Regional Cooperation on Refugee Protection: The Unanswered Questions

This essay series explores the human costs and policy challenges associated with the displacement crises in the Mediterranean and Andaman Seas. The essays explore the myths or misconceptions that have pervaded discussions about these two crises, as well as the constraints or capacity deficiencies have hampered the responses to them. See more ...
 

With record numbers of people displaced around the world, the issue of how regions might cooperate to manage forced migration, and respond to the needs of people on the move, has become more relevant than ever. In the Asia-Pacific, the need for some form of cooperation became particularly pressing during the Andaman Sea “crisis” of May 2015. However, despite a series of multilateral meetings in the wake of that period, it is not clear whether any meaningful progress towards this goal eventuated.

As States in the region continue to grapple with the need for better coordination in their responses to displacement, this essay raises some of the lesser explored and as yet unanswered questions about whether and how regional cooperation on refugee protection might develop in this part of the world.  

The Basic Principles of Regional Cooperation

Much consideration has already been given to what regional cooperation on refugee protection in the Asia-Pacific region could, or should, look like. This is a question in two parts: (1) what is the nature of the protection to be afforded to refugees; and (2) how will States in the region cooperate to achieve this goal? 

Elaborating the specifics of a regional cooperation framework that answers these two questions is a project for governments, civil society, and other organizations to develop collectively over the long term. However, certain basic principles can already be identified from international law and initiatives such as the Asia Pacific Refugee Rights Network’s Vision for Regional Protection,[1] the “regional cooperation framework”[2] and Bali Declaration[3] of the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime, and the New York Declaration for Refugees and Migrants.[4]

These principles, which formed the basis of discussion at an Expert Roundtable on regional cooperation and refugee protection in the Asia-Pacific convened by the Andrew & Renata Kaldor Centre for International Refugee Law at University of New South Wales Sydney in September 2016, include:

➢ guaranteed safe entry to countries of asylum for those fleeing directly from persecution and other serious harm;
➢ stabilizing people’s situations in countries of first asylum or transit as quickly as possible, and meeting their humanitarian needs;
➢ fair and efficient asylum procedures, linked to durable solutions for those in need of them;
➢ special support and procedures for particularly vulnerable groups, including unaccompanied minors, stateless people and victims of human trafficking; and
➢ safeguards to ensure refugees are not vulnerable to exploitative labour practices.[5]

The Expert Roundtable generally agreed that any regional cooperation framework intended to achieve this type of protection would need to: be founded on a commitment to genuine responsibility-sharing (taking into account the respective capacities and situations of different states); enhance the overall protection space in individual countries and the region generally; be sustainable and informed by what is politically, socially, and economically realistic in the region; ensure refugee status determination and temporary stay arrangements are linked with work rights and durable solutions for those in need; be subject to effective oversight and quality assurance mechanisms, including possibly by the U.N. High Commissioner for Refugees (UNHCR); and strike an appropriate balance between predictable and established protection mechanisms, on the one hand, and flexibility to respond to emergency situations, on the other.[6]

While these general features of regional cooperation on refugee protection can be identified, the specifics are far from settled. Critically, the specifics depend largely on the political will of States involved. As the Expert Roundtable acknowledged, forced and irregular migration are longstanding issues in the Asia-Pacific region, and there has been no shortage of initiatives to address them. The greatest obstacle to regional cooperation on refugee protection is therefore not a lack of ideas about what it should look like, but rather a lack of political will, and the difficulty of getting States to “buy in” and take ownership of proposals for protection.[7]

States, civil society, international organizations, and academics continue their efforts to build this political will, with a focus on the what of effective protection and cooperation. But as they do, other important questions remain underexplored, including the why, who, and how of regional cooperation.

Why Regional Cooperation?

The scope and magnitude of global displacement demand something more than unilateral and uncoordinated State responses to forced migration. But of all the forms of cooperation, it is worth pausing to ask why regional groupings of States should be considered most appropriate for responding to displacement? Is regional cooperation in fact a useful goal?

