ASEAN’s porous refugee safety net imperilling non-refoulement of minority groups

Non-committal, non-durable, and non-cooperative: ASEAN’s porous refugee safety net imperilling non-refoulement of minority groups

ASEAN’s current governance framework is fragmented and inadequate. It is thus ultimately ill-suited for addressing the disproportionate burden some ASEAN member states face in assisting refugees compared to others in the region and assisting intersectional and nuanced needs of refugee minorities.

The ‘cascading of crises’ is unlikely to render the diasporic exoduses of refugees and minority groups a mere generational issue, desperately requiring a renewed regional commitment in protecting the region’s most vulnerable.

Current state of play in ASEAN
Despite economic progress being offset by COVID-19, ASEAN’s Gross Domestic Product (GDP) still far exceeds other regional areas. Even some of ASEAN’s states with the most auspicious GDPs have a lacunae of refugee protection systems, marred by jingoistic political narratives of purported national security concerns.

Similarly, despite Australia having one of the highest GDPs in the region, Australia has ‘set a poor benchmark for its regional neighbours’… where ‘[s]uch policies should not be considered a model by any country.‘

Likewise, there are rapidly declining birth and fertility rates across ASEAN, with half the region producing ‘insufficient children to maintain the population size’ in reflection a ticking ‘demographic time bomb’. This only serves to further inculcate the business case for a multilateral, liberalised, regional refugee policy reform for ASEAN.  

Nevertheless, ASEAN states currently have a widely divergent and disjointed approach with respect to protection of refugees under international instruments. Despite all states being signatories to the Universal Declaration of Human Rights (‘UNHR’), it fails to impose any state obligations concerning refugees.

Thus, we turn to the three key pillars of international refugee law, the Refugee Convention, the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (‘CAT’), and the International Covenant on Civil and Political Rights (‘ICCPR’). These instruments affirm the principle of non-refoulement—in essence requiring States to not transfer any individual to another country if this would result in exposing him or her to serious human rights violations, notably arbitrary deprivation of life. 

Ian Seal, CEO and founder of THREE for All Foundation, an organisation assisting LGBTQIA+ asylum seekers in various jurisdictions across the world, echoes these sentiments. He states that ‘there is a lack of clarity with respect to clear pathways and opportunities for refugees to ASEAN refugees compared to those in say East-Africa’.He also highlights the specific absence of ‘accessibility of resources, responsiveness, and strategy of NGOs in ASEAN to assist and identify intersectional needs of minority groups.

A common regional framework?
Despite the recalcitrant uniformity in signatory status with respect to the above international instruments, regional responses have been more auspicious. Despite ASEAN Human Rights Declaration, confirming that ‘[e]very person has the right to seek and receive asylum in another State in accordance with the laws of such State and applicable international agreements’, among other regional instruments, there remains a dearth of any refugee-specific regional instruments involving all ASEAN states.  

Similarly, ASEAN members have been disinclined to elevate refugee policy on ASEAN’s formal agenda due to the perception that it would implicate a breach of the Charter principle of non-interference in the internal affairs of member states. 

Yet, what can ASEAN learn from other international examples of regional responses regarding refugees?

Let us look at the Cartegena Declaration. It was adopted in 1984 by a group of experts from several Latin-American countries that sought to harmonise regional states legal framework mandating common minimum standards, common asylum procedure, strengthening practical cooperation between administrations, and affording a uniform status to refugees. Albeit non-binding, the consensus on the definition of ‘refugee’ has attained particular standing across the region, having subsequently been incorporated into 14 national laws and practices across different states, and produced the impetus for the San Jose Declaration, where 20 American countries reaffirmed the importance of the Cartagena Declaration on its 10^th year anniversary.

But how could this translate to the ASEAN region?

The year 2022 could be an excellent opportunity for ASEAN states to mirror the San Jose Declaration. On the 10^th year anniversary of the 2012 ASEAN Human Rights Declaration, ASEAN states could reaffirm their commitment to all clauses within this declaration. Most germane to this discussion are articles 11 (right to life), 14 (right to not be subject to torture), and 16 (right to seek asylum) that in conjunction infer the prohibition against arbitrary practices of non-refoulement by host countries. 

Such a declaration would represent a timely response to the diasporic mass exoduses from Afghanistan and Myanmar and similarly serve as a useful platform to re-energise the cooperation between NGOs, UN bodies, and state governments in the construction and dissemination of education campaigns regarding refugees and nuanced requirements of intersectional vulnerable and marginalised groups. 

To conclude, the continued ignorance and the absence of any multilateral, collaborative, and pluralistic response in assisting refugees in the ASEAN region is a stark, concerning, and dangerous lacunae. Simply ignoring this issue is not going to materialise a solution. 

Therefore, a 2022 reaffirmation of the ASEAN Human Rights Declaration by ASEAN member states would engender a renewed commitment of the protection of refugees. It would reiterate the region’s shared lingua franca regarding this issue, representing an essential, logical, and cooperative step towards better protection of the region’s most vulnerable.