August 2012

9 T Abbott and M Stephen M Leader of the Opposition Joint Press Conference with the President of Nauru 13 June (2011) lthttpliberalorgauLatest-News20110613Leader-of-the-Opposition-Joint-Press-Conference-with-the-President-of-Nauruaspxgt accessed 5 August 2012 M Bachelard lsquoCoalition asylum stance ldquocauses troublerdquo for


has resulted in the blurring of the line between the domestic and international politics for policy contestation

Not only politicians engage in politics in order to secure their preferred policy outcomes In Australia the RCOA represents the refugee sector and publicly advocates policy positions on the sectorrsquos behalf However many of the members of the RCOA have multiple aspects to their identity and are members of other groupings representing other aspects of their identity In the present context it is particularly significant that the multiple overlapping communities to which Australian civil society entities10 concerned with asylum seeker policy belong are not all subsets of the Australian community For example there are organizations such as Amnesty International Oxfam Jesuit Refugee Service (JRS) and so on which are not purely Australian organizations but Australian branches of international civil society entities with global policy agendas Each national branch of international civil society entities will typically pursue these policy agendas through membership of national peak bodies such as the RCOA and also through membership of regional and international alliances

It is also significant that even civil society entities whose operations are confined to a single country are increasingly pursuing their nationally focused policy agendas through regional and international alliances For example the 112 members of the APRRN include aside from civil society entities that operate internationally or regionally civil society entities that are local to Australia Bangladesh Cambodia Hong Kong India Indonesia Japan Malaysia Nepal New Zealand Pakistan South Korea and Thailand among others11 The rest of this chapter is a case study of the APRRN and the role it has played in promoting refugee rights in the region

The Asia Pacific Refugee Rights Network

In November 2008 the representatives of 70 civil society entities met in Kuala Lumpur to discuss the establishment of a civil society entity network with the purpose of advancing refugee rights in the region12 The meeting was an initiative of Alice Nah of the Migration Working Group (Malaysia) which had taken a couple of years to come to fruition13 It resulted in the establishment of the APRRN

Indonesiarsquo Sydney Morning Herald (3 May 2012) ltwwwsmhcomauopinionpolitical-newscoalition-asylum-stance-causes-trouble-for-indonesia-20120503-1y0i6htmlgt accessed 5 August 2012

10 Except where the context otherwise requires the term is intended to embrace individuals also

11 Asia Pacific Consultation on Refugee Rights 2 (APRRN 2009) 34ndash5 httprefugeerightsasiapacificorgpdfFINAL_APCRR2_Reportpdf accessed 5 August 2012

12 ibid 613 Asia Pacific Consultation on Refugee Rights Consolidated Report of Proceedings

(APRRN 2008) 8 lthttpaprrnorgpdfAPCRR1-Reportpdfgt accessed 5 August 2012


What is Civil Society and Who Does it Represent

To state the obvious the lsquostatersquo and lsquocivil societyrsquo are both abstract concepts which as a matter of physical reality cannot undertake any action All actions in the world are undertaken by individual human beings However the institutional structures of (most) states shape the actions of their representatives to such an extent that it is not entirely nonsensical to speak of the lsquostatersquo itself as actor By contrast it is impossible to ignore the agency of individuals when speaking of civil society action One pitfall faced by the APRRN was the possibility of becoming overly reliant on the leadership of a single individual As a participant at that first meeting commented lsquoWe need to make this a network ndash not just of those who know Alice ndash as leadership cannot rely on one person but rather the momentum must come from all the people and the issuesrsquo14 Fortunately the APPRN seems to have avoided that particular pitfall as evidenced by the fact that it has continued despite a change in leadership in late 2010

Seventy-one of the APRRNrsquos current members are organizations and 41 are individuals The distinction between organizational and individual membership is important because under the APRRNrsquos rules only organizational members can vote or hold Steering Committee positions Nevertheless it is in many ways the individuals within organizational members ndash that is those who actually participate in network activities ndash who are thought of as members A crisis was precipitated when one organizational representative on the APRRN Steering Committee left that organization and started working for a national human rights institution The temptation to retain the individual in question on the Steering Committee was strong but could only be done by confronting thorny issues about the demarcation between state and civil society

Did a line need to be drawn and if so where did it need to be drawn Some national human rights institutions though state agencies are fiercely independent of government Conversely some supposedly non-government organizations are actually government organized (so-called GONGOs) And confounding all the distinctions is the fact that individuals move back and forth between differently classified organizations or even straddle both sides of the fence at once15 These dilemmas are not easily resolved and in the APRRNrsquos case doing so remains a work in progress16

14 ibid15 For example the individual who precipitated the crisis later started working

part-time at a different APPRN member while continuing to work part-time at the NHRI Similarly Rafendi Djamin worked for the Human Rights Working Group an APRRN member before he was appointed as Indonesiarsquos representative on the ASEAN Intergovernmental Commission on Human Rights and continued to do so concurrently with that appointment

16 Table 32 (Appendix) Interview 20


Another tricky issue with which civil society entities need to grapple is that of representation As problematic as it is for the government of a state to claim to represent the entire population of that state17 it is even more problematic for civil society entities to claim to represent anyone but themselves In one way or another though they usually do make such claims APRRN members purport to advocate for the rights of refugees For the most part however they are not refugees or associations of refugees If the APRRN cannot claim to speak for refugees why should anyone listen to what they say about refugees This is another of those questions with no easy answer but it is at least one which APRRN members are mindful of and try to address as best they can through creating opportunities for refugees to speak for themselves and of course listening to them18

Infrastructure Alliances and Standing

The APRRN began with the enormous advantages of Secretariat support from the Asian Forum for Human Rights and Development as well as sponsorship and support from the UNHCR and two existing CSE networks the Southern Refugee Legal Aid Network (SRLAN) and the International Detention Coalition Moreover the network structure agreed upon at the first meeting although it has evolved over time and is still evolving19 worked quite well from the outset20

Since its establishment the APRRN has for the most part managed to build on its initial advantages The APRRN now has its own Secretariat in Bangkok consisting of two full-time staff supported by volunteer interns Secretariat funding comes from external sources Persuading philanthropic and other funding bodies to fund infrastructure as opposed to projects is difficult but thus far the APRRN has been successful in the endeavour21 The Secretariat has many responsibilities which include managing the networkrsquos internal and external communication organizing network activities and raising money for those activities researching

17 J Camilleri lsquoRethinking sovereignty in a shrinking fragmented worldrsquo in RBJ Walker and SH Mendlovitz (eds) Contending Sovereignties Redefining Political Community 13 (L Rienner Publishers 1990)

18 See for example 3rd Asia Pacific Consultation on Refugee Rights (Nothing about Us without Us) (APRRN 2010) lthttprefugeerightsasiapacificorgpdfapcrr3-final-smallpdfgt accessed 10 August 2012

19 From the beginning the network was divided into geographic and thematic working groups although the thematic groups have changed over time All network members belong to one or more working groups according to their interests The chairs and deputy chairs of the geographic working groups and the chairs of the thematic working groups are members of the APRRN Steering Committee which has its own chair and deputy chair All of the aforementioned positions are elected positions More recently the Steering Committee has co-opted non-voting expert members and has also set up an Advisory Committee for itself and the Secretariat

20 Table 32 (Appendix) Interview 2021 Table 32 (Appendix) Interview 9


for the network and representing the network at various fora In short it is essential to the effective functioning of the network

The APRRN has continued its close relationship with the SRLAN and International Detention Coalition especially the latter right up to the present The APRRN SRLAN and International Detention Coalition have overlapping membership coordinate their activities and support each other in various ways The APRRN has also built relationships with other important civil society entity networks with related missions For example it is a member of the Solidarity for Asia Peoplesrsquo Advocacy network and through its engagement with that network has managed to place refugee issues onto the agenda of the ASEAN Peoplersquos ForumASEAN Civil Society Conference as a step towards getting refugee issues onto the ASEANrsquos agenda22

One important relationship which the APRRN still needs to work on managing better is its relationship with the UNHCR The APRRN Secretariat and many APRRN members have a good relationship with the UNHCRrsquos headquarters in Geneva23 However the relationship between some APRRN members and the UNHCR office in their respective countries has been strained by clashes over perceived shortcomings in the UNHCR refugee status determination and processes24 This has made it difficult to work with the UNHCR towards common goals

As someone who views APRRN from the inside one of the most difficult questions to answer objectively is how the network is perceived from the outside When I put the question to outsiders in early 2011 some responded that they didnrsquot know much about the network and others expressed the view that it was still young and fragile The APRRN is probably still in the phase of proving itself to be a significant actor but there are some indicators that it is succeeding For example the Coordinator of the APRRN Secretariat was selected as the rapporteur for the UNHCR-NGO Consultations in 201225 and the UNHCR describes the APRRN as a key civil society partner in the Asia Pacific26

One for All ndash All for One

What the existence of the APRRN promotes among its members is a sense of identification with each other as fighters in a common cause27 There have been two further face-to-face meetings of the whole APRRN membership in October

22 Annual Report 2010 (APRRN 2011) lthttprefugeerightsasiapacificorg20110623aprrn-annual-report-2010gt accessed 7 August 2012

23 Table 32 (Appendix) Interview 2024 Table 32 (Appendix) Interview 2025 July 2012 Newsletter (APRRN 2012) lthttprefugeerightsasiapacific

org20120731aprrn-july-2012-newslettergt accessed 7 August 201226 Global Report 2011 (UNHCR 2012) 7727 See for example APPRN (n 13) 55


2009 and November 2010 as well as face-to-face meetings of the different Working Groups at various times In addition APRRN members attending other events such as the annual UNHCR-NGO Consultations in Geneva meet with each other on the sidelines to coordinate advocacy and other activities All of this is of course enabled by a globalized transportation system but it is by no means cheap In fact the whole of membership meetings though originally intended to be an annual event have been made biennial because of cost28 The fourth such meeting was scheduled for late August 2012

Fortunately face-to-face meetings are not the only way in which solidarity can be built Globalized communication systems and technologies especially the internet and web-based collaboration tools have enabled geographically separated members of the APRRN to share information give and receive assistance work on joint projects and so forth on a day-to-day basis A virtuous cycle has developed where working together on matters of common concern builds solidarity and solidarity fosters even more cooperation between members extending even to matters which might otherwise have been consigned by some to a basket labelled lsquonot my problemrsquo This is not to say that there are no disagreements within the network In fact there are robust disagreements but the relationships forged through working together have been strong enough to survive those disagreements29 The crunch question however is whether all the working together has actually advanced refugee rights in the region

Joint Statements

In the APRRNrsquos almost four years of existence network members have pooled their knowledge of facts on the ground and also their legal and other expertise to produce 13 joint statements on various issues which have been circulated for endorsement both within and outside the APRRN30 A joint statement issued on 19 May 2009 calling for lsquothe protection of displaced peoples civilians and human rights in Sri Lankarsquo received the most endorsements (185) and a joint statement issued on 6 April 2012 calling for lsquothe Korean government to secure the safety of the asylum seeker deported to Uzbekistanrsquo received the fewest (12) While the explanatory factors for level of endorsements vary from statement to statement the first flush of enthusiasm for joint statements among the wider APRRN membership seems to have worn off probably because they do not have a direct payoff

28 APRRN (n 18) 1129 See Table 32 (Appendix) Interview 2030 There has also been a media release issued on 28 May 2012 in the name of APRRN

and IDC entitled lsquoNew Zealand to take on the worst of Australiarsquos failed immigration detention policy NGOS from across the region deeply concerned about proposed legislationrsquo


Although joint statements enable civil society entities to speak with a louder voice than they would have speaking separately31 only one joint statement to date has had any discernible impact on government policy However the statements have achieved other things which may have a payoff in the longer term

First the statements have enabled some civil society entities to get their concerns voiced without having to use their own voice32 which is a benefit not to be underestimated in states where speaking up can jeopardize the ability of organizations to do their work land their staff and office bearers in jail or worse In this context it is worth noting that four of the APRRNrsquos organizational members are at their request never publicly named as members33

Second the statements have played a valuable role in educating APRRN members about issues outside their immediate remit and through further dissemination via other networks to which the APRRN and its members belong and via regional media have also contributed to the education of the wider regional public However possible long-term payoff is generally not enough for a civil society entity networkrsquos typically overstretched members to think it worth investing the time and resources necessary to keep the network going The fact that the APRRN still has an active existence suggests that the network is more immediately useful to its members and in fact it is

APRRN Action at the National Level

The mutual capacity building of the network which has enhanced the ability of its members to deliver services to refugees and asylum seekers and to advocate effectively for policy reform at a national level has been quite remarkable34 The APRRN counts among its key achievements for 2011 institution of arrangements for release on bail of refugees in Thailand participation of its Indonesian members in the drafting of their governmentrsquos Standard Operating Procedures for dealing with asylum seekers and refugees and the passage of a Refugee Act in South Korea35 While the pathways to each of these successes has been context-specific and not necessarily replicable elsewhere it is worth elaborating on one of them

31 See Table 32 (Appendix) Interview 1232 See Table 32 (Appendix) Interviews 14 and 1533 Annual Report 2011 (APRRN 2012) 35 ltwwwaprrninfo1pdfAnnual_

Report_2011pdfgt accessed 6 August 201234 See Annual Report 2009 (APRRN 2010) lthttprefugeerightsasiapacific

org20100721annual-report-2009gt accessed 7 August 2012 March 2012 Newsletter (APRRN 2012) lthttprefugeerightsasiapacificorg20120328aprrn-march-2012-newslettergt accessed 7 August 2012 July 2012 Newsletter (APRRN 2012) lthttprefugeerightsasiapacificorg20120731aprrn-july-2012-newslettergt accessed 7 August 2012

35 APRRN (n 33) 4


as an illustration of the story of overlapping communities and alliances working together across national borders to achieve their preferred policy outcomes

On 14 December 2010 Thai authorities raided the homes of Ahmadi refugees and asylum seekers from Pakistan and detained 86 people including a large number of children in the Bangkok Immigration Detention Centre36 Veerawit Tianchainan Executive Director of the Thai Committee for Refugees and Chair of APRRNrsquos Southeast Asia Working Group immediately started working with other Thai civil society entities to assist and advocate for those detained in the raid as well as other detained refugees and asylum seekers Mr Tianchainan also informed the APRRN membership via its email list On 20 December the APRRN released a joint lsquostatement of concern on the detention of refugees and asylum seekers of Pakistani origin in Thailandrsquo which had 37 endorsements This statement was sent to the office of the Prime Minister relevant government agencies the National Human Rights Commission (NHRC) of Thailand and the Thai representative on the AICHR

Approximately three weeks later an APRRN delegation consisting of the Coordinator of the APRRN Secretariat Veerawit (as Chair of the Southeast Asia Working Group) the Chair of the Legal Aid Working Group (also Thai) and a couple of representatives of Thai APRRN members met the Chair of the NHRC and put their concerns to her The NHRC set up a Committee which included APRRN members to investigate the situation and to try to find solutions In the meantime the APRRN followed up with the Prime Ministerrsquos office and the other Thai government agencies

By mid-March 2011 the APRRN had secured meetings with top level Thai officials and persuaded them to consider alternatives to detention by offering to assist them in finding and implementing such alternatives The International Detention Coalition whose core business is facilitating the finding of alternatives to detention played a key role here On 6 June 2011 the Thai authorities released 96 refugees and asylum seekers from the Bangkok Immigration Detention Centre on bail paid from a Refugee Freedom Fund set up by the Thai Committee for Refugees The same fund was also used to pay for accommodation and other necessities for those released37 Since then the Thai Committee for Refugees as well as the JRS have begun obtaining further releases on bail38

36 Statement of concern on the detention of refugees and asylum seekers of Pakistani origin in Thailand 20 December (APRRN 2010) lthttprefugeerightsasiapacificorg20101220statement-of-concern-on-the-detention-of-refugees-and-asylum-seekers-of-pakistani-origin-in-thailandgt accessed 7 August 2012

37 APRRN (n 33)38 M Mullen lsquoThailand bail offers hope for detained refugeesrsquo JRS press release

(18 April 2012) ltwwwjrsnetnews_detailTN=NEWS-20120419010716gt accessed 7 August 2012


The events described above were by no means uncontroversial39 The UNHCR for example thought it preferable to keep trying to persuade Thai authorities that asylum seekers should not be detained in the first place than to pay bail for their release Be that as it may the fact that Thai civil society entities have from that starting point been able to engage in continuing dialogue with Thai authorities for the purpose of achieving wider ranging policy reform seems good enough reason to characterize the example as one of success

For those fond of theory the process of lsquonorm diffusionrsquo at work here seems to be what Amitav Acharya has identified as lsquoconstitutive localisationrsquo Acharya40 defines this process as lsquothe active construction (through discourse framing grafting and cultural selection) of foreign ideas by local actors which results in the latter developing significant congruence with local beliefs and practicesrsquo Most APRRN members do not theorize what they are doing in these terms but nonetheless they are well aware of the process in which they are engaged As articulated in the report on the APRRNrsquos 3rd Asia Pacific Consultation on Refugee Rights41

National civil society groups have a unique role to play in refugee protection They are well placed to create general awareness and to build commitment to a lsquohuman rights culturersquo to protect refugees They have local connections and access to policy-makers and lawmakers that international NGOs do not have Most importantly they have local legitimacy They represent their own citizens and their own societies in calling for refugee protection thus countering the arguments of their governments that refugee protection is a lsquoforeignrsquo lsquoWestern dominatedrsquo or lsquoUN-imposedrsquo idea

The relationship between government and civil society is of course far from uniform across the region42 and even within a given country does not necessarily remain constant over time43 In some countries the opportunities for fruitful civil society entity-government engagement are at the present time far more limited than in Thailand Indonesia and South Korea By the same token though the opportunities in some other countries are as great or greater

APRRN Action at the Supranational Level

States have many supranational fora in which they can engage with each other and each of them takes every opportunity at every forum to pursue its policy goals

39 See Table 32 (Appendix) Interview 240 A Acharya Whose Ideas Matter Agency and Power in Asian Regionalism (ISEAS

Pub 2010) 1541 APRRN (n 18) 842 See Table 32 (Appendix) Interviews 7 and 1543 See Table 32 (Appendix) Interview 8


One of the frustrations experienced by civil society entities is that they do not have direct entreacutee to most of the fora in which states wheel and deal

The most important regional forum in the asylum seeker context is the Bali Process on People Smuggling Trafficking in Persons and Related Transnational Crime The Bali Process was inaugurated at a ministerial conference co-chaired by Australia and Indonesia in February 2002 Forty-four states and territories are so-called lsquoBali Process countriesrsquo The International Organization for Migration (IOM) and the UNHCR are also integral participants in the Bali Process Moreover 17 countries from outside the region (plus the European Commission) and 11 other intergovernmental agencies and processes with relevant mandates have been given a place at the table under the nomenclature of lsquoother participating countries and agenciesrsquo

Until 2009 the Bali Process focused on transnational crime issues However a confluence of circumstances led to refugee protection getting on the agenda of the April 2009 Ministerial meeting and staying on the Bali Process agenda from then on Those circumstances included persistent effort by the UNHCR a shift in Australiarsquos attitude toward asylum seekers following the 2007 election and a mini-refugee crisis in Southeast Asia which caused some key regional countries to realize that refugee protection had to be part of a regional response to irregular movement

The newly-formed APRRN mobilized around responding to the refugee crisis by releasing its first Joint Statement which received 115 endorsements44 The crisis also brought the Bali Process onto the radar of APRRN members45 They shared information about the Bali Process (including intelligence gleaned from their IOM and UNHCR contacts) via the networkrsquos email list and discussed whether and if so how to engage with the process The consensus which emerged was that the Bali Process was a less than ideal forum for dealing with refugee issues given its orientation and made even less so by the fact that civil society entities were shut out of it The UNHCRrsquos participation was not considered adequate to represent the experiences and interests of refugees and asylum seekers because the UNHCR was considered by many to be part of the problem

From the perspective of APRRN members civil society entities needed places at the Bali Process table in order for any good to come out of it Since securing such places was unrealistic they set to work on the next best strategy which was attempting to influence the Bali Process indirectly by gaining access to the individual representatives of governments and agencies who were participants in Bali Process and making their views known to them To date there is no evidence that these efforts have had any impact on the Bali Process Nevertheless to give states and the UNHCR their due more progress has been made towards

44 Joint Statement on the Treatment of Rohingya and Bangladeshi lsquoBoat Peoplersquo in Asia 6 February (APRRN 2009) lthttprefugeerightsasiapacificorg20090206joint-statement-1gt accessed 11 August 2012

45 See Table 32 (Appendix) Interviews 11 and 14


refugee protection cooperation through the Bali Process than civil society entities ever expected

As previously mentioned the change of government in Australia in late 2007 was accompanied by a shift in Australiarsquos approach to dealing with the irregular movement of asylum seekers The Australian Department of Immigration (DIAC) started working towards the long-term goal of a regional protection framework Its ultimate agenda in seeking to establish such a framework was and remains that of securing Australiarsquos borders but the idea itself was one that relevant Australian civil society entities could get behind and did In July 2010 Prime Minister Julia Gillard who was trying to deal with the political fallout from an upsurge of irregular maritime arrivals seized upon the idea and married it to a hastily conceived proposal to establish an asylum seeker processing centre in East Timor to which irregular maritime arrivals could be taken46 Australian civil society entities were less than enthused by the marriage

However it did lead to Australia putting a great deal of political will behind pursuing its version of refugee protection cooperation through the Bali Process The UNHCR was able to take advantage of this to pursue its own proposal for regional refugee protection cooperation in the same forum The East Timor processing centre proposal came to naught in the end but the combined efforts of the Australian government and the UNHCR culminated in the inclusion of a non-binding regional cooperation framework in the Final Co-Chairsrsquo Statement released at the end of the Bali Process Ministerial Conference on 30 March 2011 The regional cooperation framework came as a pleasant surprise to civil society entities Although it is primarily a framework for border control cooperation it also incorporates protection-related principles and hence represents a step forward for the region47

Australian civil society entities were keen to enter a dialogue with the Australian government about how it envisaged implementing the protection principles of the framework and how they could make a positive contribution The Australian government seemed equally keen and in fact held such a dialogue with key civil society entities on 3 May 201148 Just four days later those organizations were blindsided by the announcement that the very first arrangement to be entered under the auspices of the regional cooperation framework was one between Australia and Malaysia

Under this arrangement 800 people arriving in Australia by boat were to be sent to Malaysia and in return 4000 of the recognized refugees then living in Malaysia

46 S Taylor lsquoAsylum seeker processing in East Timor a solution for whomrsquo Inside Story (9 March 2011) lthttpinsideorgauasylum-seeker-processing-in-east-timor-a-solution-for-whomgt accessed 7 August 2012

47 S Taylor lsquoRegional Cooperation and the Malaysian Solutionrsquo Inside Story (9 May 2011) lthttpinsideorgauregional-cooperation-and-the-malaysian-solutiongt accessed 7 August 2012

48 See Table 32 (Appendix) Interview 6


were to be resettled in Australia over four years49 The assumption underlying the proposed arrangement was that the prospect of being sent to the lsquoback of the queuersquo in Malaysia would be sufficient to deter asylum seekers attempting to travel irregularly to Australia in the first place or at least would be after the first few transfers had demonstrated serious intent The shock experienced by civil society entities was compounded by the revelation that the UNHCR was lsquoworking closelyrsquo with the two governments to bring the foreshadowed arrangement to fruition50

I attended a conference in Sydney a month after the announcement which was hosted by the Centre for Refugee Research (an APRRN member) and brought together academics service providers advocates and others including several APRRN members from across the region The outrage of Australian civil society entities at having been played for fools was still palpable as was the dismay of most civil society entities from other parts of the region Unsurprisingly most of them were not very inclined to accept on faith anything either government said about what became known colloquially as the lsquorefugee swap dealrsquo or the lsquoMalaysian solutionrsquo The UNHCR also lost a great deal of credibility with many civil society entities51 especially those which already had ambivalent feelings about it This is despite the fact that the UNHCRrsquos involvement with the deal was based on the belief that it could achieve better protection outcomes for refugees through pragmatic engagement than principled renunciation

From the moment that the Prime Ministers of Australia and Malaysia announced the deal APRRN members particularly the Australian and Malaysian members were in constant dialogue pooling their knowledge and discussing possible responses All the Malaysian civil society entities and many of the Australian and other civil society entities quickly concluded that the deal represented a backward step for refugee protection in the region and decided that their first priority was to kill it Collaboration via the APRRN including through an ad hoc working group on the regional cooperation framework enhanced these civil society entitiesrsquo ability to pursue this objective both individually and collectively52

On 17 May 2011 the APRRN released a joint statement with 49 endorsements opposing the deal53 When Australia and Malaysia actually signed their legally non-binding Arrangement on Transfer and Resettlement on 25 July the APRRN planned to release a further statement but put those plans on hold when some proposed transferees (clients of RILC) commenced proceedings in the High Court

49 Prime ministers of Australia and Malaysia lsquoJoint statements on a regional cooperation frameworkrsquo (7 May 2011) ltwwwministerimmigovaumediacb2011cb165099htmgt accessed 7 August 2012

50 ibid51 See Table 32 (Appendix) Interview 952 See Table 32 (Appendix) Interview 653 Joint statement on the Australia ndash Malaysia refugee swap agreement (APRRN 17

May 2011) lthttprefugeerightsasiapacificorg20110517aprrn-joint-statement-on-the-australia-e28093-malaysia-refugee-swap-agreementgt accessed 7 August 2012


of Australia challenging the domestic lawfulness of transfer When the challenge succeeded the High Courtrsquos 31 August decision (Plaintiff M702011 v Minister for Immigration and Citizenship Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32) was celebrated on the APRRNrsquos email list as a collective achievement with kudos being given not only to RILC and the other Australian lawyers involved who were not in fact part of the APRRN but also to the Malaysian lawyers who were part of the APRRN and who provided the Australian lawyers with critical information about Malaysian law and practice

In early September the APRRN members most acquainted with the issue drafted a statement welcoming the High Court decision and advocating for a better approach to regional refugee protection cooperation The statement had actually been circulated for endorsement when the Australian government announced that it had decided to seek legislative reversal of the High Court decision The APRRN statement was therefore hastily redrafted to commence by expressing deep disappointment with the governmentrsquos decision before going on to advocate for a better approach54 Unfortunately the confusion caused by the circulation for endorsement of a revised version of the statement after the original version had already been circulated resulted in the revised version which was released on 16 September receiving only 21 endorsements

In August 2012 the Australian government secured passage of Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) The Act overturns the M70 decision and enables the Minister for Immigration by legislative instrument to designate a country as a lsquoregional processing countryrsquo where the Minister thinks that it is in the national interest to do so The designation comes into force immediately upon both houses of parliament approving the designation or after a copy of the legislative instrument has been in front of each House for five of its sitting days without being disallowed At present any attempt by the government to designate Malaysia as a regional processing country is likely to be disallowed in the Senate through the combined votes of the Coalition and the Greens The government will however be proceeding with the designation of Nauru and Papua New Guinea as regional processing countries with the support of the Coalition55

In the meantime APRRN members are thinking about the broader question of how the refugee protection potential of the regional cooperation framework can be realized At the time of writing a Regional Support Office under the co-management of the Bali Process Co-Chairs Australia and Indonesia was being established in Bangkok to facilitate implementation of the regional cooperation

54 Statement on a new approach to regional cooperation on refugee protection (APRRN 16 September 2011) lthttprefugeerightsasiapacificorg20110916apprn-statement-on-a-new-approach-to-regional-cooperation-on-refugee-protectiongt accessed 7 August 2012

55 S Taylor lsquoWicked problems and good intentionsrsquo Inside Story (20 August 2012) lthttpinsideorgauwicked-problems-and-good-intentionsgt accessed 7 September 2012


framework Reflecting the priorities of most Bali Process countries the foundation projects which the Regional Support Office will be undertaking are all focused on border control rather than refugee protection56 However the UNHCR is attempting to nudge the Regional Support Office towards undertaking projects which are more protection focused and APRRN members intend to do the same57

The process just described is recursivity in action According to Halliday58 lsquothe recursivity framework insists that the impetus for each shift in global forum each move in expansion or contraction of global norms must be seen both as a site of global politics and as an engagement with national and local crises compliance rejection and politickingrsquo As previously stated most APRRN members do not theorize the processes in which they are engaged but they are well aware that in order to achieve their goals they need to engage with governments and other important actors at a local national regional and international level and they know how to leverage their gains and mitigate their losses by working across those different levels59

Looking Forward

This chapter started by describing a problem In summary the problem is that most refugees in our region do not have effective protection in their country of refuge and do not have any hope of achieving a durable solution to their plight in a reasonable timeframe It is a problem which remains unresolved

It is a lot easier to imagine the achievement of the goal of all refugees in the region having access to a durable solution in a timely fashion if local integration in countries which presently regard themselves as mere transit countries is an option on the table along with resettlement60 Civil society entities therefore found it heartening61 that the regional cooperation framework stated as a core principle that people found to be refugees lsquoshould be provided with a durable solution including hellip where appropriate possible ldquoin country solutionsrdquorsquo

However the surfeit of qualifiers around the euphemism is telling and the language probably would not have made it into the regional cooperation framework at all if it had been a legally binding document In short it is far from certain that Bali Process countries will be prepared to translate the principle into practice There are two main reasons for the resistance to local integration in

56 ibid57 December 2011 Updates (APRRN 2011) lthttprefugeerightsasiapacificorgpdf

Newsletter20Dec20201120Finalpdfgt accessed 11 August 201258 T Halliday lsquoRecursivity of global normmaking a sociolegal agendarsquo (2009) 5

Annual Review of Law and Social Science 263 28459 See Table 32 (Appendix) Interviews 9 and 1260 See Table 32 (Appendix) Interviews 2 11 and 1961 See Table 32 (Appendix) Interviews 4 and 6


the majority of countries in the region One reason is that most are developing countries which tend to take the view that they already bear more than their fair share of the regional and global refugee protection burden by simply allowing refugees to remain within their territories until a resettlement place is found for them in a developed country

This obstacle to local integration can be overcome by fostering conditions under which such integration becomes a development gain Civil society entities could play a greater role here if there was greater cooperation between civil society entities concerned with refugees and those concerned with development The few links that do exist between the sectors need to be strengthened and new links forged The other reason for resistance is a concern for preserving national identity62 and straight out xenophobia63

As one interviewee pointed out if protection space is decreasing as in some places it seems to be lsquoit is because there is some civil society voice some civil society movement that is either real or perceived by some of the political leaders as not interested in protection spacersquo64 Part of the remedy is for civil society entities with a different view to voice lsquoa pro-protection perspective loudly and consistentlyrsquo65 and in a way which changes attitudes in the rest of society Exactly how that can be done is a question tackled elsewhere66

Conclusion

So what conclusions can be drawn First civil society entities committed to advancing refugee rights in their own country are better enabled to achieve their desired policy outcomes if they form transnational alliances Second it is a lot harder for civil society entities to influence supranational policy making but it is not impossible In short in a globalized world the governments of states are not the only significant policy actors in the domestic or the international sphere And that is definitely a good thing

62 See Table 32 (Appendix) Interview 1663 See Table 32 (Appendix) Interviews 10 11 and 1264 See Table 32 (Appendix) Interview 1765 See Table 32 (Appendix) Interview 1766 S Taylor lsquoAchieving reform of Australian asylum seeker law and policyrsquo (2001)

24 Just Policy A Journal of Australian Social Policy 41ndash54 S Taylor lsquoThe Importance of Human Rights Talk in Asylum Seeker Advocacy A Response to Catherine Dauvergnersquo (2001) 24(1) University of New South Wales Law Journal 191ndash9


Appendix

Table 32 Table of formal interviews

Name Role Location Date1 Grant Mitchell Director International Detention

Coalition Melbourne 22 March 2011

2 Anonymous Australian Department of Immigration (lsquoDIACrsquo) official

Canberra 4 April 2011

3 Arja Keski-Nummi Former First Assistant Secretary Refugee Humanitarian amp International Division DIAC


4 Sue Harris Rimmer Visiting Fellow Centre for International Governance amp Justice Australian National University


5 Chris Lamb Special advisor Australian Red Cross

Melbourne 19 April 2011

6 Paul Power CEO Refugee Council of Australia

Sydney 7 June 2011

7 Graham Thom Refugee Coordinator Amnesty International Australia

Sydney 8 June 2011

8 Aloysius Mowe Director Jesuit Refugee Service Australia

Sydney 9 June 2011

9 Anoop Sukumaran Coordinator Asia Pacific Refugee Rights Network (APRRN)

Sydney 14 June 2011

10 Renuka Balasubramaniam

Director Lawyers for Liberty Malaysia

Sydney 14 June 2011

11 Rafendi Djamin Indonesian representative ASEAN Intergovernmental Commission on Human Rights

Sydney 16 June 2011

12 Florina Benoit Social worker India Sydney 17 June 201113 Patrick Taran Senior Migration Specialist

International Labour OrganisationGeneva 25 June 2011

14 Chris Lewa Director Arakan Project Geneva 26 June 201115 Anonymous Refugee advocate Philippines Geneva 30 June 201116 Veerawit

TianchainanExecutive Director Thai Committee for Refugees

Geneva 30 June 2011

17 John Bingham Head of Policy International Catholic Migration Commission

Geneva 1 July 2011

18 Pia Oberoi Migration Advisor Office of the UN High Commissioner for Human Rights

Geneva 1 July 2011

19 Jo Szwarc Victorian Foundation for the Survivors of Torture Inc

Canberra 17 October 2011

20 Anonymous APRRN member Telephone 31 May 2012

Note A further ten interviews with key informants which were conducted under lsquoChatham House rulesrsquo are not listed in Table 32

Chapter 4

The Search for Protection in Southeast Asia

Taya Hunt and Nikola Errington

Every year thousands of refugees and asylum seekers embark on the search for protection in Southeast Asia While the search for asylum has never been easy changes to the protection landscape in recent years mean that asylum seekers and refugees have to continually assess where in the region is safe Given the range of challenges within the region it is essential that those who work with asylum seekers and refugees know as much as possible about the asylum options available in urban areas

It was this thinking that led to the research and publication of The Search Protection Space in Malaysia Thailand Indonesia Cambodia and the Philippines The Search was researched and co-authored by two Australian lawyers Nikola Errington and Taya Hunt Both spent time working for the Jesuit Refugee Service as refugee legal representatives in countries within Southeast Asia The Search is informed by their experiences as well as qualitative research conducted between 2010 and 2012 in the five countries The focus of the research was to emphasize the experience of asylum seekers and refugees to let them tell their own stories

The key issues for concern in the region identified by the The Search are outlined below They are a distillation of the consistent themes heard through conversations with asylum seekers refugees non-governmental organizations (NGO) staff the United Nations High Commissioner for Refugees (UNHCR) governments human rights advocates caseworkers and volunteers

Onward Movement from the Country of First Asylum

There is a common tendency towards onward movement from the country of first asylum due to the protection concerns of asylum seekers and refugees This research showed that this largely resulted from inadequate access to information required by asylum seekers to make informed decisions about their futures This lack of available information as to where in the region is safe to seek asylum is a protection issue in itself The following case studies illustrate this point

In 2009 Uighur refugees from China arrived at the office of the Jesuit Refugee Service in Phnom Penh Cambodia All sought to be registered as asylum seekers with UNHCR and see through the refugee status determination process which


was at the time jointly administered by the UNHCR and the Royal Cambodian Government They had transited through a number of countries in the region before arriving in Cambodia All had sought information from agencies embassies and NGOs in the various countries they had travelled to They had been advised to seek asylum in Cambodia by an Embassy in Vietnam as well as a worker from a well-known international NGO The reasoning was that as Cambodia was a signatory to the Refugee Convention1 it would provide safe refuge while the asylum seekers were engaged with the refugee status determination process

What the Embassy official and NGO worker may not have known and certainly did not advise was that Cambodia has an uneven history of providing protection to refugees from China In 2002 two Falun Gong practitioners who had registered with the UNHCR and who were awaiting their refugee status determination were forcibly removed from Cambodia and returned to China2 A similar fate awaited the 20 Uighur asylum seekers and in December 2009 they were taken at gunpoint and forcibly returned via chartered plane to China If they had received correct information at first instance refoulement may have been avoided

In mid-2011 five young Sri Lankan Tamil men also arrived at the office of the Jesuit Refugee Service in Phnom Penh They had been living in Malaysia for several years some working in construction some working with local businesses living in the shadows of the community in fear of being arrested Two of the young men had been granted refugee status by the UNHCR in Malaysia more than a year ago but did not know what they were waiting for and how to move on from Malaysia Another two had undergone their UNHCR refugee status determination interview over a year ago and did not want to wait any longer for a decision The final Sri Lankan Tamil man had not registered for refugee status With the help of people smugglers they travelled through Thailand by land into the jungle that demarcates the border of Cambodia and eventually reached Phnom Penh

When they came to speak with the legal representative at Jesuit Refugee Service and were asked why they chose to come to Cambodia they replied lsquoWe were told that we can be resettled quickly from here because there arenrsquot many refugeesrsquo It was clear that they had been manipulated by people smugglers What they had not been told is that the Royal Cambodian Government had in 2009 taken over refugee status decision making from the UNHCR and that resettlement was no longer automatically available as an option for refugees They had to be told that resettlement is only available and facilitated by the UNHCR in very limited circumstances such as a special medical condition or in the event that protection or an individualrsquos security is threatened

1 Convention relating to the Status of Refugees opened for signature 28 July 1951 189 UNTS 150 (entered into force 22 April 1954) (Refugee Convention)

2 Fear for safetypossible ldquodisappearancerdquofear of forcible return (Amnesty International 2002) ltwwwamnestyorgenlibraryinfoASA230062002engt accessed 10 October 2012

The Search for Protection in Southeast Asia 55

Given the reality that faced them these young men had to make the difficult decision of whether to stay in Cambodia or move on Relevant to this decision was whether they could realistically integrate given that Cambodia is one of the poorest countries in the region with limited settlement support available

Asylum seekers move from their first country of asylum for many reasons Asylum seekers and refugees in urban areas in Southeast Asia often live in countries where they cannot earn a livelihood find safe accommodation or access medical care and education People are relegated to living and working on the fringes of society living in fear of leaving their houses going to see a doctor or sending their children to school as they are vulnerable to harassment by authorities and arrest

As Thailand Indonesia and Malaysia are not signatories to the Refugee Convention and have not adopted domestic frameworks affording legal recognition to asylum seekers and refugees they are not legally permitted to work in these countries without valid passports and visas Many asylum seekers are therefore forced to work illegally and are vulnerable to exploitation and abuse In the Philippines and Cambodia asylum seekers are not permitted to work whilst their cases are being processed These protracted situations can lead to destitution given that the timeframe that an asylum seeker may wait to receive their refugee status averages around three years in both countries

Education of children of asylum seekers and refugees is another reason for movement as parents look to whether or not their children can attend school in their countries of asylum while awaiting the UNHCR refugee status determination and resettlement process In Indonesia children can be enrolled in Indonesian public primary schools Parents are assisted by NGOs to facilitate the enrolment Some parents expressed concern that it was not prudent to send their children to Indonesian schools and learn Bahasa Indonesian given that there are no pathways to local integration In Malaysia children of asylum seekers and refugees do not have access to the education system Given the protracted nature of refugee status determination and resettlement this means that school-age children may spend a predominant period of their lives without formal education certification which affects their long-term futures

The availability of medical assistance also informs decisions of movement In Indonesia and Malaysia asylum seekers will be charged the foreigner rate to access public hospitals In Indonesia they may be accompanied by staff of an NGO to explain the situation of the asylum seeker or refugee Those in Malaysia rely on the services of the UNHCRrsquos implementing partners who provide healthcare services to asylum seekers and refugees These services include medical treatment family planning HIV testing counselling services and antenatal care

Asylum seekers and refugees will move until effective protection is found In Southeast Asia where protection space is limited and transient it is the responsibility of advocates to assist asylum seekers and refugees to come to informed decisions about where in the region is safe


The Right to Legal Representation for Asylum Seekers and Refugees

In practice the right to legal representation for asylum seekers and refugees is not fully recognized by the UNHCR or governments which compromises the integrity of the refugee status determination process Indeed legal representation is not encouraged by the UNHCR and in some instances is actively discouraged Advocates in Malaysia explained that they often felt like their submissions lsquowent into a black holersquo While in Indonesia there have been small steps made to involve legal representatives the UNHCRrsquos sentiment is that refugee status determination is slowed down by advocate participation

In Thailand Jesuit Refugee Service and Asylum-Access provide on-going legal aid to applicants in urban areas and detention However attempts to be present during interviews have failed In Cambodia the Jesuit Refugee Service legal officer is able to assist asylum seekers by providing submissions on their cases and the refugee status determination system as implemented by the government supported by the UNHCR However the legal officer has been denied permission from government officials to be present during interviews and the handing down of decisions There is no provision for legal representatives through the refugee status determination process in the Philippines or in Cambodia enshrined in the relevant domestic frameworks and governments have been reluctant to acknowledge the right of an asylum seeker to be assisted by a legal representative

The assistance of legal officers plays a role in supporting not only the applicants but also assisting decision-makers while strengthening the integrity of the refugee status determination system as a whole Legal officers may provide guidance to their clients for them to tell their story chronologically and as accurately as possible prepare for interviews provide realistic advice on the substance of applicantrsquos claims clarify refugee status determination procedures and timelines emphasize the importance of disclosing pertinent information and being honest dispel myths about the refugee status determination process that might have been given to them by others gather relevant country of origin information and provide legal briefs to decision-makers Furthermore the presence of legal officers in interviews ensures transparency and accountability and the accompaniment through this process allows for monitoring of the treatment of applicantrsquos through the refugee status determination system

Many asylum seekers suffer from mental health issues either stemming from or compounded by persecution suffered and the difficult journey they have faced These mental health issues impact on asylum seekersrsquo ability to communicate retain and process the information needed to submit a refugee status application A legal representative can assist to explain relevant laws and concepts in accessible language and help to communicate an asylum seekerrsquos story to decision makers

Opportunities for legal representatives to advocate for their clients throughout the refugee status determination can only be meaningful through productive working relationships with UNHCR eligibility officers and government officials


In the UNHCR Policy on Refugee Protection and Solution in Urban Areas3 the lack of legal assistance available to urban refugees is explicitly stated as one of the difficulties faced by the UNHCR when undertaking refugee status determination in the absence of domestic processes The policy goes on to state lsquoWith regard to legal and social counselling UNHCR will encourage NGOs legal networks and human rights organizations to play an active role in such activitiesrsquo

In light of the benefits of legal representation mentioned above it is unfortunate that the UNHCR has not encouraged legal representation in any of the countries examined One of the consequences which can now be seen in Cambodia is that the exclusion of legal representatives from the UNHCR refugee status determination process means exclusion from government refugee status determination when handovers occur Legal representation throughout the refugee status determination process is considered a right in many countries In Australia generally asylum seekers who arrive by boat have access to publically funded representation Legal representation is also available in America Canada and the United Kingdom through NGOs or government funded programmes By not encouraging legal counsel involvement in UNHCR refugee status determination the UNHCR is setting a dangerous precedent

Importance of Cooperation between Countries

Given that many asylum seekers and refugees move within the region cooperation between countries of first asylum transit countries and resettlement countries plays a vital role in forming protection space At present there is minimal regional cooperation on the issue of asylum seekers and refugees Examples of current agreements that are in place in the region include 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 With little space for the discussion of refugee rights to be included on the Association of Southeast Asian Nations (ASEAN) agenda focus has turned to the Bali Ministerial Conference on People Smuggling Trafficking in Persons and Related Transnational Crime (Bali Process) to explore meaningful and productive methods for dealing with the regional movement of asylum seekers and refugees in the future

3 UNHCR Policy on Refugee Protection and Solutions in Urban Areas (UN High Commissioner for Refugees 2009) ltwwwunhcrorgrefworlddocid4ab8e7f72htmlgt accessed 26 November 2012


The Emergency Transit Agreement

The Emergency Transit Agreement (ETA) facilitates protection through regional cooperation by providing emergency transit facilities for refugees at risk in their countries of first asylum The agreement allows for the transit and processing of refugees in the Philippines who are at risk of being sent back to countries from which they have fled Before a refugee can be considered for transit to the Philippines a resettlement country must have agreed to accept or to conduct further resettlement processing of the refugee This is to mitigate refugees becoming stranded in Manila

There are minimal public documents available on those who benefit from this agreement as its confidential nature is a key component of its effectiveness According to the US Department of Statersquos 2010 Human Rights Report on the Philippines 216 refugees were transited through the facility in 20104 and 243 in 20115 In many cases the refugees who this agreement seeks to assist are at risk of refoulement The country in which the refugee has sought asylum is usually under intense political pressure to assist in condone or turn a blind eye to the forced return of the refugee For a refugee to travel to the Philippines the country of first asylum needs to provide exit papers and in some cases allow travel on a temporary passport If these negotiations became public conflict could result between the country of origin of the refugee and the first country of asylum The negotiations between asylum governments the Philippines the UNHCR and the IOM are therefore delicate and confidential This confidentiality and discretion is essential to ensure that the Emergency Transit Agreement can continue to protect refugees at risk

A refugee who benefited from the Emergency Transit Agreement talked of the relief he felt upon arriving in the Philippines

When the airplane landed in the Philippines I felt like I could breathe again I have been afraid most of my life I wasnrsquot safe in [country name withheld] but I feel safe now and I know when I am resettled I will feel even safer When you go to a country and ask to be a refugee you think you will be given respect but this didnrsquot happen I feel like the Philippines respects refugees They look after me very well I get all my meals and there is a big television I can watch I can go outside during the day but I donrsquot want to I donrsquot have money and I donrsquot speak the language They have told me that I will be resettled in four weeks6

4 Human Rights Report (US Department of State 2010) ltwwwstategovjdrlrlshrrpt2010eap154399htmgt accessed 10 August 2012


6 Interview with anonymous refugee undertaken by Taya Hunt via email (19 February 2010)


Regional Cooperation Model

In around 2001 the Australian government entered into the Regional Cooperation Model with the Indonesian government and the IOM in order to stem the tide of irregular migration through Indonesia heading for Australia According to the IOM the objectives of the Regional Cooperation Model are to prevent Indonesia and Australia being targeted by people smugglers and assist those irregular migrants in returning voluntarily to their country of origin or to a third country

If the Indonesian authorities determine that someone is intending to go to Australia or New Zealand they are referred to the IOM for further management Under the terms of the agreement the Indonesian government is the competent authority to make a determination as to the intended destination of those intercepted in Indonesia Referrals are made to the UNHCR for those who wish to make an asylum claim This means that the Indonesian authorities act as an interlocutor between asylum seekers and the UNHCR

The Australian government funds the IOMrsquos operations in Indonesia in relation to the Regional Cooperation Model and the funds have been used to contribute to upgrades to detention facilities and for residential housing in Medan Bogor and Makassar Those living in residential housing in Medan are free to move around the city and there is no curfew for return each night Each compound has a security guard stationed at the entrance gate and permission must be given by immigration authorities for guests (including NGOs) to enter the compounds Those living in the community are given financial support from the IOM for living expenses

The Future for Regional Cooperation The Bali Process

The Bali Process is a regional framework established in 2002 with the aim to combat trafficking people smuggling and related transnational crime in the Asia Pacific region The UNHCR the IOM and the governments of Australia Indonesia New Zealand and Thailand are members of the steering committee of the Bali Process A Regional Cooperation Framework was agreed to by Ministers in March 2011 Its objectives are to reduce irregular movement and to address concerns for the protection of asylum seekers and refugees arising as a result of mixed migration flows The Australian government has argued that its attempts to strike a deal with Malaysia regarding the return of asylum seekers to Malaysian shores in exchange for an increase in resettlement places for those already recognized by the UNHCR is an example of the operationalization of the Regional Cooperation Framework

In October 2011 a proposal for the establishment of a Regional Support Office was drafted by the UNHCR as a step towards implementing the Regional Support Office with its focus being on information and technical resource sharing capacity building and support within member states The Regional Support Office was officially opened on 1 July 2012 in Bangkok The opening of the office signals that regional cooperation is on foot but undoubtedly it will be some time before the impact is felt for asylum seekers and refugees in a practical manner


Increasing Delays for New Arrivals to Obtain Confirmation that they are Persons of Concern

It is critical that those seeking refugee status are swiftly registered and given documents that identify them as persons of concern to the UNHCR or as asylum seekers to governments that have acceded to the Refugee Convention A UNHCR person of concern document provides a minimal safeguard that can aid UNHCR interventions should an asylum seeker engage with government authorities that do not recognize the legal status of refugees A Government-issued document identifying individuals as asylum seekers can potentially prevent detainment or refoulement

In Indonesia it may take up to a month or longer for the issuing of a person of concern letter following the completion of registration which currently has a backlog of around 10 months In Thailand the person of concern letter is usually issued at the time of the initial registration However this initial registration occurs approximately one month after the applicants first approach the UNHCR This is because asylum seekers are initially required to write their names and contact details on a piece of paper to be handed to the Bangkok UNHCR office and wait to be contacted for registration At the initial registration the asylum seeker is then given their asylum seeker certificate confirming that they are a person of concern to the UNHCR After approximately one month following the initial registration the asylum seeker is called to complete lsquofull registrationrsquo and requested to attend an interview at which time the asylum seeker submits their statement

Registration does not extend to all nationalities within the urban context of Bangkok The Thai government does not permit the UNHCR to conduct refugee status determination for Burmese asylum seekers This relegates them to live in one of the nine refugee camps along the ThailandndashBurma border or without any form of protection should they choose to live in urban Bangkok

Burmese asylum seekers in Malaysia are unable to access the UNHCR in Kuala Lumpur by simply presenting themselves for registration They are instead referred to their community groups in the first instance to be added to rapidly growing lists that are collected by the UNHCR on an ad hoc basis Those from countries other than Burma are asked to write their name and contact details and are then given an appointment date to return to complete registration However those who have arrived with valid travel documents and visas are told that they will not be registered until the expiry of the said documents

A Sri Lankan asylum seeker speaks of his experience in Malaysia

When I first went to the UNHCR my tourist visa was still valid so they told me I had to wait until it had to expire When it did expire I went back and I went and filled out a form about my contact details and my family They didnrsquot ask me anything about my case They gave me an appointment card to return for an interview about my case They told me that there were many refugees in Malaysia like 80000 or something and that they were under the government


They said the government was in charge but I could be here temporarily They told me that I couldnrsquot work that I couldnrsquot open a bank account own property rent property I could just stay here They told me it would be at least 6 months But it was two years7

The sense that Indonesia is a transit country for many asylum seekers and refugees is clearly evident when speaking to those that have arrived there Many arrive in Indonesia after sustaining prolonged journeys in cramped unsanitary and dangerous vessels from Malaysia and Thailand Many are in transit from Malaysia to Australia and have either been intercepted by boat in Indonesian waters or were intending to transfer to another boat after reaching the shore of Indonesia for the final leg of the journey

Given that Indonesia is often a country of transit how asylum seekers and refugees access the UNHCR for registration will depend on their mode of arrival where they were intending to travel to or whether they have been detained Those that are detected by the Indonesian government authorities and subsequently determined to be in transit to Australia or New Zealand are subject to the provisions of the Regional Cooperation Model It is the responsibility of the Indonesian government authorities to make a determination as to whether someone is an asylum seeker and should be referred to UNHCR Since many asylum seekers do not intend to pursue a claim for refugee status in Indonesia they may not seek to register with the UNHCR if they remain undetected by Indonesian government authorities

For asylum seekers who access the UNHCR Jakarta office the first step is to complete registration Although registration takes place four times per week the current backlog for registration for urban refugees is ten months For this ten-month period before a persons of concern letter is issued by the UNHCR asylum seekers have no form of documentation distinguishing them from other illegal migrants

Countries Acceding to the Refugee Convention Should Not be Presumed to Provide Refugee Protection

The question lsquowhere in the region is it safe to seek asylumrsquo is a common one asked by asylum seekers or refugee lawyers working in Southeast Asia The protection landscape is politically charged and the adoption of legislation and policy recognizing the rights of asylum seekers and refugees does not always guarantee that the rights of refugees are secure History continues to show that protection is largely determined by international alliances and internal political pressures

Nowhere in the region has this been more clearly demonstrated than in Cambodia Cambodia acceded to the Refugee Convention in 1992 However the

7 Interview with anonymous refugee undertaken by Nikola Errington via email (31 August 2011)


Cambodian government only implemented domestic legal framework in 2009 through the enactment of the Sub-Decree on Procedure for Recognition as a Refugee (the Sub-Decree)

A number of criticisms of the Sub-Decree have been made most vocally by Human Rights Watch in its public letter to Hun Sen Cambodiarsquos Prime Minister in March 20108 Human Rights Watch argued that the Sub-Decree does not conform to the Refugee Convention definition of a refugee arguing that a higher threshold for refugee status has been created by the Cambodian government The Khmer language translation of a lsquowell-founded fear of persecutionrsquo includes the qualifier that this well-founded fear be based on the prospect of lsquoserious persecutionrsquo

Ministers are also given wide-reaching powers to refuse and expel asylum seekers This power is of particular concern as it is not counter-balanced by safeguards to prevent wrongful removal Whilst the Sub-Decree addresses the ability for an asylum seeker to raise legal issues in relation to their claim it gives no positive right of legal representation Decisions are appealed to the same body that decided the first decision and there is no point at which the decision can be further appealed to a court of law for judicial review

The enactment of the Sub-Decree heralded the handover of refugee status determination from UNHCR to the Cambodian Ministry of Interior with the implementation carried out by the Cambodian Refugee Office The Sub-Decree gives guidance on the role of UNHCR stating that the Ministry of Interior will cooperate with the UNHCR in order to implement the Sub-Decree Refugee Convention and its Protocol

The events that led up to and followed the enactment of the Sub-Decree paint a concerning picture of a country unable and unwilling to fulfil the responsibilities and obligations that the Refugee Convention prescribes On 18 December 2009 only one day after the Sub-Decree was passed 20 Uighur asylum seekers including a pregnant woman and her two young children were taken at gun point from a safe-house jointly managed by the Cambodian Government and the UNHCR They were imprisoned within the Ministry of Interior for one night then deported back to China

On 20 December 2009 the Chinese Vice-President Xi Jinping arrived in Cambodia and signed contracts worth over 1 billion US dollars The following day a government spokesman Khieu Kanharith noted in the Phnom Penh Post that lsquoChina has thanked the government of Cambodia for assisting in sending back these peoplersquo In February 2012 it was reported that at least two are facing life sentences and others sentences spanning more than ten years9

8 Public Letter to Cambodian Prime Minister Regarding New Refugee Regulations (Human Rights Watch 2010) ltwwwhrworgnews20100324letter-cambodia-sub-decreegt accessed 12 August 2012

9 K Wills lsquoTwo Uighurs deported from Cambodia to China get lifersquo Reuters (27 January 2012) ltwwwreuterscomarticle20120127us-china-uighurs-idUSTRE80Q0AW20120127gt accessed 12 August 2012


Whilst Cambodia is certainly not the only country to act against its Convention obligations the refoulement of the Uighur asylum seekers only one day after the Sub-Decree was enacted signals a flagrant disregard for refugeesrsquo rights The incident demonstrates that the rights of refugees in Cambodia are contingent upon questions of economic and political expedience

Steps to Introduce Alternatives to Detention

Anyone who has worked with refugees in detention knows of the devastating impact detention has on mental and physical health In Southeast Asia effects of detention are compounded by squalid conditions and inhumane treatment Not knowing when they will be released is perhaps the most difficult aspect for a detainee in the region Thus efforts in Indonesia and Thailand to introduce alternatives to detention which have drastically improved the lives of asylum seekers and refugees should be lauded

In Indonesia the legal status of asylum seekers and refugees without a valid visa is that of an illegal migrant subject to the control of the immigration law10 which stipulates that foreigners who are not in possession of a valid passport and visa may be detained

Conditions in the fourteen immigration detention centres in Indonesia vary throughout the country Overcrowding lack of sufficient sanitation and infrastructure have been reported in recent years in various facilities Detainees in the Belawan immigration detention centre in Medan who were present during 2010 reported only being able to leave their 12 m2 cells for two hours per day Flooding was common during the rainy season with sewage spilling into the cells where they slept four people to a room on mattresses on the floor

In late February 2012 reports of the death of a 28-year-old male Afghani asylum seeker who was being held in Pontianak Immigration Detention Centre surfaced indicating that he had been severely beaten following an attempted escape Amnesty International reported that he was covered in bruises had cigarette burns on his arms and had obvious signs of his wrists being tied and of blunt force trauma11

Whilst Indonesia has no legal framework to offer protection to refugees a policy adopted by the Indonesian authorities relating specifically to the treatment of asylum seekers and refugees is outlined in the Directive of the Director General of Immigration12 Significantly this Directive provides for alternatives to detention

10 Undang-Undang Nomor 6 Tahun [2011] Law No 6 of 2011 on Immigration (Indonesia) art 83(1)

11 Indonesia Asylum-seeker tortured to death in detention (Amnesty International 2012) ltwwwamnestyorgaunewscomments28033gt accessed 11 October 2012

12 Directive from the Director General of Immigration on Procedures Regarding Aliens Expressing Their Desire to Seek Asylum or Refugee Status [Indonesia] No


of asylum seekers and in 2011 785 persons were released from immigration detention centres and placed into community housing managed by the IOM or Church World Service

Issued on 17 September 2010 the Directive addresses the increasing number of asylum seekers arriving in Indonesia It acknowledges the role of the UNHCR as the agency responsible for the protection and assistance of asylum seekers and refugees in Indonesia by virtue of an memorandum of understanding between the UNHCR and the Indonesian government

Asylum seekers are firstly detained as illegal immigrants and subject to the procedures of the immigration law and regulations or policy When an illegal migrant wishes to seek asylum they are then to coordinate with relevant NGOs and the UNHCR The directive allows for illegal immigrants to stay in Indonesia temporarily if they have either an attestation letter a letter verifying that they seek asylum with the UNHCR or have received recognition of refugee status from UNHCR

The Directive indicates that it is not mandatory for illegal immigrants seeking asylum to be detained provided they are registered with an international organization or the UNHCR and the Directorate General of Immigration is informed by the UNHCR of these arrangements If an illegal immigrant who is seeking asylum comes under the mandate of an international organization or the UNHCR and is living in the community they are requested to complete a Refugee Declaration of Compliance They are then subject to the control of the local immigration office

The UNHCR has an obligation to report to the Directorate General of Immigration when an application for asylum has been rejected After a case has been closed rejected asylum seekers are then subject to the immigration law and regulations in the same manner as illegal migrants

