Refugee Protection in the Asia Pacific Region

Resource person: Dr Savitri Taylor

Definition of the Asia Pacific Region

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

Relevant International Legal Instruments

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

Treaty parties at 17 October 2011 (NB reservations and declarations not noted)

Country or territory	Refugee Convention and/or Protocol	CAT	ICCPR
Central Asia
Kazakhstan	Yes	Yes	Yes
Kyrgyzstan	Yes	Yes	Yes
Tajikistan	Yes	Yes	Yes
Turkmenistan	Yes	Yes	Yes
Uzbekistan	No	Yes	Yes
East Asia & the Pacific
American Samoa (USA)	Yes	Yes	Yes
Australia	Yes	Yes	Yes
China	Yes	Yes	No
Cook Islands	No	No	No
Federated States of Micronesia	No	No	No
Fiji	Yes	No	No
French Polynesia (France)	Yes	Yes	Yes
Hong Kong SAR (China)	No	Yes	Yes
Japan	Yes	Yes	Yes
Kiribati	No	No	No
Macau SAR (China)	Yes	Yes	Yes
Marshall Islands	No	No	No
Mongolia	No	Yes	Yes
Nauru	Yes	No	No
New Caledonia (France)	Yes	Yes	Yes
New Zealand (including Tokelau)	Yes	Yes	Yes
Niue	No	No	No
North Korea	No	No	Yes (but purported withdrawal)
Northern Mariana Islands (USA)	Yes	Yes	Yes
Palau	No	No	No
Papua New Guinea (PNG)	Yes	No	Yes
Samoa	Yes	No	Yes
South Korea	Yes	Yes	Yes
Solomon Islands	Yes	No	No
Tonga	No	No	No
Tuvalu	Yes	Yes	Yes
Vanuatu	No	Yes	Yes
South Asia
Bhutan	No	No	No
India	No	No	Yes
Maldives	No	Yes	Yes
Nepal	No	Yes	Yes
Sri Lanka	No	Yes	Yes
South East Asia
Bangladesh	No	Yes	Yes
Brunei	No	No	No
Burma	No	No	No
Cambodia	Yes	Yes	Yes
East Timor	Yes	Yes	Yes
Indonesia	No	Yes	Yes
Laos	No	No	Yes
Malaysia	No	No	No
Philippines	Yes	Yes	Yes
Singapore	No	No	No
Thailand	No	Yes	Yes
Vietnam	No	No	Yes
South West Asia
Afghanistan	Yes	Yes	Yes
Iran	Yes	No	Yes
Pakistan	No	Yes	Yes

Most recent ratification status data can be obtained by clicking hyperlinks at the top of the table.

Regional Cooperation through the Bali Process

The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (Bali Process) was inaugurated at a Ministerial level conference co-chaired by Australia and Indonesia in February 2002.  Forty three states and territories are so-called “Bali Process countries”.  All of the countries in UNHCR’s operational sub-regions of East Asia and the Pacific, South Asia, South East Asia and South West Asia are Bali Process countries as are Iraq, Jordan, Syria and Turkey. 

Austria, Belgium, Canada, Denmark, European Commission, Finland, Germany, Italy, Netherlands, Norway, Poland, Romania, Russian Federation, South Africa, Spain, Sweden, Switzerland, United Kingdom, and United States of America are able to participate in Bali Process activities under the nomenclature of “Other Participating Countries”.  The International Organization for Migration (IOM) and the Office of the United Nations High Commissioner for Refugees (UNHCR), which are members of the “Bali Process Steering Group” along with Australia, Indonesia, New Zealand, and Thailand, are key players in the Bali Process.  Eleven other intergovernmental organizations and processes with relevant mandates are described as “Other Bali Process Organizations” and are also able to participate, if they so desire.

At the Fourth Regional Ministerial Conference of the Bali Process, Ministers agreed to a landmark Regional Cooperation Framework (RCF) which is set out in the Final Co-Chairs’ Statement of 30 March 2011.  The key paragraphs of that Statement are extracted below:

16. Ministers agreed that an inclusive but non-binding regional cooperation framework would provide a more effective way for interested parties to cooperate to reduce irregular movement through the region.  Ministers agreed to a regional cooperation framework underpinned by the following core principles:

i. Irregular movement facilitated by people smuggling syndicates should be eliminated and States should promote and support opportunities for orderly migration.

ii. Where appropriate and possible, asylum seekers should have access to consistent assessment processes, whether through a set of harmonised arrangements or through the possible establishment of regional assessment arrangements, which might include a centre or centres, taking into account any existing sub-regional arrangements.

iii. Persons found to be refugees under those assessment processes should be provided with a durable solution, including voluntary repatriation, resettlement within and outside the region and, where appropriate, possible “in country” solutions.

iv. Persons found not to be in need of protection should be returned, preferably on a voluntary basis, to their countries of origin, in safety and dignity.  Returns should be sustainable and States should look to maximise opportunities for greater cooperation.

v. People smuggling enterprises should be targeted through border security arrangements, law enforcement activities and disincentives for human trafficking and smuggling.

17. Ministers further agreed that the regional cooperation framework could be operationalised through interested States entering into practical bilateral or other sub-regional arrangements to enhance the region’s response to irregular movement, consistent with the principles at paragraph 16 and guided by the considerations at paragraph 19. States could opt into any such arrangements on a voluntary basis.

