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Abstract
The issue of forced migration has been a difficult challenge for ASEAN to address. Despite the number of international, regional and national frameworks in place, it is clear that within the international community, emigration is regarded as a right but immigration is seen as a matter of national sovereignty and security. Irregular migrants, especially migrant workers, asylum seekers and refugees, are not only forced to leave their own state but they are vulnerable to the whims of their host state, because they are considered to be secondary to citizens and national interests. The purpose of this article is to examine forced migration in the ASEAN context and how ASEAN member states have perceived and dealt with the issues so far. It also looks critically at how ASEAN as a group has been approaching forced migration and whether the establishment of the ASEAN human rights regime has contributed to changing ASEAN's approach to forced migration. ASEAN has some policies and frameworks in place for the protection of immigrants, including for those who are forced, but are assumed to be voluntary. Although ASEAN has a number of regional frameworks which could be applied to protect the rights of those forced to migrate, it is regrettable that the overall policies and laws on migration are left to the will of national governments which, in many ways, may not comply with international human rights standards. Moreover, while the existence of the ASEAN human rights regime is significant, there are no guarantees that it will lead to the adoption of a common regional approach to forced migration. The fact that ASEAN has been upholding very strong working principles – respect of state sovereignty, non-interference in the international affairs of member states, consultation and consensus – weakens the existing ASEAN human rights system. In addition, although ASEAN is one organisation, it is made up of ten member states, each driven by their prevailing national approach to the issues. A regional approach like the one applied two decades ago, would be difficult to reach now, as the member states do not yet see forced movements and forced migration as a ‘crisis’. While ASEAN does react to issues, it is always reluctant to act before the issue becomes a ‘crisis’. However, even if ASEAN reacts, it might not be in support of the interests of those who are forced to leave their country.
Acknowledgements
The author would like to thank Professor Susan Kneebone, Faculty of Law, Monash University for her kind invitation to the launch of the Asia Pacific Forced Migration Connection (APFMC) on 8 August 2014 at Monash University, Melbourne. I am particularly thankful for all support provided for my trip. Built upon my presentation made during the launch, I was honoured to be requested by Professor Kneebone to develop this article. I really appreciate her assistance in editing my paper. My appreciation is also extended to her PhD student Thomas Harré who kindly went through this article as well. I am taking full responsibilities of any errors, if any.
Notes on contributor
Sriprapha Petcharamesree is a full-time faculty member of the Institute of Human Rights and Peace Studies, Mahidol University, Thailand. She is the Director of the PhD Program in Human Rights and Peace Studies. She served as Thailand's Representative to the ASEAN Intergovernmental Commission on Human Rights from October 2009 to December 2012.
Notes
1. The Association of Southeast Asian Nations, or ASEAN, was established on 8 August 1967 in Bangkok, Thailand, with the signing of the ASEAN Declaration (Bangkok Declaration) by the founding members of ASEAN, namely Indonesia, Malaysia, Philippines, Singapore and Thailand. Brunei Darussalam then joined on 7 January 1984, Viet Nam on 28 July 1995, Lao PDR and Myanmar on 23 July 1997, and Cambodia on 30 April 1999, making up what is today the ten member states of ASEAN. The ten ASEAN member states (AMS) ratified the ASEAN Charter which entered into force on 15 December 2008. With the entry into force of the ASEAN Charter, ASEAN will henceforth operate under a new legal framework and establish a number of new organs to boost its community-building process. Available at http://www.asean.org/asean/about-asean.
2. As of August 2014, the total population of ASEAN was 625,096 million, http://www.asean.org/images/resources/Statistics/2014/SelectedKeyIndicatorAsOfApril/UpdatedAug/Summary%20table_as%20of%20August%2014.pdf.
4. Aniceto Orbeta Jr and Kathrina Gonzales, Managing International Labor Migration in ASEAN: Themes from a Six-Country Study (Philippines: Philippine Institute for Development Studies, 2013), http://www.eaber.org/node/23422, 1.
5. Ibid.
6. Ibid., 3.
7. International Organisation for Migration (IOM), ‘Migration Dynamics in ASEAN: Trends, Challenges and Priorities' (PowerPoint presentation at the International Conference ‘On the Move: Critical Migration Themes in ASEAN', 17 December, Chulalongkorn University, Thailand), http://www.arcmthailand.com/documents/documentcenter/1701_PPP%20Chula%20Conference_Claudia%2015%20dec%2012.pdf.
8. Ibid.
9. Ibid.
10. IOM, Situation Report on International Migration in East and Southeast Asia: Regional Thematic Working Group on International Migration including Human Trafficking (Bangkok: IOM, 2008), 119.
11. Ibid.
12. The Hague Process on Refugees and Migration, People on the Move: Handbook of Selected Terms and Concepts (The Hague/Paris: UNESCO Section on International Migration and Multicultural Policies, 2008), 29.
13. Ibid.
14. Ibid.
15. See for example Sriprapha Petcharamesree et al., The Study on Labour Migration and Possible Protection Mechanim(s) in ASEAN (Bangkok: Law Reform Commission of Thailand, June 2014); Equal Rights Trust and Institute of Human Rights and Peace Studies, Mahidol University, Equal Only in Name, The Human Rights of Stateless Rohingya in Malaysia and The Human Rights of Stateless Rohingya in Thailand (London: Equal Rights Trust and Institute of Human Rights and Peace Studies, Mahidol University, October 2014).
16. UNHCR Regional Operations Profile-SEA, http://www.unhcr.org/pages/4b17be9b6.html.
17. Ibid.
18. Ibid.
19. Makarim Wibisono, ‘ASEAN's Approach to Migration Challenges Amidst the Region's Multiculturalism’, Geneva Interfaith Intercultural Alliance, http://www.giia.ch/joomla/index.php/conferences/un-september-2011/main-presentations/25-government-a-migration/43-aseans-approach-to-migration-challenges-amidst-the-regions-multiculturalism.