In Thailand immigration law prohibits entrance into Thailand through an unauthorized check-point without a valid travel document and visa It is also illegal to remain within Thailand after the expiry of a valid passport or visa However many asylum seekers and refugees manage to successfully evade the attention of the immigration authorities for years Commonly asylum seekers and refugees are brought to the attention of the Immigration police through complaints lodged by neighbours or community members

Although there are a number of immigration detention centres in Thailand asylum seekers and refugees are eventually sent to the largest detention centre which is the Suan Phlu Bangkok Immigration Detention Centre in central Bangkok After arrest they are taken to court and charged with illegal stay the punishment being a fine and detention within the immigration detention centre until such time as they can be bailed or leave the country If an asylum seeker or refugee cannot pay the fine set they will be sent to a prison in Bangkok and after they have served their sentence they are then transferred to immigration

F-IL0110-1297 30 September 2002 ltwwwunhcrorgrefworlddocid3ed8eb5d4htmlgt accessed 17 September 2012


detention The immigration detention centre is overcrowded and unhygienic Up to 150 detainees sleep in the same barred cell There is no furniture so detainees sleep and spend their days on the floor In some of the cells the detainees are forced to sleep sitting up or wait for room to sleep as there is not enough room inside the cells for everyone to lie down There is an open-plan bathroom in each cell with two stalled toilets

In Thailand bail is available to facilitate release from detention Recognized refugees (and particularly vulnerable asylum seekers) may be released from the immigration detention centre if bail is paid to the immigration authorities and an undertaking is signed by a Thai national or an organization registered in Thailand Release is not indefinite and is for a specified period of time determined at the discretion of the Immigration Commissioner

The process for bail begins when a detainee makes a verbal request to immigration officials Once the requisite funds have been raised the detainee must write a letter to the Superintendent formally requesting bail An interview will be conducted by the police to determine whether the detainee is suitable for release consideration will be given to criminal history and their medical condition A profile is compiled by the police and submitted to the Immigration Commissioner which includes information on those acting as guarantor The money should be returned when the detainee returns to the IDC voluntarily repatriates or is resettled However the return of money has been known not to occur

The amount of the bail to be posted varies and is at the discretion of the immigration authorities Once approved for bail the refugee must report regularly to the local police at the specified time and date and inform them as to where they are staying

The relief felt by those lucky enough to be released is clearly evident A pregnant refugee released from the Bangkok immigration detention centre said upon her release

I thought because I was pregnant they would not keep me [in detention] But then the police took notes about me and brought me upstairs Then I knew I wasnrsquot getting out One day they called me down to the [immigration detention centre] office I didnrsquot know what they wanted maybe information from me or to give me a message The officer just said lsquowe are going to release yoursquo At first I didnrsquot believe it I was so happy I felt numb It wasnrsquot until after I walked outside got into a taxi and was driving away that I really believed that I was free13

Conclusion

Protection space for asylum seekers and refugees in Southeast Asia is limited and consistently changing It is in this dynamic environment that asylum seekers and

13 Interview with lsquoTheresarsquo originally published in Diakonia (December 2011) 12


refugees must negotiate complex protracted and non-transparent processes It is also in this environment that advocates must work to ensure durable solutions for the people they work with

The search for protection in Southeast Asia is a confusing and frightening journey for people who have already seen and experienced too much suffering Asylum seekers and refugees are often left with no option but to live in fear in countries that do not recognize their basic rights Being able to find somewhere to live earn a livelihood take a child to school see a doctor when sick these are the fundamental tenets of protection space that are lacking in the Southeast Asian region

History has evidenced time and again that effective protection space can only be established with the political will of those countries that host asylum seekers and refugees It is the role of those who work with asylum seekers and refugees in Southeast Asia to understand the regional dimension of protection space and the practical elements that inform the choices of asylum seekers and refugees in their search for protection

Chapter 5

Refugee Protection in China The Issue of Citizenship and Potential Solutions

Liang Shuying1

When Chinarsquos State Councillor Tang Jiaxuan met with Antoacutenio Gutettes the United Nation High Commissioner for Refugees on 22 March 2006 he stated that China places great emphasis on the importance of refugee protection has fulfilled its obligations by implementing practical measures and actively and constructively cooperated with the international community2 China has participated in refugee protection activities at the international level for several decades China took part in the consideration of the 1949 UN Relief Work Agency for Refugees in Near East acceded to the 1951 Convention relating to the Status of Refugees (Refugee Convention) and the 1967 Protocol relating to the Status of Refugees (Refugee Protocol) has cooperated with the Office of the UN High Commissioner for Refugees (UNHCR) participated in activities organized by the Executive Committee of the UNHCRrsquos Programme for Refugees and accepted the Mission Representation in China established by the UNHCR3

Furthermore Chinarsquos government representatives and experts have actively taken part in negotiations regarding refugees displaced persons and immigrants among the Asia Pacific governments In this regard Chinarsquos government clarified its positions in international meetings and made efforts to put them into practice such as by accepting and protecting hundreds of thousands of Indochinese refugees These consisted of approximately 280000 refugees from Vietnam Cambodia and Laos who fled to China during the late 1970s and early 1980s In the 1990s almost all the refugees from Laos and Cambodia returned to their native states Currently there are 295000 Indochinese refugees remaining in China who are settled in Guangxi Zhuang Autonomous Regions Guangdong Province Yunnan Province Hainan Province Fujian Province and Jiangxi Province Their lives are similar to those of the general Chinese population

1 This article was translated from Chinese to English by Wu Xiaodan Postdoctorate of the Chinese Academy of Social Science

2 Tang Jia Meets with the United Nations High Commissioner for Refugees (Ministry of Foreign Affairs of the Peoplersquos Republic of China 2006) ltwwwfmprcgovcnengzxxxt242385htmgt accessed 9 September 2012

3 This Mission Representation was upgraded to Representation in 1995 and to Regional Representation in 1997


The Indochinese Refugees in China

The majority of the refugees live in Guangxi Zhuang Autonomous Region Guangdong Province and Yunan Province There are approximately 110000 Indochinese refugees in Guangxi Zhuang Autonomous Region4 most of who live on farms forestry centres and fish farms in 35 counties and cities Generally they enjoy a good quality of life For instance 7730 refugees are settled in Beihai City When they first fled to Beihai they were crowded in small boats and later lived in temporary shelters made of bamboo and asphalt felt provided by the local government They then moved to the refugee residences built by the Chinese government and the UNCHR in Qiaogang Town These residential buildings were of good quality and the refugees had access to hospitals schools and other facilities In Qiaogang Town in 2010 most of the refugees had moved to larger and better residences using income earned from fishing The Qiaogang Town mayor said that the average income per month in 2008 was 4586 RMB They obtained Chinese registered permanent residency (hukou) and identity cards in 1982 As such they can serve in government and vote

The experience of Mr Zhou is a perfect example of the changed living conditions of these refugees He came to China with his family in 1978 when he was nine years old In 1981 they moved into their new residence of 40 m2 and soon they had Chinese permanent residence (hukou) and identity cards In 1988 after graduating from junior middle school Mr Zhoursquos job was catching fish In 1992 he entered a diesel business with another refugee and they were able to apply for a bank loan which they paid off four years later Thereafter he extended his business to aquatic products and became manager of the Yuhua Fishery Company which owned more than 100 of the 1200 boats in Qiaogang Town As one of the individuals in charge of the five collectively-owned companies in Qiaogang Town Mr Zhou was elected as the peoplersquos representative for Qiaogang Town Certainly Mr Zhou had moved beyond the small residence provided by the government in 1981

The situation of the Indochinese refugees in other towns and cities of the Guangxi Zhuang Autonomous Region are generally the same as that in Beihai City A government officer of the Returned Overseas Chinese Association in Pingxiang City stated that there are more than 200 refugee families from Vietnam in Pingxiang According to the settlement policy of the local government refugees with skills were settled in the city and mostly worked in plastic or food factories and schools The ones without skills worked on farms For example this government officer came from Vietnam with his parents at seven years of age and his parents were offered jobs at Pingxiang Middle School Since they had Chinese permanent residence and identities cards there were no problems for them to go to school to find jobs and vote

4 At the end of 2005 there were 112268 refugees in Guangxi Zhuang Autonomous Region See L Xueju (ed) Thirty Years of Civil Administration in China (Chinese Social Sciences Press 2008) 334

Refugee Protection in China The Issue of Citizenship and Potential Solutions 69

All of the officerrsquos education was received in China and he subsequently worked in the Guangxi Culture and Sports Bureau after receiving a college diploma In Pingxiang among the Indochinese refugees of his age more than 20 worked in government departments or public institutions The disadvantaged refugees are provided with security for minimum living

Currently there are more than 80000 Indochinese refugees in Guangdong Province5 most of whom were helped to settle down in 23 returned overseas Chinese farms and 13 other farms Additionally with the support provided by different governmental bodies the Refugees Settlement Office of Guangdong Province trained the refugees to be able to earn a living As a result more than 20000 children of the original refugees found jobs and improved their standard of living Moreover with hukou registration their children have access to education The poorer refugees also have access to social welfare They can also vote and have the right to be selected to be peoplersquos representatives at different levels of government For example three refugees were deputies to the Provincial Peoplersquos Congress

There are approximately 38000 Indochinese refugees in Yunnan Province6 most of whom were settled in 18 farms and rural areas of 12 counties in the Wenshan Honghe and Xishuangbanna autonomous prefectures Their basic living conditions are secure and they have land and dwellings A series of problems have been solved such as access to primary school education minimum living security hukou and identity cards For instance there were 5363 refugees of 1112 families in Hekou County of the Honghe Prefecture who have 321 hectares of farmland The housing area is 7 m2 per person there are four primary schools for refugees with 634 students in total and 387 families are entitled to social welfare

The protection of Indochinese refugees in China has been highly praised by the international community In 1997 the UN High Commissioner for Refugees Ogata Sadako said when she visited China lsquoChinarsquos government is exemplary in receiving and settling Indochinese refugees The generous policies adopted by and the great efforts made by Chinarsquos government regarding these refugees are unparalleled in the world which is not only well-known in the UN Commissioner for Refugees but also in the international communityrsquo7 Chinarsquos government has made great efforts to protect the Indochinese refugees and has made remarkable achievements especially in respect of their settlement Nonetheless there are still problems with Chinarsquos protection of refugees

5 At the end of 2005 there were 83583 refugees in Guangdong Region See L Xueju (n 4) 334

6 At the end of 2005 there were 38009 refugees in Yunan Province See L Xueju (n 4) 334

7 lsquoChina has set an excellent example in refugees treatmentrsquo Beijing Youth Newspaper (23 June 2003) B7


Issues with Chinarsquos Treatment of Indochinese Refugees

Based on the authorrsquos investigation the primary problem about the Indochinese refugees in China is Chinarsquos approach to their nationalities Nearly two-thirds of the Indochinese refugees came to China between 1978 and 1984 while the rest are their descendants However all of these refugees are stateless because the Vietnamese government does not consider them to be Vietnamese and Chinarsquos government refuses to grant them citizenship The status of stateless has put Indochinese refugees in an unacceptable situation

On the one hand it is disadvantageous for their marriage and family There would be no difficulty if Indochinese refugees could marry Chinese people since they could then register for marriage and obtain identity papers and Chinese nationality However it is usually impossible for male refugees to marry Chinese In general refugees marry other refugees so their children would also be stateless refugees

It may be that this obstacle also explains the increasing trend for Indochinese refugees to marry undocumented Vietnamese immigrants near the ChinandashVietnam border The children of these illegally married couples would be stateless which results in a vicious cycle

On the other hand the status of refugees limits their ability to move outside their local areas Although Indochinese refugees have their local hukou and identity papers they do not have Chinese nationality Their identity papers are not valid nationally which causes some restrictions in their lives As the director of the Refugees Office of Hekou County the Honghe Prefecture said the refugeesrsquo identity cards can only be used in Yunnan province because there is no record of these cards in other parts of China8 This means for example that Indochinese refugees living in Yunnan province can work in Yunnan but not any other areas This restriction on the movement of Indochinese refugees generally has narrowed the areas for them to find jobs which is not beneficial especially for those with no or not enough farmland

Furthermore transfer of hukou is not allowed for Indochinese refugees in some areas which has negatively affected their access to education and employment For instance the refugees in Maguan County Wenshan Prefecture have had hukou and identity cards for years and therefore may go to local colleges and universities However their hukou cannot be transferred to another city One case study is a student of the Yunnan Vocational College of Mechanical and Electrical Technology His hukou cannot be transferred to Kunming where the college is This may well pose some obstacles when he tries to find a job after graduation Therefore without change refugees may never leave their residential area and face unfair difficulties finding opportunities for their personal development

8 lsquoA Silent Group that has existed for 30 years 300 Thousands Refugees in Chinarsquo Nanfang Weekend (15 October 2009 Guangzhou) 1


Naturalization of Indochinese Refugees

Chinarsquos government should find solutions to the problem of refugeesrsquo nationalities both for the lsquooriginal Indochinese refugeesrsquo and their descendants

Solutions to the Nationality of the Original Indochinese Refugees

The phrase lsquooriginal Indochinese Refugeesrsquo refers to the refugees who fled to China between 1978 and 1984 The problem about their citizenship should be solved in accordance with the Refugee Convention and Refugee Protocol and Chinarsquos Nationality Law9

Article 34 of the Refugee Convention provides lsquothe Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedingsrsquo As China has acceded to the Refugee Convention it is obliged to implement this provision by providing refugees with an opportunity to naturalize

Article 7 of Chinarsquos Nationality Law provides that foreign national or stateless persons lsquowho are willing to abide by Chinarsquos constitution and lawrsquo may be naturalized should they be inter alia permanent residents in China Accordingly the Indochinese refugees should be able to apply for naturalization if they are want to since they satisfy the legal conditions First they are refugees and stateless Second they have settled and lived in China for more than three decades and in that period have assimilated into Chinese society and become part of the Chinese population The Chinese government has accepted them for years registered their domiciliary and issued identification papers to them and granted them the right to vote Third the refugees have relied on China and adapted to the Chinese living environment language and culture Finally it seems that refugees are mostly eager to receive Chinese citizenship

Consequently the Indochinese refugees are justified in wanting to naturalize by becoming citizens The Chinese government should accept their applications particularly considering that their obligations under the Refugee Convention include facilitating the assimilation and naturalization of refugees Implementation measures should be adopted as soon as possible Moreover the naturalization conforms to the Nationality Law and the refugees should gain Chinese citizenship if they follow the legal procedure

Solutions to the Nationality of the Descendants of the Indochinese Refugees

lsquoDescendentrsquo means persons whose parent or parents are Indochinese refugees These descendants who are born and raised in China comprise about one-third

9 Nationality Law of the Peoplersquos Republic of China (Peoplersquos Republic of China) National Peoplersquos Congress Order No 8 10 September 1980 (Nationality Law)


of the Indochinese refugees Although they have never been persecuted or fled persecution they were considered as refugees because their parents or grandparents are refugees However they should have Chinese nationality for the following reasons first their parents or grandparents are refugees and stateless and have been legally residing in China for decades second they were born and live in China third they are no different to other Chinese children born in China besides the fact that they are labelled as refugees and fourth they should obtain Chinese nationality automatically in accordance with the Nationality Law Article 6 of the Nationality Law provides that any person born and settled in China whose parents are stateless or of uncertain nationality shall have Chinese nationality if they have settled in China To reiterate children of Indochinese refugees in China should have Chinese nationality in conformity with the Nationality Law They should not be considered as refugees but as Chinese people

Where descendants have one parent who is an Indochinese refugee and the other is a foreign national or a person of uncertain nationality they cannot acquire Chinese citizenship if they have gained the nationality of this foreign State This is because the Chinese government does not recognize dual nationality10 However in accordance with Article 6 of the Nationality Law descendants who have not been granted citizenship of the foreign State should have Chinese nationality11

There are two possible solutions to the nationality problem for children born out of wedlock in China to an Indochinese refugee and either a stateless person or one of uncertain nationality First it can be solved by providing their Indochinese parent with Chinese nationality In accordance with Article 4 of the Nationality Law any person born in China who has at least one parent of Chinese citizenship shall be granted Chinese nationality

Additionally the principle that children born out of wedlock are entitled to the same rights as children born in wedlock has been reflected in Chinarsquos legislation and practice For example the Marriage Law12 and the Succession Law13 both provide that children born out of wedlock shall enjoy the same rights as children born in wedlock and no one shall jeopardize their rights or discriminate against them The practices dealing with nationality of so-called lsquoillegitimatersquo children born of a Chinese citizen and a person who is stateless or of uncertain nationality should follow this principle For instance a child born to an undocumented immigrant and a Chinese national should be granted hukou identity papers and Chinese nationality

Alternatively this issue can be solved through the direct acquisition of Chinese nationality As mentioned above according to the Nationality Law any person

10 Nationality Law (Peoplersquos Republic of China) National Peoplersquos Congress Order No 8 10 September 1980 art 3

11 ibid art 612 Marriage Law of the Peoplersquos Republic of China (Peoplersquos Republic of China)

National Peoplersquos Congress Order No 9 10 September 1980 art 25 (Marriage Law)13 Law of Succession of the Peoplersquos Republic of China (Peoplersquos Republic of China)

National Peoplersquos Congress Order No 24 1 October 1985 art 10


born in China whose parents are stateless or of uncertain nationality shall have Chinese nationality if they are permanent residents in China Accordingly though the parent of the lsquoillegitimatersquo child is an undocumented or lsquoillegalrsquo immigrant his or her refugee parent has been accepted by the Chinese government with no possibility of repatriation Even where the lsquoillegalrsquo immigrant parent is deported the children should be entitled to remain in China with their refugee parent and acquire Chinese nationality

International Legal Obligations

Besides national law there is an international legal basis for the children of Indochinese refugees to obtain Chinese citizenship According to Article 243 of the 1966 Covenant on Civil and Political Rights (ICCPR)14 every child has the right to acquire citizenship Whilst China signed the ICCPR in 1998 it has not ratified it yet However this provision is not one of the obstacles to Chinarsquos ratification of the ICCPR The children of Indochinese refugees were born and raised in China which is the only State that offers them protection and is consequently the State where they belong

Their right to Chinese citizenship (whether born in wedlock or not) is also supported by the Convention on the Rights of the Child (CRC)15 to which China acceded in 1992 Article 31 of the CRC explicitly provides that lsquoin all actions concerning children whether undertaken by public or private social welfare institutions courts of law administrative authorities or legislative bodies the best interest of the child shall be a primary considerationrsquo16 Article 32 further provides that the States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being taking into account the rights and duties of his or her parents legal guardians or other individuals responsible for him or her and to this end shall take all appropriate legislative and administrative measures

Article 8 makes it explicit that the

State Parties undertake to respect the right of the child to preserve his or her identity including nationality name and family relations as recognized by law without unlawful interference and where a child is illegally deprived of some or all of the elements of his or her identity States Parties shall provide appropriate assistance and protection with a view to re-establishing speedily his or her identity

14 International Covenant on Civil and Political Rights adopted 16 December 1966 999 UNTS 171 (entered into force 23 March 1976)

15 Convention on the Rights of the Child opened for signature 20 November 1989 1577 UNTS 3 (entered into force 2 September 1990)

16 The CRC also imposes various obligations on state parties in relation to the protection of children in Articles 32 8 and 91


Article 91 adds that the

State Parties shall ensure that a child shall not be separated from his or her parents against their will except when competent authorities subject to judicial review determine in accordance with applicable law and procedures that such separation is necessary for the bests interests of the child Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents or one where the parents are living separately and a decision must be made as to the childrsquos place of residence

Thus the best interests of the children of Indochinese refugees should be a primary consideration in finding solutions to their nationality The fact that their parents or grandparents are stateless should not affect their acquisition of Chinese nationality The Chinese government should make sure they can acquire Chinese nationality as soon as possible In accordance with Article 8 of the CRC China shall preserve the childrenrsquos identity which includes their permanent residence identity papers and nationality Article 9 clearly forbids the forceful separation of children from their parents except for some extraordinary circumstances Accordingly the Chinese government should not repatriate the illegal immigrants who are the refugee childrenrsquos parents so as to protect the childrenrsquos best interests

Conclusion

Whilst China has provided refugees many protections such as permanent residence and minimum living security as well as opportunities to better their standard of living the major issue of citizenship for Indochinese refugees is still outstanding As China has yet to grant refugees Chinese citizenship these stateless persons are bound to the province they are settled in and cannot pursue educational and career opportunities in other provinces This lack of citizenship also affects refugeesrsquo children This article therefore provides recommendations for how this issue can be dealt with upon considering Chinarsquos domestic legislation as well as its international obligations

Chapter 6

Prospects for Refugee Rights in Hong Kong Towards the Legalization and Expansion of

Protection from RefoulementKelley Loper1

Introduction

The Peoplersquos Republic of China (China) is among the minority of Asian states that have acceded to the 1951 Convention relating to the Status of Refugees2 or its 1967 Protocol3 (Refugee Convention)4 The central authorities however have not extended these instruments to the Hong Kong Special Administrative Region an area of China that has since its reversion to Chinese rule in 1997 enjoyed a high degree of constitutionally entrenched autonomy Additionally domestic legislation in Hong Kong does not explicitly refer to refugees or refugee rights In response to this apparent absence of protection obligations advocates have pursued a litigation strategy relying instead on a creative mix of international human rights standards rules of customary international law constitutional rights and common law principles to leverage the courts as the driving force for policy change

Most significantly these efforts have led to the establishment of a government-administered screening mechanism that implements Article 3 of the Convention against Torture and other Forms of Cruel Inhuman or Degrading Treatment or Punishment (CAT) which prohibits the refoulement ndash that is the return or expulsion ndash of individuals to states where there are substantial grounds for believing that they would be in danger of being subjected to torture Despite the lack of specific refugee law the torture screening system in Hong Kong represents a degree of

1 Portions of this chapter are based on research supported by a grant from the Research Grants Council of the Hong Kong Special Administrative Region (Project Code HKU 7008-PPR-09)

2 Convention relating to the Status of Refugees opened for signature 28 July 1951 189 UNTS 150 (entered into force 22 April 1954)

3 Protocol relating to the Status of Refugees opened for signature 31 January 1967 606 UNTS 267 (entered into force 4 October 1967)

4 Other state parties to the Refugee Convention in the East and Southeast Asian sub-regions include The Republic of Korea Japan the Philippines Cambodia and Timor-Leste China has extended the Refugee Convention to the Macau SAR


progress toward limited protection from refoulement for a sub-set of refugees who fear torture as a form of persecution as well as those who fall outside the confines of the refugee definition yet who could face torture if returned

This chapter explores the development of this system as well as ongoing attempts to compel the authorities to extend the CAT regime to encompass refugee status determination (RSD) and achieve a more robust protection framework This analysis suggests that a strategy emphasizing existing legal norms and leveraging independent judicial review procedures can promote positive policy change even without overt lsquorefugee lawrsquo At the same time however the Hong Kong experience gives rise to questions about the extent to which primary reliance on these norms and the courts can achieve more comprehensive refugee protection Hong Kongrsquos strict approach to immigration control and the judiciaryrsquos reluctance to challenge some government policies in this area may ultimately limit the strategyrsquos ability to obtain fuller protection beyond basic respect for non-refoulement The chapter concludes that legal protection for the broader range of refugee rights may only be possible by strengthening other advocacy channels and through the extension and effective implementation of the Refugee Convention

Significance of the Hong Kong Experience

Efforts in Hong Kong may have comparative value for those promoting refugee rights in other jurisdictions that are similarly bound by human rights treaties constitutional rights or common law principles but resist application of the Refugee Convention The fact that Hong Kong advocates have secured limited legal protections for refugees calls into question the characterization of Asia as a region largely devoid of refugee law5 Instead the Hong Kong case study lends support to arguments for greater recognition of existing normative frameworks and the development of a law of asylum based on an lsquoassemblage of legal obligations owed by states to refugeesrsquo6 An analysis of the Hong Kong situation can therefore contribute to debates about how best to advocate for refugee protection in jurisdictions that have not acceded to the Refugee Convention especially within the Asian region

It may also lend support to the critique of an excessive focus on non-legal tactics such as the negotiation of lsquoprotection spacersquo based on humanitarian ndash rather than legal ndash principles7 As Jones postulates the lsquoprotection spacersquo approach lsquoprivileges

5 See for example SE Davies lsquoThe Asian rejection International refugee law in Asiarsquo (2006) 52(4) Australian Journal of Politics and History 562 P Oberoi lsquoRegional initiatives on refugee protection in South Asiarsquo (1999) 11(1) International Journal of Refugee Law 193

6 M Jones lsquoMoving beyond protection space Developing a law of asylum in South East Asiarsquo in S Kneebone D Stevens and L Baldassar (eds) Refugee Protection and the Role of Law Conflicting Identities (Routledge forthcoming December 2013)

7 ibid

Prospects for Refugee Rights in Hong Kong 77

international interests fora and the [UN High Commissioner for Refugees] as the negotiator and hellip belies a developing bedrock of legal norms that offers protection to refugees in the regionrsquo8 Failure to recognize these norms reinforces the identity of a refugee as an lsquoobject of the exercise of sovereign discretion as a ldquohumanitarian entrantrdquorsquo rather than lsquoone who is the bearer of human rightsrsquo9 The litigation strategy in Hong Kong can be understood as an attempt to shift attention toward existing legal obligations to ensure refugee rights and therefore more firmly entrench the developing non-refoulement framework in domestic law

The Hong Kong situation also informs understandings of processes of domestic implementation of human rights norms ndash both generally as well as in the specific context of forced migration Hong Kong is bound by seven of the core international human rights treaties10 instruments that articulate a range of standards relevant to the refugee experience and has incorporated many of these norms into domestic law including most of the rights provided by the International Covenant on Civil and Political Rights (ICCPR) Hong Kong courts have referred to documents produced by the United Nations (UN) human rights treaty monitoring bodies (treaty bodies) when interpreting constitutional rights11 Civil society including human rights organizations and members of the legal profession have actively advocated for policy reform through engagement with a range of actors including government the courts and the treaty bodies12 This vertical and horizontal interaction has created a vibrant context for domestic implementation of international human rights norms and contributed to the gradual lsquolegalizationrsquo of non-refoulement protection

The remainder of this chapter considers this process of legalization largely driven by judicial review of government policy It also reflects on the prospects for expansion of the torture screening system to include consideration of a broader range of protection claims and human rights beyond non-refoulement as well as the limits of the present strategy The next section provides a brief overview

8 ibid9 ibid10 The International Convention on the Elimination of all Forms of Racial

Discrimination the International Covenant on Economic Social and Cultural Rights the International Covenant on Civil and Political Rights the Convention on the Elimination of Discrimination against Women the Convention against Torture and other Forms of Cruel Inhuman or Degrading Treatment or Punishment the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities

11 CJ Petersen lsquoEmbracing universal standards The role of international human rights treaties in Hong Kongrsquos constitutional jurisprudencersquo in HL Fu L Harris and SNM Young (eds) Interpreting Hong Kongrsquos Basic Law The Struggle for Coherence (Palgrave Macmillan 2007) 33

12 See for example the alternative reports submitted to the UN Committee Against Torture in 2008 by the Hong Kong Human Rights Commission and the Society for Community Organization 34ndash7 lthttpwww2ohchrorgenglishbodiescatdocsngosuncat_apr2008_CH_41pdfgt accessed 28 May 2013


of Hong Kongrsquos previous and current experience receiving refugees The third section reviews key developments including a series of judgments that have resulted in the establishment of the torture screening mechanism and the legislation governing the system The fourth section examines the implications of two court decisions that require greater government involvement in refugee screening and complementary protection under the ICCPR The final section concludes with the observation that while Hong Kong has taken important strides much work remains to ensure full respect for non-refoulement as well as other rights of all refugees and other categories of protection claimants

Background and Overview of Current Policy

Throughout its history Hong Kong has received and often integrated large numbers of migrants including refugees from China and the region The millions of Chinese migrants and refugees who have settled in the territory especially after the Communist victory in China in 1949 and their descendants have shaped the nature of modern Hong Kong society Hong Kong also hosted approximately 200000 Indochinese refugees in the 1980s and 1990s as a port of first asylum Most were then sent on to resettlement in third countries or repatriated to Vietnam in accordance with agreements reached in 1979 and later revised by the 1989 Comprehensive Plan of Action (CPA)13 This past experience has influenced Hong Kongrsquos current approach to refugee policy and its ongoing resistance to the extension of refugee protection obligations14

Hong Kong continues to tolerate the temporary presence of refugees as well as torture claimants15 but does not grant them legal status and rejects local resettlement as a durable solution In addition to administering the torture screening mechanism authorities permit the United Nations High Commissioner for Refugees (UNHCR) to operate a separate RSD system in the territory The agencyrsquos local functions also include arranging for the resettlement of recognized refugees in third countries and providing some training for Hong Kong Immigration

13 R Mushkat lsquoRefuge in Hong Kongrsquo (1989) 1(4) International Journal of Refugee Law 449 R Mushkat lsquoImplementation of the CPA in Hong Kong Does it measure up to international standardsrsquo (1993) 5(4) International Journal of Refugee Law 559 For analysis of the CPA and its legacy see for example S Bari lsquoRefugee status determination under the Comprehensive Plan of Action A personal assessmentrsquo (1992) 4(4) International Journal of Refugee Law 487 JC Hathaway lsquoLabeling the ldquoboat peoplerdquo The failure of the human rights mandate of the Comprehensive Plan of Action for Indochinese Refugeesrsquo (1993) 15(4) Human Rights Quarterly 686 AC Helton lsquoRefugee determination under the Comprehensive Plan of Action overview and assessmentrsquo (1993) 5(4) International Journal of Refugee Law 544

14 K Loper lsquoHuman rights non-refoulement and the protection of refugees in Hong Kongrsquo (2010) 22(3) International Journal of Refugee Law 404 434ndash5

15 Most torture claimants now arrive from South Asia Africa and the Middle East


officials16 The government allows asylum seekers to remain prior to the final determination of their claims and if successful until the UNHCR secures their resettlement This policy of de facto respect for non-refoulement however is not grounded in government recognition of legal protection obligations Instead the Director of Immigration exercises discretion to allow individuals seeking asylum to remain on humanitarian grounds on a case-by-case basis17

Also as a matter of discretion and on humanitarian grounds ndash rather than a sense of legal obligation ndash the Director of Immigration refrains from prosecuting asylum seekers or torture claimants for immigration offences until the final resolution of their claims According to the authorities if a torture claimant commits lsquoan immigration offence relating to his claim (for example overstaying illegal remaining etc) the decision on whether to prosecute the offence will be deferredrsquo18 The government also releases most asylum seekers and torture claimants from immigration detention while waiting for the outcome of their claims19 Asylum seekers and torture claimants are not allowed to work20 but they receive limited in-kind assistance including a bag of food every ten days a small subsidy for housing and transportation expenses and a waiver for free medical care21 Again the purpose of the scheme is described as lsquohumanitarianrsquo in nature and is intended to lsquoprevent destitution for the most vulnerable within the asylum seeking and torture claimants populationrsquo rather than ensure legally protected rights22

Torture Screening Toward Legalization

In this context of limited de facto protection granted at the discretion of the Director of Immigration on the basis of humanitarian considerations refugee advocates have attempted to force recognition of the existence and applicability of legal norms They have relied upon a creative mix of human rights and common

16 Press releases HK and UNHCR sign agreement on enhanced co-operation (Hong Kong Special Administrative Region Government 2009) ltwwwinfogovhkgiageneral20090120P200901200271htmgt accessed 31 August 2012

17 MA v Director of Immigration [2011] 2 HKLRD F6 [4]18 The government also apparently only prosecutes a minority of unsuccessful

claimants As of April 2012 100 of the 1717 torture claimants who had failed to substantiate their claims since 2009 had been subsequently prosecuted for illegal entry or overstaying (Hong Kong Legislative Council 2012 4)

19 According to the administration 98 per cent of torture claimants had been released on recognizance as of 31 March 2012 (Hong Kong Legislative Council 2012 16)

20 Immigration (Amendment) Ordinance 2012 (Hong Kong) s 38AA21 International Social Service Hong Kong Branch Migrants Programme Assistance

in kind to asylum seekers and torture claimants (supported by SWD) ltwwwisshkorgedefault_homeaspgt accessed 31 August 2012

22 ibid


law principles to leverage the courts by way of judicial review despite the lack of explicit refugee law The establishment of the torture screening mechanism that determines non-refoulement claims made under Article 3 of CAT is a significant achievement of this strategy Although at the time of writing this system did not protect all refugees it covered the subset who fear torture as a form of persecution as well as those who fear torture but fall outside the confines of the lsquorefugeersquo definition as expressed in the Refugee Convention This section examines the development of this system highlighting the critical role of the courts and to some extent the influence of the international human rights treaty monitoring processes on municipal law and policy reform It also considers the limitations of the legislation governing the regime that was enacted in 2012

The United Kingdom extended the CAT to Hong Kong in 1992 and the treaty has continued to apply under Chinese sovereignty Prior to 2004 the Hong Kong government lacked a formal determination system to provide protection from refoulement to individuals who claimed they could face torture if returned to their countries of origin Nevertheless in its report to the UN Committee against Torture the body that monitors statesrsquo implementation of their obligations under CAT the administration asserted that it complied with Article 3 as a matter of practice23

Should potential removees or deportees claim that they would be subjected to torture in the country to which they are to be returned the claim would be carefully assessed by [Hong Kong government officials] Where such a claim was considered to be well-founded the subjectrsquos return would not be ordered In considering such a claim the Government would take into account all relevant considerations including the human rights situation in the State concerned hellip

In 2004 the Court of Final Appeal24 relied on this statement when upholding a lower courtrsquos decision in favour of a Sri Lankan asylum seeker who had sought judicial review of the Hong Kong governmentrsquos failure to carefully assess his non-refoulement claim25 The applicant Mr Prabakar had been arrested in transit in the Hong Kong airport after officials found him in possession of a forged Canadian passport He claimed he had been tortured in Sri Lanka and was on his way to Canada to seek asylum and had no intention of remaining in Hong Kong He was convicted of carrying a false travel document and imprisoned for six months During that time the UNHCR initially rejected his application for refugee status but subsequently reversed its decision after he appealed to the agency twice and notably after he had obtained legal representation The Hong Kong authorities

23 Chinarsquos third periodic report under CAT May 1999 UN doc CATC39Add2 Para 122 submitted pursuant to Art 19 of CAT 26 Since Hong Kong is not a state but has special status granted by an international treaty and the Chinese Constitution Hong Kongrsquos reports are prepared separately and appended to Chinarsquos periodic report

24 Hong Kongrsquos highest judicial organ25 Saktheval Prabakar v Secretary for Security [2002] HKEC 1451 (Prabakar)


had issued a deportation order against him which they refused to rescind even after the UNHCR recognized his refugee claim and arranged for his resettlement in Canada Pursuant to Hong Kong immigration law a deportation order requires that a person leave Hong Kong and not return or not return within a specified period of time26

In its judgment the Court of Final Appeal noted the governmentrsquos statement to the Committee against Torture that it would carefully assess any Article 3 claims It held that regardless of whether Hong Kong had a domestic legal duty to prevent refoulement such a lsquopolicyrsquo must be implemented in accordance with high standards of fairness since the prospect of torture involved the possible violation of fundamental human rights

The determination of the potential deporteersquos torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned To him life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved Accordingly high standards of fairness must be demanded in the making of such a determination27

It became clear under the spotlight of judicial scrutiny that rather than lsquocarefully assessingrsquo such claims immigration officials had relied on the unexplained determinations of refugee status made by the UNHCR when deciding whether to refrain from removing a torture claimant from the territory28 The Court noted that this practice did not meet the requisite high standards of fairness since the CAT non-refoulement obligation is both broader and narrower than Article 33 of the Refugee Convention Therefore the facts of an individual claim may fail to conform to the definition of lsquorefugeersquo and thus result in a UNHCR rejection but could still meet the CAT requirements Indeed asylum seekers in some jurisdictions have relied upon the CAT as a form of lsquocomplementary protectionrsquo in situations where the Refugee Convention does not apply but where an individual could still face serious harm if returned to his or her country29 For example a claimant may be excluded from Refugee Convention protection30 or fear torture that may not be linked to one

26 Immigration Ordinance s 20527 Prabakar [2005] 1 HKLRD 289 para 4428 ibid paras 46ndash50 56ndash6029 J McAdam Complementary Protection in International Refugee Law (Oxford

University Press 2007)30 According to Article 1F the Refugee Conventionrsquos provisions do not apply to

a person with respect to whom there are serious reasons for considering that he or she has committed a crime against peace a war crime or a crime against humanity has committed a serious non-political crime outside the country of refuge prior to admission to the country as a refugee or has been guilty of acts contrary to the purposes and principles of the United Nations


of the five Refugee Convention grounds31 Unlike the Refugee Convention CAT Article 3 does not allow exceptions or exclusions and does not contain a list of lsquogroundsrsquo The type of harm that is protected under Article 3 however is narrower than the broader concept of lsquopersecutionrsquo in the Refugee Convention32

In addition to requiring independent investigation by the government to properly assess a claim the court held that high standards of fairness mandate that the authorities allow claimants every reasonable opportunity to establish their claims and provide reasons for rejection33 When determining torture claims decision-makers must consider all relevant matters including the conditions in the country of origin whether claimants had been tortured in the past medical or other independent evidence whether claimants had participated in political activity that increased their vulnerability to torture and the claimantsrsquo credibility34

The courtrsquos reference to materials produced by the Committee Against Torture suggest the potential impact of international human rights treaty monitoring processes on the development of domestic law in the Hong Kong context35 For example the judgment mentioned a General Comment on refoulement issued by the Committee in 1996 as a lsquohelpful referencersquo for Hong Kong decision-makers36 The courtrsquos citation of the governmentrsquos report to the Committee against Torture also demonstrates the influence these procedures have had on law reform in Hong Kong

Several of the treaty bodies have issued concluding comments on Hong Kongrsquos reports and these documents have played a role in strengthening civil society advocacy for refugee protection For example the Committee on Economic Social and Cultural Rights the Human Rights Committee the Committee on the

31 Race religion nationality membership of a particular social group or political opinion Refugee Convention art 1A(2)

32 lsquoTorturersquo is defined in Article 1 of the CAT as lsquoany act by which severe pain or suffering whether physical or mental is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession punishing him for an act he or a third person has committed or is suspected of having committed or intimidating or coercing him or a third person or for any reason based on discrimination of any kind when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity It does not include pain or suffering arising only from inherent in or incidental to lawful sanctionsrsquo

33 Prabakar (n 27) [51]34 Prabakar (n 27) [52]35 CJ Petersen lsquoEmbracing universal standards The role of international human

rights treaties in Hong Kongrsquos constitutional jurisprudencersquo in HL Fu L Harris and SNM Young (eds) Interpreting Hong Kongrsquos Basic Law The Struggle for Coherence (Palgrave Macmillan 2007) 333 International Law Association Final report on the impact of findings of the United Nations human rights treaty bodies Berlin Conference International Human Rights Law and Practice (2004) 8 ltwwwila-hqorgencommitteesindexcfmcid20gt accessed 31 August 2012

36 Prabakar (n 27) [52]


Elimination of Discrimination against Women the Committee on the Rights of the Child the Committee on the Elimination of Racial Discrimination and the Committee against Torture have all called on Hong Kong to improve refugee protections as part of its duties under the human rights treaties that these bodies oversee37 These expert committees have identified asylum seekers and refugees as rights bearers and have articulated the relevance of state obligations under the core international human rights instruments to the refugee experience38 Materials produced by these bodies can be persuasive even though international treaties are not self-executing in Hong Kong and require incorporation into domestic law to ensure access to an enforceable right and remedy at the local level Recognition of the applicability of international human rights treaties to refugees is especially important in states that have not ratified the Refugee Convention but are bound by other instruments

The government made further revisions to the torture screening system in the face of subsequent judicial challenge39 In FB v Director of Immigration the Court of First Instance ruled that several aspects of the post-2004 mechanism failed to meet the high standards of fairness required by Prabakar when assessing torture claims In an effort to comply officials ceased processing claims entirely in December 2008 revised the procedures during the following year and instituted an lsquoenhancedrsquo screening mechanism in December 200940 The new procedures operated according to administrative guidelines and had the following features that directly addressed the shortcomings of the post-2004 system identified by the court 1) the same person who had interviewed the claimant determined the claim at first instance 2) an independent appeals body was established 3) torture

37 See for example Committee on Economic Social and Cultural Rights Concluding Observations on Chinarsquos report (2005) para 80 UN doc EC121Add107 Committee against Torture 2000 Concluding Comments on Chinarsquos Report included in Report of the Committee against Torture to the General Assembly (2000) para 141 UN doc A5544 Committee against Torture Concluding Observations on Hong Kongrsquos Report (2009) para 7 UN doc CATCHKGCO4 Committee on the Elimination of Discrimination against Women Concluding Comments on Chinarsquos report (2006) para 43 UN doc CEDAWCCHNCO6 Committee on the Rights of the Child Concluding Observations on Chinarsquos Report (2005) para 31 81 UN doc CRCCCHNCO2 Committee on the Elimination of Racial Discrimination Concluding Observations on Chinarsquos Report (2009) 29 UN doc CERDCCHNCO10-13

38 See for example Committee on Economic Social and Cultural Rights General Comment No 20 Non-discrimination in economic social and cultural rights (art 2 para 2 of the International Covenant on Economic Social and Cultural Rights) (2009) UN Doc EC12GC20 para 30

39 FB v Director of Immigration and Secretary for Security [2008] HKEC 207240 Paper for the House Committee Meeting on 7 October 2011 Legal Service

Division Report on Immigration (Amendment) Bill 2011 (Hong Kong Legislative Council Secretariat 2011) 2 ltwwwlegcogovhkyr10-11englishhcpapershc1007ls-94-epdfgt accessed 31 August 2012


claimants were granted free publicly funded legal representation and 4) decision-makers partook in relevant training41

In July 2012 the Legislative Council Hong Kongrsquos law-making body enacted legislation that provides a statutory framework for the operation of the scheme essentially entrenching the post-2009 administrative procedures42 The law sets out the details of the procedure for determining non-refoulement claims establishes a Torture Claims Appeal Board43 outlines procedures by which successful claimants can apply for permission to undertake employment in exceptional circumstances44 and provides for conditions related to recognizance for claimants released from immigration detention45

The torture screening legislation as it is currently drafted contains a number of potentially problematic provisions and several gaps Although its enactment signals a step towards more complete legal protection from refoulement the torture screening legislation in its current form remains limited in several respects First at the moment it applies only to those seeking protection from refoulement to torture but not other forms of serious harm

The legislation deals primarily with procedural matters and does not provide for economic social cultural civil or political rights beyond non-refoulement to torture does not grant any form of legal status and is vague about what might occur in the event of a successful claim46 Asylum seekers including torture claimants often enter Hong Kong illegally or breach their original conditions of stay and are technically subject to deportation or removal in accordance with Hong Kongrsquos immigration legislation47 They are not granted any sort of temporary protection visa while they await the outcome of their claims or even if their claims are substantiated In fact individuals can only make torture claims if they are already at risk of removal48 Even those with valid visas when first entering Hong Kong

41 As at October 2011 there were 6600 outstanding CAT claims 170 of these claimants were in detention 76 per cent were male 24 per cent were female 83 per cent were between 18 and 40 years old and 85 per cent originated from South Asian countries including Pakistan India Indonesia Bangladesh Sri Lanka and Nepal Between December 2009 when the lsquoenhancedrsquo system was launched and October 2011 1800 claims had been processed or were in process 95 per cent of these claimants received publicly funded legal assistance 870 decisions had been made 200 claims had been withdrawn and 477 unsuccessful claimants had been removed from Hong Kong

42 Immigration (Amendment) Ordinance (n 20)43 ibid s 37ZQ44 ibid s 37ZX45 ibid s 3646 At the time of writing the authorities had substantiated only five out of more than

3000 torture claims considered since 2009 See J Ho and J Chiu lsquoAsylum Seekers Want Better Screening from Immigration Departmentrsquo South China Morning Post (29 April 2013)

47 Immigration Ordinance 1997 (Cap 115) (Hong Kong) ss 19 2048 ibid s 37W(1)(a)


must wait until these expire before seeking protection and will not be granted as a matter of course an extension of stay49

In the event of substantiated claims the immigration authorities would simply refrain from removing individuals to a torture risk state They would remain in Hong Kong illegally with no valid visa or legal status and would strictly speaking still be subject to removal although officials would continue to withhold operationalizing the removal order for the time being Successful claimants may be allowed to take up employment but only in exceptional circumstances50 A positive decision could be reviewed and revoked by immigration authorities as the claimants are not considered lsquoordinarily residentrsquo in Hong Kong they are precluded access to constitutional rights associated with residency status51 In other words screened-in claimants would presumably remain in an indefinite state of limbo until an immigration officer lsquorevokesrsquo the claim upon a change of circumstances and sends the person back to his or her country of origin

The legislation contains a number of other potentially problematic provisions although it is still unclear how decision-makers will interpret these in practice For example certain sections of the Ordinance replicating UK legislation appear to allow significant latitude for rejecting claims by permitting decision-makers to take a number of behavioural factors into account when determining an applicantrsquos credibility52 As Singh Kochhar-George points out some of the behaviours listed may represent a typical experience for some claimants who are forced to leave their countries without proper documentation in order to avoid harm53 Authorities may consider for example a claimantrsquos failure without reasonable excuse to produce a document as proof of the claimantrsquos identity on request by an immigration officer54

While the lsquoreasonable excusersquo language could serve as a safeguard it is unclear what justifications decision-makers would accept Other credibility criteria include a claimantrsquos failure to take advantage of a reasonable opportunity to seek non-refoulement protection while in a place outside Hong Kong to which CAT applies as well as delays in making the claim These credibility factors create an unnecessary hurdle that could distract the decision-maker from objectively assessing the material facts of the claim55 A decision-maker may be tempted to dismiss important evidence arising from the claimantrsquos testimony and therefore undermine and weaken the schemersquos ability to ensure non-refoulement protection in compliance with CAT Article 3

49 This policy was the subject of an unsuccessful judicial review challenge CH v Director of Immigration [2011] 3 HKLRD 101 (Court of Appeal)

50 Immigration (Amendment) Ordinance (n 20) s 37ZX51 ibid ss 37Z 37ZL 37ZM 37ZN52 ibid s 37ZD C Singh Kochhar-George lsquoRecent Developments in Hong Kongrsquos

Torture Screening Processrsquo (2012) 99 Hong Kong Law Journal 98 110ndash1353 ibid (Singh Kochhar-George) 14ndash1554 Immigration (Amendment) Ordinance (n 20) s 37ZD(2)(b)55 Singh Kochhar-George (n 52) 15


The authorities may also send a claimant to a third country that is not a lsquotorture riskrsquo state56 The legislation does not detail however the procedures or criteria for determining whether a state is indeed lsquotorture riskrsquo This lack of specificity could place a claimant in danger of indirect refoulement amounting to a violation of Article 3 Even if the third lsquosafersquo country is party to CAT and has a screening procedure in place this may not be sufficient to ensure that the state would not send the claimant back to face the possibility of torture in his or her country of origin57

Perhaps the most problematic aspect involves the operation of the system Despite the enhanced features introduced in 2009 officials did not substantiate a single claim after considering and rejecting more than 2000 claims from 2009ndash12 and only substantiated five claims in the first four months of 201358 According to some advocates this near-0 per cent recognition rate indicates an institutional culture of suspicion within a system that prioritizes immigration control and seeks to discourage new claims and raises serious questions about the capacity and training of torture screening decision-makers

Expansion of Non-Refoulement Protection

Building on the gains achieved in the wake of the Prabakar and FB decisions advocates have sought to secure further improvements In a continuation of the strategy that began with Prabakar lawyers representing asylum seekers have pursued litigation in an effort to compel expansion of the CAT system to include RSD and thus ensure government responsibility at least for basic protection from refoulement for all refugees The Court of Final Appeal handed down a landmark decision in C v Director of Immigration59 in March 2013 that could lead to government-led RSD Counsel for the appellants ndash three asylum seekers whose claims had failed before the UNHCR ndash argued that although the Refugee Convention does not apply Hong Kong is bound by a rule of customary international law that prohibits the refoulement of refugees and has been directly implemented into Hong Kong law through the common law60 In other words Hong Kong authorities must still comply with a duty of non-refoulement in customary international law

56 Immigration (Amendment) Ordinance (n 20) s 37Z57 The Michigan Guidelines on Protection Elsewhere drafted by a group of experts

in 2007 advise that the transferring state should first conduct a good faith empirical assessment of whether the receiving state will respect the same rights owed to the claimant by the transferring state and that while lsquo[f]ormal agreements and assurances are relevant to this inquiryrsquo they lsquodo not amount to a sufficient basis for a lawful transfer under a protection elsewhere policyrsquo [3]

58 J Ho and J Chiu (n 46)59 [2013] HKEC 42860 ibid See also C v Director of Immigration [2008] HKEC 281 (Court of First

Instance) C v Director of Immigration [2011] HKEC 978 (Court of Appeal) C v Director of Immigration [2011] HKCU 2433 (Leave to Final Appeal)


that exists independently of the non-refoulement guarantee expressed in Article 33 of the Refugee Convention61

According to this reasoning the Hong Kong authorities would need to conduct RSD themselves rather than delegate to the UNHCR since the UNHCRrsquos procedures would not meet the high standards of fairness required by Prabakar and are immune from judicial review UNHCRrsquos operations also suffer from a lack of resources and the agency is arguably ill-equipped to take on responsibility for functions that government bodies could more effectively discharge62

In the earlier judgments in this case handed down by the Court of First Instance and the Court of Appeal the courts accepted that non-refoulement of refugees amounts to a customary rule of international law They also held however that Hong Kong law is inconsistent with such a rule and that it does not bind the authorities to the extent of such inconsistency63 The Court of Appeal explained that such a rule would fetter the discretion of the Director of Immigration and lsquothere was clear legislative intent [in the Immigration Ordinance] to keep the [Director of Immigrationrsquos] powers of discretion unfetteredrsquo64

Additionally the courts below appeared unwilling to question the UNHCRrsquos procedures when considering whether government-sponsored RSD would be necessary if the rule did in fact bind the authorities The court simply noted that the Refugee Convention does not specify procedures for RSD and that lsquothe PRC leaves RSD to the UNHCRrsquo It then expressed its view that

It can reasonably be expected that this agency established under the aegis of the United Nations and operating under a mandate to protect refugees would possess the integrity and ability and the necessary networks and experience to undertake a fair and efficient RSD The UNHCR in fact has established Procedural Standards for the guidance of States and these are the very standards being followed in the RSD in Hong Kong65

Although this attempt to leverage the courts to compel the government to take over RSD from the UNHCR did not succeed in the lower courts the Court of Final Appeal allowed the appeal in March 2013 However the court did not base its decision on the original grounds put forward by the appellants and which the court

61 C v Director of Immigration [2011] HKCU 2433 (Leave to Final Appeal)62 For a discussion of the problems associated with shifting responsibility from states

to UNHCR and UNHCRrsquos role as a lsquosurrogate statersquo more generally see for example A Slaughter and J Crisp lsquoA Surrogate State The Role of UNHCR in Protracted Rrefugee Situationsrsquo New Issues in Refugee Research (UNHCR Research Paper No 168 2009) and M Kagan lsquoWe Live in a Country of UNHCR The UN Surrogate State and Refugee Policy in the Middle Eastrsquo (UNHCR Research Paper No 201 2011)

63 C v Director of Immigration (Court of Appeal) (n 60) [42 96]64 ibid [94]65 C v Director of Immigration (Court of Appeal) (n 60) [99]


had agreed to examine66 The court in fact declined to decide whether Hong Kong has a legal duty to respect the principle of non-refoulement of refugees referred to by the court as lsquopersecution non-refoulementrsquo Instead the court determined that the Hong Kong governmentrsquos lsquopracticersquo of respecting non-refoulement must be exercised according to lsquohigh standards of fairnessrsquo given the gravity and potentially serious consequences of such determinations67 The rule of law and high standards of fairness require that the authorities themselves determine whether a refugee claim is well founded rather than rely solely on a decision by the UNHCR68

In another important decision69 the Court of Final Appeal considered whether Hong Kong has duties to ensure non-refoulement when individuals are in danger of facing other forms of harm prohibited by the ICCPR As mentioned above the Covenant applies to Hong Kong and has been implemented into domestic law through the Basic Law Hong Kongrsquos constitutional document and the Bill of Rights a law that has quasi-constitutional status and duplicates most of the ICCPRrsquos provisions70 The UN Human Rights Committee the treaty body that monitors state party compliance with the ICCPR has explained that the Covenant implicitly prohibits refoulement of individuals by states to places where they could face serious human rights violations71 Since the treaty protects from a broader range of possible harms than Article 3 of the CAT and has been directly incorporated into Hong Kong law it provides a more solid basis for further expansion of non-refoulement protection

The courts initially limited its potential impact however through their interpretation and application of a reservation made with respect to Hong Kong

66 When granting leave for appeal the court indicated that it would consider i) whether non-refoulement of refugees is a peremptory norm of customary international law ii) regardless of whether it is a peremptory norm or simply customary international law whether the norm of non-refoulement of refugees has been validly excluded in Hong Kong by domestic legislation and iii) if it has not been validly excluded whether it requires the Hong Kong government to independently inquire whether a claimant is a refugee and not delegate this duty to the UNHCR C v Director of Immigration (n 61) [2]

67 C v Director of Immigration (n 59) [56]68 ibid [41]69 Ubamaka Edward Wilson v Secretary for Security and the Director of Immigration

[2012] HKEC 1757 English Judgment (Court of Final Appeal)70 JMM Chan and CL Lim Law of the Hong Kong Constitution (Sweet amp Maxwell

2011)71 See for example General Comment No 24 Issues relating to reservations

made upon ratification or accession to the Covenant or the Optional Protocols thereto or in relation to declarations under article 41 of the Covenant (Human Rights Committee 1994) para 9 ltwwwunhcrorgrefworldtopic459d17822459d17ef2453883fc110htmlgt accessed 26 November 2012 The Committee explains that lsquohellip States parties must not expose individuals to the danger of torture or cruel inhuman or degrading treatment or punishment upon return to another country by way of their extradition expulsion or refoulementrsquo


by the United Kingdom when it ratified and extended the treaty to the territory in 1976 which has continued to apply since the change of sovereignty in 1997 This reservation has been incorporated by Article 39 of the Basic Law and section 11 of the Bill of Rights Ordinance which reads lsquoAs regards persons not having the right to enter and remain in Hong Kong [the Bill of Rights Ordinance] does not affect any immigration legislation governing entry into stay in and departure from Hong Kong or the application of any such legislationrsquo The breadth of this exception has sometimes shielded immigration policy from serious judicial scrutiny on human rights grounds and largely preserved an immigration regime that grants the Director of Immigration wide-ranging discretion in his treatment of non-residents on Hong Kong territory As a result the courts have often felt constrained when asked to review matters related to the rights of asylum seekers and torture claimants

This cautious approach is reflected in a number of judgments in which the courts seem to validate and echo government justifications for strict immigration control For example the Court of Appeal when rejecting a challenge to the Director of Immigrationrsquos refusal to grant an extension of stay to a claimant under the torture screening procedure noted that

hellip the legislature has entrusted the Director [of Immigration] the discretionary power to formulate policies governing immigration matters Hong Kong is a small place with a high population density There is constant pressure on Hong Kongrsquos infrastructure both physical and social In the result the policy of the Director for many years has been one of strict immigration control Our courts have long recognized that because of Hong Kongrsquos unique geographical social historical and economic circumstances the Director has acted lawfully in determining that he is not in a position to devise immigration policies that are perhaps not as generous as policies formulated in other jurisdictions 72

Even the Court of Final Appeal in Prabakar and C v Director of Immigration avoided explicit rulings on whether Hong Kong is legally obliged to ensure non-refoulement in accordance with CAT or customary international law Although the court held in favour of the applicants in both cases and the Prabakar judgment led to the establishment of the torture screening procedure as discussed above the court found it unnecessary to decide whether Hong Kong has a duty to respect Article 3 of the CAT as a matter of domestic law or persecution non-refoulement in customary international law73 Counsel for the applicants had sought the courtrsquos recognition that such a duty exists based on constitutional prohibitions against torture customary international law and the doctrine of legitimate expectation74 Rather than determine this issue however the court held that since the government

72 CH v Director of Immigration (n 49) [29]73 Prabakar (n 27) [4] and C v Director of Immigration (n 59)74 Ibid [4]


had informed the CAT Committee that it had a policy to comply with Article 3 the authorities must implement this policy according to high standards of fairness

The Court of Final Appealrsquos judgment in Ubamaka Edward Wilson v Secretary for Security and the Director of Immigration has now clarified the legal position and provided more explicit direction on the effect of the immigration reservation and section 11 of the Bill of Rights Ordinance75 At issue was the validity of a deportation order that had been made against Mr Ubamaka a Nigerian national who had served a 16-year prison sentence in Hong Kong for trafficking in dangerous drugs Ubamaka claimed that it was likely he would be imprisoned in Nigeria for the same offence if deported and therefore would be subject to double jeopardy In light of the conditions he could face his counsel argued that this situation would amount to inhuman treatment or punishment and that a right not to be returned to face torture or inhuman or degrading treatment or punishment is a peremptory norm of international law allows no derogations and therefore the immigration reservation would be invalid in these circumstances Ubamaka therefore sought judicial review to quash the deportation order on that basis

The judge at first instance had found that lsquohellip there is plainly a risk that on being deported Mr Ubamaka would be tried for offences arising out of the same conduct for which he was sentenced in Hong Kongrsquo and was lsquoprepared to regard the foregoing as giving rise to double jeopardyrsquo76 He decided however that due to the reservation for immigration legislation the deportation order ndash as an application of immigration law ndash could not be struck down on the basis that it contravenes the prohibition against double jeopardy in the Bill of Rights He also held that the treatment (double jeopardy) that Mr Ubamaka might have faced did not amount to lsquotorturersquo according to Article 1 of the CAT therefore the non-refoulement prohibition in Article 3 of the CAT did not apply

When considering all of the circumstances however deporting Mr Ubamaka lsquoto face the real risk of re-trial in Nigeria would hellip be a cruel blow amounting to inhuman treatment of a severity proscribed by the [Bill of Rights] the ICCPR and the CATrsquo77 Furthermore the immigration reservation would lsquonot apply where ICCPR Art778 is concerned hellip because the injunction against inflicting torture or other forms of inhuman or degrading treatment are peremptory norms of customary international lawrsquo and states may not derogate from those norms79 The court cited the Human Rights Committeersquos General Comment 24 in support

