The Asia Pacific Region has some of the largest and most protracted refugee situations in the world. In 2010, the United Nations High Commissioner for Refugees estimated the number of refugees worldwide as reaching 10.5 million.1 Asia and the Pacific hosted more than half of these refugees, fifty-four percent and 0.3 percent respectively. The number does not include additional several million asylum-seekers, stateless persons and internally displaced persons (IDPs) in the region.
As of 1 April 2011, nineteen Asian and Pacific countries had become party to the 1951 Convention Relating to the Status of Refugees (1951 Convention).2
While developing nations of Asia have been the sites of large refugee populations, increasingly countries of the global north3 have been increasingly adopting policies of non-entre to refugees and asylum seekers.
Despite the unwillingness of post-colonial Asian states to become hosts to refugees, they continue to remain the largest recipients of refugees. South and Southeast Asia host more than two million refugees and people in refugee-like situations. Protection for refugees has in the process become adhoc and differentiated resulting in some groups having better conditions than others.
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For instance in India, Tibetans who arrived in India before 1979 or who can prove that they were born in India prior to 1979 are given residence permits issued by the Indian Home Ministry which must be renewed yearly. Residence permits are necessary in order to obtain work, to rent an apartment or to open a bank account. These residence permits also allow Tibetan refugees to obtain identity certificates that are necessary for international travel.7 Unlike the Tibetan refugees, the Government of India does not permit Burmese refugees and refugees from other countries to acquire residential and other legal documents, with some exceptions.
Similarly, in Malaysia, the government issued temporary work permits to around 35,000 Muslim refugees from Aceh, Indonesia in 2005 for several years, and continues to extend the temporary work permits of an estimated 61,000 Filipino Muslim refugees who fled to Sabah in the 1970s. However, it refuses the same privileges to refugees of other nationalities, who live in constant poverty, fear, insecurity and threat of violence.8
Without formal legal recognition, many refugees are treated as irregular migrants and subject to arrest, detention, punishment for immigration offences, and deportation. In some countries, such as Bangladesh, Malaysia and Thailand, refugees have been held for years in indefinite detention. In Malaysia, immigration offences are punishable by whipping; between 2002 and 2008, 34,923 men suffered this brutal punishment, some of them asylum seekers and refugees. In India, Bangladesh, Nepal, and Thailand, hundreds of thousands of refugees have been ‘warehoused’ indefinitely in overcrowded refugee camps. Living without legal status also means that many refugees have to eke a living in the shadow economy. Many suffer violations of their labor and human rights, for which redress through formal legal mechanisms is often impossible. Desperate for effective protection, some have moved onwards to seek asylum in other places, such as Japan, South Korea, Australia and New Zealand.
Global north countries have established a "non-entre regime" based on border policing, visa requirements, carrier sanctions (forcing airlines to bear the costs of returning migrants refused entry), "safe third country" rules, and deterrent measures like detention and denial of the right to work.9 This deterrent policy has now been extended in the guise of combating people smuggling and trafficking, and ‘regularizing’ refugee flows. The extension of this ‘new asylum paradigm’10 finds expression in the recently concluded Australia- Malaysia refugee deal.11 The deal provides for the repatriation to Malaysia of eight hundred asylum seekers who had arrived in boats to Australian shores, while assuring the resettlement in Australia of four thousand UNHCR-recognized refugees in Malaysia over a four-year period. The deal is supposed to send a clear message to the “queue jumpers” that they would be sent back. This constant reference to a queue, begs the question, where is the queue?
On 31 August 2011, the High Court of Australia ruled that the declaration by the Australian government that Malaysia was qualified to become a specified country to which asylum seekers could be transferred was in violation of Australian migration law.12
Unlike Africa and Latin American regions, the Asian region has no regional instrument that either identifies or further elaborates on refugee protection within the region. It is argued that immense diversity of Asia makes it difficult to attempt to generalize refugee protection frameworks.13
Scholars argue that Asian governments are reluctant to sign the 1951 Convention due to a mix of a) political realism, where refugee rights are sacrificed at the altar of national security and nationalistic foreign policy, b) suspicion of international human rights instruments as real or imagined western influences and thus see the international refugee regime as being hostage from the very beginning to “foreign policy interests of dominant Northern States..."14 c) most post-colonial States endeavored to create a national identity which often created tensions with establishing a plural polity and respect for minority rights. This makes it particularly difficult for post-colonial states to allow groups from neighboring countries to reside in its territory even if they are fleeing danger to their life or freedom, that is, unless 'there is an ethnic link between the incoming refugees and the receiving state.15 This ‘cartographic anxiety’16 has been furthered in Asia by porous borders and the fact that post- colonial States have been carved out of peoples inhabiting a "common space" for long periods in history.
