Blog post written by Professor Susan Kneebone (University of Melbourne) who is the convenor of two panels at the upcoming RLI 4th Annual Conference: ‘Human Rights and the Refugee Convention in Asia: Nationality, States and “Regionalism”’ and ‘Protection of Refugees in Southeast Asia: Indonesia’s Laws and Policies in Regional Context’. The conference draft programme is online and registration for the event is now open.

Asia is a region which hosts one of the largest populations of refugees, but where international refugee law is not well-known or developed.  According to the UNHCR, the Asia-Pacific region is home to 7.7 million ‘persons of concern’ which includes 3.5 million refugees mainly from Afghanistan and Myanmar.  Asia is typically known as a region where states have ‘rejected’ the 1951 Refugee Convention, which is seen by states in the region as a ‘Western’ measure intended for protection of refugees in the post World War II European context.  Whilst this perception is no longer valid, it endures in Asia, where there is a low ratification rate of the Convention (and low acceptance rates of refugees in those countries which have ratified the Convention such as China, South Korea, Japan, Cambodia and the Philippines).  However, most states have signed up to the basic human rights instruments which guarantee certain rights to refugees such as non-refoulement or the right not to be returned to a country where their life is in danger.  These include the Convention against Torture and other forms of Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and the International Covenant on Civil and Political Rights (ICCPR). 

The question therefore arises, is it enough for states in Asia to guarantee basic rights to life and non-refoulement without signing up to the Refugee Convention?  In Hong Kong for example, a ‘Unified Screening Mechanism’ (USM) was established in March 2014 to assess claims by asylum seekers on the basis of non-refoulement.  Is this an adequate measure?  What more rights or protection does the Refugee Convention give?  These questions are important as refugees are persons who have lost the protection of their home state because of persecution and are seeking the protection of another state.  This is what refugee protection means in practice.  Yet states in the region see their primary role as one of only providing temporary ‘humanitarian’ assistance.  They look to the international community or the ‘West’ to provide more permanent solutions through resettlement.  Should states in the region share more equitably in solutions to the global problem of refugees in need of protection which now stands at 25.4 million?  What are the implications of this debate for the quality of refugee protection in the region and for the development of regional norms and institutions? 

In two panels at the RLI conference, issues around protection of refugees in Asia will be considered.  We will consider the tension in the region between signing up to the Refugee Convention, which is seen by states as a potential ‘pull’ factor for refugees, the need for states to control access to their territory, and at the same time to provide ‘humanitarian’ assistance to refugees.  Papers in both panels will delve into the historical background and reasons for the Asian ‘reluctance’ to show that many Asian states (particularly Southeast Asian) preferred (and still prefer) national to international standards.  Yet other states in East Asia, such as China, Japan and South Korea, have signed the Refugee Convention and the reasons for their acceding to the Convention are important. 

Indonesia’s unique responses to refugees

In Southeast Asia, the Republic of Indonesia for example, has not ratified the Refugee Convention, but its Constitution contains a right to ‘political’ asylum (Article 28G(2)) which is also recognised in national law (Law No 39 of 1999 on Human Rights).  Moreover under Law No 37 of 1999 on Foreign Relations, Article 26 expressly states that:

The granting of asylum to foreign nationals shall be exercised in accordance with national legislation taking into account international law, custom and practice.  

More recently the Indonesian President made a Presidential Decree (PD 125 of 2016) regarding the Treatment of Refugees and Asylum Seekers in Indonesia which acknowledges the lawful presence of Convention refugees in Indonesia whose status has been established by the UNHCR.  Yet under the Indonesian Immigration Law (Law 6\2011 ‘Concerning Immigration’), asylum seekers are vulnerable to being arrested as illegal immigrants as they usually lack a valid visa to enter Indonesia.  Moreover, although Indonesia’s Constitution guarantees certain basic rights, refugees in Indonesia cannot access these rights.  These include the right to work (implicit in Article 28A – ‘the right [of each person] to defend his life and existence’), and advanced education \ self-improvement.

Article 28C(1) states that:

Every person has the right to self-realization through the fulfillment of his basic needs, the right to education and to partake in the benefits of science and technology, art and culture, so as to improve the quality of his life and the well-being of mankind.

Further, refugees are prohibited from moving freely around Indonesia as they are required to live in designated areas.  By contrast, under the Refugee Convention, such refugees are entitled to rights due to their status as recognised refugees.  They may be described as ‘lawful’ refugees under the Refugee Convention, in which case they have rights to be self-employed, and to freedom of movement (Articles 18 and 26); or they might be lawful ‘stayers’ who are entitled to freedom of association, freedom of employment, eligibility for the ‘liberal professions’, housing, public relief, labour law protection and social security, and travel documents (Articles 15, 17, 19, 21, 23, 24 and 28).

PD 125 of 2016 regarding the Treatment of Refugees and Asylum Seekers in Indonesia was a response to the crisis of Rohingya boat people in the Andaman Sea in 2015 when some thousands of people fled Myanmar.  During that crisis, in the absence of leadership on the part of the main regional body, ASEAN (Association of South East Asian Nations), the governments of Indonesia, Malaysia and Thailand showed some initiative to broker a regional solution.  The three governments joined force to pressure ASEAN and other countries in the region for a solution to the problem.  In contrast to the situation during the Indochinese refugee crisis, which led to the Comprehensive Plan of Action (CPA) for Indo-Chinese Refugees[1] which operated for over two decades from 1975,[2] ASEAN did not take a leadership role in the 2015 Rohingya crisis. 

And thus, the questions arise: Is there potential for a regional approach to refugee issues in Southeast Asia?  What institutional arrangements are needed and which countries are potential leaders?  Notably, Indonesia has shown some independent leadership initiatives in recent years.  However, the role of Australia within the region and its relationship with Indonesia and other countries in the region (Malaysia and Cambodia in particular) show the potential of a more powerful state to direct the focus of solutions away from human rights protection, thus raising the question of the important features of regional solutions.

[1] International Conference on Indo-Chinese Refugees, Geneva, 13-14 June 1989:  Declaration and Comprehensive Plan of Action, UN Doc A/CONF. 148/2, 13 June 1989.

[2] Susan Kneebone and Felicity Rawlings-Sanaei,eds., “Old and New Regionalism”, Introduction to New Regionalism and Asylum Seekers: Challenges Ahead (Berghahn Books, Oxford, 2007), 11-18; Susan Kneebone and Sharon Pickering, “Australia and the Pacific Region”, in Kneebone and Rawlings-Sanaei, eds., New Regionalism and Asylum Seekers Chapter 7.

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