75 Ubamaka Edward Wilson v Secretary for Security and the Director of Immigration (Court of Final Appeal) (n 69)

76 Ubamaka [2009] HKEC 710 (Court of First Instance) [52 54]77 ibid [111]78 Article 7 provides that lsquoNo one shall be subjected to torture or to cruel inhuman or

degrading treatment or punishmentrsquo79 Ubamaka (n 92) [94]


Reservations that offend peremptory norms would not be compatible with the object and purpose of the [ICCPR] hellip Accordingly provisions in the Covenant that represent customary international law (and a fortiori when they have the character of peremptory norms) may not be the subject of reservations Accordingly a State may not reserve the right to engage in slavery to torture to subject persons to cruel inhuman or degrading treatment or punishment [etc]80

However the Court of Appeal rejected these arguments Although stating it was not strictly necessary for the purposes of deciding the case the court departed from the lower courtrsquos position and instead upheld the validity of the immigration reservation It held that lsquothere is no question but that as a matter of domestic law the courts of Hong Kong must give effect to the immigration reservation to the ICCPR as reflected in article 39 of the Basic Law and section 11 of the [Bill of Rights Ordinance]rsquo81 The Court went so far as to assert that domestic law does not oblige the authorities to refrain from returning individuals to face serious human rights violations including inhuman or degrading treatment or punishment82 Despite the judgersquos admission that this part of the judgment was obiter dicta and therefore not strictly binding subsequent decisions made by lower courts involving refugees and torture claimants relied on these passages when holding against asylum seekers and torture claimants seeking rights protection83

Mr Ubamaka was granted leave to appeal and the Court of Final Appeal handed down its judgment in December 2012 The court dismissed the appeal on the grounds that the type of treatment the appellant might face if returned to Nigeria would not rise to the level of cruel inhuman or degrading treatment or punishment84 However the judges unanimously disagreed with the Court of Appealrsquos position on the application of section 11 of the Bill of Rights Ordinance Although rejecting the appellantrsquos arguments that section 11 is unconstitutional the final court held that the provision must be construed with reference to other relevant sections of the Bill of Rights85 In particular it must be read along with section 5 which incorporates Article 4 of the ICCPR allowing states to derogate from their human rights obligations during times of public emergency which threaten the life of the nation86 However certain rights are lsquonon-derogablersquo and must therefore be respected in all circumstances The Court of Final Appeal

80 Human Rights Committee (n 71) [8]81 Ubamaka Edward Wilson v Secretary for Security and the Director of Immigration

[2011] 1 HKLRD 359 [2010] HKEC 1791 (Court of Appeal) [133]82 ibid83 See for example Ghulam Rbani v Secretary for Justice [2011] HKEC 1354 paras

50ndash51 Saeed Muhammad v Secretary for Justice [2011] HKEC 139584 Ubamaka Edward Wilson v Secretary for Security and the Director of Immigration

(n 69) [2012] [96 102]85 ibid [100]86 ibid


after reviewing relevant jurisprudence on Article 3 of the European Convention on Human Rights which similarly prohibits inhuman or degrading treatment concluded that the right to be free from torture and cruel inhuman or degrading treatment or punishment was both non-derogable and absolute in nature87 As a result section 11 must be qualified accordingly Although section 11 would generally lsquoexclude the application of the [Bill of Rights] in relation to the exercise of powers and the enforcement of duties under immigration legislation regarding persons not having the right to enter and remain in Hong Kongrsquo this would not be the case when lsquothe non-derogable and absolute rights protected by [Bill of Rights] Art 3 are engagedrsquo88 In other words Hong Kong authorities must protect people from refoulement to face torture or cruel inhuman or degrading treatment or punishment despite the existence of section 11 in the Bill of Rights Ordinance

This decision is significant and is likely to provide critical guidance for how the courts and the Hong Kong government subsequently approach the immigration reservation when serious human rights violations are at issue Ubamaka in conjunction with C v Director of Immigration serve as the basis for establishing a more complete framework for protecting refugees and complementary protection claimants from refoulement

Conclusion

As described above the advocacy strategy primarily relying on judicial review has led to significant advances that are likely to achieve a more robust protection framework for a broader range of non-refoulement claimants Obstacles remain however and recent developments suggest that these methods may stall in the face of intransigent policy-makers a general lack of political will and the failure to apply other refugee-specific norms in the Hong Kong legal context First the current torture screening legislation is incomplete suffers from considerable weaknesses and emphasizes immigration control rather than rights or durable solutions While the courts continue to consider cases that test the fairness of these procedures as well as the substance of some of the decisions that have been rejected by the Torture Claims Appeal Board89 these efforts may only achieve piecemeal improvements and may not go beyond basic procedural protections from refoulement to grapple with other substantive refugee rights Although an important tool strategic litigation is unlikely to engender comprehensive reforms without pressure from other sources in conjunction with extension of the Refugee ConventionThe developing legal framework in Hong Kong demonstrates the possibilities for utilizing international and domestic human rights standards and

87 ibid [114]88 ibid [115] Emphasis as in the original text of the judgment89 See for example TK v Michael Jenkins CACV 2862011 and ST v Betty Kwan amp

Others [2013] HKEC 337


common law principles when advocating for refugee protection ndash especially from refoulement ndash even in the absence of the Refugee Convention In this sense the Hong Kong situation reveals the existence of an lsquoamalgamation of applicable normsrsquo90 that could amount to an emerging law of asylum It could therefore lend support to the proposition that the lsquoabsencersquo of refugee law in the Asian region has been overstated and suggest possibilities for advocates in other jurisdictions Hong Kong refugee advocates have indeed made significant strides in their attempts to leverage the courts as the main driver of policy change to secure greater protection for refugees from refoulement

These efforts to achieve legal protection present a mixed picture however While advocates have obtained some changes that ensure greater protection for refugees they have also faced a number of obstacles The courts have at times taken a conservative position when defining their role in reviewing government policies in the immigration sphere In addition serious gaps in the protection framework remain Even if the government incorporates refugee and ICCPR non-refoulement screening in compliance with C v Director of Immigration and Ubamaka this would likely be insufficient to fully protect refugees Advocates will need to explore other avenues that complement and enhance the litigation strategy in order to achieve a broader range of refugee rights beyond non-refoulement such as rights to work91 better access to health care education and a legal status in Hong Kong In particular the key actors involved should continue to promote extension of the Refugee Convention to Hong Kong as well as its full implementation

90 Jones (n 6)91 The Court of Final Appeal considered an appeal in a lsquoright to work casersquo in April

2013 In November 2012 the Court of Appeal had rejected the appellantsrsquo argument that Hong Kong law required the government to allow recognized refugees and torture claimants access to employment See MA v Director of Immigration [2012] HKEC 1624


Chapter 7

Migration and the Refugee Regime in Malaysia Implications for a

Regional SolutionAmarjit Kaur

In the past five decades Malaysia has seen significant influxes in migration from neighbouring countries in Asia The country relies on mostly cheap and temporary foreign workers for labour force growth and has signed intergovernmental labour accords to fill gaps in the manufacturing construction agriculture and service sectors In constructing its foreign labour policy the government has also problematized immigration and migrants are classified either as authorized or unauthorized migrants This policy has resulted in a hostile environment for all migrants particularly refugees and asylum seekers The government has also empowered an armed civilian corps in its campaign against irregular migrants and established detention facilities to judicially detain irregular migrants including refugees An earlier task force set up to deal with Vietnamese boat people in the 1970s is presently used for all irregular migrant groups Both the detention camps and the task force have major implications for the human rights of migrant workers and refugees This chapter contextualizes these developments within Malaysiarsquos overall immigration policy processes their impact on the refugee regime in the country and implications for a regional solution

Introduction

Economic migration and the way the Malaysian governmentrsquos immigration policy is devised play an important role in the management of migrants and their human rights in the country This policy has been informed by previous waves of migration to Malaysia since the late nineteenth century when the country was part of the British Empire The British effected labour mobility to Malaysia and mostly Chinese Indian and Javanese indentured labourers worked in the tin and rubber industries contributing to the emergence of a pluralist society Following decolonization many Indian and Chinese non-citizens either returned or were left without a clear sense of belonging in the new post-imperial Malaysia In the 1980s Malaysia adopted a development strategy that relied on foreign multinationals to lead the countryrsquos export-oriented industrialization drive Malaysia also


experienced rapid economic change against the background of labour shortages in the country Economic migration subsequently became a structural feature of the economy consistent with independent Malaysiarsquos integration into the global economy and the New International Division of Labour Malaysia presently relies on temporary worker programmes to recruit highly skilled and lower skilled workers from more than 15 countries for labour force growth The lsquonewrsquo migrant workers and other unauthorized migrants have also been constructed as a potential threat to Malaysia and face a hostile political environment in the country This has raised significant problems for both guest workers and refugees since immigration has been problematized by the Malaysian state

The chapter is divided into two sections and reviews historical and contemporary trends in immigration the policy responses during both periods and the contemporary governmentrsquos fixation on enforcement as an instrument for regulating recruitment practices and ensuring border security The first section begins with a discussion of Malaya Malaysiarsquos incorporation into the British Empire in the late nineteenth century and the concomitant economic and demographic transformations associated with influxes of migrants primarily from China India and Indonesia

The second section examines the contexts of economic and social policy after Malaysia attained independence in 1957 the formation of the Malaysian Federation in 1963 and the development of a national immigration policy Initially the government believed that intergovernmental labour accords were adequate to regulate foreign labour recruitment By the 1990s it had concluded that immigration policy making had to become a higher priority since immigration had reappeared on the countryrsquos radar as an important issue The government then undertook a major role in reducing unauthorized employment and irregular immigration through investing in new technologies establishing databases and hiring personnel to monitor migrant workersrsquo movements entries and exits

Commodities of Empire the Colonial Labour Agenda and Economic Migration to Malaysia 1870sndash1940s

In the second half of the nineteenth century the growth of the international economy and European industrializing nationsrsquo pursuit of commodities coincided with Southeast Asiarsquos greater integration into the new globalized system of production trade and investment The European colonisers transformed the political destiny of Southeast Asian states and established new geographical realms Malaya came under British rule with British imperialism linking China and India more directly with Malaya This development facilitated labour market integration stretching from southern China and south India to Malaya The new economic corridors and faster and more efficient shipping consequently led to mass proletarian migration to British Malaya

Migration and the Refugee Regime in Malaysia 97

Generally the Chinese travelled as voluntary migrants for employment in the tin mining sector while Indians were recruited under regulated migration schemes for plantations and the public service Both migrant groups formed part of the multi-racial labour force in these sectors in Malaya and Asian labour mobility was a defining feature of Asian globalization and Western economic domination According to Huff and Giovanni1 gross migration into Burma Malaya and Thailand between 1911 and 1929 was more than twice as high as gross migration into the United States Moreover although a high proportion of migrants returned to their countries net inward migration amounted to around 155 million over these years

Chinese and Indian migrants migrated under various forms of semi-free arrangements For both groups a workerrsquos passage was paid by an intermediary or labour broker The labour arrangements in Malaya revolved around the issue of repayment and recognition of the arrangement under the laws of the colonial state Chinese labour migration comprised two main networks a kinship-based migration network and the credit-ticket system network The kinship-based migration network involved recruiter-couriers who recruited migrants from their own villagesregions and relatives or friends from the migrantsrsquo hometown commonly guaranteed the passage money and travel expenses The credit-ticket (steerage) system upon which the bulk of the migrants relied involved passage money and travel expenses being met by labour brokers captains of junks or labour agencies The migrants were mostly hired on three-year contracts in the tin-mining industry and were either single men or men who had left their wives and children behind in China

Chinese mining workers destined for Malaya were initially recruited through the only channel of the Straits Settlements (mainly Singapore) where British firms and local Chinese coolie brokers handled the coolie trade These brokersrsquo networks extended from Singapore to the South China port cities and even to the hometowns of the Chinese sub-brokers This system of indirect recruitment was later replaced by a direct recruitment system whereby coolie foremen and middlemen such as Chinese officials closely associated with the mines were entrusted with recruitment tasks The coolie brokers who also functioned as agents for prospective employers in Malaya organized employment for the migrants and the employers paid the immigrantsrsquo travel costs or the agents obtained their payment as an advance on wages Essentially this meant that the employer had a contractual obligation on the immigrantsrsquo services for a specified period Mining was organized through the kongsi (a work and social cooperative) that allowed mining processes to continue unhampered by worker unpredictability Workers were thus locked into a dependency relationship with the employers since the kongsi apart from being a business cooperative also included the maintenance of

1 G Huff and G Caggiano lsquoGlobalization and Labor Market Integration in Late Nineteenth and Early Twentieth Century Asiarsquo (2007) 25 Research in Economic History 255


social control (law and order) and social solidarity The Chinese formed between 80 to 95 per cent of the tin mining workforce between 1911 and 19382

Tin mine operators also depended on triads or secret societies to manage workers The lsquosinglersquo truck system whereby workers usually received their wages at irregular intervals was a comparable form of control by owners Repeated calls for regulation by the colonial authorities in Malaya led to the establishment in 1877 of Chinese Protectorates headed by European Protectors in Singapore Penang and Malacca The Protectors introduced regulations to restrict labour abuse through a licensing system for recruiting agents and registering labour contracts The subsequent enactment of the Immigrantsrsquo Ordinance in 1880 further curbed the more obvious abuses in the system3 The introduction of the dredge and mechanization of the industry foreshadowed the tin industryrsquos transfer to Western ownership in Malaya in the 1920s and 1930s Subsequently the Chinese labourers became wageworkers and Indian and Javanese workers were also hired as mine workers

Indians workers on sugar and rubber plantations in Malaya entered a much more restrictive work and location environment compared to Chinese migrants This was largely because rubber cultivation required a cheap and lsquodisciplinedrsquo workforce that could be easily managed and organized to work under pioneering conditions in remote areas India was seen as the preferred labour source and low-caste docility fitted well into the dependent relationship between management and employee Indians were also regarded as a cheaper labour source compared to Chinese labourers

South-Indian plantation labour in Malaya was hired under both assisted and unassisted arrangements Under the assisted category there were two types of recruitment systems indenture and kangani (through an intermediary) Indenture was more important in the sugar plantations in the first half of the nineteenth century It gave way to kangani labour in the coffee plantations in the second half of the century and in turn was replaced by free or unassisted labour Initially most planters depended on circular migration to maintain a stable workforce on rubber plantations The kangani method promoted migration based on specific areas in South India and workers relied on networks to assist their transition into plantation life in Malaya4 The majority of the Indian workers (South-Indians comprised approximately 90 per cent of the Malayan Indian population) were concentrated on plantations In the first four decades of the twentieth century Indians formed between 70 to 80 per cent of the plantation labour force in the Federated Malay

2 YH Yip The Development of the Tin Mining Industry of Malaya (University of Malaya Press 1969) 384

3 A Kaur Wage Labour in Southeast Asia since 1940 Globalisation the International Division of Labour and Labour Transformations (Palgrave Macmillan 2004) ch 3

4 ibid ch 4


States in Malaya5 Javanese workers were also hired under indenture contracts in the plantation sector

Colonial labour policy focussed on three main precepts the acquisition of a plentiful and cheap supply of labour (for capitalist enterprise and also for government public works projects) the assurance of the labourersrsquo freedom of movement within contractual agreements and the provision of a limited amount of protection for workers Labour policy was also determined in consultation with employer associations who handled the acquisition placement retention and discharge of labour lobbied to keep wages down blocked workersrsquo mobilization efforts and regulated competition among them by fixing wages Thus although the British established departments inspectorates and Chinese protectorates to oversee labour recruitment and working conditions these colonial branches concentrated on supervision of immigration health matters and record keeping To a large extent the success of these departments in ensuring basic rights for workers depended on the individual administrators and cooperation of the leading planters

The employment of migrant workers was unregulated during this period and Western miners and planters had continual access to a cheap foreign labour supply The British encouraged the Malays to carry on with their traditional activities and most Malays were involved in padi cultivation although a significant number also planted rubber on their smallholdings Rice supplies for the migrant workers were imported mainly from Thailand It has been noted that real wages of unskilled workers remained constant in Southeast Asia before the Second World War because of a perfectly elastic supply of immigrant workers from China and India and migrants from traditional sectors of dual economies

Workersrsquo welfare was also neglected and Tinker6 has argued that the deception and coercion used to recruit Indian indentured labourers and the exploitation they were subject to made them little more than victims of a lsquonew system of slaveryrsquo Did Chinese Indian and other migrant workers enjoy a higher standard of living in Malaya According to Drabble7 preliminary calculations for national income growth (GDP) in Malaya for the first three decades of the twentieth century was on average 41 per cent lsquowell above population growth at 25 per centrsquo However he cautions that per capita GDP is not lsquoan entirely reliable guide to changes in the standard of livingrsquo since Malaya had a high ratio of exports to GDP Although rubber and tin accounted for nearly 38 per cent of GDP in 1920 neither the mining nor plantation workers shared proportionately in the big rises in labour productivity especially in the second decade of the twentieth century

5 NJ Parmer Colonial Labor Policy and Administration a history of labor in the rubber plantation industry in Malaya (Cornell University 1960) 273

6 H Tinker A New System of Slavery The Export of Indian Labour Overseas 1830ndash1920 (Oxford University Press 1974)

7 JH Drabble An Economic History of Malaysia c 1800ndash1990 (Macmillan Press 2000) 113ndash5


The Malayan Administrationrsquos liberal and unregulated immigration policy effectively led to the Chinese and Indians making the transition from sojourning to settlement by the 1930s In the 1930s however the Administration introduced restrictions on Chinese male immigration by implementing a quota system on new arrivals This move coincided with global depressed economic conditions and falling demand for rubber and tin Unlike Indian plantation workers who were repatriated to India the British had no legal means at their disposal to repatriate the lsquoalienrsquo Chinese migrants to China Nevertheless these restrictions never attained the importance they did until after Malaya achieved independence

By the early 1940s Malaya had become an immigrant nation and economic plurality had resulted in differentiated economic roles residential segregation and dissimilar experiences It was also evident that a national consciousness based on ethnicity and religion had taken shape in Malaysia The Japanese Occupation Period (1942ndash45) unleashed nationalism exacerbating ethnic sensitivities and emphasizing unitary national identities Thus when the British returned they found a completely changed environment in the country Rising nationalism and a developing independence movement foreshadowed decolonization and the formation of an independent Malaya in 1957 Asian labour migrations also came to an end with the ending of empire The demand for indigenism which had been progressed during the Japanese Occupation period8 was soon followed by the implementation of stringent border controls and undercurrents of racism became more obvious in the country9 There was also no analysis of Malayarsquos future labour needs nor what form these would take

Malaysiarsquos Immigration Regime 1960ndash2011 Policies and Politics

Prospect and Retrospect

Soon after independence the national government categorized citizens on the basis of their citizenship and expelled Chinese and Indians who had not taken out Malayan citizenship In the then economic climate the issue of potential labour shortages was not paramount and the government was preoccupied with trade and investment strategies By the 1970s and 1980s labour shortages had emerged and the state authorized recruitment agencies to broker migrant workersrsquo temporary movement into the country The agencies took advantage of the workers and also facilitated irregular migration into the country The government then signed intergovernmental labour accords with sending countries to handle recruitment of foreign workers and also took measures to regulate the workersrsquo employment

8 A Booth Colonial Legacies Economic and Social Development in East and Southeast Asia (University of Hawaii Press 2007) ch 9

9 A Kaur lsquoCrossing Frontiers Race Migration and Borders in Southeast Asiarsquo (2004) 6(2) International Journal on Multicultural Societies 111


Generally Malaysiarsquos labour strategy endorsed recruitment of mostly lower skilled foreign workers resulting in a bifurcation of the countryrsquos labour market Jobs in the primary labour market largely offered steady work and to a certain extent lsquodecentrsquo conditions for Malaysian workers Jobs in the secondary labour market offered low pay and poorer working conditions This situation created a structural demand in occupations with few opportunities for advancement especially in the plantation construction manufacturing and services sectors (including domestic work) Immigration patterns were also transformed over the next 50 years in new and important ways as a result of changing labour force demands New immigration flows included a shift in the countries of origin of immigrant workers increased numbers of lower skilled women domestic workers and unauthorized immigrants As migrant networks and links further increased they generated ancillary flows of refugees and asylum seekers The last two migrant categories in particular caused anxiety among government officials and the Malaysian public and led to new government policies with a strong enforcement emphasis

This section is divided into two parts 1960ndash91 and 1992ndash2011 to detail shifting agendas and the key elements of Malaysian immigration policy-making The focus is on Peninsular Malaysia since immigration is an autonomous subject in the Malaysian Federation and economic and political factors underlying the influx of migrants in Sabah and Sarawak also differ from that of Peninsular Malaysia

Initial Policies and Perspectives 1960ndash91

Evolving labour strategy As stated previously the state passed new legislation after independence to restrict Chinese and Indian migration to Malaya The Immigration Act 1959 resulted in the tightening of entry rules for non-resident spouses and children of Malayan Chinese and Indian residents who had lived abroad for a continuous period of five years after December 1954 under the reunification of families clause Following this the government brought in the Employment Restriction Act 1968 which made admittance to the labour market for non-citizens conditional on the possession of work permits The work permit system also ensured that only skilled non-citizens would be allowed entry into the country Subsequently following the racial riots of 1969 the government approved a fresh development strategy the New Economic Policy to improve the countryrsquos economic prospects and competitiveness

The state also took the lead in driving economic growth and embraced a labour-intensive manufacturing strategy which corresponded with the New International Division of Labour and Japanrsquos rise as a regional economic power Simultaneously public infrastructure and land development projects were instigated against the backdrop of a sustained fertility decline restrictive immigration policies and a declining and stabilizing work force Moreover since foreign direct investment and cheap labour were required to support the industrialization programme the


government concentrated on reducing labour costs and maximizing profits under the pretext of filling labour shortages in poorly paid sectors

The Governmentrsquos liberal approach to economic migration during this period meant that at first employers and government agencies were lsquopermittedrsquo to recruit workers from neighbouring Indonesia and Thailand to meet their labour demands The employers utilized the services of private labour brokers who relied on their social networks or illegal labour syndicates to recruit workers for their enterprises Subsequently thousands of migrant workers arrived in Malaysia to take up jobs in the plantation construction and domestic work sectors10 This approach and the absence of a comprehensive foreign labour policy and institutional architecture resulted in the clandestine entry of large numbers of irregular Indonesian migrants to fill labour market gaps

According to Jones11 citing Indonesian Ministry of Manpower records estimates of irregular Indonesian migrant workers employed in Malaysia ranged from 200000 to 700000 in the early 1980s Concurrently Vietnamese refugees began to flee to Malaysia from 1975 onwards following the ending of the Vietnam War in 1975 and the Communist victory in South Vietnam The government was thus forced to reassess its position on irregular migration and developed two separate processes to handle economic migrants on the one hand and irregular migrants refugees and asylum-seekers on the other

Economic migration In 1981 the government acknowledged that legislation was necessary to establish an official channel for foreign labour recruitment and passed an Act which endorsed establishment of labour recruitment agencies in Malaysia Then in 1982 the state set up a Committee for the Recruitment of Foreign Workers which was assigned to handle temporary foreign labour recruitment and allocate work permits It also initiated intergovernmental labour accords with labour-sending countries to streamline recruitment procedures and establish legal recruitment channels for lower skilled workers Subsequently in 1984 Malaysia signed the Medan Agreement with Indonesia for the supply of Indonesian workers for the plantation and domestic work sectors In the following year an accord was signed with the Philippines for the recruitment of domestic workers Labour accords were also signed with Bangladesh and Thailand for workers in the plantation and construction sectors Rema Devi12 asserts that the labour accords were a lsquocontract labour agreement for the supply of cheap Indonesian [and other] labour on two year contracts to meet an ostensible labour shortage in the plantation and construction sectorsrsquo and the domestic work sector

10 A Kassim lsquoIllegal Alien Labour in Malaysia Its Influx Utilization and Ramificationsrsquo (1991) 17 Indonesia and the Malay World 50

11 S Jones Making Money Off Migrants The Indonesian Exodus to Malaysia (Asia 2000 Ltd 2000) 15

12 P Rema Devi Contract Labour in Peninsular Malaysia (Institut Kajian Dasar 1996) 5ndash6


The foreign workers were classified as highly skilled or lower skilled based on their expertise and salary levels Highly skilled workers (expatriates) comprised those who earned above a certain salary level per month (initially RM 2500) and were recruited for managerial and executive positions and technical employment They are issued employment passes and are allowed to bring their family with them to Malaysia13 A Committee for Expatriate Workers which comprises government representatives from nine Ministries regulates their employment They were allowed to stay in Malaysia for a maximum of ten years14

Lower-skilled workers (foreign contract workers) are those who earn under RM 2500 a month and are issued temporary work permits by the Immigration Department This category of workers comprises mainly semi-skilled and lower-skilled workers and includes domestic workers The work permit system lets these guest workers reside and work temporarily in the country for the duration of the work contract The duration of the contract has been revised periodically and workers are normally issued one-year permits which can be renewed annually for a maximum of five years15 The number of permits granted to employers is determined by several criteria type of industry exportnon-export orientation paid-up capital sales value and the ratio of local to foreign workers Thus there is implicit a dependency ceiling which is defined as the maximum share of foreign workers in a firmrsquos total employment The workers except domestic workers have the right to receive lsquoprotection and benefitsrsquo provided by various Malaysian labour laws and regulations

The employment of women domestic workers in Malaysia correlates with the global care regime Their recruitment has coincided with the growth of Malaysian womenrsquos economic participation in the formal labour market Malaysiarsquos gender-selective immigration policies and expansion of gender-specific employment niches These migrant women workers generally have greater opportunities for legal employment avenues in private homes and symbolize the new gendered migration linkages in the region16 The existing Malaysian labour laws provide inadequate or minimal protection for domestic workers and most source countries also fail to protect their domestic workers abroad Nevertheless sending countries

13 A Kassim lsquoSecurity and Social Implications of Cross-National Migration in Malaysiarsquo in MJ Hassan (ed) Pacifying the Pacific (ISIS 2005) 259 267 A Kaur International Migration and Governance in Malaysia Policy and Performance (2008) 9 ltwwwuneeduauasiacentrePDFNo22pdfgt accessed 5 December 2012

14 lsquoMalaysian Employers Told to be Less Dependent on Foreign Labourrsquo The New Straits Times (16 April 2008)

15 Kaur (n 13) 16 K Yamanaka and N Piper Feminized Migration in East and Southeast Asia

Policies Actions and Empowerment (2005) ltwwwunrisdorg80256B3C005BCCF9(httpPublications)06C975DEC6217D4EC12571390029829AOpenDocumentgt accessed 20 November 2012 A Kaur International Labour Migration in Southeast Asia Governance of Migration and Women Domestic Workers (2007) lthttpintersectionsanueduauissue15kaurhtmgt accessed 20 November 2012


like Indonesia and the Philippines have now started to insist on specific rights and protections17

The guest worker policy permitted recruitment of temporary contract workers on lsquoindividualrsquo or lsquogroup workrsquo permits It was based on off-shore recruitment procedures and included the following conditions assisted passage for workers repayment of travel and recruitment advances by workers through salary deductions employment with a specified employer fixed term employment and the obligatory return to the country of origin upon completion of the contract18 Employers are required to obtain the work permits and are responsible for obtaining and renewing workersrsquo work permits However some employers continued to transfer the transaction costs to potential workers resulting in a continuation of irregular migration flows from Indonesia and the other countries

The initial refugee regime the Indochinese boat people Malaysia saw the first boatload of 47 refugees from Vietnam in 1975 who landed on the northeastern coast of Terengganu state on the east coast of Peninsula Malaysia Initially the government and most Malaysians displayed a more humane policy toward the refugees who arrived on small unsafe vessels and local villagers provided temporary shelter food and accommodation Additional boat arrivals and shifting attitudes in Malaysia then led to a policy of locating the boat people on an uninhabited island Pulau Bidong off the coast of Terengganu In July 1978 the Malaysian government and the United Nations High Commissioner for Refugees (UNHCR) established Pulau Bidong as a place for stateless Vietnamese to seek asylum in another country In late 1978 as more ethnic Chinese refugees arrived on bigger ships reportedly organized by syndicates the Vietnamese government adopted a harder stance fearing a lsquoHanoi-sponsored Chinesersquo invasion The then deputy Prime Minister Dr Mahathir Mohamad recommended legislating lsquoshoot-on-sightrsquo orders to deter would-be Chinese-Vietnamese asylum seekers In January 1979 the then Prime Minister Hussein Onn informed the UNHCR that Malaysia was closing lsquoall doorsrsquo to all refugees According to two accounts of the Vietnamese boat peoplersquos experiences in Malaysia19 the Malaysian government UNHCR and the Malaysian Red Crescent Society made the place more tolerable by providing basic amenities such as longhouses schools and clinics Significantly the Malaysian government

17 A Kaur lsquoInternational Labour Migration Dynamics in Southeast Asia Migration and Inequalityrsquo in T Bastia (ed) Migration and Inequality (Routledge 2013 65ndash92)

18 A Kaur lsquoOrder (and disorder) at the Border Mobility International Labour Migration and Border Controls in Southeast Asiarsquo in A Kaur and I Metcalfe (eds) Mobility Labour Migration and Border Controls in Asia (Palgrave Macmillan 2006)

19 P Wilmoth lsquoCome hell or high waterrsquo The Age (17 April 2005) ltwwwtheagecomaunewsImmigrationCome-hell-or-high-water200504161113509965936htmlgt accessed 10 October 2012 lsquoWe were very luckyrsquo The Age (17 April 2005) ltwwwtheagecomaunewsImmigrationWe-were-very-lucky200504161113509965945htmlgt accessed 10 October 2012


isolated refugees from the general populace during this period and did not allow them to work since they were considered interlopers and uninvited guests

Malaysia cooperated with the UNHCR under the terms of the 1989 Comprehensive Plan of Action (CPA) an international agreement that provided for the screening of the refugees for refugee status and their resettlement or repatriation The UNHCR also assisted approximately 240000 Vietnamese to resettle in third countries Malaysia politicized the refugee issue and the government insisted on towing boats carrying refugees back out to sea and also stepped up land and sea patrols The government then formed a special corps the Vietnamese Illegal Immigrants (VII) Task Force to stop additional landings by refugees and asylum seekers This unit was also used to control irregular immigration (see below) The official term for undocumented migrants used at this stage was lsquoillegal undocumented migrantsrsquo and subsequently the term lsquoillegal immigrantsrsquo (pendatang haram) became common as did terms such as lsquoillegalsrsquo and lsquoaliensrsquo in the 1990s and early twenty-first century The government also relied on a voluntary corps RELA (see below) to assist with this policy

As noted above Malaysiarsquos position on the Indochinese refugees centred on interning refugees until they were either resettled to third countries or were repatriated Following the subsequent arrival of Vietnamese migrants under Vietnamrsquos Orderly Departure Program Malaysia in common with other Southeast Asian countries became more unwelcoming to Vietnamese migrants The imminent ending of the CPA and the UNHCR funding at the end of June 1996 led to the forcible repatriation of Vietnamese either on naval ships (referred to as lsquoprisonrsquo ships) or by air20 Subsequently refugees were no longer allowed to stay on a longer-term basis in Malaysia neither did the government offer any camps and facilities Malaysia also had no asylum system during this period21

Worsening economic conditions and the severity of the 1985ndash86 economic recession was seized by the Malaysian Trades Union Congress to voice its condemnation over the rising levels of foreign labour in the country and growing unemployment among Malaysians The displacement of local workers by cheaper foreign labour and hostility toward the latter and irregular workers also prompted the Chinese-based opposition Democratic Action Party to openly question the governmentrsquos foreign labour policy In 1985 for example the Democratic Action Party leader Lim Kit Siang proposed a bounty scheme for information on irregular Indonesian migrantsrsquo movements and whereabouts to the authorities22 Subsequent calls by other political parties then resulted in the government deploying the

20 Migration News (May 1996) 3(5) ltwwwunorgpopinpopisjournalsmigratnmig9605htmlgt accessed 20 November 2012

21 A Kaur Refugees and Refugee Policy in Malaysia (2008) ltwwwuneeduauasiacentrePDFNo18pdfgt accessed 5 December 2012

22 LK Siang BibliothecaPursuit of a Malaysian Dream (1985) lthttpbibliothecalimkitsiangcomgt accessed 1 July 2012


VII Task Force to patrol Malaysian waters to stop additional irregular Indonesian arrivals by sea

Many Malaysians also considered undocumented migrants as a threat to Malaysiarsquos security and believed that the UMNO-dominated governmentrsquos actions were aimed at increasing the lsquoMalay-Muslimrsquo share of the population These racial undercurrents and differences in opinion over irregular migration subsequently led to a brief suspension of foreign labour recruitment in 1986 The government then experimented with a new policy based on regularization of the existing irregular migrants The first regularization programme which was initiated in 1989 for Indonesian migrants in the plantation sector proved to be complicated problematic and costly since the migrants had to return to Indonesia obtain official papers and return as authorized migrant workers A second roundup amnesty registration exercise was launched in 1991 focussing on rounding up the irregular migrants at selected work sites and then granting them amnesty followed by registration (Kassim 1995 2005)23 The debate over how to address unauthorized migrants subsequently centred on reform of immigration policy as well as improved enforcement exercises and regularization programmes

Rethinking Immigration Policy and Regularization of Unauthorized Migrants as a Policy Instrument 1992ndash2011

The new immigration regime In 1991 following the second regularization programme Malaysia set up a Cabinet Committee on Foreign Labour to develop a Comprehensive Policy for the Recruitment of Foreign Workers rather than introducing a Foreign Workers Act to unify regulation of migrant workers issues in one law The Committee comprised relevant Ministries and their agencies involved in overseeing foreign recruitment Subsequently foreign workersrsquo affairs were regulated by the Immigration Department through its laws and regulations

The Department falls under the jurisdiction of the Ministry of Home Affairs (which issues work permits) and the Ministry of Human Resources (which oversees labour laws) The Ministry of Health was entrusted with health matters and the approval of private health clinics authorized to screen migrant workers on entry and then on an annual basis In 2007 the government announced that a comprehensive law was being drafted24 for a Foreign Workers Act Interestingly it was stated that the Act would come under the jurisdiction of the Ministry of

23 A Kassim lsquoAmnesty for illegal foreign workers in Malaysia Some attendant problemsrsquo (1995) 9 Manusia dan Masyarakat A Kaur lsquoIndonesian Migrant Labour in Malaysia From preferred migrants to lsquolast to be hiredrsquo workersrsquo (2005) 39(2) RIMA 3

24 J Loh J and H Azizan lsquoAct of hope for foreign workersrsquo The Sunday Star (9 December 2007) lthttpthestarcommynewsstoryaspfile=2007129focus19708790ampsec=focusgt accessed 20 November 2012 PS Robertson Migrant Workers in Malaysia ndash Issues Concerns and Points for Action (2008) ltwwwalfeaorgimgOutsourcingCompaniespdfgt accessed 20 November 2012


Home Affairs rather than the Ministry of Human Resources thus confirming the commonly held view that the foreign labour issue has become a security matter25

Malaysia also espoused a lsquonovelrsquo approach to immigration controls and border security which was mirrored in the shift away from the conventional view of the border as a territorial dividing line The lsquonewrsquo border could be experienced in everyday situations especially at workplaces (plantations construction sites) at the marketplace in villages and housing sites and also in the jungle26 The heightened security focus was tied to better data collection and the imposition of an annual levy (or tax) on migrant workers The levy charges were variable depending on the employment sector and skill category of migrants27 The government also placed greater emphasis on bilateralism in foreign labour recruitment thus acknowledging that a unilateral approach was not conducive to better relations with labour-sending states and reinstated the earlier policy of intergovernmental labour accords to ensure more transparency in recruitment processes This policy shift also enabled the government to extend its foreign labour catchment area to the wider Asian region28

In 1995 a Special Task Force on Foreign Labour was formed to better manage foreign labour recruitment other than domestic workers and shop assistants and took over the processing of foreign labour applications This move was intended to prevent exploitation of migrant workers by labour intermediaries However since domestic workers were not considered lsquoformalrsquo workers private labour agencies were allowed to organize and process their applications The Immigration Departmentrsquos role was also expanded to include regulation of foreign labour recruitment identification of lsquoappropriatersquo labour-source countries and monitoring of the eligibility of sectors or firms wanting foreign workers Individual employers and firms needing foreign workers also had to meet conditions such as a minimum capital investment and precise local labour to foreign labour ratios in the workforce29

The Asian Financial Crisis of 1997ndash98 resulted in further changes to Malaysiarsquos evolving immigration policy The crisis triggered a steep recession in the country resulted in a revitalized focus on security issues and underlined overdue reforms in the guest worker programme The Task Force was disbanded in March 1997 and foreign labour recruitment transferred back to the Immigration Department The government halted the recruitment of foreign labour except for the manufacturing

25 The Sunday Star (n 24)26 Kaur (n 18)27 A Kaur lsquoLabour migration trends and policy challenges in Southeast Asiarsquo (2010)

29 Policy and Society 385 ES Devadason and WM Chan A Critical Appraisal of Policies and Laws Regulating Migrant Workers in Malaysia (2010) ltwwwwbiconprocom210-DEVADASONpdfgt accessed 20 November 2012

28 Kaur (n 23)29 HS Barden Terms and Conditions of Employment (Foreign Workers)Unionism

Paper to the LAWASIA Labour Law Conference Kuala Lumpur 10ndash11 August 2006


and servicehospitality sectors granted amnesty to Indonesian guest workers and commenced another legalization exercise directed at irregular workers from Indonesia Thailand the Philippines Bangladesh and Pakistan Owing to the large number of unauthorized migrants the government established immigration detention centres (IDCs) to lsquojudiciallyrsquo detain them In the last decade migrant workers comprised approximately 25 per cent of Malaysiarsquos labour force The percentage growth of the foreign workforce in the main economic sectors is shown in Figure 71

Figure 71 Malaysia foreign workers employed in the main economic sectors 1999ndash2008 (per cent)

Note Agriculture includes forestry fishing and miningSource Malaysia Ministry of Home Affairs Economic Planning Unit

Indonesians and Bangladeshis comprised the largest percentage of migrant workers in Malaysia from 1999 to 2008 as shown in Figure 72

The governmentrsquos shifting immigration agenda was also evident in the well-known cycle of periodic roundups amnesties and expulsion of lsquoexcessrsquo irregular workers within specified time frames followed by legalization of irregular migrant workers from detention camps The government amended the Immigration Act in 1997 and 2002 to remove ambiguities and tighten regulations including increasing penalties for employers and workers violating immigration law In the enforcement of the Immigration Act two particular articles Sections 6 and 51 are used to detain and charge irregular migrants Article 6 of the Act states the grounds for legal entry Consequently any person who enters the country illegally will be


severely punished Article 15 defines the offence as lsquoUnlawful entry or presence in the countryrsquo or overstaying in the country Errant employers who employed more than five undocumented workers were also subject to fines imprisonment and physical punishment30

The treatment of irregular migrants in the IDCs has also received widespread criticism from human rights groups in Malaysia In 1995 the non-governmental organization (NGO) Tenaganita published a report detailing the abuse of migrants in the IDCs by immigration department officials31 Subsequently administration of the IDCs was transferred from the Immigration Department to the Prisons Department The government has also set up special courts in the IDCs for the detainees These courts have been condemned by the Malaysian Bar Council lsquoas facilitating a court process where migrant workers are not given the right to understand charges and processes against them in their own language and are effectively denied the right to legal counselrsquo32 Other reports by NGOs33 on

30 A Sreenevasan Obligations of Labour Contractors and Agents Paper to the LAWASIA Labour Law Conference on Labour Migration International and National Progress Kuala Lumpur August 2006

31 Tenaganita lsquoMemorandum on Abuse Torture and Dehumanized Treatment of Migrant Workers at Detention Campsrsquo (typescript) (1995)

32 Robertson (n 24) 2ndash333 Suaram [Suara Rakyat Malaysia] Malaysia Human Rights Report 2005 Civil and

Political Rights (Petaling Jaya Suaram 2006) 121

Figure 72 Malaysia foreign workers by country of origin 1999ndash2008 (per cent)

Source Malaysia Ministry of Home Affairs Economic Planning Unit


conditions in these camps have led to further administrative shifts By 2008 there were 16 IDCs in Malaysia Of these eleven were located in Peninsular Malaysia three in Sabah and two in Sarawak The location of the IDCs in Peninsular Malaysia is shown in Figure 73

The appalling treatment of Indonesian workers has been well documented and Malaysia received bad publicity in 2002 when it arranged for an estimated 600000 undocumented migrants34 to leave without penalty under the amended 2002 Immigration Act The Indonesian government then dispatched naval vessels to Malaysian ports to repatriate the expelled Indonesian migrants Malaysiarsquos deportation programme unfortunately caused a humanitarian crisis at Nunukan a tiny Indonesian island off Tawau in East Kalimantan About 22000 expelled Indonesian workers from Java and Sulawesi were stranded on the island and it is estimated that at least 64 workers and their children died of hunger and disease35 Subsequently in 2005 the Malaysian Government announced that foreign workers would be treated lsquoin accordance with the provisions of International Labour Organization (ILO) conventionsrsquo

This episode foreshadowed important changes in IndonesianndashMalaysian relations concerning the recruitment of Indonesian labour in Malaysia First it led to greater advocacy and action regarding the human rights of overseas Indonesian workers by Indonesian and international NGOs acting on behalf of Indonesian migrants Second in response to growing criticism by Indonesians and others the Indonesian government demanded better working conditions and pay for documented migrants The Indonesian government also insisted that authorized Indonesian labour-exporting companies handle the recruitment of Indonesian workers and the earlier practice of recruitment through Malaysian recruitment companies be discontinued These negotiations resulted in a Memorandum of Understanding (MOU) in 2004 between Indonesia and Malaysia The MOU required Malaysian employers to deal directly with licensed Indonesian labour recruiting agencies Other issues included revised age eligibility requirements for migrant workers the obligation of pre-departure training and improved wages Migrant workers were also not allowed bring their families36

In 2005 Malaysia introduced outsourcing of labour a lsquonewrsquo model of labour brokerage or outsourcing arrangements for firms employing fewer than 50 workers This labour model coincided with the rise of small-medium enterprises Under the new arrangements the outsourcing agents become lsquocontractorsrsquo of labour which was previously illegal under the provisions of the Employment Act 1955

34 The actual figure was reported to be between 600000 and 15 million35 See J Perlez lsquoFor some Indonesians echoes of ldquocoolie nationrdquorsquo New York Times

(15 August 2002) ltwwwasia-pacific-solidaritynetsoutheastasiaindonesianetnews2002ind_31v6htmFor some Indonesians echoes of lsquocooliersquo nationgt accessed 8 October 2012

36 R Tirtosudarmo Migrant Workers as a Constitutional Challenge for Indonesia Paper to the Conference on Migrant workers in Asia Policies and practices in Social Sciences Jakarta 14 July 2011


Figure 73 Immigration Detention Camps (IDCs) in Peninsular Malaysia 2012

Source After Datorsquo Ishak Haji Mohamed lsquoArrest Detention and Prosecutionrsquo (unpublished paper to the Bar Council Malaysia and ILO Conference Developing a Comprehensive Policy Framework for Migrant Labour 18ndash19 February 2008


which only provided for a direct employer-worker employment relationship37 The government therefore inserted a new clause on lsquocontractors of labourrsquo into employment law and succeeded in having it accepted in 2011 after an initial withdrawal of the bill in 2010 despite strong opposition from trade unionists and human rights defenders

The Ministry of Home Affairs also licensed approximately 277 outsourcing or labour hire firms in 2006 to recruit workers from countries other than Indonesia (particularly from Bangladesh) for small-medium enterprises These companies are required to be wholly Malaysian-owned and workers are responsible for all recruitment and transportation costs and the recruiterrsquos charges Essentially workers hired under this system have to lsquopayrsquo for the privilege of recruitment

The Malaysian government has argued that the outsourcing system is superior to recruitment via agencies since the intermediaries who charge lsquoexorbitantrsquo fees no longer have a role in the recruitment process The outsourcing system is effectively a Malaysian variant of labour brokerage in migration Workers are brought into the country on the basis of calling visas issued on behalf of outsourcing companies through arrangements with labour brokers in the sending countries Although legally bound to provide specific jobs for the workers they bring in the labour hire firms also operate as speculative labour contractors moving workers around to get the best deal for themselves The labour hire firm also functions as the de facto employer Workers hired by labour hire companies are also not included in the quotas assigned to the different sectors It has been alleged that the outsourcing system has transformed the migrant workers into bonded labour38 and horror stories of their exploitation have been reported in the media39

The governmentrsquos policy of round-ups and amnesty followed by regularization of irregular migrants was subsequently customized The 2011ndash12 modification represents its most comprehensive policy in the ongoing cycle It was branded the lsquo6Prsquo operation and comprised six key fundamentals pendaftaran (registration) pemutihan (legalization) pengusiran (deportation) pemantauan (monitoring) penguatkuasaan (enforcement) and pengampunan (amnesty) The lsquooperationrsquo was also intended to provide accurate statistics on migrant workers in the country (estimated at about 2 million) and register and regularize undocumented workers (believed to be 2 million) Crucially irregular migrants were required to return to their own countries and were only allowed to return after undergoing official

37 K Bersama Mansuhkan Sistem lsquoContractor for Labourrsquo (2012) lthttppejuangpekerjapahangblogspotcomau20120590-menuntut-mansuhkan-sistem-contractorhtmlgt accessed 20 November 2012

38 M Ramachelvam A Rights Based Policy Framework and Plan of Action Paper to the Malaysian Bar Council Conference on Developing a Comprehensive Policy Framework for Migrant Labour Kuala Lumpur 19 February 2008

39 Tenaganita Fact Finding Report Outsourcing in Labour or Trafficking in Migrant Labour (2007) ltwwwdigitalibrarymydmdocumentsmalaysiakini389_outsourcing_reportpdfgt accessed 20 November 2012


recruitment procedures Following registration procedures workersrsquo particulars were entered into the governmentrsquos biometric system to enable lsquobetter control over foreign labourrsquo40

Malaysia has directed an unprecedented amount of resources to controlling and regulating migrantsrsquo mobility rather than ensuring the workersrsquo rights under international conventions41 ensuring that the countryrsquos borders are secure and interning and expelling unauthorized migrants The governmentrsquos policies have also exacerbated labour trafficking In 2008 Tenaganita published a book The Revolving Door (Kuala Lumpur) stating how Malaysian immigration police officials and RELA forcibly lsquorepatriatedrsquo and lsquoallegedly traffickedrsquo Burmese irregular migrantsrefugees to Thai traffickers at the ThaindashMalaysia border This action appears to have been Malaysiarsquos answer to outsourcing refugees A US Senate Committee on Foreign Relations subsequently investigated the matter confirming the trafficking and human rights abuses of the refugees by Malaysians42 Malaysia introduced a new Anti-Trafficking Act which came into effect in 2008 which lsquocontains language that is in line with the standards set out in the UN Palermo Protocolrsquo but implementation has largely focused on cases of trafficking for sexual exploitation

Despite the fact that Malaysia is a signatory to various international Human Rights Conventions it has not enforced key United Nations legal instruments pertaining to migrant workersrsquo rights Nevertheless there has been cooperation in combating human trafficking in the region two regional initiatives being the 1999 Bangkok Declaration on Irregular Migration and the 2004 ASEAN Joint Declaration against Trafficking in Persons Furthermore Malaysia does not want to risk being placed in Tier 3 in the United Statesrsquo Department of State Annual Trafficking in Persons Reports since this could result in sanctions such as the withholding of non-humanitarian non-trade-related US aid Consequently the human rights of migrant workers continue to be neglected Significantly only the labour sending countries in Asia have ratified the 1990 UN Convention on the Rights of Migrant Workers and their Families

The present refugee regime Following the termination of the CPA with the UNHCR the UNHCR has had no formal agreement with the Malaysian

40 MN Anis lsquo6P programme starts on July 11rsquo The Star (23 June 2011) lthttpthestarcommynewsstoryaspfile=2011623nation8958490ampsec=nationgt accessed 20 November 2012 K Kinabalu lsquoCrackdown on illegal immigrants to begin on Jan 1rsquo The Star (25 June 2011) lthttpthestarcommynewsstoryaspsec=nationampfile=2011625nation8970975gt accessed 20 November 2012

41 United Nations Human Development Report International Cooperation at a Crosswords Aid Trade and Security in an Unequal World (2005) lthttphdrundporgenreportsglobalhdr2005gt accessed 5 December 2012

42 US Committee on Foreign Relations Trafficking and Extortion of Burmese Migrants in Malaysia and Southern Thailand 111th Congress Report 3 April 2009


government to handle refugee status determinations It maintains a liaison office in Kuala Lumpur and Malaysia continues to formally accredit the UNHCR representatives in the country According to Human Rights Watch the absence of a formal agreement has meant that the lsquoUNHCR interventions with the government on behalf of refugees are ad hocrsquo43 Although Malaysia does not provide protection to refugees in the country it generally cooperates with the UNHCR and no longer deports individuals registered as refugees or persons of concern Nevertheless Malaysia has not ratified the 1951 Convention relating to the Status of Refugees and its 1967 protocol on refugeesrsquo rights and statesrsquo legal obligation to protect them

As noted previously the government has not allowed refugees to work The government does provide access to healthcare facilities for those with UNHCR cards at a reduced 50 per cent charge Opportunities for schooling are mainly provided by religious groups some of which receive external funding In order to survive most refugees live in the urban areas especially in and around Kuala Lumpur This is principally because the UNHCR does not maintain a presence at Malaysiarsquos borders Nevertheless in 2009 and early 2010 the UNHCR conducted mobile registrations in areas where most asylum seekers were concentrated In 2011 the UNHCR reported 96691 persons as asylum seekers and refugees approximately 93 per cent of who were Burmese44

As shown in Table 71 more than 90 per cent of refugees and asylum seekers in Malaysia in 2010 were from Burma comprising mainly Chin Rohingya Kachin and Karen ethnic groups

Although Malaysia does not provide protection against refoulement the government does not generally deport individuals recognized as persons of concern by the UNHCR However up to 10000 refugees (of the 94400 refugees and asylum seekers registered with the UNHCR) in Malaysia were recently lsquoincorrectlyrsquo issued with lsquoreturn to home countryrsquo letters45 Significantly the Malaysia Solution episode did result in a change for the better for refugees in the country For example in November 2011 Malaysia stated that it would lsquoundertake a joint exercisersquo with the UNHCR to register refugees and asylum seekers to lsquoensure better protection for themrsquo46 This action was proposed for early 2012

43 Human Rights Watch MalaysiaBurma Living in Limbo Burmese Rohingyas in Malaysia (2000) pt 5 lthttpwwwhrworgreports20000801malaysiaburma-living-limbo-burmese-rohingyas-malaysiagt accessed 18 October 2012

44 US Department of State Country Reports on Human Rights Practices for 2011 (2011) ltwwwstategovdocumentsorganization186496pdfgt accessed 20 October 2012

45 K Needham lsquoMalaysiarsquos letter mix-up sparks refugee chaosrsquo The Age (26 August 2011) ltwwwtheagecomaunationalmalaysias-letter-mixup-sparks-refugee-chaos-20110825-1jcjihtmlgt accessed 20 November 2012

46 W Muthiah LY Mun WP Mei and FF Zulzaha lsquoWorking for refugee rightsrsquo The Star (7 November 2011) lthttpthestarcommynewsstoryaspfile=2011117nation9853469ampsec=nationgt accessed 20 November 2012

Country 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

Burma 5134 5151 5247 4152 9601 14208 21544 29474 33781 61412 76120

Indonesia 149 83 144 3198 15181 19153 15174 2215 497 747 814

Iraq 2 11 26 19 31 27 51 148 327 450 498

Afghanistan 55 77 36 18 26 51 55 68 62 248 430

Sri Lanka 1 2 0 6 30 42 283 1232 2133 2278

Source UNHCR Statistical Online Population Database United Nations High Commissioner for Refugees (UNHCR) accessed 4 August 2011

Table 71 Refugee and PIRLS population in Malaysia by country of origin 2000ndash2010


Additionally the government has agreed to include the refugees and asylum-seekersrsquo biodata in a government database The UNHCRrsquos Representative in Malaysiarsquos response was revealing viz

as Malaysia is not yet a signatory to the 1951 Refugee Convention UNHCR very much appreciates the cooperation hellip [it] enjoys with the Malaysian Government and hellip [looks] forward to continuing discussions on how to strengthen refugee protection in Malaysia including creating opportunities for legal work for refugees as well as enhanced access to education and health services

The President of the Association for the Promotion of Human Rights was more forthright stating that lsquoit was ironic that even with the registration asylum-seekers hellip [would not be] recognized as refugeesrsquo and lsquothey would still be treated as illegal immigrants even if they were registeredrsquo47 Perhaps the Malaysia Solution precipitated the governmentrsquos minor shift in the right direction

47 ibid

Chapter 8

Challenges and Opportunities in Respecting International Refugee Law in Indonesia

Bhatara Ibnu Reza

Introduction

Recently Indonesia has become a favourite destination for those seeking asylum Most of those people have similar reasons for leaving their country they have become the victims of government persecution are considered a minority due to their ethnic background and religion are avoiding armed conflict and many other reasons The arrival of such refugees and asylum seekers is not a recent phenomenon ndash Indonesia received lsquoboat peoplersquo from Vietnam in 1975 refugees who were placed in a refugee camp on Galang Island Riau Province1

The existence of refugees on Galang Island triggered the permanent establishment of the United Nations High Commissioner of Refugees (UNHCR) in Indonesia In the beginning the UNHCR acted through the Indonesian Permanent Mission to the United Nations in Geneva and its Bangkok Branch Office sending staff to the location for a short-term mission while those for the long-term mission were coordinated by its Kuala Lumpur branch office UNHCR became a permanent institution in Jakarta in 1979 due to the opening of the processing centre in Galang Island it became an independent branch office in 1981

Indonesia has undergone many changes recently due to the arrival of many immigrants coming from different nationality backgrounds such as Afghanistan Pakistan Iraq Iran and even Myanmar a country from the same region All of those immigrants have Australia as their chosen destination for seeking asylum However Australia has developed an unfriendly policy for refugees and asylum seekers From the beginning the Australian government has sought to restrain asylum seekersrsquo attempts to reach their beaches They even prefer to keep asylum seekers in camps while they burn those refugeesrsquo ships in the middle of the ocean2

1 E Soeprapto The Implications of Indonesiarsquos Becoming Party to the 1951 Convention andor Protocol Relating to the Status of Refugees on Indonesia National and International Interest Paper to the Seminar on Indonesiarsquos Possible Accession to the 1951 Convention and 1967 Protocol relating to the Status of Refugees organized by the Ministry of Foreign Affairs Borobudur Hotel Jakarta (7 June 2006) 3

2 lsquoOcean of Fire as Navy Torches another asylum boatrsquo The Daily Telegraph (12 September 2012) wwwdailytelegraphcomaunewsocean-of-fire-as-navy-torches-


Australia considers asylum seekersrsquo attempts to enter its territory as actions of people smuggling which has led to the government treating them as criminals rather than as asylum seekers This is reflected in Australiarsquos Migration Act 1958 which prohibits outsiders not considered to be citizens from unlawfully entering and being in the territory Nonetheless the governmentrsquos practice of prohibiting refugees and asylum seekers made it seem as if Australia refused their entry into the country This policy could be known as lsquoNot in My Backyardrsquo a manifestation of Australiarsquos increasingly recalcitrant approach to refugees and asylum seekers The Australian government also did not hesitate to charge children in immigration detention with people smuggling However childrenrsquos rights have been given protection and recognition internationally in the 1989 Convention on the Rights of the Child of which Australia is a signatory3

Australia is a party to the 1951 Refugee Convention4 and 1967 Refugee Protocol5 However Australia has contravened the Refugee Convention through its policies the most recent occurrence being Australiarsquos lsquoMalaysia Solutionrsquo In 2011 Australia made an agreement with Malaysia to relocate 800 asylum seekers from Australia to Malaysia and in return Malaysia would send hundreds of asylum seekers from Myanmar to Australia6 The agreement was criticized by Australians and the international community as under the agreement Australia was not fulfilling its obligations under the Refugee Convention This agreement was ultimately overturned by the High Court of Australia because it violated Australiarsquos obligations under the Refugee Convention7

Australia appears to have a political agenda in its treatment of refugees and asylum seekers The Australian government granted temporary asylum to 43 people from West Papua despite strong responses against this decision from the Indonesian government8 This granting of temporary asylum is considered to be an attempt by the Australian government to assist West Papuarsquos independence from Indonesia and this strained the relations between Indonesia and Australia for a while

Unfortunately Indonesia has also started to lsquoget trappedrsquo in the Australian governmentrsquos method of handling asylum seekers and refugees Indonesiarsquos decision to place asylum seekers into immigration detention centres demonstrates

another-asylum-boatstory-e6freuy9-1226430372791gt accessed 12 September 20123 Convention on the Rights of the Child opened for signature 20 November 1989

1577 UNTS 3 (entered into force 2 September 1990) 4 Convention relating to the Status of Refugees opened for signature 28 July 1951

189 UNTS 150 (entered into force 22 April 1954) 5 Protocol relating to the Status of Refugees opened for signature 31 January 1967

606 UNTS 267 (entered into force 4 October 1967)6 lsquoMalaysia Received 800 Asylum Seekers [Malaysia Terima 800 Pencari Suaka]rsquo

Kompas Daily (9 May 2011)7 M702011 v Minister for Immigration and Citizenship M1062011 v Minister for

Immigration and Citizenship (2011) 280 ALR 18 8 R Sukarjaputra lsquoPapua Asylum Seekers and Australia [Suaka Papua dan Australia]rsquo

Kompas Daily (2 April 2006)

Challenges and Opportunities in Respecting International Refugee Law 119

that Indonesia was focussed more on the implementation of its domestic immigration laws than international law

Indonesia has since introduced its new immigration law9 explaining that this is the consequence for Indonesia becoming a member of the 2000 United Nations Convention Against Transnational Organized Crimes10 However the new law does not accommodate issues relating to refugees and asylum seekers but rather focusses on controlling the entry and departure of foreigners Moreover it also introduced immigration detention houses for the first time in Indonesia which appears to be applying Australian immigration regulations