In their comprehensive review of this issue, Mathew and Harley critically examine the merits of regional approaches to refugee protection, and question whether they offer something additional to, or better than, a global approach. In doing so, they argue that “[i]t is not immediately obvious why a regional approach should be adopted.”[8]

Cross-border movements may trigger the common interests of neighboring states, and the effects of large-scale displacement can impact the economies, politics, and security of an entire region. Situations like that which unfolded in the Andaman Sea in 2015 demonstrate why it might be of benefit both to displaced people and to governments for neighboring States to cooperate in responding to emergency situations. Moreover, inter-State cooperation requires strong and established diplomatic relationships, supporting institutional frameworks, and fora in which to share ideas and reach agreement. These often exist between countries in the same region, offering a platform on which to build cooperation on refugee protection.

However, it should not automatically be assumed from these considerations that a regional approach to displacement will produce better outcomes for refugees, or indeed for States. Not all refugee journeys are intra-regional (that is, originating and ending in the same region), and those which implicate States in more than one regional grouping may benefit from a coordinated response involving all relevant countries. Even when displacement does occur within a single region, the affected States might need support from others with capacity to provide financial assistance, resources, and resettlement.

Moreover, if a region’s mechanisms for cooperation generally are underdeveloped — as they are in the Asia-Pacific — the quality of refugee protection they can provide may consequently be affected. Any effort to formulate a regional approach to refugee protection will have to grapple with this lack of formal structures, as well as obstacles posed by the region’s political and legal heterogeneity. Finally, even in places like Europe, where the relevant mechanisms are more developed and common legislative frameworks exist, cooperation at the regional level has not necessarily guaranteed a higher level of protection for people on the move. The Common European Asylum System is still being revised, as European institutions and States continue their search for a better collective approach to displacement.

So regional cooperation might have benefits, but so too might other approaches to refugee protection. Greater reflection is required as to whether regional cooperation is likely to raise or lower standards in the Asia-Pacific region, as compared, for example, to greater participation in the global refugee law system, an inter-regional arrangement, or an approach based on an interconnected series of bilateral or tripartite agreements.[9]

What Region?

If it is decided that a “regional” approach to refugee protection should be pursued, the next question to arise is: which States actually comprise the Asia-Pacific region (or, indeed, is the Asia-Pacific a region at all)?

The task of defining regions and regionalism is subject to extensive academic study,[10] but for present purposes it is not necessary to resolve the deeper conceptual questions raised by these terms. Instead, what is required is a clear and common understanding of which States should be included in the process of developing a regional cooperation framework on refugee protection.

There is no single, settled definition of the “Asia-Pacific.” The ambiguous borders of the region are reflected in the divergent political groupings of States within the U.N. system. The “Asia-Pacific group” is one of five regional groups of U.N. member states, stretching from the Pacific across the Middle East, yet Australia and New Zealand are considered separately as part of the Western European and Others Group.[11] The U.N. Office of the High Commissioner for Human Rights hosts three regional offices or centers in what it calls the “Asia-Pacific region” — for the Pacific (including Australia and New Zealand), South-East Asia, and South and West Asia —  while its Central Asia office is part of the “Europe and Central Asia region.”[12] By contrast, UNHCR’s Global Report refers to “Asia and the Pacific” as comprising five sub-regions: Southwest Asia, Central Asia, South Asia, Southeast Asia, and East Asia and the Pacific.[13]

Ambiguity about the outer limits of the “region” is reinforced by the absence of common political institutions, bureaucratic frameworks, or judicial bodies. In terms of formal supranational organizations, there is the Association of Southeast Asian Nations (ASEAN), the slightly larger East Asia Summit, and the Pacific Islands Forum, but none of these are fully inclusive. The Bali Process focuses on forced migration in the Asia-Pacific region generally, but the inclusion of countries such as the United States and France make it difficult to characterize as a truly ‘regional’ platform.[14]

Membership aside, further problems arise regarding the capacity of these fora to meet the challenges of displacement in the region. In 2015, these various organizations failed to act quickly and effectively to address the humanitarian crisis unfolding in the Andaman Sea, and the most affected States were compelled to convene special meetings on an ad hoc basis.[15] Importantly, these meetings included not just representatives from States in the region, but also representatives from international organizations and observers from extra-regional States such as Switzerland and the United States.

