The Protection of Refugees in Southeast Asia: A Legal Fiction?

Description

This book offers a comprehensive and detailed analysis of refugee protection in Southeast Asia from an international law perspective. It examines both the legal and policy frameworks pertaining to the protection of refugees in the region as well as the countries’ response to refugee movements from the Indochinese refugee crisis in the mid-1970s to the most recent developments. It covers important aspects of refugee protection, such as access to territory, non-refoulement, the treatment of refugees, the concept of refugee as applied in the region, burden-sharing and durable solutions to the plight of refugees. The analysis focuses specifically on the main countries of asylum within the Association of Southeast Asian Nations that are not parties to the 1951 Refugee Convention, namely Thailand, Malaysia and Indonesia. Using an international law perspective based on the doctrine of the ‘two elements’ (practice and opinio juris), the author argues that these states have long recognized that people fleeing persecution, armed conflict and generalized violence, namely refugees, should be protected. This in turn demonstrates that they recognize the existence and relevance of the international refugee regime despite their refusal to accede to the Refugee Convention. Offering a different perspective on the links between international refugee law and refugee protection in Southeast Asia, this book will be of interest to researchers and practitioners in the fields of international relations, international refugee law, international human rights law, migration governance and Southeast Asian Studies. Cover Page Half Title Page Series Page Title Page Copyright Page Contents Page Foreword Page Preface Page List of cases Page List of international, regional and national instruments Page List of abbreviations Page 1 Introduction 1.1 An historical overview of refugee movements within Southeast Asia 1.2 Existing analysis of refugee protection in Southeast Asia 1.3 Southeast Asia and international refugee law: a new perspective 1.3.1 The importance of the practice and opinio juris of states in international law 1.3.2 The practice of Southeast Asian states as a law-making factor 1.4 Structure of the book 2 Explaining Southeast Asian resistance to the ratification of the 1951 Convention 2.1 Refugees as a threat to national security 2.2 Refugees as a threat to social cohesion 2.3 The ‘burden’ of hosting refugees 2.4 The principle of non-interference in the internal affairs of other states 2.5 The ‘Eurocentric’ nature of the Refugee Convention and the ‘Asian values’ 2.6 The ‘manipulation’ argument 2.7 Conclusion 3 A ‘legal limbo’? Overhauling the normative framework for the protection of refugees in Southeast Asia 3.1 The international refugee regime 3.1.1 The 1951 Convention and its 1967 Protocol 3.1.2 The role of UNHCR in Southeast Asia 3.2 International human rights law as the main vector of refugee protection in the region 3.2.1 International human rights law as an alternative framework in non-signatory states 3.2.2 Human rights monitoring mechanisms and the protection of refugees 3.3 The protection of refugees under customary international law 3.4 The role of soft law 3.5 Regional approaches to refugee protection 3.5.1 The development of regional approaches to refugee protection 3.5.2 The Bangkok principles: ‘a breakthrough in refugee law at the regional level’ 3.6 ASEAN and the protection of refugees 3.6.1 Reluctance to address refugee issues within ASEAN 3.6.2 The development of a human rights framework within ASEAN 3.7 The proliferation of non-binding intergovernmental frameworks on migration in the Asia-Pacific 3.7.1 An increasing focus on the fight against irregular migration: the Bangkok declaration 3.7.2 The Bali Process and the Regional Cooperation Framework 3.7.3 From the Jakarta Declaration back to the Bali Process 3.8 Conclusion 4 Access to protection 4.1 A long-standing practice of offering a temporary refuge to refugees 4.1.1 Temporary asylum as a response to mass influxes of refugees 4.1.2 A defining feature of refugee protection in Southeast Asia 4.2 Defining temporary refuge in Southeast Asia 4.2.1 Conditioning temporary asylum on burden-sharing arrangements 4.2.2 An erosion of the institution of asylum? 4.3 The principle of non-refoulement in international law 4.3.1 A rule of international law binding all states 4.3.2 Exceptions to the principle of non-refoulement under international law 4.4 Acknowledgement of the principle of non-refoulement by Southeast Asian states 4.4.1 Violations of the prohibition of refoulement and the Nicaragua case 4.4.2 Thailand’s ambivalence with regard to the principle of non-refoulement 4.5 Conclusion 5 The refugee concept in Southeast Asia 5.1 The refugee concept in international law 5.1.1 Towards a broader refugee definition 5.1.2 The evolution of the refugee definition for UNHCR 5.2 The refugee concept in Southeast Asia during the Indochinese refugee crisis 5.2.1 Reasons for the flight of the Indochinese refugees 5.2.2 ‘Labelling’ the Indochinese refugees 5.3 The rise of screening procedures in Southeast Asia 5.3.1 The determination of the refugee status of Laotian asylum seekers 5.3.2 The CPA and the quest for greater regional consistency 5.4 The refugee definition in Southeast Asia: which criteria apply in non-signatory countries? 5.4.1 The refugee definition in Indonesia 5.4.2 Distinguishing persons in need of international protection from migrants in Thailand 5.4.3 Malaysia and the role of UNHCR 5.5 Conclusion 6 The treatment of refugees in Southeast Asia 6.1 International legal standards for the treatment of refugees 6.1.1 Standards of treatment under the refugee convention 6.1.2 International human rights law and the principle of non-discrimination 6.2 The treatment of people given temporary refuge in the context of a large-scale refugee influx in Southeast Asia 6.2.1 Towards a ‘Humane Deterrence Policy’ vis-à-vis Indochinese refugees 6.2.2 Defining the standards of treatment under temporary refuge 6.2.3 The case of ‘displaced persons’ from Myanmar in camps at the Thai border: the difference between law and practice 6.3 Freedom of movement and non-penalization for irregular entry into the territory of a state 6.3.1 Freedom of movement under international law 6.3.2 Southeast Asia and the duty of non-penalization for irregular entry 6.3.3 Indonesian–Australian cooperation and increased immigration detention in Indonesia 6.4 Access to socio-economic rights for urban refugees in Southeast Asia 6.4.1 Rights to education, healthcare and employment 6.4.2 More favourable treatment of refugees and asylum seekers in non-signatory states? 6.5 Conclusion 7 The search for solutions 7.1 The limits of local integration in Southeast Asia 7.1.1 Conditions for local integration in Southeast Asia 7.1.2 Ruling out local integration as a durable solution for refugees in Southeast Asia 7.2 The rise and fall of resettlement 7.2.1 The Indochinese refugee crisis and the disenchantment with resettlement 7.2.2 Resettlement in Southeast Asia today 7.3 An increasing focus on repatriation 7.3.1 Voluntary repatriation of refugees in Southeast Asia 7.3.2 Fundamental change of circumstances in the country of origin 7.4 Addressing the root causes of refugee flows 7.4.1 The responsibility of countries of origin 7.4.2 The Rohingya and the right of return under international law 7.5 Conclusion 8 Conclusion: reconciling Southeast Asia with international refugee law Annex: overview of the ratifications by Southeast Asian States of the main international human rights instruments Index