This leads to the question of whether the change in Indonesian immigration laws has been affected by Australian policy to have Indonesia as a lsquoprotective hedgersquo from the entrance of asylum seekers into its territory The concept of using Indonesia as Australiarsquos protective hedge can be seen in former Prime Minister John Howardrsquos suggestion in 2001 for Indonesia to establish a detention centre to relocate asylum seekers waiting refugee status assessments He also stated that the Australian government was willing to bear the financial costs of its establishment Howard stated this when three of his ministers Minister of Foreign Affairs Alexander Downer Minister of Defence Peter Reith and Minister of Immigration Affairs Phillip Ruddock were in Jakarta for the purpose of inviting the Indonesian government to eradicate actors behind human trafficking who have sent hundreds of illegal immigrants to Australia11

Naturally this was one of Australiarsquos attempts to put Indonesia on the scheme of Howardrsquos policy the lsquoPacific Solutionrsquo where the asylum granting process would occur in a third country12 This policy was created after the MV Tampa incident in which the Norwegian vessel was found floating on the waters between Australia and Indonesia13 The Pacific Solution was an agreement made between Australia Nauru and Papua New Guinea in which Nauru and Papua New Guinea would be used as transit for asylum seekers prior to entering Australia In return the Australian government provided fuel for Nauru formerly known as the country with the worldrsquos largest phosphate production14Although the Pacific Solution was

9 Law No 62011 on Immigration (5 May 2011) see also Explanatory Notes Law No 62011 on Immigration

10 United Nations General Assembly United Nations Convention against Transnational Organized Crime Resolution Adopted by the General Assembly 8 January 2001 ARES5525 ratified (including protocols) in Law No 52009 (20 April 2009)

11 lsquoJohn Howard on Unlawful Immigrant Indonesia needs to Establish Detention Centre [John Howard soal Imigran Gelap Indonesia Perlu Bangun Pusat Penahanan]rsquo Kompas Daily (7 September 2001)

12 lsquoNauru Agree to receive Boat People [Nauru Setuju Terima Manusia Kapal]rsquo Kompas Daily (12 December 2001)

13 lsquoJust Because MV Tampa Helps KM Palapa [Gara-gara MV Tampa Menolong KM Palapa]rsquo Kompas Daily (5 September 2001)

14 lsquoNauru Receives Immigrants with Oil as Compensation [Nauru Terima Imigran dengan Imbalan BBM]rsquo Kompas Daily (11 September 2001)


initially overturned under the administration of Prime Minister Kevin Rudd the Australian government recently passed new laws that authorized the transfer of asylum seekers who arrived by boat to remote Pacific islands where they would remain indefinitely while their refugee claims are processed15

The Australian governmentrsquos attempt to make Indonesia its protective hedge consequently caused problems for the Indonesian government especially when it faced having to deal with thousands of asylum seekers in immigration detention houses while they waited for their refugee status claims to be processed before continuing their journey to Australia Further problems arose as Indonesia did not learn from Australiarsquos practices that asylum seekers may commit crimes whilst in detention due to their stress levels As a result asylum seeks ended up losing their rights as refugees

Actually Indonesia had planned to ratify the Refugee Convention and Refugee Protocol and this intention can be seen in Indonesiarsquos Human Rights National Action Plan According to the Presidential Decision16 Indonesia was willing to be a signatory to both instruments in 2009 However both were inaccurately referred to in the action plan Instead of lsquoKonvensi mengenai Status Pengungsirsquo17 it is referred to as lsquoKonvensi Status Pengungsirsquo18 whilst the Refugee Protocol was referred to as lsquoProtokol Opsional Tahun 1967 Konvensi Status Pengungsirsquo19 This was a serious error as the Refugee Protocol is an independent instrument not an lsquooptionalrsquo or even lsquoadditionalrsquo instrument20

This article seeks to depict the challenges and opportunities that Indonesia has faced in its attempts to respect the Refugee Convention and Refugee Protocol especially in dealing with the entry of refugees and asylum seekers into Indonesia In doing so the author will describe some Indonesian national law instruments which can be used as the legal basis by the Indonesian government in handling asylum seekersrsquo or refugeesrsquo matters Furthermore Indonesiarsquos opportunities to become part of the Refugee Convention and Refugee Protocol are strengthened by the fact that Indonesia has ratified some international instruments that are associated with matters concerning refugees and asylum seekers

In addition the author will also consider the absence of adjustment for refugees and asylum seekers at the regional level in Southeast Asia an issue that the Bali Process attempted to answer Unfortunately Indonesia still faces problems in

15 C Skehan lsquoPacific Solution Ends but Tough Stance to Remainrsquo The Age (8 December 2007) ltwwwsmhcomaunewsnationalpacific-solution-ends-but-tough-stance-to-remain200712071196813021259htmlgt accessed 3 March 2012 lsquoAustralia lsquoPacific Solutionrsquo Reduxrsquo Human Rights Watch (17 August 2012) ltwwwhrworgnews20120817australia-pacific-solution-reduxgt accessed 17 August 2012

16 No 402000 (11 May 2004)17 lsquoConvention relating to the Status of Refugeesrsquo18 lsquoConvention of the Status of Refugeesrsquo19 lsquoOptional Protocol of 1967 of the Convention of the Status of Refugeesrsquo20 Soeprapto (n 1) 13


relation to matters regarding refugees and asylum seekers in the Southeast Asia region due to a number of deficiencies resulting from those steps taken before

Indonesiarsquos National Law Instruments as the Legal Basis for Respecting and Preparing for Ratification of the Refugee Convention and the Refugee Protocol

In this article the author divides Indonesiarsquos national law instruments into two categories The first category is national legislation and regulation including the basic constitution to parliamentary legislation with its power over government and citizen In other words the legislation is mandatory for the public The second category is administrative regulation made by government officers as guidance or reference for their staff in making actions based on those guidance and references The regulation made also has to be consistent with general regulations the constitution and Indonesiarsquos national law

This categorization is important for stressing Indonesiarsquos readiness to immediately ratify or decide treatment that will be given to refugees and asylum seekers in its territory Another reason is that this categorization can be taken as proof that Indonesia already has a deep understanding of matters relating to handling refugees and asylum seekers through its experiences of dealing with previous matters

Indonesian National Laws

The preamble of the Indonesian Constitution The fourth preamble paragraph of the Indonesian Constitution21 states that one of the objectives of the nation is lsquoto participate in the implementation of world order based on freedom abiding peace and social justicersquo In the same paragraph it further states that the Republic of Indonesia is founded on just and civilised humanity

Second Amendment of the 1945 Constitution Article 28G(2) of the Second Amendment of the Indonesian Constitution22 stipulates lsquoEveryone has the right to be free from torture or degrading treatment and the right to obtain political asylum from another countryrsquo Bearing in mind the term lsquoeveryonersquo covers both nationals and foreigners it would only be appropriate if Indonesia ratifies the Refugee Convention or Refugee Protocol

21 Undang-Undang Dasar Republik Indonesia 1945 [Constitution of the Republic of Indonesia 1945] (Indonesian Constitution)

22 The Second Amendment of 2002


The Decree of the Peoplersquos Consultative Assembly No XVIIMPR1998 on Human Rights (the Decree)23 The Decree enacted by the Peoplersquos Consultative Assembly on 13 November 1998 was the first regulation and legal basis for human rights in Indonesia after Suhartorsquos authoritarian regime and before the Second Amendment of the Indonesian Constitution The Decree contains the following important stipulations regarding refugees and asylum seekers

1 The President and the House of Representatives of the Republic of Indonesia have the duty to ratify various human rights instruments of the United Nations as long as they are not against Pancasila and the Indonesian Constitution24

2 Indonesia as a member of the United Nations is duty-bound to respect the Universal Declaration of Human Rights25

3 As the United Nations issued the Universal Declaration of Human Rights in 1948 and Indonesia is a member of the United Nations it is duty-bound to respect the provisions contained therein26 and

4 Everyone has the right to seek asylum to obtain political protection from another country27

Law No 391999 concerning Human Rights This law is the national legal instrument that implemented the Decree and contains the following provisions

1 Indonesia as a member of the United Nations assumes moral and legal obligations to highly respect and implement the Universal Declaration of Human Rights as well as other international instruments on human rights that have been accepted by the Republic of Indonesia and

2 Indonesia recognizes the right of everyone to seek asylum to obtain political protection from another country28

Law No 371999 concerning Foreign Relations Article 26 of the law states lsquoThe granting of asylum to foreign nationals shall be exercised in accordance with national legislation taking into account international law custom and practicersquo Reference to international law custom and practice indicates Indonesiarsquos

23 E Soeprapto lsquoTowards a Comprehensive Policy with Respect to the Problems of Asylum Seekers and Refugeesrsquo Paper to the Working Group of Economy Social and Cultural Rights the National Commission of Human Rights as preparation for Human Rights National Workshop on February 2002 19

24 Decree of the Peoplersquos Consultative Assembly No XVIIMPR1998 on Human Rights art 2

25 ibid Annex I B 226 ibid Annex HH Preamble [4]27 ibid Annex II art 1428 Law No 391999 concerning Human Rights (23 September 1999) art 28(1)


acceptance of the rules of international law either conventionally or through custom and practice on granting asylum although the law still maintains the view that it should be regulated by national legislation

Indonesian Governmentrsquos Administrative Regulations

Circular Letter of the Prime Minister No 11RI1956 on Political Fugitives Considered to be the first regulation about asylum seekers the Circular29 refers to refugees although it does not define the term There was no clarity on the background and purpose of issuing the letter but the author could assume the reason was because at that time political fugitives from several countries had relocated to Indonesia Those political fugitives went to Indonesia because of Indonesiarsquos support for freedom fighters in their own country One of the freedom fighters was Lakhdar Brahimi Algeriarsquos ex-Minister of Foreign Affairs and Senior Diplomat of United Nations and a head of the mission of Front de Liberation Nationale (FLN) office in Jakarta from 1956 until 1961 The Indonesian government granted these political fugitives protection and support after the government held the Asia Africa Conference 1955 in Bandung30

The Circular was released on 7 September 1956 by Prime Minister Ali Sostroamidjojo to give protection to political fugitives entering Indonesian territory The provisions set forth in the Circular were merely meant to be guidelines and were issued under a circular which is only an administrative instrument

The promotion and observance of the most basic principles of international refugee law in the national plan was significant Such principles were evident in the following parts of the Circular31

1 Article I statedlsquo political fugitives who enter or find themselves in the Indonesian territory will be granted protection on the basis of human rights and fundamental freedoms in accordance with international customary lawrsquo

It was further stated that such a stance conformed to the relevant provisions on human rights and fundamental freedoms in the 1950 Provisional Constitution of the Republic of Indonesia and Article 14 of the Universal Declaration of Human Rights 1948

2 Article 2 defines lsquopolitical fugitivesrsquo as foreigners who enter Indonesian territory having committed a political crime The explanation of this article emphasizes the concept reflected in this article that political fugitives refers

29 Circular Letter of the Prime Minister No 11RI1956 on Political Refugees [Indonesia] 7 September 1956

30 R Anwar lsquoA Journey to Holland 60 Years of 1949 Roundtable Conferencersquos Journalist [Napak Tilas ke Belanda 60 Tahun Perjalanan Wartawan KMBrsquo (Kompas Media Nusantara 2010) 95

31 Soeprapto (n 23) 16


to foreigners not Indonesian citizens The explanation of this article further states that foreigners who are considered as political fugitives are foreigners who according to the legal system of a given country have committed a crime either for political reasons or by opposing the state system of that country Such acts may be committed either outside or within Indonesian territory

3 Article 3 defines lsquopolitical crimesrsquo as crimes committed for political reasons or objectives including attempts to commit or assistance in the commission of such crimes The explanation of this article further states that the important element which determines whether a crime may be called a political crime is the personrsquos reasons or objectives for committing the crime This article and its explanation imply that perpetrators of ordinary crimes shall not be accorded protection and constitutes what is known as an lsquoExclusion Clausersquo under the Statute of the Office of the United Nations High Commissioner for Refugees32 and the Refugee Convention33

4 Article 4 stipulates that political fugitives who enter and find themselves in Indonesian territory shall only be protected if their acts are not against the foundation or interest of the Republic of Indonesia The explanation of this article stipulates that a political crime shall be considered as being against the foundation of the Republic of Indonesia if

1 such crime violates humanity ndash for instance crimes which contain elements of murder kidnapping torture destruction of a group of human beings (genocide) or of a war crime nature and so on

2 the objectives of such crime are against the Statersquos order and3 such crime is directed against a religion which exists and is legally

recognized in Indonesia5 The phrase lsquodestruction of a group of human beings (genocide)rsquo is defined

by the explanation of Article 4 as acts committed with the objective of destroying an ethnic racial national or religious group by various ways such as murder serious ill-treatment prevention of birth forcible transfer of children to inflict physical destruction and so on

6 The explanation of Article 4 defines lsquowar crimesrsquo as the act against international law of general obligations of members of armed forces of States which take part in the war War crimes may be in the form of murder or ill-treatment of prisoners of war murder or ill-treatment of people in the occupied territory or other cruel acts which violate humanity and which are unnecessary to achieve the objectives of a war

Presidential Decision No 381979 This letter was issued in response to the increasing numbers of asylum seekers from Vietnam and Cambodia These

32 UN General Assembly Statute of the Office of the United Nations High Commission for Refugees 14 December 1950 ARES428(V) para 7(d)

33 Convention relating to the Status of Refugees (n 4) art 1(F)(b)


refugees left for countries seeking asylum and Indonesia was the first country of asylum Since 1979 those refugees have been relocated to the Immigrant Centre on Galang Island Riau Province

The Indonesian government subsequently issued Presidential Decision No 381979 on 11 September 1979 which sought to coordinate the settlement of Vietnamrsquos refugee problems in Indonesia The essence of this Presidential Decision was to organize the division of tasks and the coordination among Ministers responsible for handling refugee matters from Indochina These Ministers were the Minister of State Defence the Minister of Foreign Affairs and the Minister of Internal Affairs as well as heads of districts who had been asked to assist

Essentially the Presidential Decision set out the procedure for de facto temporary asylum not for outlining Indonesiarsquos policy on refugee matters Below were Indonesiarsquos legal practices on handling refugees from Vietnam on Galang Island34

1 the Indonesian government is unwilling to grant the refugees settlement in Indonesia

2 however it is willing to allow the refugees to enter the territory by asking the refugees to be relocated to the Immigrant Centre for repatriation

3 all the necessary expenses for the refugees during their temporal presence in Indonesia should be borne by international organizations or community

Circular Letter of Director General of Immigration No F-IL0110-129735 The Circular on the Treatment of Foreigners who Declare Themselves as Asylum Seekers or Refugees was issued on 30 September 2002 by the Indonesian Director-General of Immigration and contained instructions for the entire Head Office of the Department of Justice and Human Rights (now known as the Ministry of Justice and Human Rights) including the Head of Immigration Office in Indonesia This circular has nine items of guidance which included the following

1 If there is a foreigner who expressed their desire to seek asylum on their arrival in Indonesia then immigration measures such as deportation to a territory where their life or freedom may be threatened should not be taken

2 If the Immigration Officer notices the presence of asylum seekers or refugees amongst the foreigners then the Officer should contact the international organizations dealing with refugees or the UNHCR for the determination of their status

34 Soeprapto (n 23) 1835 This regulation has been amended with two regulations Director General

Regulation No IMI-1489UM08052010 on Handling of Illegal Immigrant and Circular of Director General NoIMI-1504IL02102010 on Implementation on Handling of Illegal Immigrant


3 The Immigrant Officer should not dispute the residence permit of someone staying in Indonesia who has an Attestation Letter as an asylum seeker refugee or person under UNHCRrsquos protection

Indonesia and International Law

Indonesia has become a party to several international instruments relating to matters of refugees or asylum seekers Some of these instruments were specifically set up to regulate the terms and conditions of people who are determined to require protection as a refugee Those instruments even mention the principles and legal basis of international refugee law especially in relation to the provision of protection to refugees who live in a foreign territory

1949 Geneva Conventions

Indonesia is also a party to the 1949 Geneva Conventions36 which it has ratified37 These conventions especially the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) also concerned matters of refugees who live under the enemyrsquos rule Article 44 of the Convention states that

In applying the measures of control mentioned in the present Convention the Detaining power shall not treat as enemy foreigners exclusively on the basis of their nationality de jure of an enemy State refugees who do not in fact enjoy the protection of any government

Based on that convention Indonesiarsquos accession to the 1951 Refugee Convention and 1967 Refugee Protocol would have practical implications for instance enabling it to apply the definition of the term lsquorefugee(s)rsquo in the event that Indonesia is actually engaged in an armed conflict and is faced with a situation described in the Fourth Geneva Convention 1949

36 There are four conventions in the 1949 Geneva Conventions Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field adopted 12 August 1949 75 UNTS 31 (entered into force 21 October 1950) Geneva Convention for the Amelioration of the Condition of Wounded Sick and Shipwrecked Members of Armed Forces at Sea adopted 12 August 1949 75 UNTS 85 (entered into force 21 October 1950) Geneva Convention Relative to the Treatment of Prisoners of War adopted 12 August 1949 75 UNTS 135 (entered into force 21 October 1950) Geneva Convention Relative to the Protection of Civilian Persons in Time of War adopted 12 August 1949 75 UNTS 287 (entered into force 21 Oct 1950)

37 Law No 591958 Concerning the Ratification by the Republic of Indonesia of all the Geneva Conventions of 12 August 1949 (30 September 1958)


Convention on the Rights of the Child

Indonesia had ratified the Convention on the Rights of the Child (CRC)38 with the Presidential Decision No 361990 (Presidential Decision) However the Presidential Decision is less authoritative than the Indonesian Constitution which was constructed by the President and the government and this will cause problems in terms of Indonesian legal practice The problems appear due to the Presidential determination to ratify and enforce international instruments when the instruments should be ratified through Government Regulations

Article 22(1) of the CRC states that

States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall whether unaccompanied or accompanied by [their] parents or by any other person receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties

From this article the author assumes that Indonesia is able to use international legal instruments that have been ratified such as the 1949 Geneva Conventions International Covenant on Civil and Political Rights39 and many other ratified laws

This article was created because children are more vulnerable than other groups of people Indonesia as a state party must guarantee the rights that have been acknowledged in its domestic law Although Indonesia was not one of the parties on Refugee Convention and Refugee Protocol it is important for Indonesia to cooperate with international organizations such as the UNHCR to guarantee childrenrsquos rights on determining their status

Convention against Torture and Other Cruel Inhuman or Degrading Treatment 1984

Indonesia has ratified the Convention against Torture40(CAT) after political reformation with Law No 51998 Although Indonesia had made reservations upon Article 30 and declarations on Article 20 of this convention it is still willing to be uphold other provisions


39 International Covenant on Civil and Political Rights (ICCPR) opened for signature 16 December 1966 999 UNTS 171 (entered into force 23 March 1976)

40 Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment adopted 10 December 1984 1465 UNTS 85 (entered into force 26 June 1987)


The CAT is part of international refugee law as it calls upon state parties to prevent acts of torture Thus state parties have an obligation of non-refoulement the prohibition of the return of refugees who may become victims of persecution in their home country This principle is stated in Article 3(1) lsquoNo State Party shall expel return (lsquorefoulerrsquo) or extradite a person to another State where there are substantial grounds for believing that [they] would be in danger of being subjected to torturersquo Thus though Indonesia was not the state party to the Refugee Convention or Refugee Protocol it nonetheless has non-refoulement obligations and must therefore protect refugees and asylum seekers in its territory

The principle of non-refoulement is stated as follows in the Refugee Convention41

1 No Contracting State shall expel or return (lsquorefoulerrsquo) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race religion nationality membership of a particular social group or political opinion

2 The benefit of the present provision may not however be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which [they are] or who having been convicted by a final judgment of a particularly serious crime constitutes a danger to the community of that country

Thus the principle of non-refoulement does not apply to foreigners with permanent or temporary residence who have been expelled or deported for committing a crime in that state

International Covenant on Civil and Political Rights

Indonesia adopted some provisions of the International Covenant on Civil and Political Rights42 (ICCPR) in the Second Amendment of the Constitution 1945 in 2002 and then ratified the covenant through Law No 122005 The ICCPR has indirectly provided that the right to leave any country is a civil and political right Article 12(2) states that everyone shall be free to leave any country including their own However it is critical to distinguish every situation and condition that requires persons to bring travel documents to enter another country particularly when those requirements concern refugees and asylum seekers These may underpin a countryrsquos forceful measures against or detention of refugees and asylum seekers

The author concludes that the rights of persons to leave their country is not always related to economical reasons but also relates to security Thus the situation should not be viewed as a normal one and a focus should be on the security reasons

41 Convention relating to the Status of Refugees (n 4) art 3342 ICCPR (n 39)


that led the person to leave their country Moreover the state is able to cooperate with the UNHCR in determining an asylum seekerrsquos refugee status

The previous situation is in accordance with the principle of non-refoulement which in turn requires that a state use refugee law in humanely treating refugees and asylum seekers In other words those rights produce legal certainty not only for refugees and asylum seekers but also for the state in its consideration of accepting those persons in its territory

Legal Practice on Immigration and Absence of Regulation for Refugee and Asylum Seeker Matters on the Regional Level Challenges for Indonesian Legal Practice

For some countries refugees are becoming a challenge that needs to be solved before the matter becomes more complicated For Indonesia refugees create two challenges that must be handled The first is in relation to the legal practice on immigration under Law No 62011 which entered into force in May 2011 As stated previously this law was the Indonesian governmentrsquos response in ratifying the United Nations against Transnational Organized Crimes 2000 The law provides Indonesian immigration officials with broad authority to prevent the arrival and departure of foreigners including the authority to investigate human trafficking and people smuggling crimes In the new immigration regulations authority to conduct immigration investigations and the required procedures are specifically stipulated distinctly from previous laws

While this was previously regulated in Law No 91992 on Immigration the ordinance of investigation refers to Law No 81981 on Criminal Procedure Code This is due to the admittance of an immigration investigator in the Criminal Procedure Code as a Public Civil Servant Investigator from outside the police force which has the authority to investigate and handle specific crimes such as immigration customs and so on

The main problem that appears from this law is that it does not refer specifically to matters relating to refugees and asylum seekers This is absurd considering the fact that the position was set up for such matters so that the Immigration Officer can respond quickly and call the UNHCR office

Furthermore as mentioned previously this Law No 62011 introduced new terminology such as the Immigration Detention House43 and the Immigration Detention Chamber44 which are temporary shelters for foreigners who have been subjected to administrative immigration measures by the Directorate General of Immigration or the Immigration Office45 Additionally Article 1(35) defines

43 Law No 62011 on Immigration (5 May 2011) art 1(33)44 Ibid art 1(34)45 Ibid art 1(34)


lsquodetaineersquo as a foreigner who has been detained by immigration officials in immigration detention houses or chambers

Such terms are confusing particularly since the definition of lsquodetentionrsquo has also been set out in the Criminal Procedure Code as penahanan which has a similar meaning to the English term The author assumes that different terms were used in this adopted law in an effort to differentiate two forceful measures set out in two different laws Additionally Article 1(31) defines lsquoadministrative immigration measurersquo as an administrative sanction by an Immigration Officer in relation to foreigners who are outside the judicial process Examples of such measures are

1 inclusion in the list of prevention or deterrence2 restrictions changes or cancellation of residence3 prohibition to be in one or more specific places in Indonesian territory4 requirement to reside in a particular place in Indonesia and in Sydney5 imposition of the burden of costs and 6 deportation from Indonesian territory46

Actually Indonesia should heed the lessons learned from Australiarsquos practices of detaining refugees and asylum seekers in detention centres before creating new policies in relation to detaining foreigners Since 1992 Australia has applied policies in relation to the detention of over 100000 people in detention centres such as on Christmas Island in West Australia and in Sydney47 On 5 August 2012 the Canberra Times reported that most refugeesrsquo health had worsened due to fatigue during their years in detention while waiting for the determination of their refugee status

Currently Indonesia has similar problems in relation to its detention houses many which are full of refugees and asylum seekers Some of those houses are already over capacity and in the future these conditions will cause problems similar to those Australia now faces as it causes stress and encourages detainees to escape (Table 81)

A special report in Tempo magazine48 revealed that there were detainees in Indonesiarsquos immigration detention houses for nine years waiting on the determination of their refugee status by the UNHCR This term of lsquoillegal immigrantrsquo is taken from the Law No 62011 on Immigration however also in the Tempo Magazine report all of them are the asylum seekers and refugees and some of them already have the status of refugee from the UNHCR These illegal

46 Law No 62011 on Immigration (n 43) art 75(2)47 Philip Thomson lsquoTemporary Detentionrsquo Policy Still Shattering Lives 20 years onrsquo

The Canberra Times (August 5 2012) ltwwwcanberratimescomaunationaltemporary-detention-policy-still-shattering-lives-20-years-on-20120804-23mqrhtmlgt accessed 5 August 2012

48 lsquoSpecial Report The Boat People Syndicate [Sindikat Manusia Perahu]rsquo Tempo (17 June 2012)


immigrants have not only waited with uncertainty for such a drawn out process but they do not have freedom of movement as they had to remain in detention houses Unfortunately it seems discouragement has led to asylum seekers contacting human smugglers to bring them to Australia These escape efforts according to Tempo are an effective way to be free since they will receive their permanent residence visa when they arrive

Detention for refugees and asylum seekers is unacceptable considering that they have rights guaranteed by international law Furthermore the Indonesian government considers detention as a form of protection for asylum seekers waiting for their refugee status determination to be completed by the UNHCR Additionally the state faces many cases of human smuggling and trafficking which surfaced with the arrival of refugees and asylum seekers However the author agrees with Professor Goodwin-Gill that detention is neither a remedial nor a preventative solution it is symptomatic of the fact that there are a variety of problems that arise with the movement of people and there must be a more holistic approach49

49 GS Goodwin-Gill lsquoInternational Law and the Detention of Refugees and Asylum Seekersrsquo (1986) 20(2) International Migration Review 217

Immigration Detention House Capacity Number of Illegal Immigrants

Tanjung Pinang (Riau Island) 600 340Pontianak (West Kalimantan) 120 79Balikpapan (East Kalimantan) 10 10Medan (North Sumatera) 120 140Pekanbaru (Riau) 80 126Jakarta 120 79Surabaya (East Java) 80 46Denpasar (Bali) 80 96Kupang (East Nusa Tenggara) 90 116Jayapura (Papua) 20 0Makassar (South Sulawesi) 80 61Manado (North Sulawesi) 100 94

Source Tempo 17 June 2012

Table 81 Number of illegal immigrants in Indonesian Immigration Detention Houses as at March 2012


The second challenge comes from the absence of regulation at the Southeast Asia regional level particularly in terms of the Association of Southeast Asia Nations (ASEAN) Article 2(j) of the ASEAN Charter states that the ASEAN lsquo[Upholds] the United Nations Charter and international law including international humanitarian law subscribed to by ASEAN member statesrsquo The interpretation of this article can be broad by not only focussing on international laws that have been ratified by state parties of the ASEAN but also by including terms of refugees in international humanitarian law

Moreover some states of the ASEAN have become places of temporal transit for refugees and asylum seekers Certainly their arrival in a statersquos territory not only brings troubles but also has a political economic and social impact on domestic stability In addition this situation also affects regional instability and the relationship among states of ASEAN particularly with the states from which refugees are leaving At this time only two states of the ten ASEAN members namely Philippines and Cambodia have ratified the Refugee Convention and Refugee Protocol

Unfortunately there is no forum either for ASEAN ministers or leaders to discuss the issues of refugees and asylum seekers However all states of the ASEAN have become parties to a forum called the Bali Process The Bali Process was an effort by the Australian and Indonesian governments which seeks to prevent human smuggling and related transnational crime particularly crimes that have occurred in the Asia Pacific region since February 2002 Thus far the Bali Process comprises 46 state parties and includes agencies such as the UNHCR the International Organization for Migration (IOM) the United Nations Development Programme the International Committee of the Red Cross and Interpol It is inappropriate to define the Bali Process as a forum to promote the ratification of the Refugee Convention and Refugee Protocol as the emphasis is on discussing problems in people smuggling50

Therefore the ASEAN Intergovernmental Commission on Human Rights (AICHR) which was established in Articles 14(1) and 14(2) of the ASEAN Charter is also urged to deal with the problems of refugees and asylum seekers in the ASEAN region Even in the most recent developments relating to the drafting of the ASEAN Human Rights Declaration civil society representatives from the various ASEAN countries urged the AICHR to include the values of universal human rights standards in the draft One representative is also urging the inclusion of specific provisions for the human rights of certain groups ndash including indigenous peoples refugees women children migrant workers and persons with disabilities Unfortunately the draft has not been released and this non-transparency has led to criticism of the ASEAN from civil society

Even so it is also necessary to realize that the ASEAN considers issues relating to refugees and asylum seekers to be domestic issues Therefore they cannot be

50 Bali Process About the Bali Process ltwwwbaliprocessnetindexasppageID=2145831401gt accessed 17 July 2012


the object of discussion according to the Preamble of the ASEAN Charter Indeed Article 2(e) of the Charter has noted that the ASEAN adopts a non-interference principle It is likely on these issues that ASEAN will have difficulties in finding common ground among its state parties on solving matters in relation to refugees and asylum seekers particularly if they are coming from fellow members of ASEAN

This dilemma can be seen in the internal conflict in Myanmar Rohingyas fleeing the military junta in Myanmar have arrived in Indonesia Thailand and Malaysia Most of the Rohingyas are asylum seekers and refugees but ASEAN refuses to discuss this formally51 Thus although the non-interference principle has been entrenched in the ASEAN Charter it has been the cause of problems by stopping dialogue among ASEAN parties and triggering the exodus of refugees and asylum seekers from one ASEAN country to another52

Conclusion

Based on what has been expounded above we can conclude that it is unavoidable for Indonesia to have to refer to international refugee law In fact Indonesiarsquos law is ready to ratify the Refugee Convention and the Refugee Protocol since it has a number of national regulations and has ratified a number of international legal instruments that acknowledge the principles stated in the Refugee Convention and corresponding Protocol Becoming a party to those instruments will give Indonesia directly the right to determine the status of refugees Surely the consideration to give the status of refugee will be done very carefully in relation to combatting terrorism for instance Having said that Indonesia should ratify the two international instruments on refugee law as soon as possible and acknowledge that it has obligations towards refugees and asylum seekers in the meantime

Relating to the ratification of the Refugee Convention and Refugee Protocol Indonesia should consider its policy on emphasizing its adherence towards international refugee law Although the law provides authority to detain it is also crucial that Indonesia fulfils its obligations towards refugees and asylum seekers Full cooperation with international institutions such as the UNHCR is very important particularly in relation to assisting asylum seekers to receive their refugee status determination as swiftly as possible Despite these concerns with Indonesiarsquos approach to refugee issues the country should endeavour to avoid

51 David Scott Mathieson lsquoIn Ignoring the Rohingyas ASEAN rejects a New Rolersquo The Jakarta Globe (5 August 2012) ltwwwthejakartaglobecomopinionin-ignoring-the-rohingyas-asean-rejects-a-new-role277126gt accessed 5 August 2012

52 lsquoASEANrsquos Principle of Intervention Complicating Rohingyas [Prinsip Non Intervensi ASEAN Persulit Warga Rohingya]rsquo Okezonecom (12 September 2012) lthttpjakartaokezonecomread20120817411679221prinsip-non-intervensi-asean-persulit-warga-rohingyagt accessed 12 September 2012


breaching international law and in particular should cooperate with other states in the framework of respecting international law

ASEANrsquos approach to refugee matters should also be amended and Indonesia can initiate the necessary regional discussion on the issue by bringing the matter to the ASEANrsquos special forum thereby expanding the ASEANrsquos focus beyond issues of human smuggling and trafficking Finally the matters relating to refugees and asylum seekers must be included in ASEANrsquos work through AICHR since refugee matters are part of humanitarian issues and human rights

Chapter 9

Irregular Migration Refugee Protection and the lsquoMalaysian Solutionrsquo

Peter Billings and Anthony Cassimatis with Marissa Dooris1

Introduction

This chapter critically examines the Australian Governmentrsquos recent law and policy responses to asylum seekers travelling to Australia by boat ndash so-called lsquoIrregular Maritime Arrivalsrsquo (IMAs) At the outset the first part of the chapter situates Australiarsquos anxieties about people smugglers and lsquoirregularrsquo migrants seeking refugee protection in the broader context of human displacement within the Asia Pacific region including the root causes of migration to and within the region We continue in the second part by mapping relevant aspects of the legal architecture upon which alternative administrative schemes for managing asylum seekers have rested since 2001

The chapter then examines the geo-political circumstances in which a ground-breaking bilateral agreement was reached between Malaysia and Australia in 2011 to lsquoswaprsquo a limited number of refugees and asylum seekers respectively in order to tackle people smuggling and deter irregular migration while advancing orderly refugee protection in the region This part includes an explanation of the controversial decision of the High Court of Australia (HCA) in Plaintiff M702011 v Minister for Immigration and Citizenship Plaintiff M106 of 2011 by his Litigation Guardian v Minister for Immigration and Citizenship2 which invalidated the deal

The courtrsquos interpretation of certain aspects of the Migration Act 1958 (Cth) (Migration Act) kindles a great deal of interest for both international and administrative lawyers Accordingly through an analysis of the intersection of international (refugee) law and domestic (migration) law the contours of the protection obligations owed to asylum seekers and refugees under the terms of the Migration Act will be made as clear as the decision permits

Moreover the manner in which the HCA exercised its supervisory powers ndash subjecting the Executiversquos actions to a relatively intense level of scrutiny ndash will

1 The authors thank Julie Oates (Law Librarian and Manager ndash Research Information Service The University of Queensland) and Bianca Kabel (LLB(Hons) candidate) for their research assistance This chapter was submitted in March 2012 well before the Houston Report and re-introduction of offshore processing

2 (2011) 244 CLR 144 (M70)


be explored An underlying issue here is the appropriate distribution of decision-making power between two state organs ndash the judiciary and the Executive ndash and also the judiciaryrsquos legitimacy as the third branch of government in a democracy Accordingly this chapter addresses whether the wishes of the elected branch were properly subjected to human rights-based limits or whether M70 represents a high watermark of judicial activism

The chapter concludes by examining the Commonwealthrsquos immediate legislative proposals to circumvent the effects of M70 and outlining the prospects and ingredients of a legally and ethically defensible model of regional responsibility sharing in Asia Pacific ndash one which attempts to serve both the interests of refugees and states

Background

In September 2001 following the interdiction at sea of the MV Tampa ndash transporting 433 asylum seekers rescued at sea to safety ndash the Commonwealth of Australia introduced a suite of legislation that served inter alia to retrospectively validate coercive action taken (interception and physical restraint) in respect of those on board the MV Tampa (and the Aceng) These amendments to the Migration Act also introduced new procedures for the administration of refugee protection claims for maritime arrivals without prior authorization (legislatively categorized as lsquooffshore entry personsrsquo) These procedures along with the excision of Australian territory from the migration zone3 use of Temporary Protection Visas for irregular maritime arrivals declared to be refugees4 and Operation Relex (a naval operation led by the Australian Defence Force from 3 September 2001)5 comprised the lsquoPacific Strategyrsquo aimed at deterring and disincentivizing irregular maritime migration6

A decade on from their introduction the alternative methods for processing lsquoirregularrsquo migrants seeking to invoke Australiarsquos refugee law obligations have been scrutinized in the HCA The decisions in Plaintiff M612010E v The

3 Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) Migration Amendment (Excision from Migration Zone (Consequential Provisions) Act 2001 (Cth) see also Migration Amendment Regulations 2005 (No 6) (Cth) The effect of these provisions was to place islands and coastal ports beyond the reach of the Migration Act 1958 (Cth) for the purpose of lodging refugee protection visa applications

4 Introduced by Migration Amendment Regulations 1999 (No 12) (Cth)5 Operation Relex was employed to prevent and deter incursions of unauthorized

boats into Australian waters but was also used to repel boats by turning them around including the tow-back of disabled boats bearing asylum seekers into international waters with no provision for ascertaining the status of persons on board

6 Senate Select Committee on a Certain Maritime Incident (2002) lsquoA Certain Maritime Incidentrsquo Parliament of Australia 23 October ch 2 M Wilkinson lsquoSecret File Operation Relexrsquo Sydney Morning Herald (28 October 2002) 13 C Stewart lsquoLaw of the Sea versus the Dictates of Canberrarsquo The Australian (10 March 2012) 19

Irregular Migration Refugee Protection and the lsquoMalaysian Solutionrsquo 137

Commonwealth Plaintiff M69 of 2010 v The Commonwealth (Offshore Processing Case) and M70 (Malaysian Declaration Case) have essentially been concerned with whether the alternatives to regular lsquoonshorersquo procedures permit the application of comparatively impoverished systems of refugee processingprotection The intersection of international law and administrative law in M70 is one of the focal points of this chapter Before turning to the jurisprudence it is necessary to situate the issue of Australiarsquos IMAs in the regional context of forced migration

Refugees in South-East Asia and the Pacific Region

Typically Australian discourse on IMAs affords little attention to the situation of refugees and displaced persons in the region The legitimacy of political and popular anxieties about the spike in IMAs arriving in Australia since 2008 must be situated and assessed within the broader regional and global context Refugee protection poses severe challenges for South-East Asia According to the United Nations High Commissioner for Refugees (UNHCR) in 2010 South-East Asia was home to 2106030 lsquopersons of concernrsquo which includes refugees people in refugee-like situations asylum seekers stateless persons and internally displaced persons (IDPs)

Note The figure for refugees includes people who have not been accorded refugee status but live in de facto refugee circumstances according to UNHCRrsquos statistical dataSource This table was compiled from data in UNHCR 2011 Statistical Annexes Tab 1

Table 91 Refugee numbers in South-East Asia and the Pacific Region

Country Refugees Asylum seekers

IDPs Stateless persons

Various Total

Bangladesh 229253 ndash ndash ndash ndash 229253Cambodia 129 51 ndash ndash ndash 180Indonesia 811 2071 ndash ndash ndash 2882Malaysia 81516 11339 ndash 40001 80000 212856Myanmar (Burma) ndash ndash 62015 797388 ndash 859403

Philippines 243 73 139509 ndash 68 139893Thailand 96675 10250 ndash 542505 ndash 649430Timor-Leste 1 4 ndash ndash ndash 5

Viet-Nam 1928 ndash ndash 10200 ndash 12128Total 2106030


In the broader Asia Pacific region7 the UNHCR recorded approximately 108 million persons of concern in 2010 of which 4014400 were refugees or people in a refugee-like situation8 Overall this region represents close to 40 per cent of the global refugee population In contrast approximately 6789 people arrived by boat in Australia in 20109

South-East Asian countries are also significant refugee producers As Table 91 shows internal unrest in Myanmar and the Philippines accounts for a significant proportion of the persons of concern in the region Statistics show that significant albeit comparatively modest numbers of individuals from Indonesia Malaysia and Thailand were recognized as refugees in 201010 Furthermore the Asia Pacific is the site of some of the worldrsquos most serious protracted displacement crises11 The intractability of the displacement experience for populations in the Asia Pacific region goes some way to explaining why some people choose to pursue irregular movement to Australia rather than lsquowaiting patiently in the queuersquo for a durable solution12

Indeed the Commonwealth and its partners in the lsquoBali Processrsquo13 have belatedly acknowledged that differences in treatment and access to permanent outcomes for asylum seekers contribute to onward movement14 Australiarsquos willingness to increase its humanitarian intake over four years as part of the proposed lsquoMalaysian

7 More specifically the Asia Pacific region includes the nine South-East Asian countries listed above and Afghanistan Iran Pakistan Kazakhstan Kyrgyzstan Tajikistan Turkmenistan India Nepal Sri Lanka Australia China (including Hong Kong and Macau) Japan Mongolia PNG Korea Brunei Fiji Micronesia New Zealand Palau Singapore and Tonga

8 lsquoGlobal Trends 2010 60 Years and Still Countingrsquo (UNHCR 2011) 13 ltwwwunhcrorg4dfa11499htmlgt accessed 13 October 2012 This data refers to refugees by country of asylum not country of origin

9 J Philips and H Spinks lsquoBoat Arrivals in Australia since 1976rsquo Parliament of Australia Parliamentary Library Background Note (15 July 2011) 3

10 UNHCR (n 8) Statistical Annexes Tab 211 Protracted displacement refers to those situations in which refugees have been in

exile lsquofor five or more years after their initial displacement without immediate prospects for implementation of durable solutionsrsquo Conclusion on Protracted Refugee Situations (UNHCR 2009) No 109 (LXI) AAC961080 22 December preamble

12 S Taylor and B Rafferty-Brown lsquoWaiting for Life to Begin the Plight of Asylum Seekers Caught by Australiarsquos Indonesian Solutionrsquo (2010) 22(4) International Journal of Refugee Law 558

13 The lsquoBali Processrsquo is a shorthand for the collaborative multi-lateral process (steered by the governments of Australia and Indonesia) focussed on combatting people smuggling trafficking in persons and related transnational crimes in the Asia Pacific region and beyond See Bali Process ltwwwbaliprocessnetgt accessed 13 October 2012

14 Co-Chairs Statement Fourth Bali Ministerial Conference on People Smuggling Trafficking in Persons and Related Transnational Crime Bali Indonesia (29ndash30 March 2011) [8]


Solutionrsquo reflected a partial readiness to work co-operatively and respond to the problem of protracted displacement in the region

The challenge of delivering refugee protection in Asia is compounded by the fact that most countries in the region are not party to the 1951 Convention relating to the Status of Refugees15 or 1967 Protocol relating to the Status of Refugees16 Additionally most countries make no legal provision for the determination or recognition of refugee status This state of affairs has deep historical roots According to Davies17 Asian countries successfully resisted becoming parties to the Refugee Convention by arguing that they were not involved in drafting it

Furthermore the international communityrsquos tacit acceptance of lsquobad behaviourrsquo during the Indochinese refugee crisis in the 1970s and 1980s gave little incentive for most countries in South-East Asia to change their approach18 However under the Comprehensive Plan of Action (CPA) Indonesia Malaysia Thailand and the Philippines with the assistance of the UNHCR and non-governmental organizations (NGOs) did process individual Vietnamese refugees as a pre-condition to their acceptance for resettlement in third countries19 As a consequence of the current refusal by most South-East Asian countries to develop refugee protection mechanisms it falls to the UNHCR to undertake refugee status determination The UNHCRrsquos refugee status determination operation in Malaysia is currently the largest in the world20 Without recognition by the governing authority however refugee status determination is largely a token measure21

Those South-East Asian countries that are party to the Refugee ConventionProtocol (underlined in Table 91) host miniscule numbers of refugees and asylum seekers a situation that may be attributable to the absence of a variety of lsquopullrsquo factors such as relative prosperity political stability and security Statesrsquo poor human rights record regarding refugeesrsquo rights relative poverty and the absence of established administrative and bureaucratic systems for refugee processing may deter refugee applicants22

15 Convention relating to the Status of Refugees opened for signature 28 July 1951 189 UNTS 150 (entered into force 22 April 1954) (lsquoRefugee Conventionrsquo)

16 Protocol relating to the Status of Refugees opened for signature 31 January 1967 606 UNTS 267 (entered into force 4 October 1967) (lsquoProtocolrsquo)

17 S Davies Legitimising Rejection International Refugee Law in Southeast Asia (Martinus Nijhoff 2008) 81ndash4

18 ibid ch 419 S Bari lsquoRefugee Status Determination under the Comprehensive Plan of Action

(CPA) A Personal Assessmentrsquo (1992) 4(4) International Journal of Refugee Law 48720 UNHCR (n 8) Statistical Annexes Tab 921 M Kagan lsquoThe Beleaguered Gatekeeper Protection Challenges Posed by UNHCR

Refugee Status Determinationrsquo (2006) 18(1) International Journal of Refugee Law 1 422 See for example World Report 2012 Events of 2011 (Human Rights Watch

2012) 310 ltwwwhrworgworld-report-2012gt accessed 14 January 2012 S Taylor and B Rafferty-Brown lsquoDifficult Journeys Accessing Refugee Protection in Indonesiarsquo (2010) 36(3) Monash University Law Review 138


Additionally the resettlement rates of refugees from such countries as Malaysia and Indonesia to Australia have historically been very low Globally Malaysia ranks fifth among those States from where UNHCR resettlement submissions originate23 Between 2008 and early 2011 Australia resettled just 1185 refugees from Malaysia24 Between 2001 and 2009 Australia resettled 532 refugees from Indonesia25 By contrast in 2010ndash2011 Australia resettled 480 refugees mostly Afghans and Iraqis from Indonesia26 If responsibility sharing is to be meaningful in the region (and not just a camouflage for deflective practices) and irregular migration is to be effectively and humanely deterred such developments are to be welcomed

In summary refugee protection is an overwhelming and growing challenge for the Asia Pacific The region is characterized by complex forced migration patterns over vast distances and a low-level commitment to legal refugee protection among states With this context in mind this chapter now considers Australian law and policy

Refugee Protection Onshore Offshore and Elsewhere

From 1992 to 2001 asylum seekers irrespective of mode or place of arrival in Australia had access to the protection visa system but were subject to mandatory detention Through legislative reforms in 200127 the foundation was laid for

23 UNHCR Projected Global Resettlement Needs 2011 (Report for 16th Annual Tripartite Consultation on Resettlement Division of International Protection) (UNHCR 2010) 45

24 This figure is the sum of data gathered from Department of Immigration and Citizenship 2011 Answer to Question on Notice No 209 (Senator Cash) Parliament of Australia Senate Legal and Constitutional Affairs Committee Budget Estimates Hearing 24 May Department of Immigration and Citizenship 2010 Answer to Question on Notice No 223 (Senator Cash) Parliament of Australia Senate Legal and Constitutional Affairs Committee Supplementary Budget Estimates Hearing 19 October Department of Immigration and Citizenship 2010 Answer to Question on Notice No 28 (Senator Hanson-Young) Parliament of Australia Senate Legal and Constitutional Affairs Committee Additional Budget Estimates Hearing 9 February

25 E Karlsen lsquoRefugee Resettlement to Australia What are the Factsrsquo Parliament of Australia Parliamentary Library Background Note (6 December 2011) 13

26 Department of Immigration and Citizenship 2011 (n 24)27 Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) ndash introduced

alternative protection visa application regime (s46A) Migration Amendment (Excision from Migration Zone)(Consequential Provisions) Act 2001 (Cth) ndash introduced overseas processing in declared countries (s198A) and The Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) ndash validated the Commonwealthrsquos actions in respect of the MV Tampa and Aceng The foregoing does not detail all the changes to the visa regime resulting from the 2001 amendments


overlapping schemes that purported to comply with Australiarsquos international refugee law obligations

1 by the processing of protection visa applications lodged by authorized migrants lsquoonshorersquo with provision for lsquoindependentrsquo merits review and judicial review of Executive decision-making (the regular determination procedure)28

2 via a visa application regime for lsquooffshore entry personsrsquo (unauthorized persons arriving at an lsquoexcisedrsquo place) pursuant to notably s 198A operating in conjunction with s 46A (the discretionary determinationvisa process overseas)

3 via a separate visa application regime for lsquooffshore entry personsrsquo pursuant to notably s 46A (the discretionary determinationvisa process at Christmas Island) and

4 by permitting the Executive to transfer lsquooffshore entry personsrsquo to third countries for processing pursuant to s 198A in isolation from s 46A (the lsquoprotection elsewherersquo method)29

Schemes 1 and 2 operated in parallel as part of the so-called lsquoPacific Strategyrsquo during 2001ndash2008 Essentially air arrivals were processed in Australia according to the regular visa scheme (1) while irregular maritime arrivals were processed through the alternative visa scheme (2) pursuant to bilateral arrangements concluded between Australia and respectively Nauru and PNG (Manus Island) Shortly after MV Tamparsquos interdiction the Commonwealth relied upon s 198A of the Migration Act to validate its political agreement with the Government of Nauru for the transfer of lsquooffshore entry personsrsquo to Nauru for the purpose of inquiring into their refugee protection claims30 Australia lsquowas to provide or secure the provision of the [refugee status] assessment and other steps that had to be taken as well as the maintenance in the meantime of those who claimed to be

28 lsquoRegularrsquo onshore procedures for asylum seekers offer a streamlined brand of administrative justice relative to other administrative decision-making contexts in Australia See D OrsquoBrien lsquoControlling Migration Litigationrsquo (2010) 63 AIAL Forum29 S Gageler lsquoImpact of Migration Law on the Development of Australian Administrative Lawrsquo (2010) 17(2) Australian Journal of Administrative Law 92

29 lsquoSubdivision AI - safe third countriesrsquo (Migration Act 1958 (Cth)) is not strictly analogous to the lsquoprotection elsewherersquo provisions in s 198A for reasons explored below

30 The Immigration Minister declared Nauru to be a safe country to which asylum seekers could be transferred thirteen days after asylum seekers were first sent there A Francis lsquoBringing Protection Home Healing the Schism Between International Obligations and National Safeguards Created by Extraterritorial Processingrsquo (2008) 20(2) International Journal of Refugee Law 273 289


seeking protectionrsquo31 However the processing arrangements were fundamentally flawed32

Scheme 3 was employed from February 2008 after offshore processing was ended as part of the newly elected Labor Governmentrsquos policy of restoring integrity to the migration system33 While detention (and processing) would no longer occur in a third country administrative detention remained in operation on Christmas Island (a small Australian territory on the rim of South-East Asia) as a deterrent to irregular migration and supposedly refugee determination inquiries were unconditioned by the Migration Act and executive discretion reigned over basic administrative law tenets of legality and natural justice

In July 2010 following a rise in the numbers of IMAs the Australian Prime Minister Julia Gillard announced a commitment to a sustainable regional protection framework and the establishment of a regional processing hub34 The objective was to stop people getting into boats by transferring IMAs from Australia to a regional centre thereby combating trans-national crime by lsquobreaking the people smugglersrsquo business modelrsquo and eliminating the incidence of IMAs35 The Prime Ministerrsquos pledge and subsequent ministerial negotiations with East Timor about the enterprise36 was linked to the Bali Process37 Before discussions with East Timor about Australiarsquos regional processing centre concept advanced a successful legal challenge was made against the Commonwealthrsquos procedures for asylum seekers on Christmas Island (scheme 3)

In the Offshore Processing Case38 two Sri Lankan detainees contended inter alia that they had been denied natural justice and that decision-makers had made an error of law by not considering themselves bound by the relevant provisions in the Migration Act and associated case law The plaintiffs were detained

31 M70 (2011) 244 CLR 144 p 119ndash20 [128]32 Francis (n 30) 296ndash833 C Evans lsquoNew Directions in Detention ndash Restoring Integrity to Australiarsquos

Immigration Systemrsquo Speech given at Parliament House Canberra (29 July 2008)34 J Gillard lsquoMoving Australia Forwardrsquo Presentation to the Lowy Institute Sydney

(6 July 2010)35 Prime Minister and Minister for Immigration and Citizenship (2011) Australia and

Malaysia Sign Transfer Deal ltwwwministerimmigovaumediacb2011cb168739htmgt accessed 30 November 2012

36 Minister for Immigration and Citizenship Minister Bowen Concludes Talks in Timor-Leste Media Release (12 October 2010)

37 The Australian Governmentrsquos Regional Assessment Centre Concept (November 2010) ndash sent to East Timorrsquos Government as a basis for discussions ndash was leaked to Lateline (ABC) and publicized in February 2011 A copy is on file with the authors

38 Offshore Processing Case (2010) 243 CLR 319 see also P Billings lsquoJuridical Exceptionalism in Australia Law Nostalgia and the Exclusion of Othersrsquo (2011) 20(2) Griffith Law Review 271 M Crock and D Ghezelbash lsquoDue Process and the Rule of Law as Human Rights The High Court and the ldquoOffshorerdquo Processing of Asylum Seekersrsquo (2011) 18(2) Australian Journal of Administrative Law 101


pursuant to s 189(3) of the Migration Act In this situation detention was lawful until such time as the person is removed or granted a visa39 By operation of s 46A(1) the plaintiffs were barred from lodging a valid protection visa application Accordingly the Migration Act was not formally lsquoengagedrsquo for the purposes of regulating a protection visa application

Occupying the void created by the work of s 46A(1) was ostensibly a non-statutory process The Commonwealth contended the process was authorized by executive power pursuant to s 61 of the Constitution Consequently the Migration Act regulations and associated case law were relegated to the status of policy which purportedly functioned as a guide for decision-makers40 The refugee status assessment undertaken by Immigration Department officials and independent merits review provided through private contractors had yielded negative determinations for each plaintiff Accordingly the Minister did not proceed to use his (personal and non-compellable) powers under s 46A(2) to lsquolift the barrsquo of s 46A(1) in order for those offshore entry persons to make a valid visa application

The Commonwealthrsquos contention that refugee status assessments (which necessarily prolonged the plaintiffrsquos detention) were not governed by statute gave rise to a critical tension lsquohow could continued detention under the Migration Act be lawful if what prolongs the detention (inquiries into eligibility for refugee status) has no statutory footingrsquo41 The proposition at the heart of the Commonwealthrsquos case was that lsquoa statutory power to detain a person permits continuation of that detention at the unconstrained discretion of the Executiversquo42

The court resolved the tension by characterizing the decision to conduct refugee status assessments and independent merits review inquiries as steps taken under and for the purposes of the Migration Act The Minister was deemed to have begun the task of considering whether to exercise his personal statutory power through the inquiry processes that he had established and announced in July 200843 Furthermore the continued detention of an offshore entry person pending inquiries into refugee status was lawful only because the relevant assessment and review were directed to whether s 46A (or s 195A) powers could or should be exercised The effect of this judgment was to enforce international human rights law prohibitions against arbitrary detention through the application

39 Migration Act (n 3) s 196(1)40 The Commonwealth argued that there was no obligation to afford procedural

fairness to the protection seekers and there was no role for the Refugee Review Tribunal The norms that were said to frame and inform the refugee status assessment process were located in two manuals lsquoRefugee Status Assessment Procedures Manualrsquo and lsquoGuidelines for the Independent Merits Review of Refugee Status Assessmentsrsquo Offshore Processing Case (n 38) 342ndash4

41 Offshore Processing Case (2010) 243 CLR 319 34842 ibid43 ibid 350ndash51


of administrative law principles44 Having established that the Commonwealthrsquos processes for offshore entry persons were linked to parts of the Migration Act and relevant case law the facts disclosed procedural impropriety45

By establishing a connection between refugee status inquiries and the visa grant the HCA determined that Christmas Island processes were properly subject to judicial supervision Ironically the upshot of the HCArsquos insistence that common law principles of legality and fairness apply to offshore entry personsrsquo processing resulted in greater legal protection for those individuals relative to lsquoonshorersquo protection seekers who are administered under statutory procedures46

Having opted for a policy of refugee processing on Christmas Island the decision in the Offshore Processing Case enabled the Federal Opposition to pressure the Government about its asylum and border protection policies and presented an opportunity for it to gain electoral support by representing the Governmentrsquos policies as ineffectual costly and illegal Specifically it was claimed that the HCArsquos decision would give encouragement to people smugglers to ply their trade and would open the door for asylum seekers to litigate in the courts thereby prolonging detention times and increasing the financial costs associated with their claims47

The pressure on the Government to come up with policy alternatives to processing asylum seekers on Christmas Island intensified after a maritime tragedy in December 2010 when a boat (SIEV 221) carrying around 90 asylum seekers sank just off Christmas Island Up to 50 asylum seekers died the largest loss of life in a maritime incident in Australian territorial waters during peacetime in 115 years48 Understandably the Governmentrsquos resolve to deter irregular migration by pursuing a bi-lateral arrangement with East Timor for offshore processing of asylum seekers hardened However the East Timorese Parliament quickly rejected the idea after it was announced49 and East Timorrsquos Prime Minister considered that it would be socially divisive because refugees would live in better conditions than many of East Timorrsquos citizens50 Predictably the Commonwealth abandoned the venture

44 Crock and Ghezelbash (n 38) 10945 Offshore Processing Case (2010) 243 CLR 319 35446 See SZQDZ v Minister for Immigration and Citizenship (2012) 286 ALR 33147 S Morrison High Court Sinks Laborrsquos Asylum Policy Credibility Media Release

(11 November 2010)48 Joint Select Committee on the Christmas Island Tragedy Report Parliament of

Australia (29 June 2011) A Hope Christmas Island Tragedy Findings Perth Office of the State Coroner (23 February 2012)

49 S Everingham lsquoEast Timor MPs Reject Asylum Centre Proposalrsquo PM (ABC News) (12 July 2010) ltwwwabcnetaunews2010-07-12east-timor-mps-reject-asylum-centre-proposal901578gt accessed 10 January 2012

50 S Everingham lsquoEast Timor Slams Door on Refugee Centrersquo ABC News (7 April 2011) lthttpwwwabcnetaunews2011-04-06east-timor-slams-door-on-refugee-centre2625700gt accessed 10 January 2012


A Regional Protection Framework and the Malaysian Solution

Regional Co-operative Strategies for Managing Irregular Migration

At the Fourth Bali Regional Ministerial Conference in March 2011 a regional cooperation framework to address lsquoirregular movement through the regionrsquo was agreed upon which provided inter alia that a regional assessment centre for processing irregular migrants could be established under the frameworkrsquos auspices51 Given that most states in the region are not signatories to the Refugee Convention or Protocol lsquothe mere willingness to talk about refugee protection co-operation at a regional level was a huge step forwardrsquo52

In May 2011 the announcement of a co-operative bi-lateral transfer agreement with Malaysia was represented as the first practical steps taken as part of the principles agreed to at the Bali Conference53 The agreement with Malaysia was a political deal that purported to reconcile compassion with control to effectively responsibly and fairly resolve the tension between deterring hazardous sea journeyscombating people smuggling and the obligation to offer access to protection for asylum seekers and refugees54 Politically the deal was significant Malaysia (a non-signatory to the Refugee ConventionProtocol) and Australia had negotiated an arrangement to address irregular migration facilitated by people smugglers that was broadly founded on respect for particular refugee protection principles

The application of the fourth scheme for managing IMAs seeking protection followed the bi-lateral agreement between Australia and Malaysia55 Its purpose was to lsquobreak the people smugglerrsquos business modelrsquo by de-coupling an asylum seekersrsquo physical presence in Australia from the protection visa process56 It comprised a physical redistribution of asylum seekers and refugees and financial burden-sharing Under the new arrangements 800 lsquoirregularrsquo arrivals were to be transferred to Malaysia where they would join thousands of asylum seekers awaiting refugee status eligibility assessments by the UNHCR In return Australia would over a four-year period accept 4000 UNHCR-registered refugees from

51 Co-Chairsrsquo Statement Adopted at the Fourth Regional Ministerial Conference on People Smuggling Trafficking in Persons and Related Transnational Crime (Bali Indonesia (29ndash30 March 2011) [16]ndash[19]