The absence of a truly representative “regional” organization, and the State practice of inviting outside parties to key initiatives on displacement, may be the clearest signs that a coincidence of geography does not necessarily translate to better protection or cooperation.

How?

Further to the questions explored above, there remains the issue of how the basic principles of regional cooperation should be realised. If there is broad agreement as to what regional cooperation on refugee protection should look like, and political will can be secured, how should the process of developing a regional approach unfold?

At the Kaldor Centre’s Expert Roundtable, participants began the discussion of “protection in the region” by considering general approaches to building cooperation, and whether it would be better to pursue regional cooperation on refugee protection specifically, or to incorporate refugee protection into broader efforts to address irregular migration, improve human rights protection, and promote development. Views were mixed.

Given the relative weak normative frameworks for refugee protection in the Asia-Pacific,[16] there are obvious benefits to the latter approach. While there has been relatively little appetite for acceding to the Refugee Convention, the Sustainable Development Goals (SDGs) and certain human rights instruments have had greater traction with governments in the region. Promoting a human-rights based approach to migration, informed by the SDGs as minimum standards and leveraging existing human rights architecture (such as the ASEAN Intergovernmental Commission on Human Rights and the ASEAN Human Rights Declaration), could be a useful place to start building capacity to protect people on the move.[17] Such an approach could also facilitate more immediate and concrete action than a regional agreement on refugee protection, which is likely to be a much longer-term objective.

However, some Expert Roundtable participants cautioned against abandoning the refugee framework too quickly.[18] They recalled the value of the 1951 Refugee Convention as the cornerstone of refugee protection, and the important role UNHCR had played in the region for many decades, building trust with States and implementing various protection initiatives. These arguments reaffirmed the continuing relevance of international refugee law.[19] Moreover, the Expert Roundtable was reminded of the risks of conflating “humans” with “citizens” in a development or human rights context, and warned against the assumption that when citizens benefit, so too do more marginalized groups (such as refugees).

These arguments, which support the development of regional cooperation on refugee protection specifically (perhaps in parallel with broader efforts to improve human rights), trigger a series of further unanswered questions.

First, should cooperation on refugee protection be enshrined in formally binding legal obligations, or would political commitments of a more discretionary nature be acceptable? Legal obligations, though not always respected in practice, would provide the foundation for a more robust cooperation framework if coupled with provisions allowing wrongdoing States to be held to account for failures to comply with their commitments. Yet, as a region notorious for its reluctance to adopt binding obligations with respect to refugees, political or diplomatic commitments may be the only realistic option in the foreseeable future.

Second, how should responsibility for providing temporary shelter, processing asylum claims, and securing durable solutions for refugees be divided between the relevant States? If a system of “common but differentiated” responsibilities were introduced, how would the region decide which States should shoulder what aspects of refugee protection?

Third, should the region aim to negotiate a core agreement on refugee protection directly, or would efforts be better directed towards a ground-up approach: starting with capacity-building at the national level, adding a series of bilateral or trilateral arrangements to develop cooperation among clusters of States, and building up to multilateral cooperation gradually as a longer-term objective? Could a multilateral regional framework grow out of these narrower efforts to improve protection?

Finally, should cooperation —  in whatever form it takes —  be built by hooking into existing institutions and mechanisms (such as the Bali Process or ASEAN), or should a new process be launched with a dedicated focus on refugee protection?

From a practical perspective, a region-wide agreement on refugee protection in the Asia-Pacific may not be feasible in the short- to mid-term (if at all). Given the relatively limited and variable political will on this issue among governments in the Asia-Pacific, there are strong grounds for arguing that any opportunity to improve refugee protection should be seized and subsequently built upon, even if it is part of a broader human rights agenda, or only at a national or bilateral level. But whatever approach is taken, the unanswered questions raised in this essay warrant close consideration by governments and others involved in the project of improving cooperation on managing migration and responding to the needs of displaced people in the Asia-Pacific. To generate a collective sense of commitment to core protection standards, and improve the treatment of refugees while respecting State interests, stakeholders need to discuss not just the what but also the modality of regional cooperation: why is regional cooperation sought, who is in the region, and how will it move from where it is now, to better cooperation between governments and protection for refugees?

