Academic journal article The Australian Journal of Politics and History

The Asian Rejection?: International Refugee Law in Asia *

Academic journal article The Australian Journal of Politics and History

The Asian Rejection?: International Refugee Law in Asia *

Article excerpt

At the beginning of the twenty-first century Asia had the highest number of "persons of concern" (1) falling under the United Nations High Commissioner for Refugees (UNHCR) mandate. (2) It had the most refugees seeking asylum at a single UNHCR branch office (Malaysia) and the second highest number submitting claims for refugee status from any single country (Burmese). (3) More people still within the region were unaware that they might be able to seek refugee status, or feared that their claim would be rejected as not falling within the UNHCR's definition of a refugee. (4) Today, there are approximately ten million people in Asia who have either been classified as refugees, who are seeking asylum, or who live "illegally" outside their country of origin. (5) The only other region with a comparable "population of concern" is Africa. (6)

Since the era of the League of Nations, international society has tended to respond to the asylum seeker problem by developing international legal rules. The "magna carta" of international refugee law is the 1951 Convention Relating to the Status of Refugees (1951 Convention) and the 1967 Protocol Relating to the Status of Refugees (1967 Protocol). These treaties have three main purposes. Firstly, they aim to set standards to guide states' response to refugees and asylum-seekers. Secondly, they seek to promote a uniformity of response in the way that states provide asylum. Their third purpose is to create a universal definition of who can be properly identified as a person deserving refugee status. The majority of Asian states reject the Convention and Protocol as instruments framed in response to Europe's displaced population at the end of the Second World War. They consider that these instruments are Eurocentric and therefore inappropriate for dealing with Asian refugee experiences. (7)

Only a small number of Asian states have acceded to the international refugee law instruments. Most Asian states had yet to gain independence when the 1951 Convention was drafted. As a result, the drafting process did not admit an Asian understanding of the refugee problem. The 1967 Protocol was subsequently created to remove the Convention's temporal and geographic restrictions. By this time a knowledge of "who" refugees were and what assistance states should provide them had already been formed and embedded in customary practice. This led many Asian states to reject the basic definitions, concepts and mechanisms contained within the 1951 Convention and 1967 Protocol. A further distinctive element of Asia's relationship with international refugee law is that there have been no concerted attempts to compensate for non-accession by introducing regional instruments that would oblige states to respond uniformly to refugee crises.

Other regions such as Africa (Organisation of African Unity Convention) and South America (Cartagena Declaration) have adopted regional refugee mechanisms that complement and add to global refugee law. The vast majority of Asian states are signatories to the Asian-African Legal Consultative Committee (AALCC) which instituted the Bangkok Principles in 1966 and reaffirmed them in 1987. The AALCC comprises Asian and African states which consult on regional and international activities. The Bangkok Principles acknowledge the existence of refugees, insist that member states are expected to provide asylum, and uphold the principle of non-refoulement. However there is an important caveat in a provision which limits the exercise of these rights by refugees to cases where the security of the state is not threatened. Unlike the African Unity Convention and Cartagena Declaration, the Bangkok Principles do not create reciprocal regional expectations about how refugees should be treated. They serve only as a guide to the appropriate treatment of refugees, and the onus remains upon each state to decide whether or not to apply them in particular circumstances. Compliance with the Principles is neither enforced nor monitored. …

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