52 S Taylor lsquoRegional Cooperation and the Malaysian Solutionrsquo Inside Story (9 May 2011) lthttpinsideorgauregional-cooperation-and-the-malaysian-solutiongt accessed 16 December 2011

53 Prime Minister and Minister for Immigration and Citizenship Australia and Malaysia Sign Transfer Deal Joint Media Release (25 July 2011)

54 K Koser lsquoResponding to Boat Arrivals in Australia Time for A Reality Checkrsquo Lowy Institute Analysis (2010) 187 ltwwwlowyinstituteorgPublicationasppid=1477gt accessed 10 December 2011

55 Prime Minister and Minister for Immigration and Citizenship (n53) attached text of the Arrangement

56 ibid


Malaysia for resettlement provided they met Australiarsquos entry requirements57 Australia committed $292 million to the deal including covering all the UNHCRrsquos costs in ensuring the healthcare education and eventual resettlement in third countries of the 800 asylum seekers58

By initiating a transfer policy that was presented as the functional equivalent of interdicting and turning around boats without the attendant dangers to life and limb at sea the Government argued it could lsquostop the boatsrsquo more effectively and humanely than before They could also lay claim to being a more responsible regional actor than their predecessor by increasing the annual humanitarian intake to accommodate refugees from a regional neighbour coping with a comparatively large number of forced migrants

Indeed an ethical defence of the policy was mounted on utilitarian grounds it promoted the interests of several thousand refugees over the short to medium term by securing a durable solution for people who may have lacked the means or ability to voyage to Australia to seek protection Further it was argued that the number of people benefiting from the increase in overall refugee resettlement numbers in Australia exceeded (by 51) the number of asylum seekers to be transferred to Malaysia whose future prospects were far more uncertain59

Conversely Hamilton observed that an ethical responsibility sharing policy lsquomust be judged by the extent to which it respects the human dignity of the asylum seekers whom Australia proposes to send to Malaysiarsquo 60 Further such a proposal could not be justified if it failed to guarantee as a high a level of protection as the transferees would find in Australia This appraisal of the policy rested on the moral imperative of treating people as ends in themselves rather than means to an end and respect for human dignity Significantly these ethical considerations were linked to the broad range of human rights found in the Refugee Convention that State Parties are obliged to respect The relevance and importance of protecting such refugee rights was evidenced in the M70 decision

57 Arrangement Between the Government of Australia and the Government of Malaysia on Transfer and Resettlement AustraliandashMalaysia signed 25 July 2011 (not in force) cl 5

58 K Needham and D Flitton lsquoRefugee Deal with Malaysia Clinchedrsquo Sydney Morning Herald (22 July 2011) 1

59 D Palmer lsquoAn Ethical Defense of the Malaysian Solutionrsquo (2011) 21(16) (26 August) Eureka Street 47ndash9

60 A Hamilton lsquoEthical Demands of a Regional Solutionrsquo (2011) 21(12) (1 July) Eureka Street 5 5


The Malaysian Declaration Case61

The declaration of Malaysia as a country to which people could be sent and the proposed removal of particular IMAs was to be carried out pursuant to powers contained in s 198A and s 198(2) of the Migration Act In early August 2011 the Refugee and Immigration Legal Centre (Melbourne) secured temporary injunctions restraining the Commonwealth from proceeding with the removal of 16 people to Malaysia on 8 August until the legality of the bi-lateral arrangement could be determined by the HCA62 Behind the legal challenges were respectively concerns about possible persecution discrimination towards and mistreatment of Shia Muslims in Malaysia and that removing unaccompanied minors to Malaysia was not in their best interests

The challenge before the HCA focused on the scope of international law obligations flowing from s 198A Migration Act and outlined the consequences for the Commonwealthrsquos plans Relevantly s 198A provided

(1) An officer may take an offshore entry person from Australia to a country in respect of which a declaration is in force under subsection (3)

[hellip](3) The Minister may (a) declare in writing that a specified country

(i) provides access for persons seeking asylum to effective procedures for assessing their need for protection and

(ii) provides protection for persons seeking asylum pending determination of their refugee status and

(iii) provides protection to persons who are given refugee status pending their voluntary repatriation to their country of origin or resettlement in another country and

(iv) meets relevant human rights standards in providing that protection (Emphasis added)

The plaintiffsrsquo case63 The plaintiffs argued that the Minister misapprehended the criteria that conditioned the exercise of his declaratory power that the reference to

61 The HCA exercised lsquooriginalrsquo jurisdiction over the matter pursuant to s 75 of the Constitution Recourse to the federal courts was barred by operation of ss 494AA(1) but ss 494AA(3) expressly provided that the section was not intended to affect the jurisdiction of the HCA under s 75

62 In the matter of a proposed application Sayed Navab Shah and ors against the Minister for Immigration and Citizenship and the Commonwealth of Australia [2011] HCA Trans 196 (7 August 2011) Shah and Ors v Minister for Immigration and Citizenship [2011] HCATrans 196 (8 August 2011)

63 For a record of the submissions see Plaintiff M702011 v Minister for Immigration and Citizenship Plaintiff M106 of 2011 by his Litigation Guardian v Minister for Immigration and Citizenship [2011] HCA Trans 223 (22 August 2011)


lsquoeffectiversquo procedures found in s 198A(3) sub-paragraph (i) should be understood as meaning lsquoimplemented in domestic lawrsquo and that a proper construction of the word lsquoprotectionrsquo found in sub-paragraphs (ii)ndash(iii) extended beyond Article 33 (non-refoulement) to include some but not all of the human rights contained in the Refugee Convention It was also submitted that the language of sub-paragraph (iv) was informed by generally accepted human rights obligations under international law instruments These arguments were advanced on the premise that the meaning to be given to s 198A(3) should be guided by the purpose of the Migration Act which lsquocontains an elaborated and interconnected set of statutory provisions directed to the purpose of responding to the international obligations which Australia has undertaken in the Refugee Convention and the Refugee Protocolrsquo64

Furthermore it was argued that it was appropriate to characterize the criteria framing the declaratory power as lsquojurisdictional factsrsquo ndash meaning that the Ministerrsquos power to make a valid declaration could not be made without particular facts prevailing Viewed in the light of the Federal Court authority on point (discussed below) and academic commentary on s 198A65 this emerged as a bold submission If accepted it followed that the court would undertake an empirical exercise and ascertain if the criteria in s 198A(3) were satisfied66 This approach to judicial supervision over administrative action represents an exception to the general rule that factual errors are not amenable to review by courts when exercising judicial review powers67 Accordingly it is not an exercise that is to be undertaken lightly as to do so would undermine the rule of law rationale that validates judicial review

On the facts the plaintiffs pointed to the non-binding and unenforceable nature of the political agreement between Australia and Malaysia and a report of mistreatment of non-nationals68 as evidence that the criteria in paragraph (a) properly construed were not in fact met Alternatively it was argued that the Minister had made a lsquojurisdictional errorrsquo because he asked himself the wrong questions when forming the view that Malaysia could properly be the subject of a declaration Therefore the declaration was amenable to judicial review because straightforwardly the Minister erred by failing to properly construe and

64 Offshore Processing Case (2010) 243 CLR 319 33965 See for example Francis (n 30) 28366 The plaintiffrsquos arguments about the exercise (and bounds) of official discretion

pursuant to s 198A(1) are not canvassed in this chapter ndash a precondition of the exercise of that power is a valid declaration under s 198A(3) It should be noted that some reliance was placed on the Convention on the Rights of the Child (lsquobest interests of the childrsquo) by counsel for the plaintiffs and intervener (Australian Human Rights Commission) when determining the meaning about the proper exercise of that power

67 The other clear exception being the lsquoabsence of evidencersquo ground of judicial review recognised as an aspect of lsquoerror of lawrsquo at common law and in the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(h)

68 A Blow to Humanity Torture by Judicial Caning in Malaysia (Amnesty International 2010) ltwwwamnestyorgenlibraryinfoASA280132010gt accessed 10 December 2011


apply the four criteria that governed his declaratory power irrespective of the objective reality

That the Minister had asked himself the wrong question when making the declaration was said to be supported by evidence that the Minister addressed and attached significance to the unenforceable political arrangements concluded with Malaysia as the foundation for the declaration Furthermore the plaintiffs submitted that the Minister had erred by looking at what might occur in the future in Malaysia vis-agrave-vis treatment of asylum seekers and refugees rather than the present situation on the ground

The Commonwealthrsquos approach to the validity of the Declaration The Solicitor-General submitted the criteria in paragraph (a) did not amount to lsquojurisdictional factsrsquo Rather judicial supervision was permissible to ensure the Minister made an evaluative judgment in lsquogood faithrsquo The Solicitor-General accepted lsquoasking the wrong questionrsquo would vitiate the exercise of the declaratory power (on the basis of jurisdictional error) However he urged the court to resist making such a finding on the basis that the Minister had correctly understood that s 198A(3) required him to evaluate only whether Malaysia would in fact provide practical protection from refoulement and that he acted accordingly

The Decision of the High Court of Australia

The HCA determined (Heydon J dissenting) that the Ministerial declaration of 25 July 2011 was invalid and ordered the Commonwealth to refrain from taking the plaintiffs to Malaysia It is convenient to begin with the reasons given in the joint judgment (Gummow Hayne Crennan and Bell JJ) which differs in material respects from the reasoning adopted by French CJ in particular In the interests of brevity Justice Heydonrsquos dissenting judgment will not be considered separately

Plurality judgment Their Honours considered first the Commonwealthrsquos assertion that a general power of removal ndash under s 198(2) ndash authorized a personrsquos removal The central question was whether lsquothe statute in question confers only one power to take the relevant action necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former powerrsquo69 Their Honours adopted a meaning that was (1) congruent with the evident underlying purpose of the Migration Act (2) commensurate with international law and (3) consistent with s 198A

The plurality began by adopting the language used in the Offshore Processing Case where the HCA determined that the text and structure of the Migration Act proceeded on the footing that the Act provides power to respond to Australiarsquos international refugee law obligations lsquoby granting a protection visa in an appropriate case and by not returning that person directly or indirectly to a

69 M70 (2011) 244 CLR 144 187ndash8 [84]


country where he or she has a well-founded fear of persecution for a Convention reasonrsquo70

A second consideration bearing on the construction of s 198(2) read in conjunction with s 198A was that for Australia to remove a person to their country of nationality or some other third country willing to receive that person without Australia first considering whether that person has a well-founded fear of persecution for a Convention reason lsquomay put Australia in breach of the obligations it undertook as a party to the Refugee Convention and Refugee Protocolrsquo in particular Article 33(1)71 Viewed in this context their Honours observed that s 198(2) should not be construed as requiring or permitting removal from Australia of persons seeking asylum before there has been a determination of the refugee status To read s 198(2) as supplying a power that allowed the Minister to remove persons who seek to invoke Australiarsquos protection obligations (without an individual assessment) to any country willing to accommodate them would emasculate s 198A(1)

In summary the intention of Parliament divined through reading the Act as a whole served to reinforce their Honoursrsquo view that the general removal provisions should not be read in a manner that could frustrate Australiarsquos international refugee law undertakings72

Moving to the validity of the Ministerrsquos declaration at the outset their Honours readily accepted that requirements to exercise the power in good faith and within the scope and for the purposes of the Act confined the exercise of the Ministerrsquos power Strikingly they also accepted the plaintiffsrsquo bolder proposition that the criteria in s 198A(3) were jurisdictional facts73 To do otherwise they decided would pay insufficient regard to the text context and purpose Accordingly attention focused on the particular language used in sub-paragraphs (i)ndash(iii) which the plurality judgment construed as having both factual and legal elements The phrases lsquoprovides accessrsquo and lsquoprovides protectionrsquo found in sub-paragraphs (i)ndash(iii) were understood to refer to what must be provided as a matter of legal obligation and not merely by examination of what has happened is happening or may be expected to happen in fact74 The criteria were properly understood the reflex of Australiarsquos international obligations

When s 198A(3)(a) speaks of a country that provides access and protections it uses language that directs attention to the kinds of obligation that Australia and other signatories have undertaken under the Refugee Convention and the Refugees Protocol Reference has already been made to the non-refoulement

70 ibid 189 [90] (emphasis in original)71 ibid 190ndash91 [94] 72 ibid 192 [97]ndash[98]73 ibid194 [109] cf Corporation of the City of Enfield v Development Assessment

Commission (2000) 199 CLR 13574 M70 (2011) 244 CLR 144 (n1) 195 [116] 199 [125]ndash[126]


obligation imposed by Art 33(1) of the Refugee Convention But signatories undertake other obligations

[hellip]The extent to which obligations beyond the obligation of non-refoulement (and the obligations under Art 31 of the Refugee Convention concerning refugees unlawfully in the country of refuge) apply to persons who claim to be refugees but whose claims have not been assessed is a question about which opinions may differ It is not necessary to decide that question What is clear is that signatories to the Refugee Convention and the Refugees Protocol are bound to accord to those who have been determined to be refugees the rights that are specified in those instruments including the rights earlier described75

The meaning of protection was understood as encompassing protection from refoulement (in the declared country) and critically other rights which Australia is bound pursuant to international law to accord refugees including rights to education practice of religion employment housing and access to the courts76 The question of asylum seekersrsquo broader legal entitlements was left unanswered by the plurality

The plurality derived little assistance from the case law (relating to the application of lsquosafe third countryrsquo provisions) advanced by the Solicitor-General in support of the view that what mattered was the practical protection afforded by Malaysia77 The contextual analogy drawn was deemed inapposite because the safe third country provisions addressed whether a non-citizen could avail themselves of protection in a third country By contrast the point of s 198A was to facilitate the removal of a person to another country for the purposes of assessing their eligibility for protection (including the possibility of onward removal to a safe third country)78

The plurality concluded that as the facts necessary to enliven the use of the declaratory power were not and could not be established the Ministerrsquos declaration was invalid

Where as in the present case it is agreed that Malaysia first does not recognise the status of refugee in its domesstic law and does not undertake any activities related to the reception registration documentation and status determination of asylum seekers and refugees second is not party to the Refugee Convention or

75 ibid 195ndash6 [117] (emphasis added) Their Honours identified arts 3 4 16(1) 17(1) 22(1) and 26 of the Refugee Convention The joint judgmentrsquos view was fortified by the clear language used in sub-paragraph (iii) which stated that the declared country lsquoprovides protection to persons who are given refugee status pending their voluntary repatriation to their country of origin or resettlement in another countryrsquo

76 M70 (2011) 244 CLR 144 196ndash7 [119]77 See Migration Act 1958 (Cth) ss 91Andash91G 91Mndash91Q78 M70 (2011) 244 CLR 144 198 [122]ndash[123]


the Refugees Protocol and third has made no legally binding arrangement with Australia obliging it to accord the protections required by those instruments it was not open to the Minister to conclude that Malaysia provides the access or protections referred to in s 198A(3)(a)(i) to (iii)79

Chief Justice French French CJ concurred with the plurality judgmentrsquos opinion of s 198(2) an offshore entry person could not be lawfully removed under this power unless the personrsquos protection claim had first been assessed80 In contrast with the plurality judgment the Chief Justice did not construe the language used in s 198A(3)(a) as clearly pointing to jurisdictional facts Rather the subjective terms (lsquoprovidersquo lsquoaccessrsquo lsquoeffective proceduresrsquo and lsquomeets relevant human rights standardsrsquo) indicated the need for a ministerial evaluative judgment and absent clear words should not be construed as conferring on the courts power to substitute their value judgment for that of the Minister81 Consistent with the approach he took in P12003 v Minister for Immigration and Multicultural and Indigenous Affairs82 his Honour observed that a lsquogood faithrsquo evaluation of the criteria was required and further if the Minister proceeded on the basis of a misapprehension about the statutory criteria he would be making an unauthorized declaration amounting to a jurisdictional error83 Relative to the plurality judgment this approach to judicial supervision over executive action is less interventionist However his Honour continued

Another way of approaching the scope of the ministerial power under s198A(3) is to treat it as being by necessary implication conditioned upon the formation of an opinion or belief that each of the matters set out in s 193A(a)(i)-(iv) is true The requisite opinion or belief is a jurisdictional fact If based upon a misconstruction of one or more of the matters the opinion or belief is not that which the subsection requires in order that the power be enlivened84

Characterizing the declaratory issues as jurisdictional facts in this manner meant that his Honour could reach the same conclusion as the plurality albeit by a slightly different path insofar as the existence of the Ministerrsquos belief or opinion (about the satisfaction of the statutory criteria) was interpreted as the

79 ibid 201ndash202 [135]80 ibid 178 [54]81 ibid 180 [58]82 [2003] FCA 102983 M70 (2011) 244 CLR 144 180ndash81 [59] quoting Minister for Immigration and

Multicultural Affairs v Yusuf (2001) 206 CLR 323 351 [82] (McHugh Gummow and Hayne JJ)

84 M70 (2011) 244 CLR 144 180ndash81 [59] (emphasis added)


requisite lsquojurisdictional factrsquo that in the light of the text context and purpose of the legislation was legitimately reviewable by the court85

French CJ established that the Minister had misdirected himself in law because (1) the Ministerrsquos declaration was erroneously based on a hope or expectation that the statutory criteria would be met at some point in the future (2) the statutory criteria in s 198A(3)(a) were not limited to those practical matters that characterize a place as a lsquosafe third countryrsquo and (3) the language employed by Parliament suggested that the nature and scope of lsquoprotectionrsquo ranged beyond protection from refoulement

From the evidence before the court his Honour concluded that the Minister did not look to and did not find any basis for his declaration in Malaysiarsquos international obligations or relevant domestic laws as he was required to by law Instead the declaration was informed by the non-binding Arrangement conversations with his counterpart in Malaysia and observations by the Department for Foreign Affairs and Trade (DFAT)86 Notably French CJ observed that the Ministerrsquos inquiry needed to address more than the presence of enduring legal frameworks on paper requiring also an assessment of lsquothe extent to which the specified country adheres to those of its international obligations constitutional guarantees and domestic statutes which are relevant to the criteriarsquo87 Thus legal obligations were a necessary but not sufficient condition for the making of a valid declaration

In summary French CJ concluded that the Minister had misconstrued the statutory criteria that defined the declaratory power Parliament had authorized (hence jurisdictional error) Less straightforwardly his Honour also interpreted the criteria as conditioned upon the formation of an opinion or belief that each of the matters set out in s 193A(a)(i)ndash(iv) was true by necessary implication88 and that the requisite opinion or belief was a jurisdictional fact suitable for judicial review Therefore given that the Minister was found to have misconstrued the statutory criteria the requisite opinion or belief necessary to enliven the declaratory power was absent (thus lsquojurisdictional (fact) errorrsquo)89

Justice Kiefel Addressing the threshold issue of whether s 198(2) authorized a personrsquos removal from Australia without a prior refugee assessment her Honour considered that lsquoa Contracting State contemplating the removal of an asylum seeker to another country is obliged to undertake a proper assessment of the country to

85 ibid 179ndash80 [57] citing Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 651ndash4 [130]ndash[137] (Gummow J) Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 609 [183] (Gummow and Hayne JJ)

86 M70 (2011) 244 CLR 144 182ndash3 [66]87 ibid 183 [67]88 There was no express reference to ministerial satisfaction or opinion in s 198A(3)

of the Migration Act 89 M70 (2011) 244 CLR 144 180ndash81 [59]


which that person is to be sent and the protections it affordsrsquo (citations omitted)90 Her Honour understood the purpose of s 198A(3)(a) lsquoto be directed to compliance with Australiarsquos Convention obligations of non-refoulement and determination of refugee statusrsquo91 and applied a general principle of statutory construction to determine the nature of the relationship between the two provisions that where power is conferred by the legislature in particular terms that prescribe its exercise and the conditions and restrictions that must be observed it excludes the operation of general expressions which might otherwise have been relied on for the same power92 Consequently removal under s 198(2) was not an option because it would be contrary to Parliamentary intent to read s 198(2) as lsquoa source of power to effect the removal of asylum seekers to a country without any assessment of the protections that would be provided to such persons by that countryrsquo93

Moving on to the effect of s 198A(3) her Honour observed that consequently some of Australiarsquos responsibilities under the Refugee Convention were shifted to another country

Its evident concern is that Australiarsquos obligations under the Convention are not breached in that process Its terms contemplate that a country specified in the declaration will provide some of that which Australia would have provided had the asylum seeker remained in the territory94

At the very least s 198A(3)(a) called for a determination of an asylum seekerrsquos status and protection (against refoulement and persecution) pending status determination or as a refugee if that status is accorded That these requirements must be met by the State to which offshore entry persons were sent was lsquoexplicable having regard to Australiarsquos protection obligations under the Conventionrsquo95 Notably Kiefel J opined that the refugee status determination (required by the terms of sub-paragraph (i)) had to be a determination by the government of the declared country given the great importance of such an assessment This interpretation was said to be consistent with the balance of paragraph (a)

The objective of the provision that protection be provided to asylum seekers or refugees can only be achieved if the country declared recognises the status of refugees and provides protection against refoulement and persecution96

90 ibid 230 [233]91 ibid 230 [234]92 ibid 230ndash31 [236] quoting Anthony Hordern amp Sons Ltd v Amalgamated Clothing

and Allied Trades Union of Australia (1932) 47 CLR 1 793 M70 (2011) 244 CLR 144 231 [237]94 ibid 232 [240]95 ibid 232 [241]96 ibid 233 [243]


In keeping with the pluralityrsquos approach and the concurring judgement of French CJ her Honour decided it was difficult to see how a country could provide the necessary protections if its laws contained no such provisions However her Honour did not consider it absolutely necessary for a declared country to be a Contracting State Further Kiefel J opined that a countryrsquos practices may also be relevant to the Ministerrsquos enquiry under s 198A(3)(a) to ensure the countryrsquos laws are carried into effect thereby affording the necessary protections97 This construction lsquomost closely accords with the fulfilment of Australiarsquos Convention obligationsrsquo and was to be preferred to one which does not98 An approach to statutory construction that favours conformity over conflict with Australiarsquos international obligations so far as the statutory language permits is a basic rule of interpretation founded on a wealth of authority99

Having determined the meaning of the statutory criteria Kiefel J also determined that on the information available to the Minister the facts necessary for making the declaration validly did not exist (hence jurisdictional (fact) error) Additionally and less contentiously her Honour determined that the Minister had misconceived the nature of the enquiry posed by s 198A(3)(a) the enquiry under that provision is lsquoas to the state of the laws of the country proposed to be the subject of a declaration and it is undertaken at the date of the declarationrsquo100 Therefore his decision was attended by jurisdictional error too due to his statutory misinterpretation

Analysis

Legal and political commentaries on the decisionrsquos virtues were mixed101 Critics of the majority decision characterized it as lsquoactivistrsquo judicial policy-making contrary to the (true) intentions of Parliament regarding compliance with the Refugee ConventionProtocol accordingly the dissentientrsquos lsquoconservativersquo interpretivism was extolled102 Assertions that the court has been lsquoactivistrsquo are intended to convey to the reader that the court has inappropriately departed from precedent or based

97 ibid 233ndash4 [245]98 ibid 234 [246]ndash[247] citing Polites v The Commonwealth (1932) 47 CLR 1

quoting Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 27399 M70 (2011) 244 CLR 144 234 [247]100 ibid 236ndash7 [256]101 On the positive side of the ledger see S Zifcak lsquoCritics of Malaysian Ruling Miss

the Pointrsquo The Australian (9 September 2011) 29 D Rothwell lsquoGovernment Could Have Foreseen Refugee Decisionrsquo The Australian (5 September 2011) 14 G Williams lsquoWhen the Umpire Takes a Standrsquo Sydney Morning Herald (12 November 2011) 22

102 J Albrechtsen lsquoHigh Court gets on its High Horse Flexing its Interventionist Muscle) The Australian (7 September 2011) 16 J Allan lsquoWorrying Activist Trend in High Courtrsquo The Australian (9 September 2011) 29 M Kelly lsquoSpitting in the Face of Good Faithrsquo The Courier Mail (1 September 2011) 35


legislative interpretation on personal values At the root of such claims there are often sincere concerns about democratic legitimacy103 As the HCA has held determining questions of law according to whether or not judges personally agree or disagree with the political or social objectives would be an abdication of the HCArsquos duty under the Constitution104

Given the prominence the Executive attached to the Malaysian solution the attendant publicity it received and the political fallout post-M70 it was unsurprising that tensions resurfaced between the Executive and judiciary over migration matters The Commonwealthrsquos frustrations were directed towards the Chief Justice whose integrity was questioned when the Prime Minister labelled him inconsistent in the light of his earlier decisions105 Furthermore it was claimed that the HCA had lsquochanged the lawrsquo This drew a swift rebuke from the Law Council of Australia and the Judicial Conference of Australia the latter opining that irresponsible criticisms could upset the separation of powers106 The criticisms raised in these commentaries warrant close inspection

Judicial Inconsistency

The alleged inconsistency referred to by the Prime Minister between the approaches taken by the Chief Justice in M70 and in his earlier decision as a member of the Federal Court of Australia is with respect unfounded In P12003 v Minister for Immigration and Multicultural and Indigenous Affairs questions about the validity of the declaration made in respect of Nauru were not canvassed exhaustively due to the limited nature of submissions made during interlocutory proceedings107 Moreover his Honour averred to the possibility that a declaration might be invalid if a case of bad faith or jurisdictional error could be made out108 That possibility eventuated in M70 where French CJ determined that the Minister had misdirected himself in law and so fallen into jurisdictional error Diverging from the plurality judgement and Kiefel J his Honour did not interpret the criteria as essential preconditions about which the court could substitute its assessment

103 George Williams has noted that an accusation of lsquoactivismrsquo can reveal more about the person making the claim than about the High Court lsquoThe label is normally only applied when someone disagrees with a High Court decision hellip perhaps because it protects the rights of someone like an asylum seeker or prisonerrsquo Williams (n 101)

104 Clunies-Ross v The Commonwealth (1984) 155 CLR 193 204105 Prime Minister and Minister for Immigration and Citizenship Joint Press

Conference Brisbane (1 September 2011)106 J Kelly lsquoJudiciary Hits Back at PMrsquos lsquoUnfairrsquo Criticismrsquo The Australian

3 September 2011) 5107 See Plaintiff P12003 v Ruddock (2007) 157 FCR 518 535ndash7 [61ndash71]

(Nicholson J)108 See also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206

CLR 323 351 (McHugh Gummow and Hayne JJ)


for that of the Minister because in his opinion only clear language could support such a construction

A lsquoSweeping Re-interpretation of the Migration Actrsquo by the HCA

First it is clear that the majority (aside from French CJ) were unpersuaded by earlier Federal Court authority which doubted that the s 198A criteria were jurisdictional facts109 That the HCA should choose to depart from sparse Federal Court authority on a difficult question of statutory construction is unremarkable The more pertinent question is whether their Honoursrsquo interpretation of s 198A(3) was within tolerable interpretative bounds in respect of a matter on which reasonable minds could differ On its face the text did not point to the objective existence of any of the legislative criteria being preconditions of the declaratory power and the subsection was silent about whether the power was expressly conditioned on the Ministerrsquos lsquosatisfactionrsquo or lsquobeliefrsquo that the criteria were met

The plurality followed the approach in Corporation of the City of Enfield v Development Assessment Commission110 focusing upon the absence of any references to Ministerial satisfaction or belief in the criteria111 and the mandatory terms used in the statute ndash most relevantly in sub-paragraph (3) ndash lsquoprovides protection to persons who are given refugee status pending their voluntary repatriation to their country of origin or resettlement in another countryrsquo

This clear language directed attention to human rights obligations Australia had undertaken under the Refugee Convention and Protocol112 The seriousness of the issues affected by the administrative decision and the HCArsquos understanding of the general purpose of the Migration Act supported a construction of the criteria that compelled strict supervision by the court Adopting a more interventionist stance by taking a lsquohard lookrsquo at cases involving fundamental human rights may be traced to Lord Bridgersquos oft-cited observation about lsquoanxious scrutinyrsquo highlighted in Bugdaycay v Secretary of State for the Home Department 25 years ago113

Secondly on the question of departing from previously settled (supposedly analogous) authority on lsquosafe third countryrsquo removals (the Immigration Ministerrsquos

109 See Sadiqi v Commonwealth (2009) 181 FCR 1 49 [223]110 (2000) 199 CLR 135 148ndash50 [28]ndash[34]111 The presence of textual references to ministerial satisfaction or belief would have

pointed away from the court assuming responsibility for the establishment of given facts112 M70 (2011) 244 CLR 144 195ndash6 [117]113 Bugdaycay v Secretary of State for the Home Department [1987] AC 514

531 E-G adopted in Re Minister for Immigration and Multicultural Affairs ex parte Applicant S20 (2003) 198 ALR 59 92ndash3 [150] (Kirby J) see also Minister for Immigration and Multicultural Affairs v Respondents S1522003 (2004) 222 CLR 1 42 [123] lsquoThe seriousness of the issues involved for those making such [refugee] applications requires rigorous examination of suggested or otherwise demonstrated jurisdictional and legal errorsrsquo


complaint) the plurality correctly identified that safe third country provisions were directed to a different purpose compared to s 198A The former

require an assessment under the [Migration] Act of whether a non-citizen can avail himself or herself of protection in a third country By contrast s 198A is concerned with taking non-citizens to another country for an assessment in that other country of their need for protection114

Thirdly the HCArsquos assessment of the nature and scope of the lsquoprotectionrsquo referred to in each of sub-paragraphs (i) to (iv) provoked strident criticism For example it was alleged that the majority judgementrsquos interpretation was inconsistent with the intentions of Parliament115 There are both principled and pragmatic responses that can be made in response to such claims first modern Australian society rests upon the rule of law116 separation of powers and responsible government Sometimes judicial review proceedings arise in a strongly contested area of public policy and outcomes may have practical consequences for the implementation of government policy But the HCA does not undermine parliamentary sovereignty when it employs orthodox techniques of statutory interpretation to determine that particular words in a statute carry a meaning that differs from the Commonwealthrsquos understanding of what may have been Parliamentrsquos intention in 2001 This critical point was re-iterated in Saeed v Minister for Immigration and Citizenship ndash a case concerning natural justice for (voluntary) offshore visa applicants117 In Saeed the HCA endorsed the observations of Gummow J in Wik Peoples v State of Queensland118 that

it is necessary to keep in mind that when it is said the legislative ldquointentionrdquo is to be ascertained ldquowhat is involved is the lsquointention manifestedrsquo by the legislationrdquo Statements as to legislative intention made in explanatory memoranda or by Ministers however clear or emphatic cannot overcome the need to carefully consider the words of the statute to ascertain its meaning119

The second point is that in a climate of heightened security concerns in September 2001 the Executive utilized the perceived state of emergency to justify the speedy passage of amendments to the Migration Act Amidst the political crisis

114 M70 (2011) 244 CLR 144 42 [122] (emphasis in original)115 P Kelly lsquoMultiple Disaster for Gillardrsquo The Australian (3 September 2011) 11116 Re Minister for Immigration and Multicultural amp Indigenous Affairs Ex parte

Lam (2003) 214 CLR 1 23 [72]117 (2010) 241 CLR 252118 (1996) 187 CLR 1 168ndash9 (Pastoral Leases Case)119 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 264ndash

5 [31] (citations omitted) Like M70 the HCArsquos decision about native title rights in the Pastoral Leases case elicited a robust response from the government of the day


about border security and state sovereignty parliamentary debate and effective scrutiny of the Executiversquos policies its legislative amendments and their effects was stifled120 Evidently Parliament was not alert to the possibility that clear legislative references to providing refugee protection rights and meeting human rights standards would constitute more than a mere gloss on its intended offshore processing scheme Thus it was with careful reference to the language used in the Migration Act that the plurality held that the access and protections referred to in the sub-paragraphs ranged beyond non-refoulement and must be provided as a matter of legal obligation121

The Intersection of International Law and Administrative Law

As noted above Kiefel J expressly reaffirmed the role of international law in the interpretation of legislation within Australiarsquos dualist legal system122 Her Honour acknowledged the relevance of treaties entered into by Australia to the interpretation of legislation in cases of ambiguity As the HCA has frequently acknowledged123 this interpretative role arises in relation to treaties that have not been formally incorporated into Australian law by legislation

The Refugee Convention and Protocol obligations are not comprehensively set out in the Migration Act and are not therefore incorporated in their entirety as domestic law However several obligations have effectively been incorporated via the terms and structure of that Act The majority in M70124 affirmed the interpretative proposition advanced in the Offshore Processing Case that

the Migration Act proceeds in important respects from the assumption that Australia has protection obligations to individuals Consistent with that assumption the text and structure of the Act proceed on the footing that the Act provides power to respond to Australiarsquos international obligations by granting a protection visa in an appropriate case and by not returning that person directly or indirectly to a country where he or she has a well-founded fear of persecution for a Convention reason125

120 H Pringle and E Thompson lsquoThe Tampa Affair and the Role of the Australian Parliamentrsquo (2002) 13(2) Public Law Review 128

121 M70 (2011) 244 CLR 144 199 [126]122 ibid 234 [247]123 See for example Chu Kheng Lim v Minister for Immigration Local Government

and Ethnic Affairs (1992) 176 CLR 1 38 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 287

124 M70 (2011) 244 CLR 144 174ndash5 [44] (French CJ) 189 [90] (Gummow Hayne Crennan and Bell JJ) 223ndash4 [212] (Kiefel J) cf 207 [154] (Heydon J)

125 Offshore Processing Case (2010) 243 CLR 319 339 [27]


This proposition appears to expand upon the HCArsquos earlier pronouncements on the interpretative relevance of treaties The focus in previous decisions of the Court has been upon particular statutory provisions and the relevance that particular treaty provisions might have in interpreting the statutory provisions126 However in the case of the complex inter-relationship of international and domestic law of the kind found in the Migration Act any interpretative approach that restricts itself to a section-by-section article-by-article analysis would fail to properly apply the relevant canons of statutory interpretation and lead to a one-dimensional caricature of the treaty and of the statute being interpreted

The plurality also effectively acknowledged the relevance of customary international law to statutory interpretation in the context of a personrsquos right to re-enter the territory of the State of that personrsquos nationality127 Given this invocation it is perhaps surprising that customary international law was not given more prominence in the reasons of the plurality The extent of international legal obligations owed by Malaysia in relation to refugees was central to the reasoning of the plurality128 Malaysiarsquos international obligations include those under customary international law129 Lauterpacht and Bethlehem130 in a comprehensive survey of the State practice and opinio juris relevant to non-refoulement conclude that the content of the rule is well developed

As Heydon J noted in his Honourrsquos dissent when assessing the position in Malaysia in the light of Malaysiarsquos international legal obligations it is also necessary to have regard to the role that international law plays within the Malaysian legal system131 It appears clear in light of the DFAT assessment considered in M70 and the other evidence before the HCA that Malaysiarsquos obligations under customary international law do not appear to be directly enforceable under Malaysian law

126 See for example Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

127 M70 (2011) 244 CLR 144 190 [91]ndash[92] (Gummow Hayne Crennan and Bell JJ) 234 [247] (Kiefel J)

128 ibid 199 [125]ndash[126]129 Malaysia appears unable to assert that it is a persistent objector to the customary

rule of non-refoulement In order to be a persistent objector to a rule of custom a State must explicitly and persistently object at the international level The failure to enact municipal legislation guarding against refoulement would not be sufficient to amount to persistent objection Further States are unable to avoid obligations under the rule even where they have persistently objected if the rule of non-refoulement is a peremptory norm of international law see E Lauterpacht and D Bethlehem lsquoThe Scope and Content of the Principle of Non-Refoulement Opinionrsquo in E Feller et al (eds) Refugee Protection in International Law (Cambridge University Press 2003) 89 107

130 ibid 163ndash4 cf M Foster lsquoProtection Elsewhere The Legal Implications of Requiring Refugees to Seek Protection in Another Statersquo (2007) 28(2) Michigan Journal of International Law 223 238ndash9

131 M70 (2011) 244 CLR 144 208ndash209 [162]


This also serves to underline the importance of the caveat offered by French CJ on considering the formal legal position in Malaysia

An affirmative answer to the questions posed by the criteria in s 198A(3)(a) reached by reference only to the specified countryrsquos laws and international obligations is not the end of the necessary ministerial inquiry Constitutional guarantees protective domestic laws and international obligations are not always reflected in the practice of states There are examples around the world of governments whose implementation of human rights standards fall short of the authoritative legal texts be they constitutional or statutory or embedded in treaties and conventions which on the face of it bind them The existence of a relevant legal framework which on paper would answer the criteria in s 198A(3) cannot therefore always be taken as a sufficient condition for the making of a declaration132

The relevance of the lsquopractice of statesrsquo for both the Chief Justice and Kiefel J133 appears to have important temporal implications The international definition of lsquorefugeersquo requiring a well founded lsquofearrsquo has a prospective dimension Similarly the lsquoreal riskrsquo or lsquothreatrsquo that must be assessed for the purposes of the non-refoulement standard are also prospective To be attentive to the practice of a State also requires attentiveness to potential changes in practice The plurality identified but left open this temporal issue134 The Chief Justice Heydon J135 and Kiefel J all appeared prepared to countenance a prospective dimension to the determination required under s198A This appears to accord with the approach advocated in relation to the relevant international treaties136

As noted above the plurality in M70 interpreted s 198A(3) as requiring consideration of whether a State which is the subject of a declaration provides protections beyond the non-refoulement obligations enshrined in Article 33 of the Refugee Convention The plurality137 offered the following inclusive list of obligations assumed by parties to the Refugee Convention and Protocol to provide freedom from discrimination138 to accord treatment at least as favourable as that accorded to its nationals with respect to religious freedom and the religious education of their children139 access to the courts of law140 to accord the most

132 ibid 183 [67] cf 195 [113]ndash[114] (Gummow Hayne Crennan and Bell JJ) see also Foster (n 130 238ndash43)

133 M70 (2011) 244 CLR 144 233ndash4 [245]134 ibid 195 [113]135 ibid 214 [173]136 Foster (n 130) 238ndash43 284ndash5137 M70 (2011) 244 CLR 144 195ndash6 [117]138 Refugee Convention (n 15) art 3139 ibid art 4140 ibid art 16


favourable treatment accorded to nationals of a foreign country in the same circumstances as regards employment rights141 to accord the same treatment as for nationals with respect to elementary education142 and freedom of residence or movement143 The majority concluded that s 198A(3) required consideration of a range of obligations extending beyond non-refoulement obligations144 This appears to be the better construction of the statutory language

Heydon J characterized as lsquoambitiousrsquo the claim that a range of Refugee Convention rights were picked up by the language of lsquoprotectionrsquo used in sub-paragraphs (i)ndash(iii)145 In addition to differences amongst members of the HCA on the range of obligations owed to refugees under the terms of s 198A there were also differences of view regarding the rights acquired by asylum seekers Kiefel J observed that

The Convention obliges Contracting States to accord certain treatment and rights to a refugee As Professor Hathaway observes an asylum-seeker may be disadvantaged where some or all of those rights are withheld pending the determination of a personrsquos status as a refugee The obligation to accord these rights would appear to provide the basis for a logical inference that an obligation on the part of the Contracting State to determine the status of a person claiming to be a refugee arises from the Convention Given the prohibition on refoulement such an obligation would most clearly arise when a Contracting State intended to refoul an asylum-seeker or send them to a third country where having regard to their claims they might be at risk146

By contrast Heydon J questioned the extent of obligations owed in respect of asylum seekers Referring to the range of rights set out in the Refugee Convention his Honour observed

in the Refugee Convention they are expressed to be rights of ldquorefugeesrdquo ndash not persons making a claim to refugee status which has not yet been approved and might never be approved147

The plurality left these issues open148 As a matter of international law interpreting the relevant provisions of the Refugee Convention on this issue

141 ibid art 17(1)142 ibid art 22(1)143 ibid art 26144 M70 (2011) 244 CLR 144 182ndash3 [66] (French CJ) 196ndash7 [119] (Gummow

Hayne Crennan and Bell JJ) 232 [240] (Kiefel J)145 ibid 211ndash12 [167]146 ibid 225 [216]147 ibid 211ndash12 [167]148 ibid 196 [117]


appears to require the application of a number of clear interpretative propositions The first is that national determinations of refugee status are declarative not constitutive Lauterpacht and Bethlehem149 demonstrate why an interpretation of the treaty that regards national refugee determinations as constitutive of refugee status must be rejected

Article 1A(2) of the 1951 Convention does not define a lsquorefugeersquo as being a person who has been formally recognized as having a well-founded fear of persecution etc It simply provides that the term shall apply to any person who lsquoowing to well-founded fear of being persecuted rsquo In other words for the purposes of the 1951 Convention and the 1967 Protocol a person who satisfies the conditions of Article 1A(2) is a refugee regardless of whether he or she has been formally recognized as such pursuant to a municipal law process

Logically therefore the existence and extent of international obligations would not appear to be contingent upon national refugee determinations

The second interpretative proposition flows from the principle of pacta sunt servanda the principle underpinning the law of treaties Parties to a treaty must perform their obligations under the treaty lsquoin good faithrsquo150 Applying principles of treaty interpretation in light of the principle of pacta sunt servanda requires the rejection of two untenable interpretations of the relevant provisions of the Refugee Convention

The first untenable interpretation is that a State can have no obligations (beyond non-refoulement) vis-agrave-vis asylum seekers who are ultimately found not to be refugees Interpreting the Refugee Convention in this manner and concluding for example that there exist no procedural obligations in relation to the processing of all asylum claims could lead to injustice151 and compromise the protection of those who (de facto) meet the definition of refugees Such a reading of the text would undermine the object and purpose of the Refugee Convention The other untenable interpretation is that an individual who unsuccessfully seeks refugee status on account of failure to meet the definition of refugee must nonetheless be the beneficiary of all of the obligations owed vis-agrave-vis refugees In addition to lacking support in the text of the Refugee Convention to construe the obligations in this manner appears as noted by Heydon J to create obligations beyond the physical capacity of many states to meet152

149 Lauterpacht and Bethlehem (n 129) 116150 Vienna Convention on the Law of Treaties opened for signature 23 May 1969

1155 UNTS 331 (entered into force 27 January 1980) arts 26 31 see also Foster (n 129) 249

151 This point was recognised by the English Court of Appeal Khaboka v Secretary of State for the Home Department [1993] Imm AR 84

152 M70 (2011) 244 CLR 144 211ndash12 [167]


Between these two extremes the interpretation that best reconciles the competing considerations and accords with the language of the treaty is that suggested by Kiefel J153 Parties to the Refugee ConventionProtocol are obliged to accord those substantive and procedural rights to all asylum seekers as are necessary to ensure the good faith performance of the partiesrsquo protection obligations owed in respect of refugees Comparable observations have been made in England by the Court of Appeal154

Finally the international legal status of the arrangement between Malaysia and Australia on 25 July 2011 had perhaps surprising consequences under Australian administrative law By virtue of clause 16 of the arrangement the agreement was not a treaty155 Due to its non-binding status under international law the arrangement would be characterized by international lawyers as a lsquosoft lawrsquo instrument156 lsquoSoft lawrsquo is not in and of itself legally binding under international law but is capable nonetheless of having legal significance This significance can arise in various ways including in the capacity of lsquosoft law instrumentsrsquo to influence and shape State practice and by the role that lsquosoft lawrsquo sometimes plays when it serves as a focal point for the development of increasing international consensus on an issue157 By virtue of the operation of s 198A the lsquosoft lawrsquo international instrument agreed to by Malaysia and Australia had distinctly hard domestic legal consequences for the legality of executive action under Australian law The irony of this outcome has not been lost on international lawyers

153 ibid 225 [216]154 R v Secretary of State for Social Security Ex parte JCWI [1997] 1 WLR 275

292ndash3155 Clause 16 of the arrangement provided that lsquo[t]his Arrangement represents a

record of the Participantsrsquo intentions and political commitments but is not legally binding on the Participantsrsquo This clause deprived the arrangement of treaty status under international law ndash see Vienna Convention on the Law of Treaties 1969 art 2

156 On soft law instruments under international law see for example D Shelton (ed) Commitment and Compliance The Role of Non-Binding Norms in the International Legal System (Oxford University Press 2000) On the role of soft law within Australian administrative law see for example R Creyke and J McMillan lsquoSoft Law v Hard Lawrsquo in L Pearson C Harlow and M Taggart (eds) Administrative Law in a Changing State Essays in Honour of Mark Aronson (Hart Publishing 2008) It appears unlikely that international lawyers and Australian administrative lawyers have employed the words lsquosoft lawrsquo in the same manner

157 For example in the political declarations adopted by the United Nations General Assembly on the prohibitions of racial discrimination and discrimination against women and on the rights of the child These political declarations preceded the relevant treaties on these topics and appear to have contributed to the development of the consensus necessary to negotiate the treaties


Amending the Migration Act

Following the High Courtrsquos decision in M70 the Commonwealth announced its intention to introduce legislation into Parliament to lsquorestorersquo the Executiversquos power to transfer asylum seekers to third countries for processing158 Draft legislation purported to empower the Minister to designate a third country one to which asylum seekers could be removed for processing (an lsquooffshore processing countryrsquo) if the Minister thought it was in the public interest to make such a declaration159 The Bill stripped out legal and political accountability mechanisms over offshore processing arrangements it excluded the rules of natural justice from the exercise of the Ministerrsquos power and specified that the designation was not a legislative instrument that would be subject to Parliamentary control (disallowance procedure)160 The Bill required certain documents to be laid before Parliament following the Ministerrsquos decision to designate an offshore processing country The purpose of tabling the specific documents was however merely to inform Parliament Failure to comply with this requirement would not affect the validity of the designation

The version of the Bill introduced into Parliament substituted the vague lsquopublic interestrsquo criterion with lsquothe national interestrsquo as the sole condition for exercising the Ministerrsquos power to designate an offshore processing country Ostensibly this placed considerable discretion in the hands of the Immigration Minister but it is worth noting the Federal Courtrsquos observation in Chaudhary v Minister for Immigration and Ethnic Affairs about the meaning of national interest

True national interest has a concern for Australiarsquos name in the world and may at times involve a measure of generosity Certainly it is in Australiarsquos best interests to be seen as civilized and compassionate [hellip] and as willing to accept some of the responsibilities of a leading country in our area of the Pacific161

Additionally provisions were inserted into the Bill requiring the Minister to have regard to whether the third country has given Australia any assurances in relation to non-refoulement and processing arrangements according to the Refugee Convention s 198AB(3) Otherwise the Bill was substantively similar to the initial draft The Opposition was steadfast in its rejection of the Governmentrsquos Bill

158 Prime Minister and Minister for Immigration and Citizenship Legislation to Restore Migration Act Powers Joint Media Release (12 September 2011)

159 The exposure draft of the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 can be accessed via the link referred to in the Legal and Constitutional Affairs References Committeersquos Report on the Malaysian Solution Senate Legal and Constitutional References Committee Australiarsquos Arrangement with Malaysia in relation to Asylum Seekers (Parliament of Australia 11 October 2011) 15 n 14

160 See also Legislative Instruments Act 2003 (Cth) s 42161 (1994) 49 FCR 84 87ndash8


on the basis that it did not require an offshore processing country to be a signatory to the Refugee Convention or Protocol162 Given the Oppositionrsquos clear stance on the Bill before it was introduced into the House the Government suspended the Billrsquos progress through the normal parliamentary process163 Subsequently a private memberrsquos bill164 was introduced into the Parliament165 but this Bill also failed to elicit support from the two main political parties

Regionalism

The necessity for international co-operation in addressing the challenges for states presented by forced migration is recognized in the preamble to the Refugee Convention In the refugee protection context regionalism is shorthand for collective (that is bilateral or multilateral) responsibility-sharing arrangements for processing or resettlement of asylum seekers and refugees166 lsquoRefugee regionalismrsquo can encompass arrangements between states that are neither geographically proximate nor confronting a shared refugee challenge

In practice regional arrangements are generally structured along geographic or socio-political lines167 In the Asia Pacific lsquoregionalrsquo cooperation for refugee protection is very difficult to conceptualize (and operationalize) because the region is not capable of simple geographic and socio-cultural definition There are 44 lsquoBali Processrsquo countries and territories spanning from the US to Syria and most states in between

The embryonic Regional Cooperation Framework for addressing irregular migration and promoting asylum seekersrsquo and refugeesrsquo rights is a significant first step especially when one considers that the countries in the AsiandashPacific region

162 A Kirk lsquoDraft Migration Changes Go Too Far Abbottrsquo AM (ABC News) (17 September 2011) ltwwwabcnetaunews2011-09-16abbott-briefed-on-migration-amendments2903700gt accessed 13 February 2012 T Abbott lsquoIf Julia Gillard was serious about stopping the boats she would support the Coalitionrsquos amendmentsrsquo Media Release (19 September 2011)

163 See House of Representatives Standing and Sessional Orders SO 45164 Migration Legislation Amendment (the Bali Process) Bill 2012165 R Oakeshott lsquoldquoCircuit-Breakerrdquo Private Memberrsquos Bill Introduced to the Housersquo

Media Release (13 February 2012)166 S Kneebone and F Rawlings-Sanaei lsquoIntroduction Regionalism as a Response

to a Global Challengersquo in S Kneebone and F Rawlings-Sanaei (eds) New Regionalism and Asylum Seekers Challenges Ahead (Berghahn Books 2007) 1 1

167 Cartagena Declaration on Refugees Colloquium on the International Protection of Refugees in Central America Mexico and Panama (22 November 1984) ltwwwunhcrorgrefworlddocid3ae6b36echtmlgt accessed 17 September 2012 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa 1969 opened for signature 10 September 1969 1001 UNTS 45 (entered into force 20 June 1974) see also the EU Common European Asylum System (CEAS)


are legally and culturally diverse are not parties to relevant international treaties and have made little or no attempt to provide for the protection of refugees in domestic law168 Viewed in that light it is clear that progress towards the goals of harmonized refugee assessment processes and durable solutions can only be operationalized through bi-lateral or sub-regional arrangements in the foreseeable future

The foregoing context must also be appreciated when comparing and distinguishing the sub-regional bilateral Australian-Malaysian agreement ostensibly negotiated under the auspices of the Regional Cooperation Framework with other prominent regional responsibility sharing arrangements For instance the Dublin Regulation is a binding and detailed multilateral legal framework for determining which EU Member State is responsible for determining a refugee protection claim and provides for the transfer of an asylum seeker to that Member State169

The Regulation tackles the inter-related problems of irregular migration lsquorefugees in orbitrsquo and asylum shopping (multiple asylum applications being lodged in different states) and seeks to promote a fair timely and (cost) efficient pan-European asylum system based on common standards Evidently its operation has not always advanced those values and promoted refugeesrsquo rights However while the present system is imperfect and the need for reform obvious it is premised on some rational principles For example primary importance is attached to the preservation of family unity (and the best interests of children) when determining which state is responsible for processing protection claims Moreover there is a humanitarian clause that enables family members and dependant or vulnerable relatives to be brought together in a single Member State for processing170

Under the terms of the Canada-US Safe Third Country Agreement ndash a bilateral responsibility-sharing arrangement ndash an asylum seeker claiming refugee protection at a land port of entry may be returned to the country they first entered and transited through without a substantive consideration of their refugee claim There are several exceptions to this safe third country removal rule including on family unity grounds for unaccompanied minors and the public interest

168 Taylor (n 52)169 Its underlying premise is that EU member states may be considered as safe

third countries for the purposes of responsibility sharing with respect to refugee claims The European Court of Human Rights determined that Belgium and Greece had breached human rights standards in applying the Dublin Regulation due to the degrading living conditions facing an Afghan upon return to Greece from Belgium MSS v Belgium and Greece Application no 3069609 (21 January 2011)

170 Council Regulation (EC) No 3432003 of 18 February 2003 establishing the criteria and mechanisms for determining the member state responsible for examining an asylum application lodged in one of the member states by a third-country national [2003] OJ L 501 arts 6ndash8 15 (Dublin II Regulation)


Australiarsquos failed transfer arrangement with Malaysia can be distinguished from the European and American models in two important respects First the transfer limb of the arrangement applied indiscriminately to all asylum seekers who arrived in Australia unlawfully by boat whether or not they had previously transited through Malaysia or had some other connection to Malaysia The Australian government had almost absolute discretion to lsquochoosersquo which asylum seekers would be removed to Malaysia subject to the 800-person limit and any objections raised by Malaysia171 Secondly the Malaysian arrangement lacked binding detailed agreement about broader refugee protection issues

By contrast the deliberate progression of a harmonized European asylum system is founded on a number of legislative measures (Directives) that seek to standardize fair and efficient procedures reception conditions and qualification standards for refugee status and subsidiary protection Moreover the US-Canada Agreement is premised on the (admittedly contested) understanding that there are comparable refugee status determination procedures reception and recognition standards between them

Conclusion

This chapter has canvassed different schemes deployed by the Commonwealth as part of a broad strategy to deter and disincentivize irregular maritime migration Until the proposed lsquoMalaysian Solutionrsquo the Commonwealthrsquos approach in the region effectively focussed on immigration control and trans-national crime Policy responses did not address the nexus between the absence of effective protectiondurable solutions for asylum seekersrefugees in Asia Pacific countries (be they countries of first asylum such as Pakistan or transit countriesdeparture points to Australia such as Indonesia and Malaysia) and incidences of secondary migration

As a consequence of the HCA decision in the Offshore Processing Case the differences between the parallel onshoreoffshore administrative schemes for refugee status determination were largely dissolved Moreover in exercising their jurisdiction over administrative action in M70 the HCA held the executive and Parliament to account by ruling that the plain text structure and purpose of the Migration Act pointed to an acceptance of a broad range of obligations owed to refugees and given the gravity of the subject matter strict judicial supervision over the exercise of the declaratory power was warranted The HCArsquos ruling made clear that the language employed in s 198A(3)(a) required lsquodeclaredrsquo countries to accord those persons determined to be refugees an assortment of rights specified in the Refugee ConventionProtocol (that is non-refoulement)

171 Arrangement Between the Government of Australia and the Government of Malaysia on Transfer and Resettlement AustraliandashMalaysia signed 25 July 2011 (not in force) cls 4(1)(b)(i) 4(2)(c)


Accordingly the language of the Migration Act was properly construed to reflect the broad purpose of the Refugee ConventionProtocol set out in its Preamble Moreover legal obligations in the specified state were deemed to be a necessary but not sufficient condition of the legislative criteria because of the potential disjuncture between legal obligations on paper and state practices

Beyond Article 31 (non-penalization on account of illegal entry andor presence) and Article 33 (non-refoulement) the obligations owed to asylum seekers transferred to a specified state was a question left open by the plurality Kiefel J ventured that at the very least refugee status determination by the State was required if protection from refoulement (or the risk of refoulement) for asylum seekers was to be achieved This is an important affirmation of the significance of access to refugee determination procedures which is fundamental to the protection granted by the Refugee Convention


Chapter 10

Revisiting the Concept of Protection in International Refugee Law Implications

of the Protracted Refugee Situation on the ThaindashMyanmar Border

Akiko Okudaira1 and Hitoshi Nasu

Introduction

This chapter revisits the concept of lsquoprotectionrsquo which lies at the heart of international refugee law but is a concept that is becoming a matter of obscurity within the realities of protracted refugee situations (PRSs)2 in which over two-thirds of refugee population are trapped today In the environment of PRSs lives may not be at imminent risk but the refugees find themselves in a long-standing and intractable state of limbo where their basic rights and essential economic social and psychological needs remain unfulfilled after years in exile3 Within this emerging phenomenon the three conventional lsquodurable solutionsrsquo that the international response to refugee crises drew in the past ndash voluntary repatriation of refugees to their country of origin local integration to the country of asylum and resettlement to third countries ndash have functioned only with extreme limitations and appropriate solutions remain to be found

Although almost half the population which is of concern to the UNHCR is from or in Asia4 the region remains a conspicuous zone where the majority of the states are neither party to the 1951 Convention relating to the Status of Refugees nor to

1 The author would like to extend her thanks in particular to Dr Elizabeth Kirton a former Head of UNHCR Field Office in Mae Sot Thailand and Mr Greg Antos the Country Director of World Education Thailand for their guidance and support provided in course of the authorrsquos field research that developed into her contribution to this chapter

2 G Loescher J Milner E Newman and G Troeller lsquoIntroductionrsquo in G Loescher et al (eds) Protracted Refugee Situations Political Human Rights and Security Implications (United Nations University Press 2008) 3ndash6 UNHCR lsquoProtracted Refugee Situations The Search for Practical Solutionsrsquo in The State of the Worldrsquos Refugees (UNHCR 2006) 105

3 Protracted Refugee Situations (UNHCR 2004) 1 ltwwwunhcrorg40c982172pdfgt accessed 12 July 2012

4 H Adelman lsquoProtracted Displacementrsquo in H Adelman (ed) Protracted Displacement in Asia No Place to Call Home (Ashgate Publishing 2008) 1


the Protocol relating to the Status of Refugees5 This chapter focuses on the PRS on the Thai-Myanmar border6 which accommodates at least 120000 documented population in camps7 ndash the largest PRS in East Asia8 Nearly 80 per cent of them are members of the Kayin (or Karen) ethnic group from Myanmar while the remaining population comprises people of other ethnic groups including Kayah (or Karenni) Bama Mon Shan Rakhine (Arakan) Chin and Kachin These people have been residing in nine official camps in remote mountainous areas of Thailand for nearly three decades9 While the encampment has been observed from as early as 1984 the PRS in this area has increasingly drawn international attention in recent years and has attracted the worldrsquos largest third-country resettlement programme10

Nevertheless the programme has not been successful in resolving the situation as a whole due to the systemic asylum issue in Thailand and also somewhat counter-intuitively to the expectations from the international community the persistent resistance against the idea of resettlement among part of the encamped population This chapter examines those two challenges posed to the implementation of the third-country resettlement for the sake of lsquoprotectionrsquo of those asylum seekers as generally understood in international refugee law

The chapter first reviews the meaning of protection as shaped in international refugee law which will then be juxtaposed with realities of the PRS on the Thai-Myanmar border The third section critically examines the idea of third-country resettlement as implemented for those registered in the ThaindashMyanmar border camps questioning the adequacy of a state-centred approach that has predominantly been adopted in lsquosolvingrsquo refugee crises in the past The final section discusses the perspectives of the displaced population themselves as the ground for advancing a

5 Convention relating to the Status of Refugees opened for signature 28 July 1951 189 UNTS 150 (entered into force 22 April 1954) (Refugee Convention) Protocol relating to the Status of Refugees opened for signature 31 January 1967 606 UNTS 267 (entered into force 4 October 1967) (Refugee Protocol) see also SE Davies lsquoThe Asian Rejection International Refugee Law in Asiarsquo (2006) 52(4) Australian Journal of Politics and History 562