[1] Asia Pacific Refugee Rights Network, “The Asia Pacific Refugee Rights Network’s Visions for Regional Protection,” June 2014, accessed August 31, 2017, http://aprrn.info/the-asia-pacific-refugee-rights-network-s-vision-for-….

[2] Bali Process, “Fourth Bali Regional Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime: Co-Chairs’ Statement,” March 2011, [16], accessed August 31, 2017, http://www.baliprocess.net/UserFiles/baliprocess/File/110330_FINAL_Ministerial_Co-chairs%20statement%20BRMC%20IV(1).pdf.

[3] Bali Process, “Bali Declaration on People Smuggling, Trafficking in Persons and Related Transnational Crime,” March 23, 2016, accessed August 31, 2017, http://www.baliprocess.net/UserFiles/baliprocess/File/Bali%20Declaratio….

[4] United Nations General Assembly, “New York Declaration for Refugees and Migrants: Resolution Adopted by the General Assembly on 19 September 2016,” UN Doc A/RES/71/1, October 3, 2016, accessed August 31, 2017, http://www.un.org/en/development/desa/population/migration/generalassem….

[5] Madeline Gleeson, “Where to From Here? Report from the Expert Roundtable on Regional Cooperation and Refugee Protection in the Asia-Pacific,” Andrew & Renata Kaldor Centre for International Refugee Law, December 2016, 37, accessed August 31, 2017, http://www.kaldorcentre.unsw.edu.au/sites/default/files/Where_to_from_h….

[6] Gleeson, “Where to From Here? Report from the Expert Roundtable on Regional Cooperation and Refugee Protection in the Asia-Pacific.”

[7] Ibid.

[8] Penelope Mathew and Tristan Harley, Refugees, Regionalism and Responsibility (Cheltenham/Northampton: Edward Elgar Publishing, 2016), 23.

[9] Andrew & Renata Kaldor Centre for International Refugee Law, “Where to From Here? Report from the Expert Roundtable on Regional Cooperation and Refugee Protection in the Asia-Pacific.”

[10] Francis Baert, Tania Felicio, and Philippe De Lombaerde, “Introduction,” in The United Nations and the Regions: Third World Report on Regional Integration, ed. Philippe De Lombaerde, Francis Baert, and Tania Felicio (Dordrecht: Springer, 2012), 1–16; Mathew and Harley, Refugees, Regionalism and Responsibility, 23–66.

[11] United Nations, “United Nations Regional Groups of Member States,” May 2014.

[12] UN Office of the High Commissioner for Human Rights, “Asia-Pacific Region,” n.d.; UN Office of the High Commissioner for Human Rights, “Europe and Central Asia Region,” n.d.

[13] UN High Commissioner for Refugees, “Global Report 2016” (Geneva, 2017), 74–87.

[14] Bali Process, “Membership,” n.d.The Almaty Process on Refugee Protection and International Migration, a comparable forum in Central Asia, has a more limited membership and focus, and also includes observers from outside the region: International Organization for Migration, “Almaty Process on Refugee Protection and International Migration,” 2017.

[15] Ministry of Foreign Affairs of the Kingdom of Thailand, “Summary: Special Meeting on Irregular Migration in the Indian Ocean, 29 May 2015, Bangkok, Thailand,” May 2015; Ministry of Foreign Affairs of the Kingdom of Thailand, “Result of the 2nd Special Meeting on Irregular Migration in the Indian Ocean,” December 2015.

[16] Anja Klug, “Enhancing Refugee Protection in the Asia-Pacific Region,” Proceedings of the Annual Meeting (American Society of International Law) 107 (2013): 358.

[17] Andrew & Renata Kaldor Centre for International Refugee Law, “Where to From Here? Report from the Expert Roundtable on Regional Cooperation and Refugee Protection in the Asia-Pacific.”

[18] Ibid.

[19] Guy S. Goodwin-Gill, “The Continuing Relevance of International Refugee Law in a Globalized World,” Intercultural Human Rights Law Review 10 (2015): 25–42; Jane McAdam, “The Enduring Relevance of the 1951 Refugee Convention,” International Journal of Refugee Law 29 (2017): 1–6.