20. UNHCR, ‘2015 UNHCR Subregional Operations Profile – South-East Asia', http://www.unhcr.org/pages/49e487c66.html.
21. UNHCR, ‘Refugees in Thailand', https://www.unhcr.or.th/refugee/thailand.
22. UNHCR, ‘2015 UNHCR Country Operations Profile – Thailand', http://www.unhcr.org/pages/49e489646.html.
23. UNHCR, ‘2014 UNHCR Country Operations Profile – Malaysia', http://www.unhcr.org/pages/49e4884c6.html.
24. Ibid.
25. Ibid.
26. Ibid.
27. Antje Missbach, ‘Asylum Seekers Stuck in Indonesia’, Jakarta Post (online edition), 4 April 2014), http://www.thejakartapost.com/news/2014/04/04/asylum-seekers-stuck-indonesia.html.
28. Ibid.
29. Ibid.
30. Ibid.
31. Ibid.
32. W. Courtland Robinson, Terms of Refuge: The Indochinese Exodus and the International Response (London: Zed Books, 1998), 2.
33. Ibid.
34. Ibid.
35. Keane Shum, ‘A New Comprehensive Plan of Action: Addressing the Refugee Protection Gap in Southeast Asia through Local and Regional Integration’, Oxford Monitor of Forced Migration 1, no. 1 (2011): 60–1.
36. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, completed 25 December 2003. 2237 UNTS 319.
37. United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, completed 29 September 2003. 2225 UNTS 209.
38. Yohanna Ririhena, ‘ASEAN Chief: Rohingya Issue Could Destabilize the Region’, The Jakarta Post, Jakarta (online edition), 30 October 2012, http://www.thejakartapost.com/news/2012/10/30/asean-chief-rohingya-issue-could-destabilize-region.html, 1.
39. Ibid.
40. The AICHR was created under Article 14 of the ASEAN Charter.
41. Shum, ‘A New Comprehensive Plan of Action', 76.
42. Ibid.
43. ASEAN Charter, Preamble.
44. The 2004 Declaration was preceded by: ASEAN, ASEAN Declaration on Transnational Crime (Manila: The Philippines, 20 December 1997), http://www.asean.org/communities/asean-political-security-community/item/asean-declaration-on-transnational-crime-manila-20-december-1997; ASEAN, ASEAN Plan of Action to Combat Transnational Crime, endorsed by the 2nd ASEAN Ministerial Meeting on Transnational Crime (AMMTC), Yangon, Myanmar, 23 June 1999, http://www.asean.org/communities/asean-political-security-community/item/joint-communique-of-the-second-asean-ministerial-meeting-on-transnational-crime-ammtc-yangon-23-june-1999.
45. 2004 ASEAN Declaration against Trafficking in Persons, Particularly Women and Children, adopted in Vientiane, Lao PDR on 29 November 2004 by Heads of State/Government at the 10th ASEAN Summit, Preamble.
46. Rizal Sukma, ‘Different Treatment: Women Trafficking in the Securitization of Transnational Crimes' (paper presented at the 2nd NTS Convention, Beijing, 9–11 November 2008), http://www.rsis-ntsasia.org/activities/conventions/2008-beijing/rizal.pdf.
47. ASEAN, Declaration on the Protection and Promotion of the Rights of Migrant Workers, Philippines, 2007, http://www.aseansec.org/19264.htm.
48. Ibid., Preamble.
49. Ibid., General Principles, [4].
50. See ASEAN, ‘Ha Noi Declaration on the Enhancement of Welfare and Development of ASEAN Women and Children', http://www.asean.org/news/item/ha-noi-declaration-on-the-enhancement-of-welfare-and-development-of-asean-women-and-children.
51. Ibid., [2].
52. ASEAN Intergovernmental Commission on Human Rights, ‘Terms of Reference', http://aichr.org/documents/, [4.5].
53. Ibid., [4.10].
54. Ibid., [4.12].
56. ASEAN Human Rights Declaration (AHRD), Adopted in Phnom Penh, Cambodia by the Heads of State/Government of ASEAN Member States, 18 November 2012. Article 2.
57. AHRD, Article 3.
58. Ibid.
59. Ibid.
60. AHRD, Article 4.
61. AHRD, Article 16.
62. AHRC, Article 15.
63. AHRD, Article 18.
64. AHRD, Article 34.
65. See Bali Process, http://www.baliprocess.net/.
66. The Bali Process, Ad Hoc Group, http://www.baliprocess.net/ad-hoc-group.
67. Savitri Taylor, ‘Regional Cooperation and the Malaysian Solution', Inside Story (online edition), 9 May 2011, http://inside.org.au.
68. Ibid.
69. The AHG ‘mechanism’ was created at the Third Bali Process meeting in April 2009, ‘to bring together key source, transit and destination countries as well as relevant international organisations’ to develop regional responses to current irregular migration challenges affecting the Asia-Pacific region.
70. See Bali Process, ‘Bali Process Senior Officials Meeting, Bali, Indonesia, 10 March 2011 Co-Chairs’ Statement', https://www.iom.int/jahia/webdav/shared/shared/mainsite/microsites/rcps/baliprocess/SOM-Final-Co-Chairs-Statement-10-3-2011.pdf.
71. Ibid.
72. See Bali Process, Regional Support Office Information Sheet, http://www.baliprocess.net/files/RSO/RSO%20Information%20Sheet_Overview_30%20Apr%202013.pdf.
73. Ibid.