Other scholars like Alice Nah argue that “the key priorities of postcolonial states have been nation-building, political stability, and economic development.”17 The nation-building discourses have created perspectives that emphasizes preferential treatment of citizens over non- citizens.
In view of these socio-political legacies, the role of national civil society in advocating for refugee protection in South and Southeast Asia becomes even more crucial. National civil society actors are able to represent their own citizens in lobbying their governments for refugee protection. They cannot be easily dismissed by their governments as ‘outsiders’ who ‘interfere’ in the domestic affairs of a state; the argument that refugee protection is a ‘Western idea’ becomes harder to defend.
However, the civil society in South and Southeast Asia is still relatively weak in advocating for refugee protection. There are more groups that focus on the human rights of their own citizens (both at home and as migrant workers abroad) than there are that focus on the rights of refugees. I suggest a number of possible reasons for this.
Firstly, violations of the rights of citizens seem to resonate more easily and quickly among fellow citizens; the lives of non-citizens are relatively more abstract and distant. Secondly, refugee protection has become very complex – technically, legally and politically. This has not been complemented by broad-based and in-depth education and public debate on forced displacement in South and Southeast Asia. There is also little incentive to study the international refugee regime as it stands, as most of it is not applicable in these two regions. Indeed, the international human rights regime has greater utility. Finally, UNHCR plays a strong role in advocating for the rights of refugees in South and Southeast Asia, hoping to influence policy discourses and practices concerning refugees according to its key priorities. These factors contribute to national civil society groups becoming less engaged on refugee protection.
Nevertheless, there are national civil society groups across South and Southeast Asia who are very committed to the protection of the rights of refugees. In 2008, along with their counterparts in East Asia and the Pacific, they formed the Asia Pacific Refugee Rights Network (APRRN) as a platform for the advancement of the rights of refugees in the Asia Pacific region. Since its inception, APRRN has held a number of consultations, dialogues and training workshops aimed at building civil society commitment, capacity and collaboration concerning refugee protection. It has also released a number of joint statements, protesting, for example, the mistreatment of Rohingyas in Asia in 2008, and the refoulement of Lao Hmong and Uighurs from Thailand and China respectively in early 2009.
In December 2010, eighty-five Ahmadis18 were rounded up from their homes in Bangkok and sent to the Bangkok Immigration Detention Center to be repatriated back to Pakistan. Nearly half of those detained were women and children. One woman was seven months pregnant, and there were children as young as two years old. Later in January 2011 more Ahmadis were arrested.
Refugees and asylum seekers in Thailand are governed by the same Immigration Act and as such considered to be illegal aliens. In Thailand, the lack of distinction between refugees, asylum seekers and other immigration offenders contributes to the further victimization of those seeking protection from persecution. It is often a situation of despair as the only way out of it is resettlement to a third country or return back to their country of origin.
Conditions in the Thai detention center have been variously described as overcrowded, inhumane and unhygienic.19 Over one hundred twenty people have to share cells separated by gender that is meant for thirty to forty people. Cells are so crowded that there is often no place for the detainees to sleep and families are separated from each other. In the women’s cell, women took turns to sleep as there was not enough space and children were sleeping near toilets that are often overflowed with faeces and urine.
In response to this detention and similar detentions in the recent past, the APRRN issued a statement in January 2011 demanding the release of refugees and asylum seekers in detention. The statement was endorsed by the APRRN members and submitted to the Prime Minister, the National Human Rights Commission of Thailand (NHRCT), the National Security Council, the Immigration Department and the Ministry of Foreign Affairs. Simultaneously, APRRN representatives also met with the members of the NHRCT. The NHRCT took immediate cognizance of the issue and along with members of APRRN and others conducted a fact- finding mission to the Immigration Detention Center. The mission was widely publicized in Thai media.
As a response, to the openness of the Thai authorities, the Thai Committee for Refugees (TCR), a member of APRRN, created the Refugee Freedom Fund to bail the most vulnerable refugees who are indefinitely detained.
On 6 June 2011, ninety-six detainees were released, through the efforts of the Thai civil society. This release was historic, because never before has such large number of detainees been released on bail in Thailand. In the long-term, it is hoped that leadership from the Thai civil society will continue changing the dynamics and that the Thai government will consider establishing a legal framework and systematic mechanism to deal with all asylum seekers and refugees seeking protection in Thailand. In an effort to do so TCR and APRRN launched a campaign on the Draft Bill of Domestic Legislation for Refugees in Thailand. The campaign was launched on World Refugee Day, June 20, and began to solicit ten thousand signatures from Thai citizens supporting the bill, which are needed in order to get the bill tabled for consideration in the parliament.
