Expanding Protection in the Asia Pacific Region
Dr Savitri Taylor, Associate Professor, Law School, La Trobe University 2 September 2014 The International Context In the absence of relevant legal obligations, non- binding documents can be useful advocacy tools e.g. EXCOM Conclusions on International Protection
Asia Pacific EXCOM members in 2014 Also parties to Refugee Convention or Protocol: Afghanistan, Australia, Azerbaijan, China, Iran, Japan, New Zealand, Philippines, South Korea, Turkmenistan Not parties to the Refugee Convention or Protocol: Bangladesh, India, Pakistan, Thailand
La Trobe University 2 Asian-African Legal Consultative Organization Originally Asian Legal Consultative Committee est. 1956.
Members (47) South East Asia: Brunei, Indonesia, Malaysia, Myanmar, Singapore, Thailand South Asia: Bangladesh, India, Nepal, Pakistan, Sri Lanka East Asia: China, Japan, Mongolia, North Korea, South Korea Middle East: Bahrain, Cyprus, Iraq, Iran, Jordan, Kuwait, Lebanon, Oman, Palestine, Qatar, Saudi Arabia, Syria, Turkey, United Arab Emirates, Yemen Africa: Botswana, Cameroon, Egypt, Gambia, Ghana, Kenya, Libya, Mauritius, Nigeria, Senegal, Sierra Leone, Somalia, South Africa, Sudan, Tanzania, Uganda
Permanent observers: Australia, New Zealand
La Trobe University 3 Asian-African Legal Consultative Organization 1966 – Bangkok Principles on Status and Treatment of Refugees
1970 – Addendum dealing with the “right to return”
1987 – Addendum dealing with “principles of burden sharing”
1996 – Decision that Principles needed to be updated and revised in light of state practice in Asia and Africa
La Trobe University 4 Revised Bangkok Principles on the Status and Treatment of Refugees • Defines the term “refugee” a bit more expansively than does the Refugee Convention and Protocol. (Art. I) • Includes “a right to seek and to enjoy” asylum in other countries (Art. II) • Contains a prohibition on refoulement which is similar to that in Refugee Convention art. 33 (Art. III) • Sets out minimum standards of treatment (Art. IV) • Contains procedural safeguards against expulsion and deportation (Art. V) • Deals with right of return (Art VI), voluntary repatriation (Art VII), and right to compensation (Art IX) • Expressly states that “Nothing in these Articles shall be deemed to impair any higher rights and benefits granted or which may hereafter be granted by a State to refugees” (Art XII) • Deals extensively with international cooperation on comprehensive solutions (Art VIII) and burden sharing (Art X) • Exhorts states to cooperate with UNHCR and UNRWA (Art XIII)
La Trobe University 5 Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime Member countries (45): Afghanistan, Australia (co-chair), Bangladesh, Bhutan, Brunei, Cambodia, China, Fiji, France (New Caledonia), Hong Kong, India, Indonesia (co-chair), Iran, Iraq, Japan, Jordan, Kiribati, Lao PDR, Macau, Malaysia, Maldives, Mongolia, Myanmar, Nauru, Nepal, New Zealand (steering group), North Korea, Pakistan, Palau, PNG, Philippines, Samoa, Singapore, Solomon Islands, South Korea, Sri Lanka, Syria, Thailand (steering group), Timor Leste, Tonga, Turkey, UAE, USA, Vanuatu, Viet Nam
Member agencies (3): IOM (steering group), UNHCR (steering group) and UNODC
Observer countries (18): Austria, Belgium, Canada, Denmark, European Commission, Finland, Germany, Italy, Netherlands, Norway, Poland, Romania, Russia, South Africa, Spain, Sweden, Switzerland, UK
Observer agencies (10): ADB, APC, ICMPD, ICRC, IFRC, IGC, ILO, Interpol, UNDP, World Bank
La Trobe University 6 Asia Pacific Consultations on Refugees, Displaced Persons and Migrants (APC)
• Initiated by Australia and UNHCR in 1996 to promote dialogue and cooperation in relation to asylum seeker issues
• Has Bali Process observer status
• Dormant since about 2008
La Trobe University 7 Bali Process Ad Hoc Group
Original Membership: Afghanistan, Australia, Bangladesh, Burma, India, Indonesia, Malaysia, Maldives, New Zealand, Pakistan, Sri Lanka, Thailand, UNHCR and IOM. Task: To develop regional responses to “current situations concerning the irregular movement of people in the Asia-Pacific region”. (Third Bali Process Ministerial Conference, 14-15 April 2009)
UNHCR, Regional Cooperative Approach to address Refugees, Asylum- Seekers and Irregular Movement (November 2010) p. 3 “The RCF would be a package of inter-linked mechanisms and initiatives which together would achieve [goals previously specified]. As a starting point, the RCF could contain a set of Common Understandings that would provide the broad underpinnings of good practices and sound collaboration between States. These common understandings could be supplemented by situation-specific practical cooperative arrangements, as well as regional support functions to assist States on an operational level.”
