ASEAN, the Bali Process and Conceptualisation of Refugees in South East Asia

ASEAN, the Bali Process and Conceptualisation of Refugees in South East

Asia

Susan Kneebone,Faculty of Law, Monash University

The situation of Refugee Protection in Southeast Asia

Three Actors and their Norms:◦ Bali Process◦ ASEAN and ASEAN Human Rights Declaration (AHRD)◦ Asian African Legal Consultative Organisation (AACLO)

and the ‘Bangkok Principles on the Status and Treatment of Refugees’ 2001

Conclusions

Plan

See ‘The Bali Process and Global Refugee Policy in the Asia-Pacific Region’ Special Edition of the Journal of Refugee Studies on Global Refugee Policy, 2014;

‘ASEAN and the Conceptualisation of Refugee protection’ in Abass A. and Ippolito, F., et al eds., Regional Approaches to the Protection of Asylum Seekers: An International Legal Perspective (Ashgate 2014) Chapter 13, pp295-324

References

UNHCR: ‘geopolitics and national security issues prevail over humanitarian considerations’ (UNHCR 2012).

The protection environment is fragile; very few countries in the region have acceded to the 1951 Refugee Convention. (UNHCR 2011)

Protracted and ‘mass-influx’ situations, extra-regional \ urban refugees, high levels of statelessness

‘the last frontier’ of regional cooperation’

The region

Some legacies – the ‘rejection theory’ and ‘Asian exceptionalism’

The CPA The 1993 Bangkok Declaration

Comprehensive Plan of Action for Indo-Chinese refugees 1989 (CPA)◦ ASEAN countries

provided ‘first’ \ temporary asylum

◦ In exchange for third country resettlement

A global North solution for the global South?

Vienna World Conference on Human Rights

Rights of refugees and displaced persons, collectively known as ‘vulnerable’ persons

Linked to inequalities in development between the global North and the global South

Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime [2002]

http://www.baliprocess.net/

Regional Consultative Processes (RCPs) on irregular migration dating from 1996

1999 Bangkok Declaration on Irregular Migration

The Actors – 1

A securitised discourse on ‘irregular migration’ \ secondary movements

State led, excludes civil society representation Reflects Australia’s national policy on asylum seekers: eg

the Malaysia-Swap agreement 2011

Limited actors and a narrow discourse which reflects a hierarchical agenda-setting process or ‘steering mode’

Limited application of International Refugee Protection (IRP) norms … asylum and burden-sharing

But note recent initiatives of Indonesia and UNHCR outside the Process

Norms – 1

Article 35 of the ASEAN Charter : ‘ASEAN shall promote its common ASEAN

identity and a sense of belonging among its peoples in order to achieve its shared destiny, goals and values’

ASEAN Political-Security Community (‘APSC’) ASEAN Economic Community (‘AEC’) ASEAN Socio-Cultural Community (‘ASCC’).

2 - Creation of an ASEAN Community: One Vision, One Identity …

Creation of ASEAN Intergovernmental Commission on Human Rights (‘AICHR’) – a work in progress

Refugee issues situated within the APSC Which covers ‘traditional’ and ‘non-traditional’ security or

‘transboundary challenges’◦ The meaning of ‘traditional’ – direct threats◦ The meaning of ‘non-traditional’ – indirect threats eg the

environment, development gaps

Refugees associated with ‘post-conflict peace building’

But parallel discourse focussed on development and ‘human security’

2- Norms

Article 2: 2. Every person is entitled to the rights and freedoms set

forth herein, without distinction of any kind, such as race, gender, age, language, religion, political or other opinion, national or social origin, economic status, birth, disability or other status.

Article 35: the right to development Article 22: the right ‘to freedom of thought, conscience

and religion’. Article 15: right ‘to freedom of movement ..’ Article 16: the right to seek and receive asylum in another

State in accordance with the laws of such State and applicable international agreements

The ASEAN Human Rights Declaration (AHRD) and Refugees

Outcome of the Asian African or ‘1955 Bandung Conference’ held in Indonesia

Bangkok Principles 1966 \ reaffirmed 2001 Contain the ‘expanded’ definition of the OAU

Convention 1974 And strong statements re burden sharing Principles of refugee protection given a

regional normative basis?

UNHCR’s ‘humanitarian’ role within this mechanism …

3 - Asian African Legal Consultative Organisation (AALCO)

SEA \ ASEAN: Refugees a ‘Northern’ and securitised

concept State-led processes UNHCR’s mediating role between states and

civil society Seen as promoting ‘humanitarian’ outcomes

rather than human rights

Some conclusions