APRRN members across the region are formulating advocacy strategies to increase the space for protection of refugees and asylum seekers. In Nepal, INHURED International has presented the Nepalese parliament a draft refugee bill for its consideration. However, given the political turmoil in the country the bill is yet to be discussed.
National civil society groups have a vital role to play in strengthening refugee protection in Asia. They have unique capacities to influence public opinion and to shape domestic laws and politics. However, strong, locally owned, popular movements of committed refugee advocates are only just emerging in South and Southeast Asia. Local knowledge production still plays a marginal role in shaping global discourses concerning refugees. Only with vibrant national civil society movements will states in South and Southeast Asia be convinced that refugee protection is the desire of its citizenry; only then will there be local ownership of refugee protection in these regions.
Anoop Sukumaran is the Coordinator of the Asia Pacific Refugee Rights Network (APRRN) based in Bangkok, Thailand.
For further information, please contact: Anoop Sukumaran, Asia Pacific Refugee Rights Network, Times Square Building, 12th Floor, Suite 12-03, 246, Sukhumvit Road, Bangkok, Thailand; ph: (662) 653 2940 ext 102; fax: (662) 653 2942; e- mail : firstname.lastname@example.org; http://refugeerightsasiapacific.org/.
1. UNHCR Global Trends 2010: 60 years and still counting, 20 June 2011, available at www.unhcr.org/4dfa11499.pdf [accessed 27 September 2011]
2. States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol, documents available at www.unhcr.org/pages/49da0e466.html.
3. “Global north” refers to economically and industrially advanced countries, including many members of the Organisation for Economic Co- operation and Development (OECD).
4. Op. cit., page 41.
5. Ibid., pages 38-40.
7. South Asia Human Rights Documentation Centre. Tibetan Refugees in India: Declining Sympathies, Diminishing Rights (2008). Retrieved 2 August 2011, Human Rights Features, available at www.hrdc.net/sahrdc/hrfeatures/HRF183.htm.
8. Nah, A. (n.d.), Strengthening Refugee Protection in Asia: The Significance of National Civil Society.
9. This is not a new development, but has been in place for many years now. Restrictive entrance policy has been adopted particularly targeted at parts of the world from where ‘migrants’ or refugees might arrive.
10. An author terms this new refugee policy as ‘new asylum paradigm’ which is predicated on the notion that refugee flows particularly to the global north could be ‘managed’ thereby ensuring that such population movements take place in an orderly, predictable and organized manner. See Crisp, J., “A new asylum paradigm? Globalization, migration and the uncertain future of the international refugee regime.” Working Paper No. 100 (UNHCR, 2003).
11. This agreement is formally titled “Arrangement Between The Government of Australia and The Government of Malaysia on Transfer and Resettlement,” and signed by the parties on 25 July 2011 in Kuala Lumpur.
12. This court decision on the petition of Afghan asylum seekers rendered the Australia- Malaysia refugee deal ineffective. Australia’s Department of Foreign Affairs and Trade has itself noted to the Minister for Immigration and Citizenship that “Malaysia is not a party to the Refugee Convention and does not itself grant refugee status or asylum or have in place legal protections for persons seeking asylum.” The Court was not convinced that the Australian government has adequately considered the extent of adherence of Malaysia to “international obligations, constitutional guarantees and domestic statutes which are relevant to the criteria” for determining a specified country under the migration law. For the full text of the court decision see “Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship ” HCA 32 (31 August 2011), available at www.austlii.edu.au/au/cases/cth/HCA/2011/32.html.
13. Muntarbhorn, V., The Status of Refugees in Asia. (Oxford: Clarendon Press, 1992), page 3.
14. Chimni, B. S.. “Improving the Human Conditions of Refugees in Asia,” in SARWATCH , 2 (1), 3.
15. Muntarbhorn, op. cit., page 16.
16. Chimni, op. cit., page 4.
17. Nah, op. cit.
18. The persecution of Ahmadis has been particularly severe and systematic in Pakistan, which is the only state to have officially declared the Ahmadis to be non- Muslims. They are being persecuted for professing their religion. The systematic persecution of the community in Pakistan is also well documented by human rights groups.
19. “Pakistani refugees freed on bail from Thai jail,” Dawn.com, June 6, 2011. http://www.dawn.com/2011/06/06/pakistani-refugees-freed-on-bail-from-thai-jail.html