6 Myanmar has been used as the official designation of the country having been renamed from its previous designation Burma in 1989 Since then the country has been officially addressed by the United Nations as the Union of Myanmar (Republic of the Union of Myanmar since 2010) While this chapter follows this official designation it does not imply any political connotation

7 TBCrsquos camp population figures (The Border Consortium 2013) lthttptheborderconsortiumorgcampspopulationshtmgt accessed 18 May 2013

8 S Banki and H Lang lsquoProtracted Displacement on the Thai-Burmese Border The Interrelated Search for Durable Solutionsrsquo in H Adelman (ed) Protracted Displacement in Asia No Place to Call Home (Ashgate 2008) 59

9 A Brief history of the Thailand Burma Border Situation (The Border Consortium 2013) lthttptheborderconsortiumorgcampshistoryhtmgt accessed 18 May 2013

10 Thailand Resettlement of Myanmar refugees hits 50000 mark (UNHCR 2009) ltwwwunhcrorg4a49dcdd9htmlgt accessed 2 August 2012

Revisiting the Concept of Protection in International Refugee Law 173

human-centred approach to PRSs through their experience on the ThaindashMyanmar border

The Notion of lsquoProtectionrsquo under International Refugee Law

Article 1 of the Refugee Convention which defines lsquorefugeersquo has arguably provided one of the most influential common grounds for discussion in relation to the lsquoprotectionrsquo to which a lsquorefugeersquo is entitled to enjoy11 However there is no singular definition for the term lsquoprotectionrsquo under international law even though it is intimately associated with lsquorefugeersquo and has been in frequent use as such This is despite the fact that protection forms lsquothe essence of Statesrsquo obligation vis-agrave-vis refugeesrsquo12

Goodwin-Gill describes protection as lsquoa term of artrsquo that has been obscuring lsquothe scope of an activity that ought to be fundamentally clearrsquo13 Although lsquoprotection is based on lawrsquo at its heart14 it has also become lsquoone of those ubiquitous words that can convey different meanings to different people even amongst humanitarians let alone within governments and their military forcesrsquo15 Protection thus must be understood as a highly contextual term

In the realm of international refugee law protection comprises two elements the threshold qualification (refugee) and the rights that attach to the qualification (status) As McAdam observes lsquohow these two elements are defined in international law at any given time crystallizes a particular conceptualization of refugee protectionrsquo16 A refugee according to the Refugee Convention and Refugee Protocol is defined as a person who

11 SS Juss International Migration and Global Justice (Ashgate Publishing 2006) 187 S Kneebone lsquoMoving Beyond the State Refugees Accountability and Protectionrsquo in S Kneebone (ed) The Refugee Convention 50 Years On Globalisation and International Law (Ashgate 2003) 279 F Sztsucki lsquoWho is a refugee The Convention definition universal or obsoletersquo in F Nicholson and PP Twomey (eds) Refugee Rights and Realities Evolving International Concepts and Regimes (Cambridge University Press 1999) 55 UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (UNHCR 2011)

12 J McAdam Complementary Protection in International Refugee Law (Oxford University Press 2007) 19

13 GS Goodwin-Gill lsquoThe Language of Protectionrsquo (1989) 1(1) International Journal of Refugee Law 6

14 MG Smith Sharing the protection space Can the military and humanitarians work together Paper to Protection in Action Humanitarian Response in Armed Conflict Conference Melbourne University (23 February 2006) 3

15 ibid 216 McAdam (n 12) 20


owing to a well-founded fear of being persecuted for reasons of race religion nationality membership of a particular social group or political opinion is outside the country of his [or her] nationality and is unable to or owing to such fear is unwilling to avail himself of the protection of that country

Thus the lack or denial of national protection is a central constituent element of the refugee definition which automatically implies the need for international protection17 The Refugee Convention also specifies the rights to be accorded to persons recognized as refugees by the Contracting States As such the substance of protection under international refugee law begins by determining who is a refugee and by ensuring that the refugee rights stipulated in the Convention are respected The underlying norm that bolsters the development of international protection of refugees lies with the idea of human rights insofar as a majority of the rights accorded to refugees in the Refugee Convention are also the lsquofundamental rights stated in the 1948 Universal Declaration of Human Rightsrsquo18

Applying this idea of protection under international refugee law to the encamped population on the ThaindashMyanmar border however is not straightforward given that Thailand is not a party to either the Refugee Convention or its Protocol Neither is there any Thai domestic law that corresponds to international obligations for refugee protection19 Nevertheless Thailand is considered to be bound by the principle of non-refoulement as the core principle under international refugee law that prohibits states from returning asylum seekers to countries or territories where their life or liberty would be threatened is widely accepted as a rule of customary international law20 Non-refoulement constitutes a passive element of refugee protection ndash protection from persecution ndash which is based on lsquoan assumption that the person concerned is worthy of being and ought to be assisted and if necessary protected from the cause of flightrsquo21

The PRS is a result of asylum seekers being trapped in this legal limbo between the two legal regimes that exist for refugee protection Thailand is obliged not to send them back to Myanmar where they would face a fear of persecution under customary international law but is not required to provide any greater protection than that for them as refugees The practice of prolonged encampment results

17 A Fortin lsquoThe Meaning of ldquoProtectionrdquo in the Refugee Definitionrsquo (2001) 12(4) International Journal of Refugee Law 548 GS Goodwin-Gill and J McAdam The Refugee in International Law (Oxford University Press 2007) 6 McAdam (n 12) 20

18 UNHCR Refugee Protection A Guide to International Refugee Law (UNHCR 2001) 16

19 G Loescher and J Milner lsquoBurmese refugees in South and Southeast Asia A comparative regional analysisrsquo in G Loescher et al (eds) Protracted Refugee Situations Political Human Rights and Security Implications (United Nations University Press 2008) 303 327

20 Goodwin-Gill and McAdam (n 17) 345ndash54 cf JC Hathaway The Rights of Refugees (Cambridge University Press 2005) 363ndash367

21 Goodwin-Gill (n 13) 1


in the PRS wherein refugees are unable to break free from enforced reliance on external assistance22 Under such conditions the international legal system designed to protect the rights of refugees paradoxically traps those asylum seekers in camps for a significant period of time with highly restricted opportunities for employment education and welfare let alone freedom of movement ndash all of which are promised in the Refugee Convention

In the past the majority of the refugees in Thailand were the Indochinese refugees from Cambodia Laos and Vietnam arriving during the largest refugee crisis in the Southeast Asian region between 1975 and 1996 Despite the mass influx of refugees from these countries Thailand refused to sign the Refugee Convention and the Refugee Protocol This is primarily because Thai authorities have considered that as these international instruments are European-centric in origin and nature they are not relevant to the experiences in Southeast Asia Another contributing factor is the fact that the Indochinese refugee crisis became such a prominent international issue that the lsquointernational communityrsquos willingness to take on the [hellip] burden at that time helped to absolve Southeast Asian states from any sense of obligation or responsibilityrsquo23

The Protracted Refugee Situation on the ThaindashMyanmar Border

Amongst the lsquorefugeesrsquo remaining in Thailand today ndash almost all of whom originate from Myanmar ndash most are living in the nine official camps located along the western border of Thailand24 With the announcement of the Royal Thai Government in 2003 the refugees and people of concern from Myanmar in Thailand registered under the UNHCR have no longer been permitted to remain in the urban areas and therefore all of them have been principally relocated to the camps along the ThaindashMyanmar border by March 200525 All nine camps have been administered by the Royal Thai Government under the auspice of the Ministry of Interior Each camp is led by the Camp Commander deployed by the Ministry which is also responsible for the internal security of the camps in coordination with the camp committees comprising the refugee population themselves The security outside the camps on the other hand is overseen by Thai paramilitary forces

In the language of the Royal Thai Government those asylum seekers from Myanmar have been referred to variably as lsquodisplaced personsrsquo lsquopeople fleeing from fightingrsquo and people lsquofleeing persecution or for other reasons which have

22 UNHCR (n 3) 123 SE Davies Legitimising Rejection International Refugee Law in Southeast Asia

(Martinus Nijhoff Publishers 2008) 22524 UNHCR Thailand Website (UNHCR 2012) lthttpunhcrorthaboutthailandgt

accessed 4 August 201225 UNHCR Notice to all Myanmar POCs (UNHCR 2005)


become threat for life [sic] of an individualrsquo26 but not as lsquorefugeesrsquo The same logic applies to the term lsquorefugee camprsquo to which the Royal Thai Government refers as a lsquotemporary shelterrsquo27 This perception which has developed from the historical context and consequent reasoning constructed towards refugee assistance derives from the understanding that asylum in Thailand is principally offered on a temporary basis and the refugees are expected to eventually leave the country The state-controlled encampment of those asylum seekers results in a fundamental conceptual challenge to the idea of lsquoprotectionrsquo under international refugee law posing restrictions on international protection provided through the UNHCR operating within the Thai territories

The challenge lies not only in the different terminologies used but also in the difference of status accorded to people from Myanmar residing in Thailand despite the lsquosimilarities in reasons and routes of migrationrsquo28 The primary process for an asylum seeker who arrives in the camps to gain access to international protection is lsquoregistrationrsquo which operates through collaborative management between the UNHCR and the Thai Ministry of Interior The UNHCR started the registration process in 1999 in cooperation with the Ministry of Interior shortly after its entry into the ThaindashMyanmar border and has continued to conduct its regular update on a monthly basis The UNHCR determines the prima facie refugee status of all registered residents from Myanmar in the nine camps on a provisional basis29 The registered individuals are then submitted for refugee status determination carried out by Provincial Admission Boards the national asylum system established by the Royal Thai Government in each of the three provinces bordering Myanmar Mae Hong Son Tak and Kanchanaburi The criteria for refugee status determination by the Provincial Admission Boards have gradually been aligned to the definition of refugees under international refugee law30

Upon establishment of this national asylum registration system the Royal Thai Government has also agreed to issue identity cards for the registered individuals31 Asylum seekers would be categorized as lsquoillegal migrantsrsquo if they are not registered The Provincial Admission Boards have however functioned only intermittently ndash they have become inactive since 2005 with only some exceptional cases being processed This has consequently left the majority of new arrivals in the camps thereafter unregistered32

Therefore the lsquounregisteredrsquo residents are in large part those who have arrived in camps after 2005 when the Provincial Admission Boards became

26 GVK Reddy Thailandrsquos Refugee Policy (Sri Venkateswara University 2009) 2927 ibid 328 P Koetsawang In Search of Sunlight Burmese Migrant Workers in Thailand

(Orchid Press 2001) 7529 UNHCR Protecting Refugees A Field Guide for NGOs (UNHCR 2001) 12930 UNHCR UNHCR Regional Office Thailand Fact Sheet (UNHCR 2007)31 UNHCR UNHCR Protection Program for Thailand in 2006 (UNHCR 2006) 432 Programme Report 2011 July to December (The Border Consortium 2011) 6


inactive There are also some residents who arrived in camps before 2005 but have not been registered only because they failed to attend the registration in the past This is partly due to their lack of understanding of the importance of registration influenced by the culture in their places of origin where there are very limited practices of registration

Consequently as the number of asylum seekers from Myanmar continuously grows the encamped population has been divided into two distinct categories the registered and the unregistered33 Populations in those categories comprise both those willing and unwilling to resettle in third countries The camps have thus continued to accommodate these mixes of remaining population ever since the large-scale resettlement programme commenced Moreover even though a substantial number of the selected residents have already left for resettlement the total figure of camp population along the ThaindashMyanmar border has not decreased noticeably34 This is due to the growing number of new asylum seekers constantly entering into the camps from Myanmar It is also estimated that the ThaindashMyanmar border represents one of the prominent zones within Asia that embraces lsquoa large number of people who could claim refugee status but do not do sorsquo35 given the large groups of population from Myanmar remaining outside of the official camps after their arrival in Thailand

The multifaceted characteristics of PRSs in this specific context make the meaning of protection all the more obscure The inquiry is entangled with different notions and expectations for protection envisaged by the international community and the host state as well as the displaced persons themselves

The Third-Country Resettlement A State-Centred Approach to lsquoProtectionrsquo

Although Thailand does not wish to remain lsquoan indefinite host and refugees cannot live indeterminately as temporary guestsrsquo36 the country has over the past decades continuously accommodated a significant number of lsquode facto refugeesrsquo ndash both registered and unregistered asylum seekers who have not been accorded a de jure refugee status ndash who crossed the border from Myanmar onto Thai soil

In contrast to the international attention given to the Indochinese refugee crisis in the past the situation on the ThaindashMyanmar border had received lsquovery little

33 In addition there are a limited number of people under the category of lsquopending PAB considerationrsquo

34 The Border Consortium (n 7) 35 Davies (n 23) 236 HJ Lang The repatriation predicament of Burmese refugees in Thailand a

preliminary analysis (UNHCR 2001) 1 ltwwwunhcrorg3b7d24214htmlgt accessed 12 July 2012


external interest or active political engagementrsquo until recently37 This situation has changed since mid-2005 when the major shift towards a long-term solution was inaugurated in the form of a third-country resettlement programme offered by some developed countries such as the US Due to the continuing political instability and insecurity in their country of origin Myanmar repatriation had not been considered feasible as yet Moreover as has been explained in the previous section there had been no authorized opportunity for local integration into the first country of asylum Thailand Consequently the existing conditions had left only one workable option under the traditional paradigm of refugee protection resettlement to third countries

The large-scale resettlement programme commenced in the year following the 30th Meeting of the UNHCR Standing Committee held in June 2004 when the PRS came to be seen as a major problem In this meeting the situation on the ThaindashMyanmar border was listed amongst the 33 cases of PRSs identified by the UNHCR based on an arbitrary criterion of lsquorefugee population of 25000 persons or more who have been in exile for five or more years in developing countriesrsquo38

The prolonged encampment on the ThaindashMyanmar border has represented a significant case of a PRS raising serious concerns about its implications for human rights of those encamped39 As a result the multilateral initiatives have led to the largest resettlement programme in the history of the UNHCR since 200540 which has provided lsquosolutions for more than 80000 individualsrsquo41 The major destinations for resettlement include Australia Canada Finland the Netherlands Sweden Norway the UK and the US while Bulgaria Czech Republic France Japan Portugal Romania and Spain recently became new resettlement countries42

Resettlement has served as a vital tool of protection for the encamped population In fact an increasing number of camp residents from the ThaindashMyanmar border have chosen to participate in this programme Yet there are two significant issues in providing protection for those encamped on the Thai-Myanmar border First the lsquounregisteredrsquo population has been excluded from a third-country resettlement programme due to the registration procedure implemented by the Thai authorities

37 G Loescher and J Milner Protracted Refugee Situations Domestic and International Security Implications (Routledge 2005) 60

38 UNHCR (n 3) 239 K Young lsquoHuman rights aspects of the refugee situation in Thailandrsquo (2006)

Human Rights Tribune lthttps3amazonawscommigrants_heroku_productiondatas209Buhler_2006_originalpdf1312641082gt accessed 18 May 2013

40 UNHCR (n 10)41 UNHCR 2013 UNHCR country operations profile ndash Thailand (UNHCR 2013)

ltwwwunhcrorgpages49e489646htmlgt accessed 18 May 201342 UNHCR UNHCR Thailand and Japanrsquos Pilot Resettlement Program (UNHCR

2010)ltwwwunhcrorjpprotectpdfOliver-Epdfgt accessed 12 July 2012 UNHCR

lsquoResettlement Statistics in Thailandrsquo UNHCR Thailand Website lthttpwwwunhcrorthnewsstatistics366gt accessed 30 June 2012


Second there have been a substantial number of people who are unwilling to resettle in third countries

Such unwillingness became evident during the implementation process of the programme which as reported by Banki and Lang lsquomoved slowly partially because refugeesrsquo preference is generally to return to their home countryrsquo43 The third-country resettlement in this context for some may represent lsquoa real break from the longstanding dream of returning that they do not want to give up the struggle and that they have sensible questions about what life will be like once they moversquo44 The reasons behind the resistance towards resettlement may well be diverse yet provide insight in revisiting the concept of protection in light of the PRS While the idea of protection embedded in the third-country resettlement has been regarded as a durable solution this episode indicates a limit to the state-centred approach to international refugee law45

It is to be recalled that international protection was originally intended to provide a lsquotemporary substitute for the normal protection afforded by the States of nationality until the refugee can again benefit from national protection ndash either by returning voluntarily to hisher country or by assuming a new nationalityrsquo46

Indeed the lsquotemporalityrsquo of the displacement situation on the ThaindashMyanmar border seems to be lsquono end in sightrsquo The third-country resettlement programme has therefore provided a breakthrough in the long-standing cul-de-sac by expanding the lsquoprotection spacersquo to multiple states and it is presumed that the needs will continue to grow47 However considering the fact that the opportunity is given exclusively to a limited number of the wider displaced population along the ThaindashMyanmar border as well as the reality of continuous flows of new arrivals resettlement on its own is highly unlikely to provide a durable solution for the PRS as a whole

Towards a Human-Centred Approach to lsquoProtectionrsquo

The international protection of refugees has traditionally been understood by reference to the municipal relationship between an individual and a sovereign

43 S Banki and H Lang Planning for the Future The Impact of Resettlement on the Remaining Camp Population (Commissioned by Committee for Coordination of Services to Displaced Persons in Thailand [CCSDPT] 2007) 3

44 ibid45 T Aleinikoff lsquoState Centred Refugee Law From Resettlement to Containmentrsquo

(1992) 14 Michigan Journal of International Law 12046 UNHCR Regional Centre for Emergency Training in International Humanitarian

Response Asia amp Pacific Workshop Guide Basics of International Humanitarian Response (UNHCR 2003) 126

47 UNHCR UNHCR Projected Global Resettlement Needs 2013 (UNHCR 2012) 10


state The protection that arises under international law inevitably carries with it the idea of the sovereign right of a state to decide who will enter its borders48 The international refugee protection regime thus created can also be considered to be lsquounilateralismrsquo of the international system excluding asylum seekers and refugees themselves from being part of the interpreting process of protection ndash the very term that determines their own fate49 While the phenomenon of refugees has predominantly been narrated through the lenses of the international system and sovereign states failure to sufficiently incorporate the perspectives of refugees themselves into the interpreting processes of protection may overlook what refugees themselves actually require or desire50 What is believed to be a durable solution by international actors may not necessarily correspond to what refugees themselves would see as a solution to the PRS

More importantly unwillingness of some camp population even those registered and eligible to participate in a third-country resettlement programme clearly indicates that resettlement is not necessarily the only form of protection that refugees under the PRS are envisaging While some continue to wait unswervingly for the repatriation opportunity back to their country of origin others look for ways in which they could somehow remain in the host state Thailand hopefully with better rights and greater freedom This is most likely because they have established the most familiar environment and community where they have spent the past decades of their lives Since the idea of protection in the context of the PRS on the ThaindashMyanmar border can be diversely understood the solutions to the challenge also seem to require a multifaceted approach Such approach becomes all the more crucial as the ongoing political transition progresses in Myanmar especially in the circumstances at any point in the future where repatriation may become a feasible option for them

A non-traditional human-centred approach is essential in addressing the legal lacunae that has resulted in the PRS particularly in Asian countries which are unwilling to ratify the Refugee Convention A human-centred approach to refugee protection can find its support in the concept of human security51 which has been widely embraced by Asian states since the economic crisis of the late 1990s52 Thailand along with Japan has been the driving force in promoting the concept in

48 JC Hathaway The Law of Refugee Status (Butterworths 1991) 12449 BS Chimni lsquoReforming the International Refugee Regime A Dialogical Modelrsquo

(2001) 14(2) Journal of Refugee Studies15250 P Nyers Rethinking Refugees Beyond States of Emergency (Routledge 2006)

123ndash3151 United Nations Development Programme Human Development Report 1994

(United Nations 1994) 2252 A Acharya lsquoHuman Security East versus Westrsquo (2001) 56 International Journal

442 448


Asia53 Since 2005 ASEAN has increasingly recognized human security in major policy agendas54

Although the concept remains controversial in many respects55 human security at its core means the protection of people from critical and pervasive threats or situations along with empowerment of people to enhance their potential through concerted efforts to develop norms processes and institutions that systematically address insecurities56 It is with these dual strategies ndash protection and empowerment ndash that the concept of human security is constituted which means that lsquo[n]ot only is this a conceptual shift from viewing refugees as protection seekers and therefore often as burdens on the host State but equally as persons capable of contributing positively to their host communitiesrsquo57 This would allow the host state to consider more creatively and strategically about refugees as human resources

While national security concerns pose a growing threat to the international refugee law regime the concept of human security could be applied to counter the national security argument58 More recently it has been argued that the lsquoresponsibility to protectrsquo concept which originates from the concept of human security and was unanimously endorsed by the world leaders in 200559 imposes a positive obligation on states to provide asylum to victims andor potential victims of mass atrocities60

53 PM Evans Human Security and East Asia In the Beginning (2004) 4 Journal of East Asian Studies 263

54 Y Nishikawa Human Security in Southeast Asia (Routledge 2010) B Saul lsquoThe Dangers of the United Nationsrsquo ldquoNew Security Agendardquo ldquoHuman Securityrdquo in the Asia-Pacific Regionrsquo (2006) 1(1) Asian Journal of Comparative Law 1 11

55 UN General Assembly General Assembly Thematic Debate on Human Security (2008) ltwwwunorggapresident62ThematicDebateshumansecurityshtmlgt accessed 12 July 2012 G King and CJL Murray lsquoRethinking Human Securityrsquo (2002) 116 Political Science Quarterly 585 Acharya (n 52) 443

56 Commission on Human Security Human Security Now (2003) lthttpochaonlineunorghumansecurityCHSfinalreportindexhtmlgt accessed 12 July 2012 RA Falk lsquoPursuing the Quest for Human Securityrsquo in M Tehranian (ed) Worlds Apart Human Security and Global Governance (IB Tauris 1999) 1ndash22 SN MacFarlane and YF Khong Human Security and the UN A Critical History (Indiana University Press 2006) B von Tigerstrom Human Security and International Law Prospects and Problems (Hart Publishing 2007) 7ndash26 S Tadjbakhsh and AM Chenoy Human Security Concepts and Implications (Routledge 2007)

57 A Edwards lsquoHuman Security and the Rights of Refugees Transcending Territorial and Disciplinary Bordersrsquo (2009) 30 Michigan Journal of International Law 763 805

58 ibid 801ndash80359 UN General Assembly lsquoResolution 601 UN Doc ARES601 (16 September

2005) [138]ndash[139]60 B Barbour and B Gorlick lsquoEmbracing the ldquoResponsibility to Protectrdquo A Repertoire

of Measures Including Asylum for Potential Victimsrsquo (2008) 20 International Journal of Refugee Law 533 564ndash5


Lang observes that due to the narrow scope and inadequacy of the protection system outlined in the Refugee Convention lsquothe willingness of states to be more or less flexible concerning asylum-seekers in practice [hellip] comprises the key element of refugee protectionrsquo61 Thailand has hosted more than 13 million refugees62 and has indeed lsquodemonstrated such flexibility in practicersquo63 Reflecting upon the flexibility that has historically been demonstrated in Thailand a human-centred approach to protection in the PRS therefore is better suited as the conceptual framework for bringing Asian states together particularly at the initiative of Thailand

Such an initiative should develop to include regional strategies and protection standards for the displaced population In particular there is a need for the refugee determination process to better accommodate individual needs and circumstances Moreover continuous investment and support in education would provide them with lsquofreedom ndash through knowledge public expression and democratic debate ndash to promote their human security and of othersrsquo64 An even more radical step can be taken if the state is prepared to allow lsquoan orderly transition from a closed-camp model to an open-camp model that empowers refugees to become self-sufficientrsquo which not only provides refugees with rights to move around and work but to prepare them for successful reintegration in Myanmar when repatriation becomes feasible in the future65

It is thus arguable that while international refugee law has provided a critical common ground for discussion our understanding of protection needs to be expanded from the traditional state-centred framework provided by the Refugee Convention in favour of a more human-centred approach that better accommodates individualsrsquo needs and circumstances This nexus between the legal framework and the realities could also bring implications in considering todayrsquos critical protection issues surrounding refugees ndash including protection of migrant workers and asylum seekers living outside camps as well as internally displaced persons (IDPs) remaining in the country of origin66

61 HJ Lang Fear and sanctuary Burmese refugees in Thailand (Ithaca Cornell Southeast Asia Program 2002) 84

62 UNHCR (n 30)63 Lang (n 61) 8264 Commission on Human Security (n 56) 11565 B Frelick lsquoGiving refugees hope beyond the campsrsquo Bangkok Post (8 September

2012) ltwwwhrworgnews20120909giving-refugees-hope-beyond-campsgt accessed 26 November 2012

66 G Gilbert lsquoImplementing protection What refugee law can learn from IDP lawhellipand vice versarsquo in G Gilbert F Hampson and C Sandoval (eds) The Delivery of Human Rights Essays in Honour of Professor Sir Nigel Rodley (Routledge 2011) 198 K Koser lsquoInternally Displaced Personsrsquo in A Betts (ed) Global Migration Governance (Oxford University Press 2011) HJ Lang lsquoldquoFreedom from fearrdquo conflict displacement and human security in Burma (Myanmar)rsquo in A Bruke and M McDonald (eds) Critical Security in the Asia-Pacific (Manchester University Press 2007) A South lsquoThe Politics of Protection in


Conclusion

This chapter has examined how the concept of protection envisaged in international refugee law is challenged by the realities of contemporary refugee issues with a particular focus on the PRS on the Thai-Myanmar border By critically examining the large-scale resettlement programme as a state-centred approach to refugee protection under the PRS the chapter has identified the need for advancing a human-centred approach in searching the ways in which the encamped population themselves make sense of protection This finding also indicates that since the idea of protection is context-dependent the protection of refugees as understood in international refugee law also needs to be flexibly considered in light of the circumstances in which asylum seekers and refugees are placed

The dynamics and complexity of diverse local contexts in which PRSs emerge cannot be addressed by a generalized monolithic understanding of refugee protection67 The lsquosituation-specificityrsquo has been constantly challenging the presupposed lsquouniversalityrsquo framed in international refugee law68 The chapter has reinforced the view that the idea of protection needs to be understood in the particular context of each PRS arguing that a human-centred approach is crucial in understanding the gap between what international refugee law aims for how the host state should manage the situation and most importantly how the refugees themselves see the situation should be addressed

Burma Beyond the Humanitarian Mainstreamrsquo (2012) 44(2) Critical Asian Studies 175ndash203 UNHCR Refugee Protection and Durable Solutions in the Context of International Migration Report on the High Commissionerrsquos Dialogue on Protection Challenges December 2007 (UNHCR Policy Development and Evaluation Service 2008) 23ndash31

67 G Loescher lsquoBook Reviews Protracted Displacement in Asia No Place to Call Home Edited by H Adelman Aldershot Ashgate 2008rsquo (2010) 23(1) Journal of Refugee Studies 107 108

68 D Yanow lsquoAccessing Local Knowledgersquo in MA Hajer and H Wagenaar (eds) Deliberative Policy Analysis Understanding Governance in the Network Society (Cambridge University Press 2003) 228 229ndash30 LH Malkki lsquoRefugees and Exile From ldquoRefugee Studiesrdquo to the National Order of Thingsrsquo (1995) 24 Annual Review of Anthropology 495 496


Chapter 11

Internally Displaced Persons in Northern Thailand Involuntary Relocation and the

Need for RegulationPhotchanat Intaramanon

Introduction

This chapter explores issues associated with resettling internally displaced persons (IDPs) in Northern Thailand It considers the role of the Guiding Principles on Internal Displacement1 and the laws and regulations in place in Thailand for IDPs Although Thailandrsquos Constitution provides rights to all Thai people these rights are not well understood by IDPs As a result these population groups have been displaced in the highland communities of Thailand in order to create nature reserves or national parks Relocated to unproductive soil IDPs are limited in the agricultural returns they may generate Additionally relocations have significant ramifications on IDPsrsquo livelihoods and cultural identities To illustrate this situation two case studies on the villages of Huai Wad and Huai Ja Kan are examined in relation to involuntary relocation subsequent living conditions and IDPsrsquo multiple attempts to return home Finally recommendations are presented based on the case studies

Internally displaced persons (IDPs) are widely defined as lsquopersons who have been forced to flee their homes suddenly or unexpectedly in large numbers as a result of armed conflict internal strife systematic violations of human rights or natural or man-made disasters and who are within the territory of their own countryrsquo2 The Guiding Principles on Internal Displacement (Guiding Principles) were established when the need for protection of IDPs became visible in the 1990s The International Displacement Monitoring Centre has noted that the number of people relocated within countries is substantially increasing due to armed conflict ethnic strife and human rights abuses Internal displacement figures soared from

1 FM Deng lsquoGuiding Principles on Internal Displacementrsquo ECN4199853Addl (United Nations 2004)

2 Analytical Report of the Secretary-General on Internally Displaced Persons ECN4199223 (14 February 1992 [17]


12 million IDPs in 11 countries in 1982 to approximately 20ndash25 million IDPs within more than 40 countries in 19953

The Guiding Principles although not binding are based upon international humanitarian human rights and analogous refugee law and serve as an international standard in providing assistance and protection to IDPs The Guiding Principles identify the rights and guarantees relevant to the protection of IDPs in all phases of displacement Specifically they provide protection against arbitrary displacement offer a basis for protection and assistance during displacement and set forth guarantees for safe return resettlement and reintegration4

The Guiding Principles approach displacement from the perspective of the needs of IDPS which have been described in field reports5 The Guiding Principles identify the rights and guarantees which when fully observed and respected can prevent arbitrary displacement and address the IDPsrsquo needs for protection assistance and solutions The Guiding Principlesrsquo focus on IDPsrsquo needs is evident as it is structured around the phases of internal displacement

The 30 principles are divided into five sections In the first section titled lsquoGeneral Principlesrsquo they state that national governments and other authorities must ensure that displaced persons are afforded the same rights as other citizens of the same country The second section lsquoPrinciples relating to Protection from Displacementrsquo urges protection from arbitrary displacement and violent treatment The third section lsquoPrinciples relating to Protection during Displacementrsquo emphasizes that the IDPs also enjoy universal rights such as family life livelihood and free association The fourth section lsquoPrinciples relating to Humanitarian Assistancersquo analyses the responsibilities of national governments that are collaborating with humanitarian agencies and statutory protection bodies Finally the fifth section lsquoPrinciples relating to Return Resettlement and Reintegrationrsquo discusses the IDPsrsquo rights to return such as the right to not be discriminated against as well as assistance to recover or be compensated for lost property6

IDPs must rely on rights articulated in the constitution and legislation of their country of citizenship or residence in order to give effect to these obligations Thus it is crucial that national authorities confront human rights issues and recognize that it is their responsibility to provide protection to citizens who have been displaced within their countries The IDP situation is of particular concern as in many cases the governments themselves are the cause of the relocation7

3 International Displacement Monitoring Centre Guiding Principles on Internal Displacement (nd) ltwwwinternal-displacementorggt accessed 12 June 2012

4 UNHCR Principles on Internal Displacement ECN4199853Add2 (UNHCR 1998) ltwwwunhcrorgrefworlddocid3c3da07f7htmlgt accessed 29 August 2012

5 Deng (n 1)6 J El-Bushra and K Fish Refugees and Internally Displaced Persons (2004) lthttp

wwwhuntalternativesorgdownload40_refugeespdfgt accessed 12 June 20127 C Brun Internal Displacement Forced Migration Online (2005) ltwww

forcedmigrationorgresearch-resourcesexpert-guidesinternal-displacementgt accessed

Internally Displaced Persons in Northern Thailand 187

Unfortunately international mechanisms can only provide recommendations to domestic authorities in the hopes that the power of publicity will persuade them to comply8

Rights Afforded to IDPs under Thailandrsquos Domestic Law

Many IDPs in Thailand are unaware of their rights and there are many obstacles to the realization of such rights Thailand does not have domestic laws or policies on the rights of IDPs However IDPs are protected by Thailandrsquos Constitution9

Chapter I General ProvisionsSection 4 The human dignity rights and liberties and equality of the people shall be protectedSection 5 The Thai people irrespective of their origins sexes or religions shall enjoy equal protection under this ConstitutionChapter III Rights and Liberties of the Thai PeoplePart 2 EqualitySection 30 All persons are equal before the law and shall enjoy equal protection under the law Men and women shall enjoy equal rights Unjust discrimination against a person on the grounds of the difference in origin race language sex age disability physical or health condition personal status economic or social standing religious belief education or constitutionally political view shall not be permitted Measures determined by the State in order to eliminate obstacles to or to promote personsrsquo ability to exercise their rights and liberties in the same manner as other persons shall not be deemed as unjust discrimination under paragraph threePart 10 Rights in connection with Information and ComplaintsSection 57 A person shall have the right to receive data explanations and reasons from a Government agency a State agency a State enterprise or a local government organization prior to the approval or the operation of any project or activity which may affect the quality of the environment health and sanitary conditions the quality of life or any other material interest concerning such person or a local community and shall have the right to express his or her opinions to agencies concerned for assisting further consideration of such

12 March 20128 D Fisher Guide to International Human Rights Mechanisms for Internally

Displaced Persons and their Advocates (2006) ltwwwbrookingsedufpprojectsidpHuman_Rights_Mechanisms_for_IDPspdfgt accessed 8 February 2012

9 Constitution of the Kingdom of Thailand [Thailand] BE 2550 (Thailandrsquos Constitution) (2007) 2 (4 August 2007) ltwwwsenategothth_senateEnglishconstitution2007pdfgt accessed 9 February 2012


matters In planning social economic political and cultural development or in undertaking expropriation town and country planning zoning and making by-laws likely to have impacts on essential interests of the public the State shall cause to be held comprehensive public hearings prior theretoSection 58 A person shall have the right to participate in the decision-making process of State officials in the performance of administrative functions which affect or may affect his or her rights and liberties

Thailand also ratified the International Covenant on Civil and Political Rights (ICCPR) on 29 October 1996 which requires states to respect and ensure the human rights of lsquoall individuals within its territoryrsquo10

The Handbook for applying the Guiding Principles on Internal Displacement11 recommends the field staff of development human rights and humanitarian agencies to promote the Guiding Principles by disseminating the Guiding Principles and its information in languages of the IDPs and relevant authorities In an attempt to introduce the rights of IDPs the Human Right Commission of Thailand translated the UN Guiding Principles on Internal Displacement and the Handbook into the Thai language and distributed the translated documents to relevant organizations The translation was also simplified and supplemented with ethnic language descriptions of Lahu Mien and Lisu in order to provide the communities of IDPs as well as other ethnic highlandersrsquo communities with more information on their rights as IDPs After trialling the documents in IDPs communities it was found that the level of knowledge was at the awareness level12

Internal Displacement in Thailand

There is no comprehensive documentation detailing the situations and numbers of IDPs in Thailand However a study reveals that there were 10 highland communities of 740 households in northern Thailand with a population of 2969 IDPs during the period 2005ndash200613

10 National Human Rights Commission of Thailand International Obligations International Covenant on Civil and Political Rights-ICCPR (2012) ltwwwnhrcorth2012wbthcontentpagephpid=21ampmenu_id=2ampgroupID=8gt accessed 13 February 2012

11 The Brookings Institution Project on Internal Displacement The Guiding Principles on Internal Displacement (2012) ltwwwbrookingseduaboutprojectsidpgp-pagegt accessed 4 April 2012

12 National Human Rights Commission of Thailand The Internally Displaced Person Networking in Northern Thailand Processes and Mechanisms to access rights indicating in the Guiding Principles on Internal Displacement

(National Human Rights Commission of Thailand 2008)13 National Human Rights Commission of Thailand A Comparative Study through

Enhancing Process on Rights to Life and Rights to Self Determination for Internally


The literature review of Kamphaeng Phet cases14 and field surveys under the IDPs project reveal that 988 households and 4326 people from highland communities were involuntarily relocated from their homeland during 1981ndash2005 The main reason for involuntary relocations in Thailand were government policies of state security and forest preservation legislation15 and government policies on the lsquowar on drugsrsquo16 as shown in Table 111 (overleaf)

IDPsrsquo Situation in the Relocation Sites

The living conditions at these relocation sites are sub-standard Practicing social and cultural traditions from their homelands is rare which also results in a loss of identity As IDPs also have difficulties integrating with local people they ultimately develop a sense of hopelessness and desire to return to their homeland This situation has been repeated in many places and the state authorities generally ignore the plight of these people17

Substandard living conditions The relocation sites for IDPs are not well prepared with inadequate basic infrastructure such as roads and electricity There are also agricultural problems such as inadequate access to safe water supplies and poor soil condition These issues have a direct impact upon the food security and income levels of the IDPs Such substandard living conditions may breach several sections of Thailandrsquos Constitution such as section 4rsquos guarantee of dignity Further given that a healthy environment is a prerequisite to other social and cultural rights it is possible to argue that these actions constitute a breach of human rights18

The ethnic highlanders plant upland rice to supplement food consumption of the household in their homeland They integrate upland rice with other food crops during the rainy season planting The yield of upland rice ranges from less than

Displaced Persons among Risky Area under the Thai Government Policy (National Human Rights Commission of Thailand 2007)

14 C Kesmanee lsquoHilltribe relocation policy Is there a way out of the labyrinth A case study of Kamphaeng Phetrsquo Paper presented at the Symposium on Culture and Environment in Thailand Siam Society Chiang Mai Thailand August 1987

15 National Park Act 1961 [Thailand] BE 2504 22 September 1997 National Reserved Forest Act 1964 [Thailand] BE 2507 16 April 1964 Wildlife Preservation and Protection Act 1992 [Thailand] BE 2535 19 February 1992

16 Human Rights Watch Thailand lsquowar on drugsrsquo (2008) ltwwwhrworgnews20080312thailand-s-war-drugsgt accessed 12 March 2012

17 J Borton M Buchanan-Smith and R Otto Support to Internally Displaced Persons Learning from Evaluations (2005) 80 ltwwwoecdorgcountrieseritrea35093445pdfgt accessed 22 September 2012

18 J Razzaque lsquoRight to a Healthy Environment in Human Rights Lawrsquo in M Baderin and M Ssenyonjo (eds) International Human Rights Law 60 Years after the UDHR (Ashgate 2010)

Provinces Ethnicgroups

Time of relocation

Number of displaced persons Reasons declared for relocation

Households PopulationKamphaeng Phet Lahu Mien Akha

Hmong Karen Lisu1986 268 1357 Development of Mae Wong National Park

Development of Klong Lan National ParkLammpangWangmai Village Mien Lisu Lau 1994 160 880 Development of Doi Luang National ParkHuai Wad Village Lahu 2003 90 367 Development of Tam Pha Tai National Park

Nan Province Sunchareun Village Mien 1981 1985

198999 607

State securityRestriction on opium cultivationBetter land for settlement

Chiang RaiJalae Village Lahu 1999 60 310 Headwater area conservationHuai Hok Village Lahu 1999 28 NA Development of waterfall natural attractionThan Thong Village

Hmong 1992 19931996 1999 60

NA Headwater area conservation

Chiang MaiPong Hai Village Lahu 1977ndash82 84 404

Area restriction on opium plantationProhibition of the slash and burnDevelopmentAccessibility to education and health care

Huai Ja kan Village Lisu 1994ndash95 56 261 Omkoi Wildlife SanctuariesConflicts on land and water with locals

Huai Hean Village Lahu 1998 20012005

58 NA The declaration of Mae Fang National Park

Bala Village Lisu 2001 25 140 Headwater areasForest reservation

Table 111 IDPs in northern Thailand during 1981ndash2005


100 kg per rai19 to 400 kg per rai with 300 kg per rai considered to be a good yield However the relocation sites do not provide sufficient area for IDPs to rotate the land under cultivation The inability to allow land to lay fallow means the villagers must use more fertilizer These additional costs mean earning a living more difficult20 which contravenes the right to dignity and equality under Thailandrsquos Constitution21

Work In most displaced villages those old enough to enter into the work force seek employment in towns and cities mostly engaging in labour However some have had to engage in the sex trade22 As such incidences of HIVAIDS are critical in the towns the IDPs project is studying such as Wang Mai and Pong Hai which is reflected by the number of orphans in these villages23 As there are only the elderly and young children in the displaced villages a chain of warm and happy relationships in their families has been lost

Adjusting to relocation sites Social and cultural aspects of the IDPs were not taken in the consideration of the relocation These included local wisdom practices to conserve the natural resources and environment of their communities and areas for spiritual as well as traditional worship ceremonies for good health and yield Since practising these traditions is rare IDPs often lose their social and cultural identity As provided in the United Nations Declaration on the Rights of Indigenous Peoples of which Thailand voted affirmatively legal recognition and protection to land management should be conducted with due respect to customs and traditions24

Guiding Principles 28ndash3025 prescribe a range of obligations for authorities relating to return resettlement and reintegration Since former IDPs should not be disadvantaged relative to those who are still displaced the Guiding Principles

19 lsquoRairsquo is a Thai term for area measurement where one rai is approximately 016 hectares or 0395 acres

20 National Human Rights Commission of Thailand (n 13)21 Thailandrsquos Constitution (n 9) ss 4 57 22 N Keenapan Helping children living and working on the streets in Thailand

(UNICEF 2012) ltwwwuniceforgsowcThailand_61806htmgt accessed 22 September 2012 see also TO Paret AJ Dios C Hofmann C Calalang and T Arpa lsquoTrafficking in Women and Prostitution in the Asia Pacificrsquo Coalition against Trafficking in Women lthttpwebarchiveorgweb20010813171455httpwwwurieduartsciwmshughescatwasiapr1htmgt accessed 21 September 2012

23 S Boonkamyueng T Sae Laew and P Sae Jao Hill People in Dry Dipterocarp Forest the Faith of Displaced Persons at Wangmai village (Chiangriarungroj Company 2004)

24 United Nations Declaration on the Rights of Indigenous Peoples GA Res 61295 UN GAOR 61st sess 107th plen mtg Supp No 49 UN Doc ARES61295 (13 September 2007) art 26(3)

25 UNHCR (n 4) arts 28ndash30


relating to protection from displacement and protection during displacement and humanitarian assistance applies where appropriate after return or resettlement Guiding Principle 282 also states that lsquospecial efforts should be made to ensure the full participation of internally displaced persons in the planning and management of their return or resettlement and reintegrationrsquo26

However as the following two case studies of the villages Huai Wad and Huai Ja Kan demonstrate these responsibilities have not been fulfilled and IDPs face difficulty in enforcing these Guiding Principles particularly as they often lack awareness of these state obligations27 Although faced with similar circumstances each IDP at each village reacts and adjusts to the relocation site differently showing that an individualrsquos resilience level contributes to the level of successful relocation

A Case Study of Huai Wad Village

After the Pha-Muang Armed Forces attacked drug traders at the Mae Mao village in 2002 the local Thai villagers felt unsafe and complained to the local government offices The Jae-Hom Hill Tribe Committee held a meeting with concerned organizations Subsequently in October 2003 the four clusters of the Lahu tribes were relocated from Doi28 Mae Mao to the lsquoHuai Wadrsquo village under the government policy of the war on drugs and the natural resources conservation area of the Tam Pha Tai National Park This relocation involved 85 households and 360 people

Rights the Government Failed to Protect

Although the Guiding Principles29 particularly emphasize protection from arbitrary displacement and from violent treatment local authorities informed the Lahu of Huai Wad that they had to relocate Many promises of better living conditions were made to motivate the relocation Such promises included that the IDPs would be granted Thai citizenship at the new village that the village would be recognised as legal and that there would be land for living and cultivation that educational infrastructures for elementary education would be provided and that basic infrastructures such as roads electricity underground water systems and dams would also be provided Furthermore agricultural personnel promoted the agricultural values and potential of the new village

26 Inter-Agency Standing Committee Benchmarks for Durable Solutions forInternally Displaced Persons (2007) lthttpwwwbrookingsedufpprojects

idp2007_Benchmarks_pilotpdfgt accessed 8 March 201227 National Human Rights Commission of Thailand (n 13)28 lsquoDoirsquo is a Thai term for hill or mountain29 UNHCR (n 4) arts 5ndash9


The displaced Lahursquos rights in connecting with information in Thailandrsquos Constitution30 were not taken into consideration in the relocation For example they did not receive data explanations or reasons from a government agency Additionally the right to respect family life in Guiding Principle 1731 by allowing lsquofamily members who wish to remain togetherrsquo was not implemented Instead each family was separated by lottery as were extended families This meant the Lahu were unable to live together The continuation of cultural practice such as New Yearrsquos Day death birth and spiritual ceremonies were also made difficult as a result of family groups being divided

Life after Relocation

The area provided to the displaced Lahu was not well organized and supported by the authorities which meant households with males dominated the land preparation leaving little land for households of females and elderly people to access The land was also very poor for cultivation Additionally the soil surface was only 1ndash2 inches thick with stones underground This makes it unsuitable for planting and rice production was not sufficient for household consumption causing the community rice bank to be low or empty Rice yield per rai decreased each year due to the repeated use of the land used The villagers could not practice shifting cultivation and leaving some strips of land fallow for a season which was their practice at their home land

Drought is a serious problem at Huai Wad especially in summer during late January until June each year This led to lack of water for household consumption and cultivation The drought and poor soil also resulted in problems of food security in the village The only reliable source of water during the dry season was the Wang River which is located approximately 15 kilometres from the village However the villagers washed their clothes dishes and bathed in the river before they fetched water for household consumption in used lubricant bottles

Humanitarian assistance on the issue of access to water was provided by the Tambon32 Municipality Organization which transported water in a truck to fill up the village tanks twice a week during dry seasons This humanitarian assistance for both short-term and long-term solutions was predominantly provided to the IDPs at Huai Wad by non-state parties from religious organizations the private sector non-governmental organizations (NGOs) and the IDPs project33

30 Thailandrsquos Constitution (n 9) ss 66ndash7 31 UNHCR (n 4) art 1732 Tambon refers to a sub-district33 National Human Rights Commission of Thailand (n 13)


Support from Local Organizations

The displaced Lahu at Huai Wad were supported by capacity-building activities conducted by the IDPs project in cooperation with local organizations These projects involved the following activities

1 Forms were established between the displaced Lahu relevant authorities academic representatives researchers NGOs religious organizations neighbouring villages and the National Human Rights Commissions of Thailand to discuss solutions for the problems the IDPs faced The main issues that the community wished to address were solutions to poor soil condition and establishing a budget from the district office for a portable water system There were also discussions of granting Thai citizenship to the youth However there was no implementation of the agreements and conclusions from the fora

2 A vegetable planting group was formed amongst the villagers but this activity did not succeed because the Lahu had not established agricultural practices in their homeland Back at their homeland vegetables and other crops grew very well wherever the Lahu spread seeds on the fertile land

3 Water tanks were built in order to harvest enough rain for dry seasons Villagers were trained how to do the concrete base and build up the tank Villagers then worked in groups to build a tank for each house

4 The villagers worked with volunteers to combat drought During 2008ndash11 there were attempts to look for optional sources of water for Huai Wad However due to conflict with locals in neighbouring villages there was no opportunity to draw a hill water system to the village After many discussions and meetings the villagers worked with volunteers local organizations and religious organizations to pipe water from the Wang River for household consumption as well as to build up a sediment tank and filtration system for the village The villagers accessed water through the distribution system to their houses rather than walking approximately 15 kilometres to the Wang River

Thus the living conditions at Huai Wad slowly improved However in 2006 the problems of poor soil and sources of incomes still existed Some villagers could not fulfil their wishes to work as labourers in the city because they did not have Thai citizenship

In 2007 the Lahu at Huai Wad began planting corn for a commercial company under certain contracts The company provided inputs of seeds pesticides and fertilizers and charged all costs with interest of the input deducting from their corn sales The villagers earned income from these contracts and began cultivating land outside the area authorities had authorized


IDPsrsquo Desire to Return Home

The displaced Lahu at Huai Wad needed to return to their homeland but there was no implementation of the Guiding Principles in relation to return resettlement and reintegration They were not given assistance to returning home and were actually prohibited from doing so Two villagers were found dead in their plantation area after returning to the homeland in 200434 After this incident nobody dared attempt to return home

Assimilation at the Relocation Site

A field survey in 2006 revealed that 194 people or 5286 per cent of the population of Huai Wad were not Thai citizens35 Authorities did not support IDPsrsquo integration with local neighbouring villages A study36 revealed the conflict over land and water utilization between the Huai Wad people and neighbouring locals Nevertheless after nine years at the relocation site the Lahu of Huai Wad adjusted their way of life settled down and assimilated themselves with the locals

According to a visit to Huai Wad in April 201237 the Lahu had changed both physically and mentally There was a better road to the village more mini-trucks and more houses Additionally fences had been built between the villagersrsquo houses The villagers also had more corn plantation areas than areas for upland rice Since they earned more income from corn they stopped planting upland rice and instead bought rice from local people for consumption There was no desire to go back to the Huai land

A Case Study of Huai Ja Kan Village

The displaced Lisu at Huai Ja Kan had originally lived in Luang Muag village for forty years before they were relocated to Kak Lisu Village under the lsquoOmkoi Wildlife Sanctuariesrsquo directive Unfortunately a conflict arose at Kak Lisu with the local Chinese community As a result the Lisu were again relocated to Huai Ja Kan in 1995 where they currently live The relocation from Kak Lisu to Huai Ja Kan took place under the Reforestation Project which provided some 348 rai of land for the displaced Lisu to accommodate and cultivate

34 Field work conducted by author35 S Sae Lee The Participatory of Land Management for Security of Life Culture

and Nature A Human Rights Approach A Case Study of Huai Wad Village Tambol Thung Phung Jae Hom District Thailand Project Report (Rajabhat University 2007)

36 ibid37 Field visit conducted by author to Huai Wad April 2012


Similar to the Huai Wad case study the Guiding Principles on protection from arbitrary displacement were not implemented in the relocation process The decision to relocate was made by the authorities


The land at Huai Ja Kan was inadequate for housing and farming due to poor soil condition soil erosion and landslides The area of 348 rai was given to the displaced Lisu at Huai Ja Ka For each family half a rai was for accommodation and five rai were for farming The soil was lateritic and in some parts marlitic which is not productive for agricultural purposes As such the average upland rice yield decreased from 223 kilograms in 2004 to 194 kilograms and 178 kilograms in 2005 and 2006 respectively38

There were also problems with access and quality of water at the village The Huai Ja Kan villagers did not have sufficient water for household consumption and for cultivation Whilst the local authorities built two dams at Huai Ja Kan the displaced Lisu could not utilize the water from the dams One was located lower than the village location and the other dam could not retain water due to its porous soil

Huai Ja Kan had some natural water resources but they were inadequate especially in dry seasons given the population increase As such the villagers travelled approximately 15 kilometres to fetch water from a stream near a national park in dry seasons Water from the dams and the Huai Ja Kan natural water source is also contaminated with lime as evident in the water that is transported in the pipes system to the households As such rain water tanks were provided to each household for drinking water

In terms of employment a programme was established at Huai Ja Kan to train people as silversmiths so that they could generate additional income through the selling of silver jewellery with traditional Lisu designs at the early stage of the relocation The project was short lived and ended after a few years of the relocation An agricultural project was also set up in Huai Ja Kan where some families earned from working at the project but not all villagers could be included in the projects

There were attempts to cope up with the problems existing in the Huai Ja Kan Village under the IDPs project Fora and community surveys were done together among the displaced Lisu and the IDPs project team before meetings were set up with the authorities both at the local and national level Some of the issues that the fora and community surveys focused on were methods of improving soil quality and new areas of land with better soil condition to cultivate There was also discussion of coordinating with the irrigation office to solve the problem of lack of water and the health care office to solve the problem of contaminated

38 Field survey and interview conducted by author with the Lisu of Huai Ja Kan 2007


water However none the agreements and solutions suggested in the meetings were implemented

The IDPsrsquo Needs to Return Home

The displaced Lisu of Huai Ja Kan Village have been attempting to return home since they were relocated39 The issues of land water sources of income and conflicts with locals further fuelled their desire to return home The Lisu have with each attempt to return home consulted with local and national authorities and organizations to no avail As such the Lisu have on several occasions unsuccessfully tried to return to their homeland each time being subject to measures such as removal of dwellings and orders to return

On 31 December 2004 four families from Huai Ja Kan Village submitted their request to go back to their homeland in Omkoi district They then attempted to resettle at the homeland by building houses but the authorities removed their houses When 42 families submitted their request letter to the Omkoi District Officer and Omkoi Wildlife Sanctuaries Office to return to their homeland on 7 April 2007 and then built shelters to live at the homeland authorities attacked the group on 11 April captured 10 village leaders and accused them of encroaching on Wildlife Sanctuariesrsquo land

Although the displaced Lisu of Huai Ja Kan have made it abundantly clear that they were involuntarily relocated and wish to return to their homeland the authorities have repeatedly ignored such requests each year Thus the needs to return home of the displaced Lisu at Huai Ja Kan Village have not fulfilled nor have they received the support from the authorities that they should be afforded under Guiding Principles 28ndash3040

Conclusions and Recommendations

Relocation of ethnic populations should only be seen an extreme and last resort and all other possibilities of allowing communities to remain in existing locations should be explored before uprooting any other ethnic highlanders41 Involuntary relocation has occurred repeatedly under the repressive government policies on economic development state security and natural resources Beside the separation from their families cultures and identities the common problems in the relocation sites are linked with land and water quality income opportunities citizenship rights and conflicts with pre-existing communities

39 National Human Rights Commission of Thailand (n 12)40 UNHCR (n 4) arts 28ndash3041 E Ferris Protection and Planned Relocations in the Context of Climate Change

(Paper No 27 UNHCR August 2012) 15


There is currently no implementation of the Guiding Principles in the protection from displacement or during displacement neither has humanitarian assistance been provided for the IDPsrsquo return resettlement and reintegration in the two case studies examined Additionally Thailand has no specific laws or regulations in relation to IDPs in Thailand although all people have rights that must be protected respected and fulfilled under Thailandrsquos Constitution

Unfortunately the IDPsrsquo right from involuntary relocation were not recognized by authorities in the displaced ethnic highlanders communities under the IDPs project Although religious organizations NGOs and the IDPs project team have played important roles in enhancing the IDPsrsquo capacity to access basic human rights Thailandrsquos failure to implement the Guiding Principles has resulted in the IDPs being without protection as demonstrated in the two case studies examined Thus Thailand must enact specific law and guidelines on IDPs to protect their rights as guaranteed under Thailandrsquos Constitution

To cope up with the situation for IDPs in northern Thailand the following recommendations derived from the IDPs networking forums was created42

General Recommendations

1 The UN Guiding Principles on Internal Displacement and Handbook for applying the guiding principles on internal displacement must be informed to all stakeholders in order to respect and protect IDPsrsquo human rights

2 Public hearing is an important factor to help promote awareness of internal displacement in the country

3 An independent organization is needed to serve as the monitoring centre of internal displacement in Thailand and to ensure the participation of IDPs in political processes and decisions that affect their lives during displacement It would also be developing and implementing solutions to bring an end to IDPsrsquo displacement

Recommendations for Communities Likely to be Relocated

1 Preparing data and information of the communities which include socio-economic and cultural aspects

2 Conducting research studies on communitiesrsquo histories cultures local wisdoms and cultural practices friendly to the environment

3 Strong cooperation between community members and good leadership is crucial for the communitiesrsquo defence

4 Awareness should be maintained and villagers should look for information outside the communities

42 National Human Rights Commission of Thailand (n 13)


Recommendations for the Authorities

1 Consider all relevant information for decision making in relation to relocation

2 Translators are needed to provide communication with communities of ethnic highlanders

3 In case of a required relocation a well-planned relocation should be set up with fully participation of the IDPs

4 The relocation must consider the communitiesrsquo cultural beliefs and ethnic identities

5 Agreements and list of remedies must be recorded in paper documents6 The new relocation sites must be similar or of the same fertility as the IDPsrsquo

homeland The IDPs should also be given land titles


Chapter 12

The International Regulation of Persons Displaced by Climate Change


Introduction

It is certain that there will be changes in environmental conditions across the globe as a result of climate change Such changes will require the building of biological human and infrastructure resilience In some instances the building of such resilience will be insufficient to deal with extreme changes in environmental conditions and legal frameworks will be required to provide recognition and support for people relocating as a result of environmental change International legal frameworks do not currently recognize or assist people displaced as a result of environmental factors

The objective of this chapter is to examine the areas of international law relevant to displacement arising from environmental factors consider some of the proposed climate displacement instruments and suggest the most suitable international institution to host a programme addressing climate displacement In order to determine the most appropriate institution to address and regulate climate displacement it is imperative to consider issues of governance1 This paper seeks to examine this issue and determine whether it is preferable to place climate displacement programmes into existing international legal frameworks or whether it is necessary to regulate this area in an entirely new institution specifically designed to deal with the complex and cross-cutting issues surrounding the topic

Commentators in this area have largely proposed three different regulatory models for addressing climate displacement These models include

1 Expand the definition of refugee under the Refugee Convention2 to encompass persons displaced by climate change

2 Implement a new stand alone Climate Displacement Convention and3 Implement a Climate Displacement Protocol to the United Nations

Framework Convention on Climate Change (UNFCCC)

1 J McAdam Climate Change and Displacement Multidisciplinary Perspectives (Hart Publishing 2010) esp 1ndash2



This chapter examines each of these proposed models against a number of criteria It also identifies the model most likely to address the needs and requirements of people displaced by climate change It will also identify the model that is likely to be the most politically acceptable and realistic for those countries likely to attract responsibilities by its implementation

Climate Displacement

Decisions to migrate are made for a variety of complex reasons and are rarely made on the basis of a single factor3 Traditionally the root causes of migration have been identified to include economic social and political factors and deteriorating security conditions 4 It is increasingly accepted that environmental factors such as natural and human-induced disasters pollution and environmental degradation5 contribute to human migration6 The adverse impacts of climate change such as sea level rise severe weather events and droughts are expected to dramatically increase human movement both within states and across international borders7 The International Panel on Climate Change (IPCC) first recognized the links between climate change and displacement in 1990 and drew attention to the issue again in 20078

3 F Renaud JJ Bogardi O Dun and K Warmer Control Adapt or Flee How to Face Environmental Migration (Report No 5 UNU-EHS May 2007) esp 9ndash10 DZ Falstrom lsquoStemming the Flow of Environmental Displacement Creating a Convention to Protect Persons and Preserve the Environmentrsquo (2002) 13 Colorado Journal of International Law and Policy 1 3