La Trobe University 8 Bali Process: Regional Cooperation Framework
Final Co-Chairs’ Statement, 30 March 2011 “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.”
La Trobe University 9 Bali Process: Regional Cooperation Framework Australia claims that the following arrangements operationalized the RCF
Australia-Malaysia Arrangement (signed 25 July 2011) – blocked first by M70 (High Court of Australia) and then by the Australian Parliament.
Australia-PNG Arrangement and Australia-Nauru Arrangement – provide for transfer of unauthorised maritime arrivals to the regional countries for processing (since August/ September 2012) and resettlement (since early August 2013).
However, these arrangements do not comply with protection principles
La Trobe University 10 Bali Process: Regional Support Office • Established in Bangkok in September 2012 • Under the co-management of an Australian and Indonesian official & has representatives from IOM and UNHCR • Additional staff seconded from Bali Process member countries from time to time • Bali Process Ministerial Conferences allocate tasks & Bali Process members can submit proposals for new projects. • Projects thus far have been border control oriented. Exception is a UNHCR proposed project which resulted in development of Regional Guidelines for Responding to the Rights and Needs of Unaccompanied and Separated Children http://www.refworld.org/docid/53883ffd4.html and a Directory of Organizations with the Potential to Respond to the Rights and Needs of UASC.
La Trobe University 11 Jakarta Declaration on Addressing Irregular Movement • Ministers and high-level representatives from Afghanistan, Australia, Bangladesh, Cambodia, Indonesia, Malaysia, Myanmar, New Zealand, Pakistan, PNG, Philippines, Sri Lanka, and Thailand met in Jakarta on 20 August 2013.
• IOM and UNHCR were also present at the Jakarta special conference.
• Participants adopted the legally non-binding Jakarta Declaration on Addressing Irregular Movement.
• Declaration is primarily focused on border control but affirms the need for regional cooperation to be protection sensitive.
La Trobe University 12 Almaty Process • Informally inaugurated at a conference in March 2011 organized by UNHCR, IOM, the Organization for Security and Co-operation in Europe and the UN Regional Centre for Preventive Diplomacy for Central Asia. • Current members: Afghanistan, Azerbaijan, Kazakhstan, Kyrgyz Republic, Pakistan, Tajikistan, Turkey & Turkmenistan (tbc) • “States, International Organizations and Regional Organizations may participate as observers in all sessions of the Almaty Process upon consensus of Member States. Civil Society representatives may be invited on a case-by- case basis, upon consensus of Member States” (Almaty Process Operational Modalities art 3(iv))
La Trobe University 13 Almaty Process: Regional Cooperation Framework proposal
Areas of Common Understanding • “Managing borders and ensuring security while ensuring Protection” • “Data collection and analysis” • “Identification, profiling and referral mechanisms” • “Differentiated processes and procedures” • “Viable solutions for different groups” • “Integration of refugees, stateless persons, migrants and minorities” • “Reintegration of returnees and returning labour migrants” • “Developing legal migration opportunities and gender- sensitive migration policies”
La Trobe University 14 Association of South East Asian Nations • Established in 1967
• Current members: Brunei (1984), Cambodia (1999), Indonesia, Laos (1997), Malaysia, Myanmar (1997), Philippines, Singapore, Thailand and Viet Nam (1995)
• Governed by ASEAN Charter since 15 December 2008 • Legally binding treaty • Arts 1(7), 2(1), 2(2)(i) & (j), 5(2) may be of use in human rights advocacy with individual states.
