Compared to other parts of the world, Southeast Asia hosts a relatively low number of people displaced across borders due to armed conflict and persecution, i.e., refugees. According to the United Nations High Commissioner for Refugees (UNHCR), in 2022 there were an estimated 240,000 refugees within the region, with Malaysia hosting the largest number of refugees (134,554), followed by Thailand (94,472), Indonesia (9,785), the Philippines (857) and Cambodia (24).
Southeast Asia represents a particularly interesting and, indeed, peculiar component of the international refugee regime for at least two reasons. On the one hand, Southeast Asia has a long history dealing with large-scale movements of refugees, most notably during the period known as the Indochina Refugee Crisis (1975-1997), when millions of people fled from the former French colonies of Indochina (Vietnam, Cambodia, Laos) to other countries. On the other hand, it remains one of the few regions, alongside South Asia and the Middle East, where most countries remain outside the key international instruments pertaining to the protection of refugees. Only two out of the ten member states of the Association of Southeast Asian Nations (ASEAN), the Philippines and Cambodia, have acceded to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. Apart from these two countries, no other country in the region has an appropriate legal and institutional framework allowing authorities to identify refugees and setting standards for their protection. Moreover, there is no regional instrument pertaining to the protection of refugees in the region.
In the absence of specific legal frameworks to deal with refugee movements, most of the Southeast Asian states make no distinction between economic migrants and people in need of international protection. As most refugees move irregularly across borders in the region, they are considered as “illegal” or “irregular” migrants under national immigration laws, and as such are at risk of being arrested, detained and deported. This situation has raised legitimate concerns regarding the treatment of refugees in Southeast Asia.
The history of refugee admission in Southeast Asia
Even when narrowing down the discussion to only the post-World War Two period, there are many examples where Southeast Asian states provided asylum to groups of people seeking safety. Thailand received some 70,000 Vietnamese nationals fleeing their country’s struggle for independence in 1945-1946, as well as thousands of members of the former Chinese Nationalist Party (Kuomintang) and their families in the early 1950s.
Yet by far the most significant refugee crisis in the region was the Indochina Refugee Crisis, which spanned across the region and beyond for over twenty years between the mid-1970s and the mid-1990s. More than three million people fled communist regimes in Cambodia, Laos and Vietnam seeking protection in Thailand, Malaysia, Indonesia, and to a lesser extent, the Philippines, who accepted the Indochinese refugees on a temporary basis while waiting for Western Countries to resettle them permanently. As the number of so-called Vietnamese “boat people” increased in the late 1980s, an innovative agreement between countries of origin, asylum and resettlement, known as the Comprehensive Plan of Action for Indochinese Refugees (CPA) was adopted in 1989. The CPA provided that all Indochinese asylum seekers arriving in the countries of first asylum after a certain date would be submitted to a new screening procedure. Those recognized as refugees according to the criteria set out in the 1951 Refugee Convention would be resettled, while those screened out would have to return to their countries of origin.
Since the end of the Indochina Refugee Crisis, Myanmar has become the main source of refugee flows in Southeast Asia. Many members of ethnic groups in Myanmar have fled to Thailand in several waves over the past 30 years. At the end of 2022, there were still nine “temporary shelters” hosting some 90,617 refugees in Thailand.
The Rohingya, an ethnic Muslim group from the Rakhine State in the Western part of Myanmar, is by far the most vulnerable caseload of refugees from Myanmar. Fleeing systematic persecution and discrimination by the Burmese authorities, many of them have travelled in rickety boats across the Bay of Bengal and the Andaman Sea to find protection in other countries, in particular in Malaysia (via Thailand), where there is already a large community of Rohingya, or in Australia (via Indonesia). In 2017, military operations carried out by the Myanmar army in Rakhine in retaliation for the attacks on police stations by a pro-Rohingya armed group led to the
Southeast Asia and the international refugee regime
Perhaps the most nagging question when it comes to refugees in Southeast Asia has to do with the fact that most of the Southeast Asian states remain outside the Refugee Convention. It has been argued that accession to the Refugee Convention would lead to a significant increase in the number of refugees in those countries (the “pull factor” argument); that the arrival of refugees, particularly in the context of a mass influx, could pose a security threat to the countries of asylum (the security argument); and that their presence in a country takes a heavy toll on the already limited resources of developing countries (the economic argument). Yet these concerns are not specific to Southeast Asian states and many other developing states have acceded to the Convention.
Several commentators have tried to justify the persistent reluctance of Southeast Asian states to join the formal international refugee regime by a supposed incompatibility between Western values, based on individual human rights, and the so-called “Asian values”, which give more prominence to the communities (the “eurocentric” argument). Some see in that posture evidence that Southeast Asian countries do not recognize the need for protection of refugees (the “rejection of international refugee law” theory). Others have argued that the problem for Southeast Asian states may have more to do with the binding nature of the Refugee Convention than with the content of the instruments itself (the “substance vs form” argument). Indeed, the extensive use of soft law, i.e., non-binding instruments, is a characteristic feature of ASEAN.