4 Renaud et al (n 3) Falstrom (n 3) 5 Some commentators still deny the existence of environmental factors as a root cause

of migration and argue that environmental factors are too interconnected with economic and social factors to be identified as a standalone factor see R Black Environmental Refugees myth or reality (Working Paper No 34 UNHCR March 2001) esp 222

6 J McAdam lsquoEnvironmental Migration Governancersquo (2009) 1 University of New South Wales Faculty of Law Research Series 3 T Afifi and K Warner K 2008 Impact of Environmental Degradation on Migration Flows Across Countries (Working Paper No 5 UNU-EHS April 2008)

7 McAdam (n 6) 3 D Hodgkinson T Burton H Anderson and L Young lsquoldquoThe Hour When the Ship Comes Inrdquo A Convention for Persons Displaced by Climate Changersquo (2010) 36(1) Monash University Law Review 69 69

8 Intergovernmental Panel on Climate Change First Assessment Report - Policy Maker Summary of Working Group 2 - Potential Impacts of Climate Change (Cambridge University Press 1990) esp 103 G Hegerl et al lsquoUnderstanding and Attributing Climate Change in Climate Change 2007 The Physical Science Basisrsquo in S Soloman et al (eds) Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press 2007) In the 2007 report the IPCC describes sea level rise more frequent and intense droughts and floods as very likely to occur This means that there is more than a 90 per cent probability that they will occur

The International Regulation of Persons Displaced by Climate Change 203

The precise scale of displacement arising from climate change is disputed9 Myers10 estimates that by 2050 some 200 to 250 million people will be displaced by environmental causes11 The secretariat for the UNFCCC has restricted its estimate to 50 million people by 201012 Other authors have argued that it is impossible and practically unhelpful to estimate the number of people that will be displaced13 They argue that environmental causes cannot be easily divorced from the social and economic reasons behind migration and that human adaptive capacity and resilience in the face of climatic changes cannot be easily quantified Hugo argues that population displacement caused by climate change will only occur in a limited number of cases14

Furthermore it has been emphasized that forced re-settlement must be viewed as the last option and should only be considered after other climate adaptation strategies have failed Re-settlement programmes generally have a poor track record15 and it is preferable for countries to implement technological climate adaptation approaches such as strengthening dam walls improving drainage and creating more resilient infrastructure

Although the exact number is disputed it is well accepted that climate change will whether as a standalone factor or in conjunction with other factors be a cause of displacement for some people16 The United Nations High Commissioner for Refugees (UNHCR) has listed Africa Small Island States and the mega delta regions of Asia as the areas most likely to be affected by climate change17 The projected sea level rise of 018 and 059 metres by 2099 will lead to a 20 per

9 B Docherty and T Giannini lsquoConfronting a Rising Tide A Proposal for a Convention on Climate Change Refugeesrsquo (2009) 33 Harvard Environmental Law Review 349 esp 353

10 N Myers lsquoEnvironmental refugees a growing phenomenon of the 21st centuryrsquo (2002) Philosophical Transactions of the Royal Society 357 609ndash13

11 N Myers lsquoEnvironmental Refugees in a Globally Warmed Worldrsquo (1993) 43(11) BioScience 752 esp 758 The 2007 Stern Review noted that Myersrsquo estimate remained in line with the evidence presented that climate change will lead to hundreds of millions of people threatened by dangerous floods and increased risk of disease N Stern The Economics of Climate Change The Stern Review (Cambridge University Press 2007) esp 77

12 F Biermann and I Boas Preparing for a Warmer World Towards a Global Governance System to Protect Climate Refugees (Working Paper No 33 Global Environment Politics February 2010 2007)

13 McAdam (n 6) esp 2 Renaud et al (n 3) esp 1014 G Hugo lsquoClimate Change-Induced Mobility and the Existing Migration

Regime in Asia and the Pacificrsquo in J McAdam (ed) Climate Change and Displacement Multidisciplinary Perspective (Hart Publishing 2010) 9

15 Hugo (n 14) esp 10 16 S Atapattu lsquoClimate Change Human Rights and Forced Migration Implications

for International Lawrsquo (2009) 27 Wisconsin International Law Journal 607 611 Docherty and Giannini (n 9) esp 354

17 McAdam (n 6) esp 2 Docherty and Giannini (n 9) esp 355ndash6


cent loss of land in Bangladesh and affect approximately 35 million people18 A temperature rise of 2 degrees Celsius will lead to water shortages in Africa and the Middle East affecting 1 to 4 billion people19 Small Island States are particularly vulnerable to rising sea levels with most less than 2 metres above sea level20 A rise of just 1 metre will make most of these islands uninhabitable due to water salination and increasing storm surges21 leaving approximately 24 million people displaced22 Tuvalu is expected to be submerged in 90 years while a significant proportion of the Maldivian capital Maleacute will be flooded by 205023

Despite the general agreement that climate change will result in displacement there is no consensus on how best to describe and define those people forced to migrate as a result of climate change24 Terms used in the literature vary from environmental refugees and climate change refugees to environmentally displaced persons and environmental migrants Definitions also differ in whether they address dislocation that is temporary or permanent forced or voluntary or national or international25 The advantages and disadvantages to such distinctions are canvassed in depth in other papers on this topic26

A definition is important to ensure that persons displaced by climate change are legally recognized and protected and to promote public awareness of the human dimension to climate change27 For the purposes of this chapter the term lsquopersons displaced by climate changersquo will be used to describe people forced to flee across an international border as a result of sudden or gradual alterations in their natural

18 McAdam (n 6) esp 2 Docherty and Giannini (n 9) esp 355ndash6 Renaud et al (n 3) esp 25 Stern (n 11) esp 76

19 Stern (n 11) esp 63 20 Particularly vulnerable small island states include the Maldives Marshall Islands

Kiribati Tuvalu and Tokelau Biermann and Boas (n 12) esp 13 Myers (n 11) esp 75621 HD Lange lsquoClimate refugees require relocation assistance guaranteeing adequate

land assets through treaties based on the National Adaptation Programmes of Actionrsquo (2010) 19(3) Pacific Rim and Policy Law Journal 613 esp 619

22 ibid 23 Docherty and Giannini (n 9) esp 356 A Lopez lsquoThe Protection of Environmentally-

Displaced Persons in International Lawrsquo (2007) 37(2) Environmental Law 365 272ndash324 McAdam (n 6) esp 1 25 Renaud et al (n 3) esp 13 S Brooks-Masters lsquoEnvironmentally Induced

Migration Beyond a Culture of Reactionrsquo (2001) 14 Georgetown Immigration Law Journal 855 esp 868 Docherty and Giannini (n 9) esp 363ndash6

26 D Keane lsquoThe Environmental Causes and Consequences of Migration A Search for the Meaning of lsquoEnvironmental Refugeesrsquo (2004) 16 Georgetown International Environmental Law Review 209 esp 209 D Bates lsquoEnvironmental Refugees Classifying human migrations caused by environmental changersquo (2002) 23 Population and Environment 465 esp 465 Biermann and Boas (n 12) esp 2ndash9

27 T King lsquoEnvironmental Displacement Coordinating Efforts to Find Solutionsrsquo (2006) 18 Georgetown International Environmental Law Review 543 esp 551 cf Renaud et al (n 3) esp 16


environment that arise from any one of the following three impacts of climate change sea-level rise extreme weather events drought and water scarcity28 This definition has been chosen because of its clear and specific focus on people displaced across state borders because of climate change29 As this chapter is concerned with the international regulation of persons displaced by climate change the focus will be on persons moving across international borders

Existing Legal Frameworks and Governance Structures

A number of areas of international law are relevant to climate displacement refugee law international human rights law and international environmental law30 There is however no legal instrument concerned with the protection of persons displaced by climate change and no international institution with a clear mandate to protect such people31 As such the international community does not have a legal obligation to protect and assist persons displaced by climate change32

Refugee Law

Article 1A(2) of the Refugee Convention defines a refugee to mean a person who

owing to well-founded fear of being persecuted for reasons of race religion nationality membership of a particular social group or political opinion is outside the country of his nationality and is unable or owing to such fear is unwilling to avail himself of the protection of that countryrsquo

A person displaced by climate change does not satisfy this definition of refugee33 Firstly the adverse impacts of climate change such as sea level rise do not

28 Any definition should retain enough flexibility to accommodate scientific advances regarding other impacts of climate change Docherty and Giannini (n 9) esp 365

29 Docherty and Giannini (n 9) esp 361 30 There are other relevant areas of international law that this chapter will not

consider One of these is the UN Declaration on the Rights of Indigenous People This Declaration contains measures which seek to conserve attributes of culture and livelihoods which national governments in countries where mobile people reside or migrate are recommended to adopt R Zetter lsquoProtecting People Displaced by Climate Change Some Conceptual Challengesrsquo in J McAdam (ed) Climate Change and Displacement in the Pacific Multidisciplinary Perspectives (Hart Publishing 2010) esp 134

31 Docherty and Giannini (n 9) esp 357 32 A Williams lsquoPromoting Justice within the International Legal System Prospects

for Climate Refugeesrsquo in BJ Richardson YL Bouthillier H McLeod-Kilmurray and S Wood (eds) Climate Law and Developing Countries Legal and Policy Challenges for the World Economy (Edward Elgar Publishing 2009) esp 86

33 Docherty and Giannini (n 9) esp 358


amount to persecution as it is understood in international law34 Hathaway defines persecution as the lsquosustained or systemic violation of basic human rights demonstrative of a failure of state protectionrsquo35 Although the adverse impacts of climate change are expected to be harmful they are not symptomatic of government oppression36 There is no intent on the part of the state of residence or its actors to cause harm37 Persons displaced by climate change will theoretically be able to seek protection from their home state38 The fact the home state may be limited in its capacity to provide them with relief does not transform the home statersquos behaviour into persecution39

Therefore the difference between a refugee and a person displaced by climate change is that a refugee is subject to persecution by the home state while a person displaced by climate change is subject to harm that is primarily caused by a country that is not the home state ndash that is countries that are high emitters of greenhouse gases40

Secondly even if the adverse impacts of climate change did amount to persecution it is difficult to describe it as persecution for reasons of race religion nationality political opinion or membership of a social group Most commentators agree that persons displaced by climate change do not form a particular social group for the purposes of the Refugee Convention as they are not connected by a fundamental immutable characteristic41 Since the fact that they are connected by a common risk of persecution is insufficient it is difficult to find a characteristic

34 T Duong lsquoWhen Islands Drown The Plight of Climate Change Refugees and Recourse to International Human Rights Lawrsquo (2010) 31 University of Pennsylvania Journal of International Law 1239 esp 1263 GS McCue lsquoEnvironmental Refugees Applying International Environmental Law to Involuntary Migrationrsquo (1993) 6 Georgetown International Environmental Law Review 151 esp 153

35 JC Hathaway The Rights of Refugees under International Law (Cambridge University Press 2005) esp 95

36 Brooks-Masters (n 25) esp 868 37 Renaud et al (n 3) esp 14 R McLeman lsquoClimate Change Migration Refugee

Protection and Adaptive Capacity-Buildingrsquo (2008) 4(1) McGill International Journal for Sustainable Development Law and Policy 1 esp 14

38 King (n 27) esp 552 39 UNHCR The State of the Worldrsquos Refugees A Humanitarian Agenda (UNHCR

1997) ltwwwunhcrorg4a4c72719htmlgt accessed 3 August 2010 Lopez (n 23) esp 392ndash400

40 I Millar lsquoTherersquos no place like home human displacement and climate changersquo (2007) 14 Australia International Law Journal 71 esp 86 Biermann and Boas (n 12) esp 18

41 Docherty and Giannini (n 9) esp 393 McAdam (n 6) esp 13 For arguments that persons displaced by climate change form a particular social group see Duong (n 34) esp 1264ndash5 Cooper argues that environmentally displaced persons form a social group as they are characterized by a common experience J Cooper lsquoEnvironmental Refugees Meeting the Requirements of the Refugee Definitionrsquo (1998) 6 New York University Environmental Law Journal480 esp 480


beyond persecution that connects persons displaced by climate change As Falstrom has remarked lsquoenvironmental problems are haphazard and do not target individuals or groups based on a particular characteristicrsquo42

Beyond the Refugee Convention two regional conventions have broadened the definition of refugee The 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa43 and the 1984 Cartagena Declaration on Refugees44 expanded the definition of refugee to include people compelled to flee their countries due to events which have seriously disturbed public order45 Arguably the adverse effects of climate change have the potential to seriously disturb public order as agriculture infrastructure and local economies are affected46

The protection offered under these conventions however is inadequate There is only a right to temporary protection and no right of entry to a third country47 The conventions are not legally binding and accordingly may not be respected by signatory parties Furthermore they only apply to people living in Africa Central America Panama or Mexico48 Although most persons displaced by climate change will be living in Asia they will not be recognized or protected49 It is imperative that any governance structure recognizes persons displaced by climate change since their lack of refugee status also means that they do not fall under the UNHCRrsquos mandate to protect and support refugees in their repatriation local integration and resettlement50

Lastly the developed countries most responsible for the greenhouse gas emissions contributing to climate change are not signatories to either convention Their involvement in any governance regime to recognize and protect persons displaced by climate change is also fundamental to ensuring the regime is globally respected and enforced

42 Falstrom (n 3) esp 12 43 Organisation of African Unity Convention Governing the Specific Aspects

of Refugee Problems in Africa 1001 UNTS 45 (entered into force 10 September 1969) (African Convention)

44 Cartagena Declaration on Refugees Colloquium on the International Protection of Refugees in Central America Mexico and Panama 22 November 1984 lthttpwwwunhcrorgrefworlddocid3ae6b36echtmlgt accessed 17 September 2012 (Cartagena Declarationrsquo)

45 Convention Governing the Specific Aspects of Refugee Problems in Africa (n 43) esp art 1 Cartagena Declaration on Refugees (n 44) esp art 3

46 Duong (n 34) esp 1264 Renaud et al (n 3) esp 1247 Convention Governing the Specific Aspects of Refugee Problems in Africa (n 43)

esp art 1 Cartagena Declaration on Refugees (n 44) esp art 348 Millar (n 40) esp 79 Atapattu (n 16) esp 61749 Renaud et al (n 3) esp 12 50 Docherty and Giannini (n 9) esp 358


Human Rights Law

Although not recognized under the Refugee Convention persons displaced by climate change still have the right to enjoy the basic human rights afforded to all human beings51 The adverse impacts of climate change have the ability to affect the enjoyment of some of these basic human rights52 Although there is no recognized right to a safe and healthy environment the Office of the High Commissioner for Human Rights (OHCHR) has recognized that there is an lsquointrinsic link between the environment and the realization of a range of human rightsrsquo53

Rights that may be affected by the adverse impacts of climate change (for example an increase in the frequency and severity of heatwaves floods storms fire and drought)54 include the right to life55 food56 water57 health58 and housing59 This in turn will affect food production access to safe and clean drinking water and will increase the spread of infectious diseases60 In particular sea level rise and storm surges will directly impact on coastal settlements and force relocation61 Where these basic rights are affected the enjoyment of other rights will also be severely compromised including the right to education62 the right to work63 and the right to rest and leisure64

Climate change may also deprive the inhabitants of Small Island States of their right to self-determination65 Sea level rise and increased storm surges have the ability to threaten the continued habitability of the islands and the territorial existence of the state66 The inability of inhabitants to continue living on their

51 Atapattu (n 16) esp 627 52 McAdam (n 6) esp 15 53 OHCHR Study on the relationship between climate change and human rights

(OCHCR 2009) esp [18] lthttpdaccess-dds-nyunorgdocUNDOCGENG0910344PDFG0910344pdfOpenElementgt accessed 21 September 2012

54 ibid esp [22] [26] [29] [33]55 International Covenant on Civil and Political Rights opened for signature 16

December 1966 999 UNTS 171 (entered into force 23 March 1976) esp art 6 (ICCPR)56 ibid esp art 11 57 ibid esp arts 11 12 58 ibid esp art 12 59 International Covenant on Economic Social and Cultural Rights opened for

signature 16 December 1966 999 UNTS 3 (entered into force 3 January 1976) esp art 11 (ICESCR)

60 Lange (n 21) esp 625 61 OHCHR (n 53) esp [36]62 Universal Declaration of Human Rights GA Res 217A (III) UN GAOR 3rd sess

183rd plen mtg UN Doc 1810 (10 December 1948) esp art 2663 ibid esp art 2364 ibid esp art 2465 ICCPR (n 55) esp art 1(1) ICESCR (n 59) esp arts 1(1) 66 Biermann and Boas (n 12) esp 10


islands would mean they are deprived not only of their means of existence but also of their right to freely pursue their economic social and cultural development67 As the indigenous culture of many Small Island States is linked strongly to the natural environment the inability of the inhabitants to continue living in their homeland would also lead to a deprivation of their right to enjoy their traditional customs languages and religious practices68

The OHCHR report reflects the international communityrsquos refusal to recognize climate change as a violation of human rights69 Although recognizing the potential of climate change to affect rights the OHCHR did not classify climate change as a violation of human rights due to the inherent difficulty in proving that a particular event was caused by climate change and by the emissions of a particular country70

Further even if climate change was found to violate human rights a state is generally only responsible for ensuring that the human rights of people within its territory or under its effective control are respected71 Most human rights instruments contain jurisdictional limits that mean a state cannot be held responsible for human rights violations that occur in other states72 In the context of climate change this means that it is mostly irrelevant that the greenhouse gas emissions of another country may be the cause of the violations73 Unless the people affected are under that statersquos control it currently cannot be argued under human rights law that the state be held responsible for these violations

In fact human rights law would recognize the home state as being responsible for the violations caused by climate change as these people would be under its effective control74 States have a duty to protect their citizens even where they are not directly responsible for any violations75 The OHCHR acknowledges this when it notes that human rights obligations provide an important protection to individuals whose rights are affected by climate change 76

Therefore the obligations of another state to a person displaced by climate change will only arise where the person enters the territory of that state Human rights law then demands that this state affords the person a minimum standard of treatment77 Kalin suggest that States hosting displaced people have obligations

67 OHCHR (n 53) esp [40] 68 United Nations Declaration on the Rights of Indigenous Peoples esp arts 11 12

Atapattu (n 16) esp 612 69 JH Knox lsquoSymposium Linking Human Rights and Climate Change at the United

Nationsrsquo (2009) 33 Harvard Environmental Law Review 477 esp 484 70 OHCHR (n 53) esp [70]71 McAdam (n 6) esp 16 Banković v Belgium (2001) 11 BHRC 43572 McAdam (n 6) esp 16 73 Millar (n 40) esp 93 74 C Soumlderbergh Human Rights in a Warmer World The Case of Climate Change

Displacement (Working Paper No 57 Lund University Climate Initiative 28 January 2011) 75 Knox (n 69) esp 491 76 OHCHR (n 53) esp [71] 77 McAdam (n 6) esp 14


to protect their human rights and must put in place procedures to ensure that such people are fully able to enjoy such rights78

Human rights law affords all human beings certain fundamental human rights However it does not impose any obligations on the international community to assist or protect persons displaced by climate change It does not provide a ground for persons displaced by climate change to either enter into another country or seek protection from another country79

International Environmental Law

Environmental law in the context of climate change is comprised of mitigation and adaptation policies80 Mitigation involves the implementation of policies that are designed to limit the adverse impacts of climate change emission targets carbon trading schemes and renewable energy targets Adaptation means the lsquoadjustment in human systems in response to actual or expected climatic stimuli or their effects which moderates harm or exploits beneficial opportunitiesrsquo81 Migration that occurs as a result of climate change is considered an extreme form of adaptation82

The international community is increasingly acknowledging the need to implement adaptive strategies to respond to those impacts of climate change that can no longer be avoided83 The UNFCCC and the Kyoto Protocol84 the two major climate change agreements in international environmental law remain largely focused on mitigating climate change through the prevention reduction and control of pollutants in the atmosphere85 through for example binding emission reduction targets and the transfer of technology from developed to developing countries86

Although the UNFCCC and Kyoto Protocol do not comprehensively address adaptation they do make some provision for the implementation of adaptive

78 W Kalin lsquoConceptualising Climate-Induced Displacementrsquo in J McAdam (ed) Climate Change and Displacement Multidisciplinary Perspectives (Hart Publishing 2010) esp 81 83

79 OHCHR (n 53) esp [58] 80 Atapattu (n 16) esp 608ndash609 81 ibid82 DA Farber lsquoCase for Climate Compensation Justice for Climate Change Victims

in a Complex Worldrsquo (2008) 2 Utah Law Review 377 esp 383 Atapattu (n 16) esp 60883 This includes sea level rise frequency of extreme weather events and alterations

in patterns of biodiversity Atapattu (n 16) esp 608 84 United Nations Framework Convention on Climate Change opened for signature

9 May 1992 1771 UNTS 107 (entered into force 21 March 1994) (UNFCCC) Kyoto Protocol to the United Nations Framework Convention on Climate Change opened for signature 11 December 1997 37 ILM 22 (entered into force 16 February 2005)

85 Docherty and Giannini (n 9) esp 394 Millar (n 30) esp 9086 UNFCCC (n 84) esp arts 3(1) 4(2) J Paavola and WN Adger Justice and

Adaptation to climate change (Working Paper No 23 Tyndall Centre October 2002)


strategies87 Article 4 of the UNFCCC outlines some of these strategies including funding by developed countries for adaptive strategies for vulnerable developing countries particularly small island countries and countries with low-lying coasts88 With respect to the Kyoto Protocol Article 10(1)(b) directs developed country parties to formulate publish and regularly update national programmes for adaptation to climate change Further Article 12 provides that a share of the proceeds from certified project activities should be used to assist developing country parties to meet the costs of adaptation89

Aside from these general provisions the UNFCCC and Kyoto Protocol do not make any express or implied reference to obligations concerning persons displaced by climate change90 and thus currently do not provide protection to such people91 This is most likely due to the emphasis of these agreements on ensuring continued economic development in the face of climate change92 During the Cancun Conference of Parties (COP) negotiations the Cancun Adaptation Framework was established This framework prescribes a wide range of adaptation activities including activities with respect to climate change induced migration Activities mentioned include coordination and cooperation on displacement migration and relocation93 This development suggests that the climate change regime is willing to take the lead on the creation of frameworks that respond to displacement arising from climate change

Methodology

To determine the most appropriate governance framework for the recognition protection and regulation of people displaced by climate change the following three proposals will be examined

1 expand the definition of refugee under the Refugee Convention to encompass persons displaced by climate change

2 implement a new stand alone Climate Displacement Convention and3 implement a Climate Displacement Protocol to the UNFCCC

87 Atapattu (n 16) esp 608 Millar (n 40) esp 90 88 UNFCCC (n 84) esp arts 4(4) 4(8) see also art 4(1)(b) (implementation of

measures) 4(1)(e) (cooperation in preparations) 4(5) (technology transfer)89 Kyoto Protocol (n 84) esp art 12(8) 90 Hodgkinson et al (n 7) esp 891 Docherty and Giannini (n 9) esp 359 92 Hodgkinson et al (n 7) esp 8 93 A Vina et al lsquoThe Cancun Agreements Do they advance global cooperation on

climate changersquo (Discussion Paper) (2011) Foundation for International Environmental Law and Development 11 Cancun Adaptation Framework esp art 14F


Each proposal will be examined against a number of criteria procedural justice distributive justice remedial justice protection and assistance and state practice

We note that we have only considered the proposals most commonly considered by commentators in this field There are other proposals beyond the three considered in this chapter including

bull expand the scope of complementary protection to encompass claims related to a lack of access to resources and

bull expand the UNHCR mandate to protect persons displaced by climate change

McAdam has explored complementary protection and whether it provides a right to a person displaced by climate change to remain in a third country94 Complementary protection describes a statersquos obligation to those people who although not refugees under the Refugee Convention nonetheless require protection95 State practice indicates that complementary protection will be provided only to people who risk being tortured or exposed to cruel inhuman or degrading treatment or arbitrary deprivation of life if returned to their home countries96 States have made clear that they interpret inhuman and degrading treatment narrowly and that it does not include general poverty unemployment and a lack of resources or medical care97 Arguably such a restrictive interpretation will not allow persons displaced by climate change to gain the protection of the doctrine98

Interestingly however the European Court of Human Rights has found that the right not to be subjected to torture or inhuman or degrading treatment or punishment as contained in Article 3 of the European Convention on Human Rights may apply to stop a person of ill-health from being returned to their country of origin99 This may suggest a willingness of the Courts to interpret the grounds for the granting of complementary protection more broadly

With respect to expanding the UNHCR mandate to include persons displaced by climate change the UNHCR has adopted the position that it should not be given responsibility for these displaced persons and instead that responsibility should be placed on relevant state parties to the UNFCCC 100 As is discussed

94 McAdam (n 6) esp 17ndash19 J McAdam lsquoAustralian Complementary Protection A Step-By-Step Approachrsquo (2011) 33(4) Sydney Law Review 687

95 J McAdam Complementary Protection in International Refugee Law (Oxford University Press 2007) esp ch 6 McAdam (n 4) esp 687ndash8

96 McAdam (n 5) esp ch 6 McAdam (n 4) esp 694 see also Migration Amendment (Complementary Protection) Act 2011 (Cth) ICCPR (n 55) esp art 7

97 McAdam (n 6) esp 18ndash1998 ibid 99 McAdam (n 4) esp 695 D v United Kingdom (1996) Eur Ct HR 3024096 Tanko

v Finland (1994) Eur Ct HR 2363494100 UNFCCC Forced Displacement in the context of Climate Change Challenges

for States under International Law Submission to AWG-LCA 6 (UNFCC 2009) King


in the section of this chapter dealing with the proposal to expand definition of lsquorefugeersquo this is because of inadequate funding and a belief by the UNCHR that it may compromise its responsibility to traditional refugees 101

Criteria

Procedural justice focuses on the fairness of decision-making processes employed by individuals groups and nations and encompasses ideas of recognition participation and legitimacy102 In the climate change context recognition involves an acknowledgment of the unequal distribution of the adverse impacts of climate change and participation requires the involvement of affected countries and communities in decision-making103 Recognition and participation give legitimacy to the decision-making process as all parties have had equal opportunities to protect and pursue their interests104 The quick and successful implementation and ratification of the Convention on Cluster Munitions has been attributed to the extensive participation by state and non-state actors in discussions and negotiations105

A governance framework grounded in considerations of procedural justice is very important to ensure persons displaced by climate change are recognized by the international community and involved in the negotiation and implementation of strategies to deal with and prevent climate displacement106 It is extremely important that negotiations involve both state-to-state or horizontal relations and state-to-individual or vertical relations107 There is a risk that affected communities may not have their interests represented by their respective national governments108 Furthermore any strategy of resettlement or prevention will take place at the local level109 An effective and efficient solution will only be achieved with the meaningful participation and support of the local communities110 Without their participation or support a strategy will ultimately fail111

(n 27) 554 Biermann and Boas (n 12) 19 101 King (n 27) esp 554102 A Kaswan lsquoDistributive Justice and the Environmentrsquo (2002ndash2003) 81 North

Carolina Law Review 1031 1045103 Principle 10 of the Rio Declaration on Environment and Development notes that

environmental issues are best handled with the participation of all concerned citizens104 J Paavola WN Adger and S Huq lsquoMultifaceted justice in adaptation to climate

changersquo in WN Adger (ed) Fairness in Adaptation to Climate Change (MIT Press 2006) esp 268

105 Hodgkinson et al (n 7) esp 45 Docherty and Giannini (n 9) 397ndash9 106 Docherty and Giannini (n 9) 359ndash61107 ibid 397 108 Paavola et al (n 105) esp 264 109 Paavola and Adger (n 86) esp 15 110 McAdam (n 6) esp 24 111 Paavola et al (n 105) esp 268


Distributive justice concerns the unequal distribution of burdens and benefits at the local national and international levels and encourages remedies through redistribution112 In the context of climate change there is an unequal distribution of the adverse effects of climate change and the prosperity associated with greenhouse gas intensive industries and economies113 Persons displaced by climate change will largely represent those people who have benefited the least from this economic prosperity114 For example populations of Small Island States will be amongst the first forced to relocate due to climate change even though their contributions to greenhouse gas emissions are nominal115

The maldistribution is exacerbated further because developing countries will have less capacity than developed countries to adapt to climate change due to a lack of wealth capacity and power116 Therefore a governance framework grounded in considerations of distributive justice is very important to ensure the redistribution of these burdens and benefits by placing the responsibility of protection and assistance primarily on developed countries117

Remedial justice complements distributive justice It provides a remedy generally in the form of monetary compensation where a redistribution of harms and benefits does not cure all injustices118 Remedial considerations are important in the climate change context as funding will be necessary to provide relief to displaced persons and to develop strategies to prevent future avoidable displacement Non-monetary relief will also be important Williams has suggested that compensation could take the form of states agreeing to accept persons displaced by climate change and bestowing on them rights analogous to those granted to traditional refugees119

The Refugee Convention provides protection and assistance to refugees through a multitude of various rights the most important arguably being the right to seek asylum in a country outside their country of origin and not to be returned

112 K Bosselman and B Richardson Environmental Justice and Market Mechanisms Key challenges for environmental law and policy (Kluwer Law International 1999) esp 9

113 LH Meyer and D Roser lsquoDistributive Justice and Climate Change The Allocation of Emission Rightsrsquo (2006) 28 Analyse und Kritik 223 esp 226 Biermann and Boas (n 12) esp 26

114 M Loughry and J McAdam lsquoKiribati ndash Relocation and Adaptationrsquo (2008) 31 Forced Migration Review 51 esp 51

115 E Kwa lsquoClimate Change and Indigenous peoples in the South Pacific ndash the need for regional and local strategiesrsquo in BJ Richardson (ed) Climate Law and Developing Countries Legal and Policy Challenges for the World Economy (Edward Elgar Publishing Limited (2009) esp 102

116 WN Adger et al Fairness in Adaptation to Climate Change (MIT Press 2006) esp 3ndash4 The cost of adaptation measures in Africa alone is expected to amount to over 10 per cent of Africarsquos GDP by the end of the century Farber (n 82) esp 384

117 Williams (n 32) esp 96 118 ibid esp 91 98 119 ibid


to a country where they will face persecution (right of non-refoulement)120 Commentators agree that a person displaced by climate change should be afforded the same rights as those of a traditional refugee as they are similarly vulnerable121 They should not for example be returned to a country where their environment can no longer sustain them Commentators also agree that additional rights should be granted to persons displaced by climate change such as the right of entry to a host country and a right of permanent resettlement122 If people are returned to areas affected by sea-level rise flooding and drought it will often be impossible for them to survive123 Where Small Island States are inundated their populations will be simply unable to return home A governance framework providing protection and assistance to persons displaced by climate change is therefore also very important

In addition to these criteria each proposal will be considered in light of current state practice in relation to refugee law environmental law and human rights law An analysis of state practice is important as any proposed solution must be politically feasible to ensure implementation and compliance by the global community

Expansion of the Definition of Refugee under the Refugee Convention

Some commentators have called for the definition of refugee under the Refugee Convention to be expanded to include persons displaced by climate change124 Cooper125 suggests the following definition

any person who owing (1) to well-founded fear of being persecuted for reasons of race religion nationality membership of a particular social group or political opinion or (2) to degraded environmental conditions threatening his life health means of subsistence or use of natural resources is outside the country of his nationality and is unable or owing to such fear is unwilling to avail himself of the protection of that country

The Refugee Convention does not expressly consider issues of procedural justice as it is primarily concerned with satisfying the humanitarian needs of refugees rather than addressing the underlying causes of displacement126 Under the Convention a person displaced by climate change and their home country governments could not participate in the decision-making process concerning population resettlement

120 Refugee Convention (n 2) esp art 33 see also art 16 and 31 121 Docherty and Giannini (n 9) esp 396 122 Biermann and Boas (n 12) esp 25123 ibid esp 25 124 Millar (n 40) esp 84125 Cooper (n 41) esp 485ndash6 126 Docherty and Giannini (n 9) esp 392ndash3


Dialogue under the Refugee Convention is exclusively between the UNHCR and host states127 The home state is traditionally excluded from this dialogue because of their fundamental involvement in a personrsquos displacement Accordingly the Convention does not impose any duties or obligations on the home state128 Instead it only outlines the rights of refugees and the obligations and duties of host states towards them

The Refugee Convention considers issues of distributive justice by recognizing that the burden of assisting and protecting refugees must be distributed amongst all host countries129 The preamble recognizes that the grant of asylum may place unduly heavy burdens on certain countries and that a satisfactory solution cannot be achieved without international co-operation130 The Convention however does not assign responsibility for protection on the basis of common but differentiated responsibilities131

This highlights an important difference between refugees and persons displaced by climate change132 In the case of refugees third countries offer assistance and protection to refugees because they are unable to rely on their home state to offer such assistance and protection133 For persons displaced by climate change this is not the case Instead they are forced to leave their home countries largely due to impacts related to the greenhouse gas emissions of a third country134 In fact often they will seek refuge in a country that has contributed to the climatic impact behind their displacement An expansion in the definition of lsquorefugeersquo would not recognize this injustice and would not impose any additional obligations on the host state towards the person displaced by climate change135

A clear advantage to expanding the definition of refugee to encompass a person displaced by climate change is that the Refugee Convention is largely remedial in nature136 It outlines certain duties that states owe refugees within their territory such as a duty not to return a refugee to a place of persecution137 This would mean that a person displaced by climate change could not be returned to an environment that could not support them138 Despite this advantage the Refugee Convention is largely premised on affording refugees temporary protection rather than permanent protection139 There is an understanding that a refugee will be able to return to their

127 ibid128 ibid129 ibid esp 394130 Refugee Convention (n 2) esp preamble paragraph 4 131 Docherty and Giannini (n 9) esp 394 132 Biermann and Boas (n 12) esp 16 133 ibid esp 16134 ibid135 ibid esp 18136 Docherty and Giannini (n 9) esp 392 137 Refugee Convention (n 2) esp art 33 138 McCue (n 34) esp 184 139 McLeman (n 37) esp 14


home country when the risk of persecution no longer exists In the case of persons displaced by climate change they may be unable to ever return to their home countries and communities140 Merely changing the definition of refugee will be insufficient to recognize the different level of support and protection required by persons displaced by climate change who cannot return to their home countries141

The greatest shortcoming to expanding the definition is that it is unlikely to be supported by the international community142 Most developed nations have highly restrictive immigration policies and adopt narrow interpretations of who constitutes a lsquorefugeersquo143 Furthermore as the Refugee Convention only imposes certain rights and obligations and does not outline how these rights and obligations are to be implemented states are able to restrict the amount and duration of protection offered to refugees144 For example from 2002 to 2007 Australia offered asylum seekers arriving by boat only temporary protection visas regardless of their individual circumstances145 This did not amount to a violation of the Refugee Convention146

The UNHCR also does not support an expansion to the definition of lsquorefugeersquo The UNHCR says that any expansion will have a negative effect on traditional refugees may cause tension between traditional refugees and persons displaced by climate change and will overrun its already under-financed resources Entrusting the responsibility of assisting persons displaced by climate change on the UNHCR will more than double the amount of people falling under the UNHCRrsquos mandate147

Implement a New Stand-Alone Climate Displacement Convention

In light of the shortcomings of existing international agreements on climate displacement many commentators have called for the creation of a new stand-alone convention that draws on the remedial nature of the Refugee Convention and incorporates the distributive and procedural justice aspects of the UNFCCC148 Hodgkinson and colleagues have provided a detailed outline of their proposed Convention for Persons Displaced by Climate Change (Climate Displacement Convention)149

140 Biermann and Boas (n 12) esp 25 141 ibid esp 20 142 Millar (n 40) esp 86 Zetter (n 30) esp 131 142143 Renaud et al (n 3) esp 21 Biermann and Boas (n 12) esp 18ndash19 144 McLeman (n 37) esp 14145 A Edwards lsquoTampering with Refugee Protection The Case of Australiarsquo (2003)

15 International Journal of Refugee Law 192esp 196ndash202146 ibid 147 McAdam (n 6) esp 25 Biermann and Boas (n 12) esp 14 King (n 27) esp 554 148 Millar (n 40) esp 73 Docherty and Giannini (n 9) esp 350 Falstrom (n 3) esp

18 Lange (n 21) esp 627149 Hodgkinson et al (n 7)


The Climate Displacement Convention expressly addresses considerations of procedural justice by ensuring the participation of both state and non-state actors in decision-making150 The assembly of the Convention would comprise representatives of all state parties and would determine the amount of each statersquos contributions to the displacement fund151 The council would consist of an equal number of selected members from developed and developing countries as well as members from international organizations and civil society152 The council would assess any requests for resettlement assistance and confirm the level of assistance to be provided153

The Climate Displacement Convention also expressly addresses considerations of distributive justice The Convention recognizes that the principle of common but differentiated responsibilities should guide the level of assistance provided by a state to a person displaced by climate change154 In this regard the Convention imposes clear obligations on developed state parties155 For example the amount of a state partyrsquos contribution to the displacement fund is calculated according to a statersquos historical greenhouse gas emissions156 Historical and current levels of greenhouse gas emissions would also guide the number of persons displaced by climate change that a developed party should accept157

Parties would contribute to a fund to assist developing state parties to respond to climate displacement to resettle persons displaced by climate change and to pursue preventative strategies158 The displacement fund would not only quantify the amount that developed state parties would have to contribute but also make contributions mandatory and payable annually159 The Convention however does not allow monies from the fund to be paid directly to individuals or affected communities Any transfer of money is strictly limited to nation states

The Convention provides persons displaced by climate change with rights analogous to those granted to refugees under the Refugee Convention160 For example a state could not return a person displaced by climate change to an environment that could not sustain them Additional rights beyond those in the Refugee Convention are also granted161 including the right to permanent

150 ibid esp 24 151 ibid152 ibid esp 24ndash5 153 ibid154 ibid esp 11 155 See generally ibid156 ibid esp 12 157 ibid esp 11 158 ibid esp 25 159 ibid160 ibid esp 41161 ibid esp 16


resettlement in a host country that is in close proximity to a displaced personrsquos home state162

The most fundamental shortcoming of a new convention is that it may take a significant period of time for a new instrument to be drafted and to then come into force as there is arguably insufficient political incentive for countries to ratify a new convention163 Climate change is yet to substantially displace a large amount of people affect the economies of developed countries or pose a global security threat By the time such events are realized it will be too late for the global community to respond to climate displacement in an orderly and effective manner164 There are also concerns that the growing number of multilateral environmental agreements is fragmenting global environmental governance rather than strengthening it165 A number of commentators note that this fragmentation has led to a lack of cooperation and coordination amongst international organizations166 This in turn has caused some environmental agreements to become ineffective

Implement a Climate Displacement Protocol to the UNFCCC

Other commentators have called for a protocol to the UNFCCC to be introduced to recognize and protect persons displaced by climate change167 Commentators in support of such a proposal argue that the UNFCCC with its broad mandate on climate change is best placed to address climate displacement168 A protocol would also align with broader global governance considerations which seek to ensure integration of international environmental institutions and the removal of institutional fragmentation and duplication between governing bodies Biermann and Boas have described in detail their Protocol on the Recognition Protection and Resettlement of Climate Change Refugees to the UNFCCC (Climate Displacement Protocol)169

The Climate Displacement Protocol expressly encompasses considerations of procedural justice Numerous provisions ensure that developing countries are able to participate in negotiations on solutions and strategies concerning climate displacement170 Decision-making under the Protocol will occur through the executive committee171 which is modelled on the decision-making body of the

162 ibid esp 34 42163 Atapattu (n 16) esp 632 Falstrom (n 3) esp 27 164 Biermann and Boas (n 12) esp 31 165 A Najam et al Global Environmental Governance A Reform Agenda (International

Institute for Sustainable Development 2002) Ch 2 ltwwwiisdorgpublicationspubaspxpno=797gt accessed 20 October 2012

166 ibid167 Docherty and Giannini (n 9) esp 394 168 ibid169 Biermann and Boas (n 12) 26ndash30 170 ibid esp 27171 ibid


successful Montreal Protocol on Substances that Deplete the Ozone Layer172 The committee will consist of an equal number of affected countries and donor countries and voting will occur on the basis of the double-weighted majority rule173 allowing affected countries to veto any decision that a majority of them did not support174Although the Protocol allows developing countries to fully participate in negotiations and decision-making it does not provide for the participation of non-state actors such as support agencies and local communities175 Such participation is vital to ensure that effective strategies are implemented

Distributive justice is also expressly recognized in the Protocol One of the guiding principles of the Protocol is the principle of international burden-sharing176 This principle recognizes that industrialized countries bear most of the moral responsibility for persons displaced by climate change As a result the Protocol requires developed countries to meet the full costs of resettling persons displaced by climate change and to provide money to developing countries to implement preventative strategies177 Under the Protocol developed countries are required to make contributions to a displacement fund to assist developing countries to prepare for and where possible prevent climate displacement178 The funding mechanism reflects the funding objectives of the UNFCC with only state parties and not individuals or communities having access to the fund Lastly funding is preventative rather than remedial in nature179 It is designed to prepare a country for climate change rather than afford compensation to those people who will be affected180

The Protocol expressly recognizes the importance of protection and assistance through the guiding principle of resettlement181 This principle provides that persons displaced by climate change must be given more than a right to temporary asylum and requires signatory states to bestow permanent immigration status on any person displaced by climate change182 Millar has suggested that the Protocol should go further and clearly outline the rights of persons displaced by climate change in the host country and the obligations of the host country to such

172 ibid173 Biermann and Boas (n 12) Decisions will require a 23 majority representing a

majority of developed countries and a majority of developing countries174 ibid esp 27175 Paavola and Adger (n 86) esp 6176 Biermann and Boas (n 12) esp 26177 ibid esp 30 178 ibid esp 22ndash5 179 Docherty and Giannini (n 9) esp 358 UNFCCC (n 84) esp art 2 180 Docherty and Giannini (n 9) esp 358181 Biermann and Boas (n 12) esp 35 182 ibid esp 25


persons183 This is indeed preferable Experience suggests clear obligations are required in order for states to fully discharge their duties under international law184

The Climate Displacement Protocol does not outline clear obligations on state parties Although the Protocol recognizes the principle of international burden sharing similarly to the UNFCCC it does not outline specifically how the principle will translate into binding obligations on the parties For example developed countries are required to contribute to the displacement fund but there is no methodology for calculating how much they should contribute and how much each developed country should receive185 Until such details are included the principle runs the risk of not being practically implemented

It is difficult to definitively assess whether parties to the UNFCCC would adopt a Climate Displacement Protocol Commentators have noted the reluctance on the part of signatories to environmental treaties to include human rights in environmental treaties186 On this basis the Protocol may encounter some difficulty as it attempts to impose obligations on countries to accept and resettle persons displaced by climate change Some commentators also suggest that the UNFCCC should remain focused on mitigation of climate change and not on adaptation to climate change187 Millar argues that the inclusion of climate displacement within the UNFCCC has the potential to jeopardize the willingness of parties to adopt strong and ambitious greenhouse gas emission targets188

While there is merit in the idea of the UNFCCC remaining focused on mitigation there has been a recent shift in the focus of the international community to the importance of developing adaptive strategies The decision from the Cancun COP negotiations contains a component on lsquoenhanced action on adaptationrsquo189 The objective of the Cancun Adaptation Framework190 is to enhance action on adaptation through international cooperation and coherent consideration of matters relating to adaptation under the Convention Of particular relevance is Article 14 of the Framework which invites all parties to enhance action on adaptation taking into account their common but differentiated responsibilities and respective capabilities and specific national and regional development priorities objectives and circumstances

183 Millar (n 40) esp 95 184 G Goodwin-Gill and J McAdam The Refugee in International Law (Oxford

University Press 2006) esp 370 J Fitzpatrick lsquoRevitalizing the 1951 Refugee Conventionrsquo (1996) 9 Harvard Human Rights Journal 229 esp 232

185 Paavola (n 86) esp 6 186 Millar (n 40) esp 95187 RW Kates lsquoCautionary Tales Adaptation and the Global Poorrsquo (2000) 45

Climatic Change 5 esp 6 188 Millar (n 40) esp 94ndash6 189 Cancun Conference of Parties esp Decision 1 CP16 190 Paragraphs 11-35 of Decision 1 are referred to as the Cancun Adaptation

Framework


More specifically Article 14(f) provides the climate change regime with authority for coordinating climate displacement policy by stating that parties should takes measures to enhance understanding coordination and cooperation with regard to climate change induced displacement migration and planned relocation where appropriate at national regional and international levels Further the preamble acknowledges that the adverse effects of climate change will have a range of direct and indirect implications for the enjoyment of human rights Lastly the parties agreed to establish a 100 billion dollar lsquogreen climate fundrsquo to assist developing countries to defend themselves against the effects of climate change

Although the Framework does not impose binding legal obligations with respect to climate displacement these statements of principle nonetheless suggest that the UNFCCC parties are willing to consider human rights issues in an environmental context The adoption of a Protocol to a pre-existing convention would mean that the lengthy and possibly unsuccessful negotiations associated with the drafting of a new multilateral treaty would be avoided191 In the case of climate displacement it is imperative that action is taken soon192 measures need to be put in place to ensure the orderly resettlement of persons displaced by climate change and to prevent future avoidable displacement193 The lengthy time involved in drafting and implementing a new convention makes a Protocol to the UNFCCC attractive in this regard

Analysis

No proposal to address climate displacement is without shortcomings Overall the Climate Displacement Convention best satisfies the theoretical criteria However it is unlikely to gain sufficient international support to enter into force It is suggested that the Climate Displacement Convention should be implemented as a Protocol to the UNFCCC or incorporated into future legally binding adaptation instruments Incorporation of the rights and duties contained within the Climate Displacement Convention within the UNFCCC framework would lead to the most equitable outcome for persons displaced by climate change and highlight the connection between human displacement and climate change This will assist in raising awareness of the human dimension of climate change and may also place additional pressure on countries to come to an agreement on reducing greenhouse gas emissions194

The principle of common but differentiated responsibilities is enshrined within the UNFCCC195 and it is submitted that this principle could be used to

191 Atapattu (n 16) esp 630 192 Biermann and Boas (n 12) esp 31 193 ibid194 ibid esp 27 195 UNFCCC (n 84) esp art 3(1)


place primary responsibility on developed countries to fund the costs associated with climate change displacement In addition it is in the interests of developed countries to transfer technology and funds to developing countries in order to prevent avoidable and more costly displacement from occurring Developed countries should be encouraged to take adaptation measures seriously in order to avoid the potential security issues that would occur with unorderly and mass human displacement196

Any future climate displacement policy must build upon existing migration pathways and recognize the importance of regional resettlement Persons displaced by climate change will want to move to places with existing diaspora communities In many instances diaspora communities are found in areas close to the home country Williams has suggested that climate change displacement would be best coordinated by way of regional agreements operating under an international umbrella framework197 Williams advocates that this is a more culturally sensitive approach that forces the global community to recognize the particular features and wants of a threatened population This proposal is also realistic as it builds on existing regional geopolitical and economic relationships198 Under such an approach future adaptation policies would specifically recognize and support resettlement within existing regional migration routes

McAdam has suggested that a protocol may not be the most appropriate solution to the problem of climate displacement She notes the large degree of cultural diversity among groups at risk of climate displacement and suggests that specific culturally-sensitive initiatives would better ensure a human rights approach to climate displacement199 However McAdam has acknowledged that compensation and responsibility-sharing are indeed matters which might be usefully addressed in a multilateral instrument200

From a global governance perspective it is logical for the UNFCCC to coordinate all adaptation strategies The ever-expanding number of multilateral environmental agreements is leading to a fragmentation of global environmental governance undermining the effectiveness and cooperation amongst international institutions201 Only a comprehensive and united organization will be able to coordinate the millions of people expected to be displaced by climate change202 It is also the only model that ensures that all people displaced by climate change

196 King (n 27) esp 557ndash8 197 A Williams lsquoTurning the Tide Recognizing Climate Change Refugees in

International Lawrsquo (2008) 30 Law and Policy 502 esp 518198 ibid esp 524 199 J McAdam lsquoSwimming against the Tide Why a Climate Change Displacement

Treaty is Not the Answerrsquo (2011) 23(1) International Journal of Refugee Law 2 esp 17ndash18200 ibid esp 4 201 Najam (n 165)202 D Bodansky lsquoThe Copenhagen Climate Change Conference ndash A Post-Mortemrsquo

(2010) 104 American Journal of International Law 230


regardless of their regional location are recognized and equally protected Any governance structure premised on the implementation of regional agreements runs the risk of creating disparity in how persons displaced by climate change are recognized and protected

A Protocol to the UNFCCC is also best placed to ensure that the principle of distributive justice is practically implemented Distributive justice will play an important role in climate displacement measures by placing the responsibility of protection and assistance primarily on developed countries With 194 members the UNFCCC can more easily distribute the responsibility of climate displacement amongst the high emitting and industrialized countries (Annex I parties)

Conclusion

The adverse impacts of climate change have the potential to affect millions of people and to lead to the largest humanitarian crisis in history203 Current international law however does not adequately address climate displacement and will not protect persons displaced by climate change The international community must therefore implement a new governance structure to manage and address climate displacement

This chapter has evaluated three different proposals against a set of relevant criteria The stand-alone Climate Displacement Convention drafted by Hodgkinson and his colleagues best satisfies the theoretical criteria In order to overcome the practical difficulties in implementing the Climate Displacement Convention it is suggested that the obligations and rights that it protects should be incorporated within future legally binding adaptation instruments such as a Protocol to the UNFCCC As estimates of the number of people at risk of displacement by climate change continue to increase it is imperative that the international community implements a governance structure soon This will ensure an orderly and organized response and reduce the potential economic security and human cost of climate displacement

203 Biermann and Boas (n 12) 30 D Bell lsquoEnvironmental Refugees What rights Which Dutiesrsquo (2004) 10 Res Publica135 esp 139 HF Chang lsquoEnvironment and Climate Change Is International Migration part of the problem or part of the solutionrsquo (2009) 20 Fordham Environmental Law Review 341 esp 341

Chapter 13

Conceptualising Climate-Induced Displacement in Bangladesh

Mostafa Mahmud Naser

Introduction

Bangladesh has been identified as one of the most vulnerable countries to climate change1 and also as one of the states that will suffer the most damage2 The countryrsquos geographic location flat and low-lying topography high population density poverty incidence and dependence on natural resources and services render it particularly vulnerable to climatic changes Over the next decade climate change will accelerate both the frequency and intensity of natural disasters As a result a considerable number of people affected by these intensifying hazards will come under substantial pressure to migrate due to the perceived threat to their life and livelihood

As the effects of climate change are different people respond in diverse ways The policy responses concerning climate change induced displacement need to be based on a clear understanding of the varied probable impacts of different types of environmental conditions on patterns of human movement3 Such an understanding helps to disentangle migration due to the direct impacts of climate change from different dimensions of the phenomenon of environmental change and form a sound typology of climate change induced displacement

Research on global climatic change shows a link between climate change and human migration4 This chapter explores the socio-economic conditions of Bangladesh and how certain types of climatic impacts interact with human mobility

1 Bangladesh Ministry of Environment and Forests Bangladesh Climate Change Strategy and Action Plan 2009 4 lthttpwwwmoefgovbdclimate_change_strategy2009pdfgt accessed 17 September 2012

2 Sven Harmeling Global Climate Risk Index 2012 Who Suffers Most from Extreme Weather Events Weather Related Loss Events in 2010 and 1991 to 2010 (Briefing Paper Germanwatch 2011) 6

3 See Albert Kraler Tatiana Cernei and Marion Noack lsquoldquoClimate Refugeesrdquo Legal and Policy Responses to Environmentally Induced Migrationrsquo (European Parliament 2011) 14

4 A Williams lsquoAchieving Justice within the International Legal System Prospects for Climate Refugeesrsquo in BJ Richardson et al (eds) Climate Law and Developing Countries Legal and Policy Challenges for the World Community (Edward Elgar Publishing 2009)


It also provides an overview of predicted numbers and figures of environmental migration globally and in Bangladesh Thus it conceptualizes climate change induced displacement in Bangladesh analysing the typology of climate change induced displacement based on causes and extent of movement This chapter concludes by creating a definition of persons moving as a result of climate induced displacement based on the causal factors driving migration in Bangladesh

Geo-Morphological and Socio-Economic Conditions in Bangladesh and Susceptibility to Climate Change

Historically Bangladesh has suffered from a number of catastrophic environmental events such as floods tropical cyclones storm surges and droughts5 The United Nations Development Program (UNDP) has ranked Bangladesh as lsquothe most vulnerable country in the world to tropical cyclones and the sixth most vulnerable country to floodsrsquo6 About 10 per cent of the country is 1 metre above the mean sea level (MSL) and one-third of the country suffers from tidal excursions Sea level rise caused by global warming and accelerated by melting of the Himalayan glacier is likely to cause flooding of highly populated coastal areas in Bangladesh People may be compelled to move as the low-lying coastal areas are likely to be contaminated with saline water Scarcity of water resources due to droughts and desertification may motivate people to migrate from unproductive and water-scarce areas to safer places The changed and variable weather patterns lead to dramatic climate events such as hurricanes typhoons and flooding which may also affect human habitat7

Bangladesh is the sixth most densely populated country of the world with a relatively small inhabitable area and is lsquoin the top ten in terms of percentage of population living in the low elevation coastal zonersquo8 According to the UNDP Human Development Indicators the current population in Bangladesh is around 150 million9 with the population density at 1064 inhabitants per sq km10 Higher

5 Bangladesh Ministry of Environment and Forests (n1) 56 ibid7 ibid8 James S Pender lsquoWhat is Climate Change And How It will Effect Bangladeshrsquo

(Briefing Paper Final Draft) Church of Bangladesh Social Development Programme 2008) 38

9 International Human Development Indicators Bangladesh Country Profile ndash Human Development Indicators(2011) lthttphdrstatsundporgencountriesprofilesBGDhtmlgt accessed 28 September 2012

10 Population Reference Bureau 2008 World Population Datasheet (2008) lthttpwwwprborgpdf0808wpds_engpdfgt accessed 28 September 2012 The population density was as high as 11111 population per sq km in 2008 UN Data 2012 Bangladesh lthttpdataunorgCountryProfileaspxcrName=Bangladeshgt accessed 28 September 2012

Conceptualising Climate-Induced Displacement in Bangladesh 227

population density increases vulnerability to climate change as more people are at risk of needing to migrate if environmental conditions change

In socio-economic terms Bangladesh is one of the poorest nations Annual growth rates are slowly declining currently at 18 per cent and projected to fall to 056 per cent by 2045ndash50 The Human Development Index estimates that 56 million people (40 per cent of the population) live below the poverty line and the country was ranked 146th out of 187 in 201111 According to the Population Reference Bureau (PRB) as many as 81 per cent of Bangladeshi live on less than US$2 per day12

Agriculture is an important part of the formal and informal economy in Bangladesh as well as the lives of the vast majority of its population13 While this crucial sector accounts for about one quarter (1995 per cent in the 2010ndash11 financial year) of Bangladeshrsquos Gross Domestic Product (GDP) and 63 per cent of the national employment it faces serious challenges posed by low productivity and the decline of land availability14 The situation is further aggravated due to global warming and climate change scenarios since the agriculture in Bangladesh is heavily dependent on the weather This combination of these factors results in low adaptive capacity and resilience of the population to respond to climatic change and presents significant risks of mass-migration as a result of climate change

Typology of Climate Change Induced Displacement in Bangladesh

The impacts of climate change which are likely to trigger human movement can be divided into two broad groups sudden hydro-meteorological disasters and slow-onset environmental degradation15 This section defines sudden disasters and slow onset degradation and shows how these events could impact migration within Bangladesh

11 United Nations Development Programme Human Development Report 2011 (2011) lthttphdrstatsundporgimagesexplanationsBGDpdfgt accessed 28 September 2012 The HDI is a summary measure for assessing long-term progress in three basic dimensions of human development a long and healthy life access to knowledge and a decent standard of living

12 PRB 2011 World Population Data Sheet13 See N Mohammad lsquoThe Agricultural Governance in Bangladesh A Case Studyrsquo

(2012) 63 World Academy of Science Engineering and Technology 894 894ndash7 14 See Government of the Peoplersquos Republic of Bangladesh Bangladesh Economic

Review 2011 (2011) 83-4 ltwwwmofgovbdenbudget12_13berenchapter-7_enpdfgt accessed 28 September 2012

15 See J McAdam and B Saul lsquoDisplacement with Dignity International Law and Policy Responses to Climate Change Migration and Security in Bangladeshrsquo (2010) 53 German Yearbook of International Law 233 237ndash41 M Walsham Assessing the Evidence Environment Climate Change and Migration in Bangladesh (International Organization for Migration 2010) 9ndash24


Climate change is likely to increase frequency and severity of sudden-onset hydro-meteorological disasters such as flooding hurricanes typhoons and cyclones16 During the aftermath of such natural disasters peoplersquos lives and livelihood are at risk due to destruction of harvest livestock or productive assets17 Consequently people start moving from the affected area to safer places to secure their life and livelihood18

It is expected that there will be a significant increase in cyclone winds and precipitation in Bangladesh due to the warming of the Indian Ocean Such changes will have significant impacts for Bangladesh given that about 53 per cent of the total world deaths from cyclones take place in Bangladesh19 In November 2007 the tropical cyclone Sidr with winds up to 240 km per hour displaced 650000 people and killed 344720 In 2009 two cyclones (cyclone Bijli April 2009 and cyclone Aila May 2009) hit Bangladesh21

These events caused flooding which led to loss of life through drowning spreading of disease and destruction of property causing displacement on a very massive scale22 In Bangladesh it is projected that more than a million people every year lose their land and homes to flooding23 However one could argue that Bangladesh is a country traditionally facing difficulties due to the flooding and related environmental degradation Irrespective of existing geographical and weather patterns climate change is predicted to increase the intensity severity and frequency of the flood hazards as a result of higher river flows from heavier and more erratic rainfall in the Ganges-Brahmaputra-Meghna system during the monsoon as well as increased melting of the Himalayan glaciers24

Long term and gradual environmental degradation include conditions such as drought desertification reduced water availability due to melting glaciers land

16 E Ferris lsquoMaking Sense of Climate Change Natural Disasters and Displacement A Work in Progressrsquo (Speech delivered at the Calcutta Research Group Winter Course Calcutta 14 December 2007) 8

17 K Warner Assessing Institutional and Governance Need Related to Environmental Change and Human Migration (2010) 2 ltwwwgmfusorggalleriesdefault-fileWarner_MAH_EditsV2pdfgt accessed 28 September 2012

18 K Warner lsquoGlobal Environmental Change and Migration Governance Challengesrsquo (2010) 20 Global Environmental Change 402 405