• ASEAN Intergovernmental Commission on Human Rights (AICHR) established in 2009 • Terms of Reference, Work Plan 2010-2015, Guidelines on Operations available at http://aichr.org/documents/
La Trobe University 15 ASEAN Human Rights Declaration • Developed by AICHR pursuant to its mandate in Terms of Reference art 4.2
• Adopted by ASEAN Heads of State in November 2012
• Not legally binding
• Art 16. “Every person has the right to seek and receive asylum in another State in accordance with the laws of such State and applicable international agreements.”
La Trobe University 16
Conclusion “If one does not know to which port one is sailing, no wind is favorable.” — Seneca
"You've got to think about big things while you're doing small things, so that all the small things go in the right direction." — Alvin Toffler
La Trobe University 17 Thank you
Email:'[email protected]' Twi5er:'@SavitriTaylor' Useful References
Ratification status of multilateral treaties deposited with the UN Secretary General https://treaties.un.org/pages/ParticipationStatus.aspx
Ratification status of the United Nations Convention against Transnational Crime and its Protocols https://www.unodc.org/unodc/en/treaties/CTOC/signatures.html
UNHCR - A Thematic Compilation of Executive Committee Conclusions (7th ed. June 2014) http://www.unhcr.org/53b26db69.html
UNHCR, Refugee Protection and Mixed Migration: the 10-Point Plan in Action (December 2012) http://www.unhcr.org/50ab86d09.html
Asian-African Legal Consultative Organization, “Final Text of the AALCO’s 1966 Bangkok Principles on Status and Treatment of Refugees” as adopted on 24 June 2001 at the AALCO’s 40th Session, New Delhi http://www.aalco.int/Final%20text%20of%20Bangkok%20Principles.pdf
La Trobe University 19 Useful References UNHCR, Regional Cooperative Approach to address Refugees, Asylum- Seekers and Irregular Movement (2010) http://www.baliprocess.net/files/Regional%20Cooperation%20Approach %20Discussion%20document%20-%20final.pdf
Final Co-Chairs' Statement of Fourth Bali Regional Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime, 30 March 2011 http://www.baliprocess.net/files/110330_FINAL_Ministerial_Co-chairs statement BRMC IV.doc
Bali Process Regional Support Office web site http://www.baliprocess.net/regional-support-office
Jakarta Declaration on Addressing Irregular Movement, 20 August 2013, http://www.unhcr.org/5214ae709.html
La Trobe University 20 Useful References Almaty Declaration, 16 March 2011 http://www.unhcr.org/4ddfb7cd6.html
Almaty Process: Regional Cooperation Framework proposal and draft Plan of Action, 7 September 2012, http://www.unhcr.kz/eng/mixedmigration/regionalcooperationframework/
Almaty Process Communique, 5 June 2013, http://www.iom.int/files/live/sites/iom/files/What-We-Do/docs/ Communique_En.pdf
Almaty Process: Operating Modalities, June 2013 http://www.unhcr.kz/eng/mixedmigration/operatingmodalities
ASEAN Charter, 20 November 2007 http://www.asean.org/archive/publications/ASEAN-Charter.pdf
ASEAN Human Rights Declaration, November 2012, http://www.asean.org/news/asean-statement-communiques/item/asean- human-rights-declaration La Trobe University 21