18. Ministers also agreed that due to the large scale of irregular movement in the region, a regional framework could address initially a selected caseload or caseloads, and that participating States should seek to enter into arrangements which would ensure that persons in that caseload are dealt with in accordance with the processes established under the framework.

19. Ministers agreed that in developing and implementing practical arrangements participating States should be guided by the following considerations:

i. Arrangements should promote human life and dignity.

ii. Arrangements should seek to build capacity in the region to process mixed flows and where appropriate utilise available resources, such as those provided by international organizations.

iii. Arrangements should reflect the principles of burden-sharing and collective responsibility, while respecting sovereignty and the national security of concerned States.

iv. Arrangements should seek to address root causes of irregular movement and promote population stabilisation wherever possible.

v. Arrangements should promote orderly, legal migration and provide appropriate opportunities for regular migration.

vi. Any arrangements should avoid creating pull factors to, or within, the region.

vii. Arrangements should seek to undermine the people smuggling model and create disincentives for irregular movement and may include, in appropriate circumstances, transfer and readmission.

viii. Arrangements should support and promote increased information exchange, while respecting confidentiality and upholding the privacy of affected persons.

 

In the Final Co-Chairs’ Statement, it was also stated that Ministers saw the UNHCR discussion paper entitled Regional Cooperative Approach to address Refugees, Asylum-Seekers and Irregular Movement, which was presented at the Ad Hoc Group UNHCR Regional Cooperation on Refugees and Irregular Movements Workshop in Manila on 22 to 23 November 2010, as being a “useful foundation for operationalizing the framework” (para. 23).

On 25 July 2011, the governments of Australia and Malaysia entered into an Arrangement on Transfer and Resettlement which they presented as a practical operationalization of the RCF.  The Arrangement, which will terminate four years after signing (clause 19) and is not legally binding (clause 16), provides for the transfer to Malaysia of up to 800 persons arriving irregularly in Australia by boat after the date of signing (clauses 4 and 7). The Arrangement also states that in exchange for Malaysia’s assistance, and regardless of the number of persons actually transferred to Malaysia, Australia  will resettle over a period of four years 4,000 UNHCR recognized refugees living in Malaysia at the time of signing (clauses 5 and 7). Pursuant to the Arrangement, transferees to Malaysia were to be given the opportunity to have asylum claims considered by UNHCR (clause 10(2)(a)) and were to have access to resettlement if found to be refugees (clause 6), but the two governments agreed to ensure that they would not receive any processing advantage over other asylum seekers and refugees in Malaysia (clause 12(2)). UNHCR stated that its preference would have been for asylum claims of irregular boat arrivals in Australia to be processed in Australia. However, it also expressed the hope that “the Arrangement will in time deliver protection dividends in both countries and the broader region” and signaled that it would do its best to ensure that outcome.  

On 31 August 2011, the High Court of Australia ruled by a six to one majority in the case of M70 that transfer of asylum seekers to Malaysia would be domestically unlawful. The decision turned on the court’s construction of the relevant provisions of the Migration Act 1958 (Cth) and could be undone by legislative amendment. On 21 September 2011, the government introduced Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 into Parliament seeking to do exactly that.  However, the government, which is a minority one, has since conceded that it does not even have the numbers to get the Bill through the lower house of Parliament and has announced that all irregular maritime arrivals will therefore be processed in Australia for the foreseeable future.

The High Court decision does not preclude the Australian government from giving effect to its promise to resettle 4,000 refugees from Malaysia. The government has indicated that the promise will be kept but that the 4,000 resettlement places will now be treated as part of Australia’s regular humanitarian resettlement program of 13,750 places per year rather than being, as originally intended, places additional to the regular program.

On 19 August 2011, the governments of Australia and PNG signed a legally non-binding Memorandum of Understanding (MoU) relating to the Transfer to and Assessment of Persons in Papua New Guinea, and Related Issues. The MoU, which took effect from the date of signing and will remain on foot “until terminated by mutual agreement” (clause18), states that PNG “will establish an Assessment Centre [for Asylum Seekers] in Manus Province” (clause 10). It further provides that Australia may transfer to PNG persons arriving irregularly in Australia by sea (clauses 7 and 9) for processing of asylum claims (preamble) and that all persons transferred “will have left within as short a time as is reasonably necessary for the implementation of this MoU” (clause 11). The MoU references the RCF in its preamble and one of the participants’ stated objectives is “to continue discussions as to how the Assessment Centre might over time undertake a broader range of functions under the regional cooperation framework” (clause 3). The MoU also contains promises by the Australian government to bear the direct costs of its implementation (clause 6) and to provide the PNG government with financial and other assistance in the management of PNG’s borders (clause 14).  

The Australia-PNG MoU states that transferees will be treated with dignity and respect and in accordance with human rights standards and that procedures will be developed to deal with vulnerable cases including unaccompanied minors (clauses 12 and 13). However, most of the operational details remain to be negotiated (clause 8). UNHCR has stated that it does not envisage having an operational role in relation to the Assessment Centre.  

The Australia-PNG MoU has drawn criticism from many quarters including the Refugee Council of Australia. Any attempt by Australia to transfer asylum seekers to PNG will almost certainly be challenged in the High Court.  It is difficult to predict what the outcome of such a challenge would be, because in M70 the High Court left open the answers to key questions bearing on the matter.