19 A Ali lsquoClimate Change Impacts and Adaptation Assessment in Bangladeshrsquo (1999) 12 Climate Research 109 111

20 United Nations Central Emergency Response Fund Grants US$ 875 million for Assistance to Bangladesh (2007) lthttpreliefwebintreportbangladeshcentral-emergency-response-fund-grants-us-875-million-assistance-bangladeshgt accessed 28 September 2012

21 Walsham (n15) vii22 ibid 1023 C Tacoli Migration and Adaptation to Climate Change (2007) lthttppubsiied

orgpdfs17020IIEDpdgt accessed 28 September 201224 Bangladesh Ministry of Environment and Forests (n1) 14


erosion and increased salinity in costal zones due to sea level rise All of these conditions have the potential to cause large scale progressive displacement These gradual changes deteriorate herding farming and fishing and may negatively affect livelihood systems that ultimately motivate people to move in the long term25

The decision to move to safer places to avoid life threatening environmental degradations likely to arise in the near future may increase in communities in the affected areas26 Gradual environmental impacts are rarely reported by media and attention is only given by authorities once the situation has transformed into a crisis27 People displaced by slow-onset disasters may not return to their original place due to the loss of physical existence of their land because of sea level rise and coastal erosion or livelihood due to desertification salinity extinction of fish and other species28 Provided the physical land is available these people may still choose to return their original place if they can adopt alternative livelihood29

Bangladesh is particularly vulnerable to sea level rise due to its low lying topography high population density in deltaic coastal regions and limited financial resources to respond30 Only a 2degC warming with a 10 per cent increase in precipitation would increase runoff in the Ganges Brahmaputra and Meghna rivers by 19 per cent 13 per cent and 11 per cent respectively31 This will have far-reaching consequences for the population migration within Bangladesh as two-thirds of the country is less than 5 metres above the sea level and 20 per cent of total land is 1 metre or less above sea level32 Higher temperatures will result in increased glacier melt increasing runoff from the neighbouring Himalayas into the Ganges and Brahmaputra rivers in the short term with the possibility of them drying up in the long term33 Most of the largest rivers flowing through Bangladesh including Ganga survive on melt-water from Himalayan glaciers ndash lsquothe Water Tower of Asiarsquo34 As the flow speeds up from the Himalayas to Bangladesh through the Ganges-Brahmaputra and into the coast it is expected

25 Warner (n17) 426 ibid27 ibid28 Warner (n18) 40929 ibid30 S Kravchenko lsquoRight to Carbon or Right to Life Human Rights Approaches to

Climate Changersquo 9 Vermont Journal of Environmental Law 513 52731 MMQ Mirza and A Dixit lsquoClimate Change and Water Resources in the GBM

Basinsrsquo (1997) 5(1) Water Nepal 71 32 S Agrawala T Ota AU Ahmed J Smith and M van Aalst Development and

Climate Change in Bangladesh Focus on Coastal Flooding and the Sundarbans (2003)14-15 ltwwwoecdorgenvclimatechange21055658pdfgt accessed 28 September 2012

33 The 4AR of IPCC confirms that glaciers in the Himalayas are receding faster than in any other part of the world Massive amounts of melted water increase the downward flow of rivers

34 N Stern Stern Review The Economics of Climate Change (Cambridge University Press 2006) 63


that rising intensity of tidal waves will worsen river bank erosion River bank erosion is a regular phenomenon in Bangladesh that jeopardizes the life and livelihood of people living alongside Bangladeshrsquos major rivers and on river islands (lsquocharsrsquo)35 According to the Centre for Environment and Geographic Information Services (CEGIS) a research study found that every year 01 million people become homeless because of river bank erosion36

The rising sea level will also likely affect salt-water intrusion and inundation of freshwater systems coastal erosion and result in more destructive storms37 Consequently there is strong evidence that all these impacts of sea level rise threaten to undermine crop growth destroy subsistence food resources and water supplies vital infrastructure and inundate low-lying coastal areas that are home to millions of people38 Thus sea level rise may motivate resettlement forced migration or other forms of human mobility39

Current scientific projections and scenarios indicate that climate change will exacerbate drought both in terms of intensity and frequency in Bangladesh40 Desertification gradually diminishes productivity of land and affects livelihood and thus as the land becomes uninhabitable people are compelled to move to other areas41 The availability of freshwater will be reduced by increased salinity intrusion during the low flow conditions

Climate change thus has the potential to increase the frequency and magnitude of both sudden-onset and slow-onset climate-related disasters in Bangladesh The onset of climate change in Bangladesh will potentially significantly increase human

35 Walsham (n15) 13 lsquoSince 1973 over 158780 hectares of land has been eroded and in 2010 alone RBE is expected to displace 11000 people living on the banks of the Jamuna and more than 5000 living alongside the Ganges and Padma riversrsquo ibid

36 In another study it is mentioned that 01 per cent people are displaced every year on an average because of river bank erosion T Akter Climate Change and Flow of Environmental Displacement in Bangladesh (Unnayan Onneshan ndash The Innovators 2009) 8

37 K Warner In Search for Shelter Mapping the Effects of Climate Change on Human Migration and Displacement (2009) ltwwwciesincolumbiaedudocumentsclim-migr-report-june09_finalpdfgt accessed 28 September 2012 DR Bell lsquoEnvironmental Refugees What Rights Which Dutiesrsquo (2004) 10(2) Res Publica 135 A Morton P Boncour and F Laczko lsquoHuman Security Policy Challengesrsquo 31 Forced Migration Review 5 5ndash6

38 Warner (n37) iv Bell (n37) 135ndash7 Morton et al (n37) 5ndash639 G McGranahan D Balk and B Anderson lsquoThe Rising Tide Assessing the Risks

of Climate Change and Human Settlements in Low Elevation Coastal Zonesrsquo (2007) 19 Environment amp Urbanization 17 21ndash7

40 R Selvaraju AR Subbiah S Baas and I Juergens lsquoLivelihood Adaptation to Climate Variability and Change in Drought-Prone Areas of Bangladesh Developing Institutions and Optionsrsquo (2006) 57 ltftpftpfaoorgdocrepfao009a0820ea0820epdfgt accessed 28 September 2012

41 B Docherty and T Giannini lsquoConfronting a Rising Tide A Proposal for a Convention on Climate Change Refugeesrsquo ( 2009) 33 Harvard Environmental Law Review 349 349


displacement and migration42 As such distinguishing between rapid and slow onset events assists in developing policies and governance structures to respond to such challenges Forced migration from sudden disruption and forced migration from gradual disruption each require individual humanitarian and legal responses43

Typology of Climate Change Induced Displacement based on Extent and Permanency of Movement

Displacement due to climate change is likely to manifest in six ways

1 temporary displacement2 permanent local displacement3 permanent internal displacement4 permanent regional displacement5 permanent inter-continental displacement and6 temporary regional or international displacement44

In the Bangladesh context climate-related human movement is likely to be lsquointer-related with existing migration flows because of the importance of social networks and ldquocapitalrdquo constraints in determining peoplersquos ability to migratersquo45

In the context of Bangladesh it is envisaged that three broad scenarios of migration patterns are applicable

1 sudden large-scale forced displacement caused by sud den-onset disasters2 unplanned rural-urban migration into growing urban slums and other areas

possibly creating conflict and tensions over competition for land and3 more gradual migration to other destinations in Ban gladesh and abroad

facilitated by sufficient economic assets skills and so on among out-migrants to support sus tainable livelihoods at destination and remittance flows back to source communities46

42 Warner (n18) 40443 ibid44 Displacement Solutions Climate Change Human Rights and Forced Human

Displacement Case Studies as Indicators of Durable Solutions (2008) ltwwwdisplacementsolutionsorgfilesdocumentsClimate_Change_Displacement_Meeting_Paperpdfgt accessed 28 September 2012

45 J Sward lsquoMigration and Climate Change How will Climate Shifts Affect Migration Trendsrsquo (2008) 1 ltwwwmigrationdrcorgpublicationsbriefing_papersBP12pdfgt accessed 28 September 2012

46 The German Marshall Fund of the United States Climate Change and Migration Report of the Transatlantic Study Team (2010) 4 ltwww12georgetownedusfsdocsClimate_Change_Final_Reportpdfgt accessed 28 September 2012


In addition to considerations of temporary versus permanent migration consideration must be given to whether the migration is internal or across state boundaries Internal displacement generally refers to situations where people move shorter or longer distances to find new homes and livelihoods within their own countries When individuals or communities cross state boundaries the migration becomes international migration47 It becomes easier to identify the most appropriate protection mechanism once the migration is classified as either internal or international

Internal Displacement

Most empirical research suggests that most of the people displaced by climate-related factors in Bangladesh will be internal48 In the case of extreme and sudden onset natural disasters such as floods hurricane or storm surge people are typically displaced temporarily and within very short distances This is because lsquothe poor socio-economic circumstances of the Bangladeshi people preclude them from undertaking cross-border journeysrsquo 49

Temporary and circular migration is a common long-term survival strategy in Bangladesh50 Seasonal migration to both rural and urban areas provides vital income sources for the rural poor during periods of low local employment opportunity51 However seasonal migration is not solely linked to natural hazards Field research shows that the number of people migrating temporarily from areas vulnerable to natural hazards has significantly increased over recent years as localized coping strategies have become more difficult to sustain52 Seasonal migration is predominant among the poor and it is a crucial way of achieving and maintaining alternative livelihood as well as a way to cope with environmental

47 HJ Ketel lsquoGlobal Warming and Human Migrationrsquo in A Yotova (ed) Climate Change Human Systems and Policy (EOLSS Publishers 2004) 263 264 Adamo (n15) 5 UNHCR Climate Change Natural Disasters and Human Displacement A UNHCR Perspective (2009) 4 ltwwwunhcrorgrefworlddocid4a8e4f8b2htmlgt accessed 28 September 2012

48 McAdam and Saul (n15) 23549 J McAdam lsquoSwimming against the Tide Why a Climate Change Displacement

Treaty is not the Answerrsquo (2011) 23(1) International Journal of Refugee Law 2 11-1250 See CR Abrar and SN Azad Coping with Displacement Riverbank Erosion in

North-West Bangladesh 113 (RDRS Bangladesh) R Afsar Internal Migration and the Development Nexus the Case of Bangladesh (2003) 2 ltwwweldisorgvfileupload1document0903Dhaka_CP_6pdfgt accessed 28 September 2012

51 Afsar (n38) 2 52 S Darlymple et al Climate Change and Security in Bangladesh (2009) 17 lthttp

hawkethzchserviceengineFilesISN103629ipublicationdocument_singledocument 4e170aba-1b50-4bec-9547-e17b04aff9cdenBangladesh_climat_change_June09pdfgt accessed 28 September 2012


degradations53 These temporary seasonal migrants usually move to urban areas to seek employment in the informal sector such as rickshaw driving or to rural areas to take up employment as labourers in agricultural sectors54

While people from rural areas generally adopt temporary circular and seasonal migration for their livelihood recent data suggests an increase in permanent migration from areas affected by climate change55 Initially most of the people move temporarily with the hope of returning home when it is possible to do so56 They move permanently only when all alternative coping mechanisms have been exhausted57 A number of socio-economic factors are responsible for increasing permanent migration however climate change has contributed to accelerating the process58

The effects of climate change are likely to cause irreversible changes to the living environment and make certain areas unliveable due to depletion of natural resources59 In this situation these people need to be relocated to less dangerous places since returning to their original home is unlikely or impossible60 However such permanent relocation is difficult in densely populated developing countries like Bangladesh where large number of people have to share limited resources There is also the risk that landowners may refuse to allow settlement for migrated victims of natural disasters61

Cross-Border Displacement

Although Bangladesh has a long history of sending labour migrants there is still no evidence or any concrete association between environmental degradation or change in Bangladesh and long distance international labour migration62 A common assumption made in relation to cross-border displacement is that environmental degradation may severely impact upon basic infrastructure and livelihoods and as such lead to international migration from Bangladesh

However the existing patterns of movement from natural disasters which provide the best indicators of future movement and expertsrsquo views do not endorse

53 Selvaraju et al (n 40) 2654 Darlymple et al (n 52) 16 McAdam (n49) 1155 Selvaraju et al (n 40) 17 The findings from a field research by BIISS and

Safeworld suggest that increased migration in response to the severity of natural events tend to becoming permanent

56 ibid57 ibid58 ibid59 T King lsquoEnvironmental Displacement Coordinating Efforts to Find Solutionsrsquo

(2005) 18 Geogetown International Environmental Law Review 543 54760 Adamo (n15) 561 ibid62 Walsham (n15) 30


such an assumption63 Despite annual flooding cyclones and coastal and riverbank erosion for the last decades there is lsquoscant evidence to justify claims that mass outflows of Bangladeshi ldquoclimate refugeesrdquorsquo64 The main reason is that it needs considerable resources ndash such as education information social networks skills and sufficient financial resources ndash for long distance and international migration It also implies that the people most vulnerable to environmental change and degradation are least able to move far away crossing international borders65

Moreover lsquoa close sense of attachment to land family and culture also inhibits movement abroadrsquo66 There are a number of reasons that inhibit cross-border movement and it is likely that only few of the affected population who mostly belong to an economically solvent class will succeed in international migration67

Myersrsquo assumption that a large of number of environmental migrants will rush to developed countries is therefore unlikely to happen in reality68 The recent IOM study report on pattern of human migration in Bangladesh also states that lsquothe overwhelming majority of migration in which environmental factors play a role at present is internal rather than externalrsquo This certainly applies to sudden-onset events where all the data presented above suggests that lsquoinitial displacement is primarily local and short term in nature and there is no evidence for mass migration across bordersrsquo69 McAdam and Saul also cast doubts on mass cross-border movement due to climate change in Bangladesh70 McAdam found that lsquoonly very few of the poor ndash the people most heavily impacted by climate change ndash will move irregularly across an international border and typ ically only if they have family links therersquo71

Definition of Climate Change Induced Displacement An Analysis

Although there are various attempts to define the people moved for environmental or climate change reasons there is still no agreed upon definition of climate

63 See for example G Hugo lsquoClimate Change-Induced Mobility and the Existing Migration Regime in Asia and the Pacificrsquo in J McAdam(ed) Climate Change and Displacement Multidisciplinary Perspectives (Hart Publishing 2010) 9

64 McAdam and Saul (n15) 24665 Walsham (n15) 2866 McAdam (n49) 1267 For instance in a recent study on migration effects of flood found that only 5 per

cent of households with a migrant had a family member overseas and these were all from the richest class in the village see MZM Rahman lsquoEmigration and Development The Case of a Bangladeshi Villagersquo (2000) 38 International Migration 109

68 See N Myers lsquoEnvironmental Refugees A Growing Phenomenon of the 21st Centuryrsquo (2002) 357 Philosophical Transactions Biological Sciences 609 609

69 Walsham (n15) 2870 See McAdam and Saul (n15) 243ndash571 McAdam (n49) 12


induced displaced persons in international law This section endeavours to define climate-induced displacement in Bangladesh Policy makers government reports and policy papers repeatedly use the term lsquoclimate refugeesrsquo lsquoenvironmental refugeesrsquo or lsquoclimate victimsrsquo Yet these terms are not formally defined to include people likely to be displaced due to the impacts of climate change72 This lack of a formal definition means that there is no legal recognition of such populations and accordingly limited legal protection73

This chapter suggests that any attempt to define those who are in flight or in search of safer livelihood and shelter due to climate change is complex given the range of factors normally present when such decisions are made74 Any fixed definition always bears the risk of excluding persons who are in need of greater protection such as those moved by poverty and lsquocreating more gaps with new labels and categoriesrsquo75 Nevertheless from legal protection and policy setting perspectives it is necessary to define the people subject to the intended protection mechanism for the sake of clarity and certainty76 Without at least an agreed working or descriptive definition it seems impossible to achieve even nominal protection for such populations77

Most of the definitions found in the literature on environmental or climate change migration are developed in global setting No definition of climate change displaced people is found in academic literature and policy papers in the context of Bangladesh In developing a definition this chapter suggests that the following matters must be considered

1 What is the appropriate terminology to identify the people displaced by environmental degradation as a result of climate change

2 Should the definition of displacement induced by climate change include all types of environmental events both natural and man-made including technological and development induced disasters or specific characteristics of environmental degradations as a result of climate change as causes for migration

3 Should the definition include internal andor cross-border movements or both

72 R Zetter lsquoProtecting Environmentally Displaced People Developing the Capacity of Legal and Normative Frameworksrsquo (2011) 44 ltwwwrscoxacukpdfsworkshop-conference-research-reportsZetter-20EnvDispRep2015022011pdfgt accessed 28 September 2012

73 ibid74 T Acketoft lsquoEnvironmentally Induced Migration and Displacement A 21st

Century Challengersquo (2008) 13 lthttpassemblycoeintDocumentsWorkingDocsDoc08EDOC11785pdfgt accessed 28 September 2012

75 ibid76 ibid77 ibid


4 Should the definition include both temporary and permanent displacement5 Is the migration forced or voluntary

Appropriate Terminology

The application of the term lsquorefugeersquo with climate change displaced persons is likely to raise many legal and extra-legal complexities Given the narrow definition of lsquorefugeersquo within the Refugee Convention it is not appropriate to use the term in climate displacement scenarios Taking this notion into consideration some scholars most notably the IOM use the terms lsquoenvironmental migrantrsquo or lsquoclimate change migrantrsquo since the term lsquomigrantrsquo means lsquoany person who changes his or her country of usual residencersquo However the terms lsquoenvironmental migrantrsquo and lsquoclimate change migrantrsquo do not entail all phenomena of climate-induced displacement This chapter uses the term lsquoclimate change displaced personsrsquo as a generic term to refer to those migrants who are compelled to leave their habitat as it becomes unliveable due to sudden or progressive environmental degradations78

Defining lsquoEnvironmental Events Arising from Climate Changersquo in the Bangladesh Context

This chapter suggests that the environmental events connected with displacement should be consistent with Intergovernmental Panel on Climate Change (IPCC) definitions of climate change The IPCC identifies certain events which are directly related with the impacts of anthropogenic climate change and considers the following events directly related

1 Increased incidence of extreme high sea level (excluding tsunamis)2 Intense tropical cyclone activity increases and3 Areas affected by drought increases as lsquolikelyrsquo that is with more than

sixty-six percent probability79

Any national instrument that seeks to address climate-induced migration must be grounded in scientific evidence and be sufficiently flexible to adapt as scientific knowledge develops The 2009 Bangladesh Climate Change Strategy and Action

78 For the literature that used the term climate change displacement see J McAdam Climate Change Forced Migration and International Law (Oxford University Press 2012) Displacement Solutions (n44) D Hodgkinson T Burton L Young and H Anderson lsquoCopenhagen Climate Change ldquoRefugeesrdquo and the Need for a Global Agreementrsquo 4(2) Public Policy 155

79 Intergovernmental Panel on Climate Change Climate Change 2007 Impacts Adaptation and Vulnerability (Cambridge University Press 2007) 53 lsquoVirtually certainrsquo means a probability greater than 99 per cent lsquoextremely likelyrsquo means a probability greater than 95 per cent and lsquovery likelyrsquo means greater than 90 per cent


Plan 2009 (BCCSAP) identified that Bangladesh is mostly susceptible to floods tropical cyclones storm surges and droughts80 The UNDP also ranked Bangladesh lsquothe most vulnerable country in the world to tropical cyclones and the sixth most vulnerable country to floodsrsquo81

The main reason for proposing a restrictive notion of lsquoenvironmentrsquo which the IPCC held was consistent with climate change is to establish the responsibility of industrialized countries for localized effects of climate change as well as consequent climate induced displacement in Bangladesh82 The higher standard of climate events endorsed by authentic scientific evidence provides increased certainty of climate-induced displacement Thus the protection framework under the climate change scenario would facilitate seeking international cooperation including funding and justify the universally acclaimed moral though not legal obligation of the developed countries for assistance and support of the climate-induced displacement in Bangladesh as proclaimed by Article 14(f) of the Cancun Framework83 Otherwise many developed countries are not ready to expend money for uncertain science84

Moreover the focus on lsquoclimate changersquo instead of lsquoenvironmentrsquo will ensure effective protection due to current wide agreement among the international community and the bulk of attention in current international fora on the impacts of climate change That is why this chapter suggests using the term lsquoclimate changersquo instead of lsquoenvironmentrsquo and proposes to include lsquothe environmental disruption as a consequence of climate changersquo in the definition as a causation of migration

80 See Bangladesh Ministry of Environment and Forests (n1)81 ibid 582 It is confirmed by various IPCC reports that developed countries are mostly

responsible for anthropogenic climate change See Intergovernmental Panel on Climate Change Climate Change The IPCC Scientific Assessment Final Report of Working Group (Cambridge University Press 1990) 8

83 Paragraph 14(f) of the UNFCCC Cancun Adaptation Framework is a landmark in policy discussions on climate change displacement that invites all states parties to take lsquomeasures to enhance understanding coordination and cooperation with regard to climate change induced displacement migration and planned relocation where appropriate at national regional and international levelsrsquo For details on background and extent of Para 14(f) of Cancun Adaptation Framework see K Warner Climate Change induced Displacement Adaptation Policy in the Context of the UNFCCC Climate Negotiations lthttpwwwunhcrorgrefworlddocid4e09a3d32htmgt accessed 28 September 2012 M Leighton X Shen and K Warner K Climate Change and Migration Rethinking Policies for Adaptation and Disaster Risk Reduction (Publication Series of United Nations University No 152011)

84 King (n59) 554


Displaced Populations in Bangladesh Internal or Trans-boundary Movement

The majority of those displaced by the effects of climate change whether due to sudden onset hydro-meteorological disasters or environmental degradation are likely to remain within the borders of Bangladesh They do not have sufficient resources and networks abroad to move and cross the border For example lsquo88 percent of migrant agricultural communities in Bangladesh remained within 2 miles of their previous residence following the erosion of land and loss of homes due to floodingrsquo85

However some displacement will also take place across borders particularly to neighbouring countries including India Pakistan and Myanmar The climate change induced displaced persons who moved across borders still remain citizens of Bangladesh and are entitled to all human rights protection both at home and abroad Therefore both internal and cross border migrants must be included in the common definition of climate-induced displacement Since both types of displacements are different consequences of similar environmental events determined by level of access to capital and resources distinguishing between the two is not justified Of course protection mechanisms will vary for these two types of displacements taking into account the real circumstances

Displacement Populations in Bangladesh Permanent or Temporary

In general it is assumed that sudden disasters cause temporary migration while gradual changes in the environment such as sea level rise salinity and scarcity of water resources lead to slow onset permanent migration86 However the patterns of population movement in responses to natural disasters may not be so simple and straightforward For example people may be evacuated temporarily in the face of increased frequency of extreme events floods or droughts but in long run permanent resettlement may be required if affected areas become unliveable because of the depletion of resources and limited scope of livelihood87 Whether the nature of migration is permanent or temporary the need for relocation assistance and protection arises in all situations at both national and international levels

Therefore it is neither necessary nor justified to distinguish between temporary and permanent displacement for the protection of climate change displacement88

85 MQ Zaman lsquoThe Social and Political Context of Adjustment to Riverbank Erosion Hazard and Population Resettlement in Bangladeshrsquo (1989) 48 Human Organization 196

86 See C Boano R Zetter and T Morris Environmentally Displaced People Understanding the Linkages between Environmental Change Livelihoods and Forced Migration (Refugee Studies Centre University of Oxford 2008) 14 lthttpwwwrscoxacukpublicationspolicy-briefingsRSCPB1-Environmentpdfgt accessed 23 May 2013

87 ibid88 F Biermann and I Boas lsquoPreparing for a Warmer World Towards a Global

Governance System to Protect Climate Refugeesrsquo (2010) 10 Global Environmental Politics


The protection mechanisms will indeed vary depending on the length and extent of movement While temporary migrants who may return to their original place once the adverse situation is over require emergency humanitarian assistance in the form of food shelter and medical services permanent migrants need durable solutions including land housing and access to livelihood for permanent settlement

Displaced Population in Bangladesh Forced or Voluntary

The distinction between voluntary and involuntary migration is not as easy as it appears89 Formulating an appropriate definition is further complicated by the uncertainty surrounding the extent to which environmentally-induced migration is truly forced90 There are serious debates among scholars concerning whether environmental migration is inherently a form of forced displacement or whether it can take in the form of voluntary relocation

However the IOM recognizes the challenges to distinguish between voluntary and forced population movements particularly with regard to slow-onset disasters and progressive environmental degradation91 Without drawing a straightforward distinction the IOM advocates pursuing a holistic approach to environmental migration to address all forms of movement comprehensively putting the migrant at the centre of concern rather than focusing on formal legal categories92 The IOM definition contains the words lsquoobliged to leave their homes or chooses to do sorsquo widening the coverage of environmental or climate change migrants93 It argues that it is not always straightforward to draw a clear distinction between lsquoforcedrsquo and lsquovoluntaryrsquo instances of migration relating to environmental factors except in cases of imminent and acute disaster94

60 6689 G Hugo lsquoEnvironmental Concerns and International Migrationrsquo (1996) 30

International Migration Review 105 10690 J Lehman Environmental Refugees The Construction of a Crisis (2009) 5 lthttp

wwwehsunuedufilephpid=662gt accessed 28 September 201291 Report of the Office of the United Nations High Commissioner for Human Rights

on the relationship between climate change and human rights UN Doc AHRC1061 (2009) p 20 [57]

92 International Organization on Migration Migration Climate Change and the Environment (2009) 4 lthttppublicationsiomintbookstorefreemigration_and_environmentpdfgt accessed 28 September 2012

93 See International Organization on Migration Definitional Issues (2009) ltwwwiomchjahiaJahiapid2071gt accessed 28 September 2012

94 International Organization on Migration (IOM) Migration Climate Change and the Environment (2009) 5 lthttpwwwegyptiomintDociom_policybrief_enpdfgt accessed 28 October 2012 F Laczko Migration the Environment and Climate Change Assessing the Evidence (2010) 2 lthttpwwwgmfusorggalleriesdefault-fileLazcko_MAH_EditsV2pdfgt accessed 28 October 2012


Indeed extremely forced migration defined by Hugo as the situation lsquowhere the migrants are faced with death if they remain in their present place of residencersquo rarely occur95 Rather most of the environmental migration occurs in the continuum of both extreme sides of voluntary and forced migration96 It is argued that protection should be extended to those who face significant coercion and are powerless both in their decision to move and in their choice of destination and are particularly vulnerable97

Proposed Definition of Climate Change Induced Displacement in Bangladesh Context

The similar climatic phenomenon might not result same effects on displacement scenario in different parts of the world The impacts of climate change may be differently perceived by the people in Bangladesh due to geo-physical variations or variable coping capacities of local social political and economic structures98 Although people generally migrate as a last resort in Bangladesh to date no consistent migration pattern has been observed However in response to natural disasters people migrate in a large and dynamic continuum In the same situation of climatic impacts such as storm surge and salinity due to sea level rise flooding and cyclone people behave differently in their reactive responses Although some choose or are forced to remain in affected areas others choose migration as a preferred response However all of them face in some way or another adversity due to impending climatic disasters It will not be fair to discriminate among climate change displaced persons while all of them are victims of same climatic phenomenon

This chapter adopts a definition for lsquoclimate-induced displacementrsquo for the purpose of suggesting a protection framework However provided the climate-induced displacement in reality happens in a large continuum the impacts of climate-induced displacement may produce three different scenarios While some people choose to migrate completely voluntarily some people move because they perceive that there is simply no other way to survive99 Based on these scenarios they are categorized into the following three different groups for purpose of providing protection

95 Hugo (n 89) 10796 ibid97 SB Adamo Addressing Environmentally Induced Population Displacements

A Delicate Task (2008) 3 ltwwwpopulationenvironmentresearchorgpaperssadamo_pern2008pdfgt accessed 28 September 2012

98 See Boano Zetter and Morris (n 86) 1399 A Betts lsquoSurvival Migration A New Protection Frameworkrsquo (2010) 16 Global

Governance 361


1 Climate Change Induced Forced Migrants

This category refers to people who are lsquoforcedrsquo to leave their habitat as that becomes unliveable due to sudden or progressive environmental degradations Their movement is involuntary in nature they have no options but to leave their original place This category is likely to include victim of tropical cyclones floods storm surges and droughts who are compelled to leave their home and require temporary protection These forced migrants need access to basic humanitarian assistance such as food shelter and medical services

2 Climate Change Motivated Migrants

This category refers to people who lsquodecide to moversquo pre-emptively in the face of impending progressive environmental events before arrival of the compelling situation mostly in cases of slow onset disasters such as sea level rise drought salinity intrusion scarcity of water resources and so on The policy responses need to facilitate such migration through managed and planned relocation with safety and dignity Access to livelihood is the main concern for these migrants

3 Potential Climate Migrants

This category refers to people who either choose to remain in the affected areas struggling with the adverse climatic phenomenon or cannot move due to lack of sufficient resources They may at any point of time be actuated into lsquoforced climate migrantsrsquo provided adaptation and coping strategies are not adequate to retain them in their original place and thus fail to prevent forced migration These people require sustainable adaptation support through building infrastructure innovative agriculture reduction of poverty and so on so that they can build resilience to environmental vulnerability

Conclusion

The environment climate change and migration nexus is a complex one100 The complexity appears more aggravated in Bangladesh due to its pre-existing socio-economic vulnerability The climatic impacts are felt more acutely than other parts of the world in Bangladesh because of geographical location high population density and extreme poverty Nonetheless the existence of a clear link between anthropogenic climate change and consequent human displacement is increasingly

100 See for example F Laczko and C Aghazarm lsquoIntroduction and Overview Enhancing the Knowledge Basersquo in F Laczko and C Aghazarm (eds) Migration Environment and Climate Change Assessing the Evidence (International Organization for Migration (2009) 7 13


recognized and emerging scientific studies confirm that climate change plays a substantial role in triggering mass human displacement in Bangladesh101

The magnitude and scale of such flows is expected to mount drastically in coming years and will take in different forms102 Thus environmental displacement has rapidly emerged as a delicate problem for Bangladesh that thwarts the achievement of Millennium Development Goals as reported in many studies and scientific reports Once this widely agreed point is accepted the role of climate change in population movement should be difficult to ignore103

Generally the displacement triggered by natural disasters is short term and temporary When the disasters are over people are able to return depending on the level of measures adopted for recovery of social economic and physical characteristics of affected area104 Their mobility decisions are basically based on disaster management initiated by concerned authority105

However for developing national legal and policy framework and seeking international cooperation for protection of climate change induced displacement it is essential to formulate a comprehensive accepted and concrete definition of climate change induced displacement106 The generation of accepted statistics of climate change displacement depends on how those who migrate for environmental reasons are defined107 Without a precise definition practitioners and policymakers are not easily able to establish plans and make targeted progress

In sum the disagreement surrounding the issue has important ramifications for assigning responsibility to appropriate domestic and international institutions and agencies to address the rights and duties concerned108 The definition serves an instrumental purpose delimiting rights and obligations of displaced people109 After creating a definition a legal and institutional framework can be constructed to relocate communities Thus this chapter defines climate change induced human mobility in three different contexts recognizing the large continuum associated with environmental migration The nature and patterns of environmental migration

101 See V Kolmannskog Climate Change Disaster Displacement and Migration Initial Evidence from Africa (Research Paper No 180 UNHCR December 2009) 5

102 International Organization on Migration Migration Climate Change and the Environment (IOM Policy Brief) (IOM 2009) 1 Warner (n37) iv

103 S Lonergan and A Swain Environmental Degradation and Population Displacement (1999) ltwwwgechsorgaviso02gt accessed 28 September 2012

104 Warner (n18) 405105 Warner (n17) 2106 Laczko and Aghazarm (n100) 18107 ibid108 Displacement Solutions Climate Change Human Rights and Forced

Human Displacement Case Studies as Indicators of Durable Solutions (2008) ltwwwdisplacementsolutionsorgfilesdocumentsClimate_Change_Displacement_Meeting_Paperpdfgt accessed 28 September 2012

109 McAdam (n49) 7


are apprehended through these definitions These will also help developing normative framework and policy responses 110

110 Asian Development Bank Climate Change and Migration in Asia and the Pacific (2011) 4 ltwwwpreventionwebnetfiles11673_ClimateChangeMigrationpdfgt accessed 28 September 2012


Index

Page numbers in italics refer to figures and tables

Acharya Amitav 45Afghanistan 115Africa

African Convention 22 207climate change impacts 203 204Convention on Internally Displaced

Persons 9definitions of lsquorefugeersquo 21refugee numbers 1regionalism 4

African Convention 22 207agriculture 196 227 241American Convention on Human Rights 29American Declaration on the Rights and

Duties of Man 29Anker D 20APRRN see Asia Pacific Refugee Rights

Network (APRRN)ASEAN Joint Declaration against

Trafficking in Persons 113Asia Pacific Refugee Rights Network

(APRRN) 37 38action and supranational level 45ndash50action at national level 43ndash5Bali Process 46ndash7infrastructure alliances standing

40ndash41joint statements 42ndash3leadership 39members 39representation 40solidarity 41ndash2

Association of South East Asian Nations (ASEAN)

human rights 30 132human security 181need for regional agreements 132ndash3

non-interference principle 9 132ndash3Australia

lsquoAn Australian Policy Agendarsquo Report 15ndash18

attitude towards refugeesasylum seekers 117ndash18

Bali Process 46 59 132Bugdaycay v Secretary of State for the

Home Department 157Comprehensive Plan of Action for

Indochinese Refugees (CPA) 24Corporation of the City of Enfield

v Development Assessment Commission 157

detention 130 142ndash4Irregular Maritime Arrivals (IMAs)

135legal representation 57Malaysia Solution 13 14ndash16 47ndash9

118 135 138ndash9 145ndash6 168see also Malaysian Declaration

Case (M70)Migration Act 1958 14 118 135 136

165ndash6Migration Amendment Act 2012 16 49MV Tampa episode 136NGOs and civil societies 38offshore processing 6 13 14Offshore Processing Case (M61)

136ndash7 142ndash4 168lsquoPacific Solutionrsquo 14 20 119ndash20policies 32 37ndash8 118Refugee Convention non-compliance

with 118refugee processing schemes 140ndash42regional cooperation framework 47ndash8Regional Cooperation Model 57 59

61 118ndash20regional role 31regionalism 14ndash18


resettlement 140Saeed v Minister for Immigration and

Citizenship 158

Bali Process 4 5 32 46ndash7 57 59 132 142

Bangkok Declaration on Irregular Migration 113

Bangladesh 10climate change vulnerability 227ndash31climate displacement 9 10 204

225ndash6 241ndash3climatic events 236ndash7cross-border displacement 233ndash4defining 234ndash6forced vs voluntary 239ndash40internal displacement 232ndash3internal vs cross-border 238permanent vs temporary 238ndash9possible patterns 231ndash2proposed migrant definitions

240ndash41terminology 236

economic migration to Malaysia 102 108 109

environmental susceptibility 226ndash7refugee numbers 36 137socio-economics 226ndash7

Banki S 179Bethlehem D 160 163Betts A 23Biermann F 219Boas I 219Brahimi Lakhdar 123Brasilia Declaration 25Brazil 26 27 28 33Brazil-Ecuador Agreement for Integration

of Colombian Refugees 28Burma 60 97 114 115 137

see also Myanmar

Caggiano Giovanni 97Cambodia 6ndash7

employment restrictions 55legal representation 56 57Refugee Convention non-compliance

with 61ndash3refugee numbers 137

Sri Lankan refugees 54ndash5Sub-Decree 61ndash3Uighur refugees 53ndash4 62ndash3see also Indochinese refugees

Canada 27 31 57 167 168Cancun Adaptation Framework 211 221ndash2Carneiro WP 26Cartagena Declaration on Refugees 22

29 207children 44 55 69 70 72ndash4 118 127China 6ndash7

economic migration to Malaysia 96ndash8 100

Indochinese refugees 5movement restriction 70naturalization 71ndash4negative treatment 70positive treatment 67ndash9

international legal obligations 73ndash4Marriage Law 72Nationality Law 71 72 72ndash3refugee numbers 36refugee policiesactivities 67Succession Law 72Uighur refugees 53ndash4 62ndash3see also Hong Kong SAR (HKSAR)

Christmas Island 130 141 142 144civil societies 38 39ndash40 51 77 82ndash3

see also Asia Pacific Refugee Rights Network (APRRN)

climate change 9ndash10 201Bangladeshrsquos vulnerability 227ndash31events 236ndash7impacts predicted 203ndash4responsibility sharing 237unequal burdensbenefits 214

climate displacement 201 202ndash5 224Bangladesh see Bangladesh climate

displacementcomplementary protection 212definitions 204ndash5 234ndash5distributive justice 213ndash14existing frameworks and structures 205

Cartagena Declaration on Refugees 207

Convention Governing the Specific Aspects of Refugee Problems in Africa 207

Index 247

human rights law 208ndash10international environmental law

210ndash11Refugee Convention 205ndash7

protection proposalsanalysis 222ndash4Climate Displacement Convention

217ndash19Climate Displacement Protocol

219ndash22Refugee Convention changes

215ndash17regulatory models 201remedial justice 214ndash15research methodology 211ndash13scale of 203UNHCR mandate 212ndash13

Climate Displacement Convention 217ndash19 222 224

Climate Displacement Protocol 219ndash22 222

Colombia 25 28ndash9Comprehensive Plan of Action for

Indochinese Refugees (CPA) 3 24ndash5 78 105 139

constitutive localisation 45Convention against Torture (CAT) 8 75

80ndash82 86ndash7 89ndash90 127ndash8Convention Governing the Specific Aspects

of Refugee Problems in Africa 22 207

Convention on Internally Displaced Persons 9

Convention on the Rights of the Child (CRC) 73ndash4 118 127

Convention relating to the Status of Refugees see Refugee Convention

Cooper J 215country of first asylum 19 53ndash5cultural competence 20

Davies SE 25 139descendants of refugees 71ndash4detention camps 16

alternatives to 44 63ndash5Australia 130 140 142 143conditions 31 63 109ndash10effects of 63

Indonesia 118ndash19 120 129ndash31 131Malaysia 95 108 111

Devi Rema 102Drabble JH 99Dublin II Regulation 22 32 167

East Timor 47 142 144economic development 4ndash5Ecuador 28ndash9 30education access to 19 36 70

in Australia 146 151in China 5 69in Indonesia 31in Malaysia 31 55 116

Emergency Transit Agreement (ETA) 4 58employment access to 55

in Australia 151in China 5 70in Hong Kong SAR (HKSAR) 84 85in Malaysia 101 103ndash4in Thailand 175 191 196

environmental displacement 9ndash10 242see also climate displacement

environmental law 210ndash11Errington Nikola 53Europe 1 21 22 96 167European Convention on Human Rights

92 212European Court of Human Rights 22 212extra-regional refugees 26ndash7

Fitzpatrick J 20French Chief Justice Robert 149 152ndash3

156 161

Geneva Conventions 126Gillard Julia 14 47 142globalization 37ndash8 97Goodwin-Gill GS 17ndash18 131 173Guiding Principles on Internal

Displacement 9 185ndash7 188 191ndash2 195 196 197 198

Halliday T 50Hamilton A 146Hathaway JC 20 206healthcare 5 55 79 114 146 212Heydon Justice John Dyson 160 162


Hodgkinson D 218Hong Kong SAR (HKSAR) 7ndash8 75ndash6

92ndash3Bill of Rights 88 89 90 91 92C v Director of Immigration 86 89conditions for refugeesasylum seekers

79 84ndash5Convention against Torture (CAT)

89ndash90FB v Director of Immigration 83human rights 77 79 82ndash3lessons from 76ndash8non-refoulement protection 86ndash92policies 78ndash9refugee statue determination (RSD) 76

78 86 87Saktheval Prabakar v Secretary for

Security 80ndash81 89torture screening 79ndash86 92Ubamaka Edward Wilson v Secretary

for Security and the Director of Immigration 90ndash92

Howard John 119Huai Ja kan Village case study 195ndash7Huai Wad Village case study 192ndash5Huff G 97human-centred approach to protection

179ndash82 183human rights

Australia 147 148 157 159climate displacement 9ndash10 208ndash10Hong Kong SAR (HKSAR) 77 81

82ndash3 91ndash2Indonesia 122 123internally displaced persons 186Malaysia 113non-refoulement 2 81 88Refugee Convention 174regional differences 30ndash31Thailand 178 188 198

human security 180ndash81human trafficking 113 119 129

see also people smugglingHunt Taya 53

ICCPR see International Covenant on Civil and Political Rights (ICCPR)

identity 37 38 73ndash4 189 191

identity cardspapers 68 69 70 72 176India 36 95 97 98ndash9 100Indochinese refugees

in China 5 7 67ndash74Comprehensive Plan of Action (CPA)

3 24ndash5 78 105 139in Hong Kong 78in Malaysia 5 104ndash6in Thailand 175

Indonesia 5ndash6 8ndash9 117 133ndash4APRRN action 43asylum seekers 125ndash6Australian influence over 118ndash19as Australiarsquos lsquoprotective hedgersquo 119

120Bali Process 46 49conditions for refugeesasylum seekers

130Constitution 121Convention against Torture (CAT)

127ndash8Convention on the Rights of the Child

(CRC) 127Decree of the Peoplersquos Consultative

Assembly 122detention alternatives 63ndash4detention conditions 63detention houses 130 131Directive of the Director General of

Immigration 63ndash4economic migration to Malaysia 102

108 109 110education 31 55employment 31 55foreign relations law 122ndash3Galang Island refugee camp 117 125Geneva Conventions 126healthcare 55human rights law 122illegal immigrant numbers 130ndash31

131immigration detention centres (IDCs)

118ndash19Indochinese refugees 124ndash5International Covenant on Civil and

Political Rights (ICCPR) 128ndash9legal practice on immigration 129ndash33legal representation 56

Index 249

mal-treatment in Malaysia 110Memorandum of Understanding with

Malaysia 110political fugitives 123ndash5refugee numbers 137refugees in Malaysia 115Regional Cooperation Model 4 59registration delays 60 61resettlement submissions 140towards Refugee ConventionProtocol

ratificationgovernment regulations 123ndash6international law 126ndash9national laws 121ndash3

integration 19 26 36 50ndash51 195Intergovernmental Panel on Climate

Change (IPCC) 202 236ndash7internally displaced persons (IDPs) 9 137

185ndash7 see also Thailand internally displaced

personsInternational Covenant on Civil and

Political Rights (ICCPR) 73 77 88 90 91 128ndash9 188

International Covenant on Economic Social and Cultural Rights 3

International Detention Coalition 40 41 44

International Organization for Migration (IOM) 46 57 58 59 132 234 236 239

Iran 36Iraq 115 140

Jesuit Refugee Service (JRS) 53 54 56Jones M 76ndash7Jones S 102Jubilut LL 26Juss S 20

Kalin W 209ndash10Kiefel Justice Susan 153ndash5 159 161 162

164 169Kritzman-Amir T 19Kyoto Protocol 210ndash11

Lang H 179Lang HJ 182

Laos 7 24 67 175see also Indochinese refugees

Latin America 2 22 25ndash9Lauterpacht E 160 163legal representation 5 56ndash7 80

McAdam J 173 212 223 234 Macau SAR 7ndash8Malaysia 5 95

Australia agreement 13 14ndash16 47ndash9 118 135 138ndash9 145ndash6 168see also Malaysian Declaration

Case (M70)conditions for refugeesasylum seekers

114education 55employment 31 55foreign workers 95ndash6

1960ndash91 regime 101ndash61992ndash2011 regime 106ndash13 108

109colonial regime 96ndash100current regime 113ndash14 116fearedresented 105ndash6outsourcing system 110 112post-colonial regime 100ndash101

healthcare 55human rights abuses 109ndash10 113immigration detention centres (IDCs)

95 108 109ndash10 111Indochinese refugees 102 104ndash6legal representation 56Memorandum of Understanding with

Indonesia 110migrant task force 95policies 95ndash6refugee numbers 137refugees by country of origin 115registration delays 60ndash61resettlement submissions 140trafficking 113women workers 103ndash4

Malaysia Solution 13 14ndash16 47ndash9 118 135 138ndash9 145ndash6 168

see also Malaysian Declaration Case (M70)

Malaysian Declaration Case (M70) 14 135 137 169


198A Migration Act 147analysis 155ndash6

international and administrative law 159ndash64

judicial inconsistency 156ndash7re-interpretation of Migration Act

157ndash9Commonwealthrsquos approach 149High Courtrsquos decision 149

Chief Justice French 152ndash3Justice Kiefel 153ndash5plurality judgement 149ndash52

Migration Act amendment Bill 165ndash6plaintiffsrsquo case 147ndash9

Malaysian Red Crescent Society 104medical care see healthcaremental health issues 17 56Mexico Declaration and Plan of Action

25ndash8MSS v Belgium and Greece 22Myanmar 117 118 133 137 138

see also Burma ThaindashMyanmar border PRS

Myers N 203

Nah Alice 38national security 5ndash6 6ndash7 181naturalization 71ndash4Nauru 13 14 16 17 49 119 141 156Neve RA 20non-interference principle 9 133non-refoulement 2 128ndash9

Australia 154 160 161 165 168ndash9Hong Kong SAR (HKSAR) 77 78 79

80 84 85 86ndash93Thailand 174

norm diffusion 45numbers of refugees 1 36 36 137 137ndash8

Office of the High Commissioner for Human Rights (OHCHR) 208ndash9

onward movement 15 53ndash5 138ndash9Organisation of American States (OAS)

29ndash30 31

Pakistan 36 44 108Papua New Guinea 13 14 17 49 119 141penalties 17ndash18

people smuggling 4 5 8 54 59 118 132 135 145

see also human traffickingPhilippines 4 24 55 56 137 138

economic migration to Malaysia 102 108

Emergency Transit Agreement (ETA) 57 58

policies globalization of 37ndash8protection defining 173ndash5protection factors 61ndash2protection space approach 76ndash7Protocol relating to the Status of Refugees

see Refugee Protocolprotracted refugee situations (PRSs) 171

see also ThaindashMyanmar border PRSpull factors 15 139push factors 15

refoulement 25 36 54 58 63 75 86see also non-refoulement

Refugee ConventionArticle 31 17ndash18Australia see Malaysian Declaration

Case (M70)Cambodia 61ndash3China 7ndash8 67climate displacement 9ndash10 205ndash7

215ndash17Indonesia 120 126 133lack of Asian engagement 1 3 4 30

132 139 171ndash2 175naturalization 71non-refoulement obligation 2ndash3 18

128Organisation of American States

(OAS) 30protection of refugees 173lsquorefugeersquo defined 173ndash4regionalism 21responsibility sharing 18ndash19rights 2ndash3torture situations 81ndash2

lsquorefugeersquo defining 161 163 173 215ndash17 236

Refugee Protocol 21Australia see Malaysian Declaration Case

(M70)

Index 251

China 67Indonesia 33 120 121 126lack of Asian engagement 25 30 139

171ndash2Organisation of American States

(OAS) 30lsquorefugeersquo defined 173ndash4

refugee status determination (RSD) 5in Australia 154 168 169in Hong Kong 76 78 86 87Indochinese refugees 24legal representation 56ndash7in Malaysia 139in Thailand 176Uighur refugees 53ndash4 62waiting for 55

regional cooperation 4 15 31 57 166Bali Process see Bali ProcessEmergency Transit Agreement (ETA)

58regional cooperation framework 47 48

49ndash50 50 145Regional Cooperation Model 59

regional responsibility 13Comprehensive Plan of Action for


regionalism 3 14ndash18 21ndash8 32 166ndash8registration delays 60ndash61relocation of ethnic populations 192ndash7resettlement 19 21 36 140

lsquoAn Australian Policy Agendarsquo Report 15ndash16 17 18

climate refugees 220ndash1 222 223 238CPA 3 24 105 139Latin America 25ndash6 27Malaysia Solution 47ndash9 118 138ndash9

145ndash6 168Myanmar refugees 177ndash9 183

responsibility sharing 18ndash22 140 146 167Cartagena Declaration on Refugees 29climate change 237Comprehensive Plan of Action for

Indochinese Refugees (CPA) 24ndash5Mexico Declaration and Plan of Action

25ndash8region and model comparisons 29ndash32

The Revolving Door (Tenaganita) 113

Safe Third Country Agreement 167Schuck Peter 19ndash20The Search (Errington and Hunt) 53Shacknove A 20South Korea 43Southern Refugee Legal Aid Network

(SRLAN) 40 41Sri Lanka 42 54ndash5 60ndash61 80 115 142ndash4

Tang Jiaxuan 67ThaindashMyanmar border PRS 172 183

detention camps 175ndash6human-centered approach to protection

179ndash82legal limbo 174ndash5refugee statue determination (RSD)

176registration problems 176ndash7Thai terminology 175ndash6third-country resettlement 177ndash9

ThailandAPRRN action 43 44ndash5CPA 24 139detention alternatives 65detention conditions 64ndash5economic migration to Malaysia 99

102 108employment 55environmental displacement 9flexibility towards refugees 182internally displaced persons 185

188ndash9Huai Ja kan Village case study

195ndash7Huai Wad Village case study

192ndash5recommendations 197ndash9relocation site conditions 189

191ndash2relocation sites 190rights afforded to 187ndash8

International Covenant on Civil and Political Rights (ICCPR) 188

legal representation 56non-signatory of Refugee Convention

Refugee Protocol 175refugee numbers 137registration delays 60


ThaindashMyanmar border PRS see ThaindashMyanmar border PRS

Tianchainan Veerawit 44Timor-Leste 137Tinker H 99torture 63 90 91 92

see also Convention against Torture (CAT)

torture screening 75 77 79ndash86 89 92ndash3

UN Convention on the Rights of Migrant Workers and their Families 113

United Kingdom (UK) 57 80 88ndash9United Nations Development Program

(UNDP) 226 237United Nations Framework Convention on

Climate Change (UNFCCC) 203 210ndash11 219ndash24

United Nations High Commissioner for Refugees (UNHCR)

2010 Thailand issues 45APRRNrsquos relationship with 41AustraliandashMalaysia agreement 48Bali Process 46ndash7 59in Cambodia 53ndash4 54in China 5climate refugees 203 212ndash13 217Comprehensive Plan of Action for


Convention Plus 23

CPA 104 105in Hong Kong 78ndash9in Indonesia 64 117 125ndash6 130international cooperation 19legal representation 56 56ndash7in Malaysia 113ndash14 116Mexico Declaration and Plan of Action

26ndash7numbers of refugees 137 138Policy on Refugee Protection and

Solution in Urban Areas 57protection 4refugee statistics 1refugee status determination (RSD)

87 139Regional Cooperation Model 59registration delays 60ndash61in Thailand 176 178

United States (US) 25 29ndash30 31 58 113 167 168

Universal Declaration of Human Rights 29 122 123 174

Vietnam 124ndash5 137 139Comprehensive Plan of Action for


see also Indochinese refugees

Williams A 214ndash15 223women 101 103

Cover

Contents



1 Shifting Powers 13Protection 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 13in Southeast Asia

5 Refugee Protection in China The Issue of Citizenship and Potential Solutions

6 Prospects for Refugee Rights in Hong Kong

7 Migration and the Refugee Regime13in Malaysia Implications for a 13Regional Solution

8 Challenges and Opportunities in Respecting International Refugee Law in Indonesia

9 Irregular Migration Refugee Protection 13and the lsquoMalaysian Solutionrsquo

10 Revisiting the Concept of Protection in International Refugee Law

11 Internally Displaced Persons in Northern Thailand

12 The International Regulation of Persons Displaced by Climate Change

13 Conceptualising Climate-Induced Displacement in Bangladesh

Index

law ethics and governance seriesseries editor charles sampford director Key centre for ethics law

Justice and Governance Griffith University Australia

recent history has emphasised the potentially devastating effects of governance failures in governments government agencies corporations and the institutions of civil society lsquogood governancersquo is seen as necessary if not crucial for economic success and human development although the disciplines of law ethics politics economics and management theory can provide insights into the governance of organisations governance issues can only be dealt with by interdisciplinary studies combining several (and sometimes all) of those disciplines this series aims to provide such interdisciplinary studies for students researchers and relevant practitioners

Also in this series

Intellectual Libertynatural rights and intellectual Property

hugh BreakeyisBn 978-1-4094-4711-5

Health Workforce Governanceimproved access good regulatory Practice safer Patients

edited by stephanie d short and fiona McdonaldisBn 978-1-4094-2921-0

Ethics and Socially Responsible Investmenta Philosophical approach

William ransome and charles sampfordisBn 978-0-7546-7581-5

Improving Health Care Safety and Qualityreluctant regulators

Judith healyisBn 978-0-7546-7644-7

Idealism and the Abuse of Powerlessons from chinarsquos cultural revolution

Zhuang hui-yunisBn 978-0-7546-7208-1

Integrity Systems for Occupationsandrew alexandra and seumas Miller

isBn 978-0-7546-7749-9



Edited by


V





wwwashgatecom



2013003633


Contents





Penelope Mathew


Savitri Taylor



Liang Shuying


Kelley Loper


Amarjit Kaur


Bhatara Ibnu Reza











Index 245


Figures




Tables

































Chapter 1



Introduction















Shifting Powers 3















Shifting Powers 5























Shifting Powers 7

















Shifting Powers 9









Conclusion



Shifting Powers 11



Chapter 2


Penelope Mathew

Introduction














































































Regionalism















































































































Concluding Remarks










Chapter 3


Savitri Taylor







The Problem




Source UNHCR 2012

























































Joint Statements













35 APRRN (n 33) 4





















































Looking Forward











Conclusion





Appendix













Sydney 7 June 2011


Sydney 8 June 2011


Sydney 9 June 2011


Sydney 14 June 2011



Sydney 14 June 2011


Sydney 16 June 2011





Geneva 30 June 2011


Geneva 1 July 2011


Geneva 1 July 2011





Chapter 4










































































































Conclusion







Chapter 5


Liang Shuying1































































Conclusion


Chapter 6



Introduction















7 ibid




























22 ibid

























36 Prabakar (n 27) [52]










































































(n 69) [2012] [96 102]85 ibid [100]86 ibid




Conclusion










Chapter 7




Introduction




















4 ibid ch 4


























































































































Country 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

Burma 5134 5151 5247 4152 9601 14208 21544 29474 33781 61412 76120

Indonesia 149 83 144 3198 15181 19153 15174 2215 497 747 814

Iraq 2 11 26 19 31 27 51 148 327 450 498

Afghanistan 55 77 36 18 26 51 55 68 62 248 430

Sri Lanka 1 2 0 6 30 42 283 1232 2133 2278







47 ibid

Chapter 8


Bhatara Ibnu Reza

Introduction





































































































































































Conclusion








Chapter 9



Introduction






2 (2011) 244 CLR 144 (M70)




Background















Various Total

























































































56 ibid








































69 M70 (2011) 244 CLR 144 187ndash8 [84]














































Analysis
























































131 M70 (2011) 244 CLR 144 208ndash209 [162]


























152 M70 (2011) 244 CLR 144 211ndash12 [167]




















Regionalism




















Conclusion








Chapter 10




Introduction



























15 ibid 216 McAdam (n 12) 20





































































442 448






















Conclusion







Chapter 11



Introduction
















































Time of relocation






198999 607



Hmong 1992 19931996 1999 60


































































































Chapter 12



Introduction

















































Refugee Law


































Human Rights Law






































Methodology























Criteria








































































Framework




Analysis
















Conclusion




Chapter 13



Introduction










































































































































84 King (n59) 554
































Governance 361








Conclusion














109 McAdam (n49) 7





Index






























Citizenship 158










see also Myanmar

















Index 247






























156 161


































Index 249












Iran 36Iraq 115 140





























Myers N 203







29ndash30 31


















(M70)

Index 251













































Convention Plus 23











Cover

Contents
















Index



Edited by


V





wwwashgatecom



2013003633


Contents





Penelope Mathew


Savitri Taylor



Liang Shuying


Kelley Loper


Amarjit Kaur


Bhatara Ibnu Reza











Index 245


Figures




Tables

































Chapter 1



Introduction















Shifting Powers 3















Shifting Powers 5























Shifting Powers 7

















Shifting Powers 9









Conclusion



Shifting Powers 11



Chapter 2


Penelope Mathew

Introduction














































































Regionalism















































































































Concluding Remarks










Chapter 3


Savitri Taylor







The Problem




Source UNHCR 2012

























































Joint Statements













35 APRRN (n 33) 4





















































Looking Forward











Conclusion





Appendix













Sydney 7 June 2011


Sydney 8 June 2011


Sydney 9 June 2011


Sydney 14 June 2011



Sydney 14 June 2011


Sydney 16 June 2011





Geneva 30 June 2011


Geneva 1 July 2011


Geneva 1 July 2011





Chapter 4










































































































Conclusion







Chapter 5


Liang Shuying1































































Conclusion


Chapter 6



Introduction















7 ibid




























22 ibid

























36 Prabakar (n 27) [52]










































































(n 69) [2012] [96 102]85 ibid [100]86 ibid




Conclusion










Chapter 7




Introduction




















4 ibid ch 4


























































































































Country 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

Burma 5134 5151 5247 4152 9601 14208 21544 29474 33781 61412 76120

Indonesia 149 83 144 3198 15181 19153 15174 2215 497 747 814

Iraq 2 11 26 19 31 27 51 148 327 450 498

Afghanistan 55 77 36 18 26 51 55 68 62 248 430

Sri Lanka 1 2 0 6 30 42 283 1232 2133 2278







47 ibid

Chapter 8


Bhatara Ibnu Reza

Introduction





































































































































































Conclusion








Chapter 9



Introduction






2 (2011) 244 CLR 144 (M70)




Background















Various Total

























































































56 ibid








































69 M70 (2011) 244 CLR 144 187ndash8 [84]














































Analysis
























































131 M70 (2011) 244 CLR 144 208ndash209 [162]


























152 M70 (2011) 244 CLR 144 211ndash12 [167]




















Regionalism




















Conclusion








Chapter 10




Introduction



























15 ibid 216 McAdam (n 12) 20





































































442 448






















Conclusion







Chapter 11



Introduction
















































Time of relocation






198999 607



Hmong 1992 19931996 1999 60


































































































Chapter 12



Introduction

















































Refugee Law


































Human Rights Law






































Methodology























Criteria








































































Framework




Analysis
















Conclusion




Chapter 13



Introduction










































































































































84 King (n59) 554
































Governance 361








Conclusion














109 McAdam (n49) 7





Index






























Citizenship 158










see also Myanmar

















Index 247






























156 161


































Index 249












Iran 36Iraq 115 140





























Myers N 203







29ndash30 31


















(M70)

Index 251













































Convention Plus 23











Cover

Contents
















Index