Against this backdrop, many consider that refugees in Southeast Asia remain in a “legal limbo”. However, the reality is far more complex. From an international law perspective, international human rights law provides a comprehensive legal framework for the protection of all persons present on the territory of a state and/or placed under its jurisdiction. Most of the provisions contained in the Refugee Convention, such as the prohibition to return refugees to a territory where they would be at risk of persecution (the “principle of non-refoulement”), can also be found in international human rights law, in particular in the International Covenant on Economic, Social and Cultural Rights (ICESCR) as well as in the International Covenant on Civil and Political Rights (ICCPR) – two instruments that have been ratified by a number of Southeast Asian countries. In addition, some of the key provisions for the protection of refugees, including the prohibition of refoulement, have become part of customary international law, and as such are binding for all states, irrespective of their accession to any conventional instruments. Refugees, even though they are not officially recognized as such, also benefit, to a certain extent, from the protection afforded by international human rights law in Southeast Asian countries.
Regional frameworks for the protection of refugees in Southeast Asia
The ASEAN is perhaps the most advanced regional integration setting in the world after the European Union, but its record in terms of setting standards in the field of human rights is rather weak. In terms of mobility, ASEAN has been more interested in developing a framework for the movement of regular migrant workers within the region rather than in adopting norms and policies to deal with refugees. Although the movement of (international) refugees is by its very nature a transnational phenomenon, Southeast Asian states are concerned that the granting of asylum to nationals from other ASEAN countries could be perceived as an implicit criticism of their domestic policies, which would run against the so-called “principle of non-interference” in the internal affairs of other states. Respect for the principle of non-interference is a key aspect of the ASEAN way, as reflected in the ASEAN founding treaty of 1976 (the Bali Treaty).
In the absence of an ASEAN framework dealing with refugee issues, the Bangkok Principles on the Status and Treatment of Refugees is the only existing non-binding normative framework for the protection of refugees in Southeast Asia. Adopted in 1966 and revised in 2001 by the Asian-African Legal Consultative Organization (AALCO), the Bangkok Principles build on the Refugee Convention while reflecting some of the specific practices of Southeast Asian states in terms of refugee protection, such as the provision of temporary asylum (as opposed to granting permanent asylum). The fact that Thailand, Malaysia, Indonesia, Singapore and Brunei Darussalam, all members of the AALCO, have contributed significantly to the development of the Bangkok Principles illustrates the fact that they do recognize the importance of a normative framework for the protection of refugees despite being not party to the Refugee Convention.
Refugee protection in practice
In practice, there have been numerous cases of Southeast Asian states implementing restrictive policies aimed at preventing people from seeking asylum on their territories, such as denial of entry at the border or interception followed by push backs of boats carrying refugees to the high sea. A particularly controversial episode known as the Bay of Bengal and Andaman Sea Crisis took place in April and May 2015, when Thailand, Malaysia and Indonesia refused to allow some 5,000 people – a mix of refugees from Myanmar and economic migrants from Bangladesh – to disembark on their territories, causing the death of hundreds of people.
Yet, there is increasing recognition of the overall positive record of Southeast Asian states in dealing with refugees. Since the end of the Indochina Refugee Crisis in the mid-1990s, the main countries of asylum in Southeast Asia have offered protection to hundreds of thousands of refugees, including protection against refoulement and, to a certain extent, against detention for illegal entry into the territory of a state. There are also encouraging examples where national authorities have provided or facilitated access to basic services to refugees. For instance, domestic legislations in Indonesia and Thailand provide for a right to education for all persons on their territory, including refugees. In Malaysia, people registered as refugees with UNHCR have certain privileges in terms of access to healthcare, including a discount compared to the price paid by foreigners. Though officially refugees (as irregular migrants) do not have the right to work in the countries that are not party to the Refugee Convention, there is a certain tolerance when it comes to them working in the informal economy. In other words, the national authorities in Malaysia, Thailand and Indonesia tend to treat differently refugees than other irregular migrants.
In general, however, many basic services are provided to refugees in Southeast Asia not by the state but by international and local organizations. This is because Southeast Asian countries consider that the costs associated with the presence of refugees on their territory should be borne by the international community. Unfortunately, however, this means that humanitarian actors are operating in a volatile environment and that the level of protection of refugees in the region depends essentially on the generosity of donors.
Perhaps more than in any other contexts, understanding the way refugees are protected in the main countries of asylum in Southeast Asia requires to look beyond the absence of formal legal obligations under international refugee law and to consider the practice of states. There have been periods where states’ policies have been more restrictive and others where they have been more liberal; in general, however, there is increasing evidence that the Southeast Asian states’ record in terms of refugee protection is not inferior to the record of many other countries that are party to the Refugee Convention. This includes Australia whose practices have often violated the spirit, if not the letter, of the Convention. The key challenge moving forward with regard to refugee protection in Southeast Asia will be to ensure that the concerned countries develop an appropriate legal or policy framework, irrespective of their accession to the Refugee Convention, to remove the large degree of arbitrariness behind the treatment of refugees. Indonesia and Thailand have already made concrete steps by adopting specific policies to deal with refugee issues, but implementation remains fraught with difficulties.