Comparative regional protection frameworks for refugees: norms and norm entrepreneurs

Abstract

This article analyses the strengths and limits of regional approaches to refugee protection. It compares three regions; namely the EU, Latin America and the Southeast Asian (SEA) region. It refers to two refugee protection crises to highlight the importance of regional approaches to refugee protection: namely the Rohingya “boat people” crisis which unfolded in the Indian Ocean in May 2015 and the advance of Syrian refugees towards Europe which escalated from the same period. It identifies the norms of refugee protection which have been “internalised” in the three regional contexts and contextualises the regional processes. It argues for the importance of looking closely at the underlying norms, and the identities and activities of the relevant “norm entrepreneurs” at the regional level. It concludes that regional solutions for refugee protection will be most effective when the norms have been solidly embedded in legal systems and institutions.

Keywords:

• regional approaches to refugee protection
• the EU, Latin America and Southeast Asia
• norms and norm entrepreneurs

The focus of this collection is generally on regional approaches to refugee protection, and specifically upon the norms, and the norm entrepreneurs of those approaches. In 2015 two refugee protection crises highlighted the importance of regional approaches to refugee protection: namely the Rohingya ‘boat people’ crisis which unfolded in the Indian Ocean in May 2015 and the advance of Syrian refugees towards Europe which escalated from the same period. In each case it was the dissemination of shocking images in the global media which raised attention to the crisis: in the situation of the Rohingya it was the discovery of 26 bodies in a mass grave of smuggled Rohingya in a trafficking camp in southern Thailand in early May,¹ whereas in the case of Syrian refugees it was the single image on 2 September 2015 of the body of a young Syrian boy named Eylan. In fact both crises have been simmering for some time and arose from protracted, unresolved situations involving groups from different religious and ethnic backgrounds. The Syrian crisis is an outcome of the conflict in Syria which is now in its fifth year, and which has displaced half of the country's population of 22 million people. The Rohingya situation is complex and long-standing, but was precipitated by the actions of people smugglers who abandoned their human cargo at sea.

Each crisis has highlighted the strengths and limits of regional approaches to refugee protection and the importance of looking closely at the underlying norms, and the identities and activities of the relevant ‘norm entrepreneurs’ at the regional level. For example, in 2009 the Rohingya situation was regarded as a ‘mini-crisis', which led to the reinvigoration of the regional Bali Process, led by Australia. Its official title is the Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime.² Yet, the Rohingya situation was not resolved by that or any similar regional process. In the context of the current Syrian crisis, the spotlight now is on the mechanisms of refugee protection which the European Union (EU) has developed. The response of these mechanisms to this crisis will provide an insight into their effectiveness.

The purpose of the articles which make up this this collection are to identify the key actors in promoting refugee protection norms and their agenda-setting or ‘steering’ modes in the regional context; and to evaluate dominant mechanisms and discourses on regional refugee protection. Some issues considered by the articles in this special issue are whether states are the main actors in norm development at the regional level; and how international law obligations (and refugee protection norms) are conceived by states and organisations? This introduction focuses in particular on the Southeast Asian (SEA) region, because the overall refugee population in the area represents a substantial proportion of the number of refugees and displaced persons globally and yet knowledge about this region is lacking. Further, in terms of regional engagement, the situation in SEA appears to be far less advanced than in other regions which are discussed in this collection. I draw on lessons from other regions to suggest ways to promote refugee protection at the regional level in SEA, and to make some observations about the current EU situation.

The discussion is structured around three headings or clusters of issues; first, norms and refugee protection, second, norm emergence\entrepreneurs and mechanisms at the regional level, and third, whether regional fora can promote norm internalisation.

Norms and refugee protection

[R]ealists take a minimalist view of law as binding rules to which states have explicitly consented in treaties and tacitly consented in customary law … [L]iberals have an enlarged view of international law, as encompassing core community values. Finally, constructivists see international law as a discourse of identity representation and norm enactment.³

In this section I compare the norms of refugee protection that have evolved in three regions: the EU, Latin America and the SEA region. For this purpose I place myself within the constructivist paradigm as described in the above quote. I recognise the failure of international refugee law to adequately prescribe a ‘right’ to asylum, or ‘durable solutions’, which are commonly described as repatriation (or return), integration and resettlement. Whilst the Refugee Convention⁴ can be described as an instrument of human rights protection, which confers rights on asylum seekers and refugees according to their level of attachment to the host country, thus creating a hierarchy of human rights, it stops short of providing a right to territorial asylum. It did however enshrine the right of non-refoulement, from which the notion of ‘durable solutions’ has developed.

The value of the constructivist paradigm is that it brings a focus on the ethical, political and legal norms⁵ of the international refugee protection regime and corrects the perceived deficiencies of the Refugee Convention. Arguably, the two core norms of this regime are the right to asylum (freedom from refoulement) and burden sharing.⁶ As Betts explains,⁷ the right to a durable solution is an important element of international refugee protection. These components are underpinned by the notion of a shared international responsibility for ensuring protection to refugees, which can be based either upon specific terms of the Refugee Convention⁸ or upon general principles of state responsibility and international cooperation as embodied in the United Nations Charter.⁹ Within a regional context, it has been suggested that regional shared responsibility may facilitate protection outcomes by cutting across conservative individual state preferences, through promoting cooperation in protection outcomes. The presumed strength of regional approaches to refugee protection is that they lead to harmonisation of refugee protection norms, and to regional responsibility sharing.¹⁰

In this section I explain and compare the norms of refugee protection that have evolved in three regions: the EU, Latin America and the SEA region. That is, using the trichotomy which Martha Finnemore and Kathryn Sikkink have developed¹¹ (namely, emergence, acceptance and internalisation – see Alice Nah in this collection), I identify the norms of refugee protection which have been ‘internalised’ in the three regional contexts and contextualise the processes. As Paulo Biondi's article in this collection explains, although the EU has focussed upon the right to asylum, its approach to durable solutions illustrates a failure to develop a norm of responsibility sharing. The EU focus on border control and security is in fact mirrored in the SEA region, despite the fact that the EU system is grounded in human rights, whilst in SEA the language of human rights is largely absent. By contrast, in Latin America there appears to be a greater acceptance of the norms of refugee protection and responsibility sharing, through the language of ‘solidarity’, as Stefania Barichello in her contribution to this collection explains.

The EU and Europe

In the European context there is a well-developed scheme of regional cooperation norms and institutions which is often held up as a model of regional cooperation\protection. The EU response to asylum seekers has developed since the 1990s with the making of the Dublin Convention which is now in its fourth incarnation as the Dublin III Regulation.¹² The ‘Dublin system', which allocates responsibility for the determination of an asylum application to the first country of arrival in the EU, is based upon the concept of ‘safe country’, which in turn is based upon the lack of a right to asylum.¹³ In practical terms, the lack of internal borders within the EU has facilitated the onward movement of asylum seekers to countries to the north of Europe which offer more opportunities than the (typically) Mediterranean countries of first arrival. The concept of ‘safe country’ has however enabled a number of challenges to attempted returns of asylum seekers to putative safe countries, such as Greece, to succeed.¹⁴

From 2004 the EU has been promoting harmonisation of refugee protection norms by building a Common European Asylum System (CEAS) through a series of directives dealing with reception of asylum seekers, procedures for the grant and withdrawal of refugee status, temporary protection, and returns. The EU Qualification Directive 2011¹⁵ builds upon the Refugee Convention by incorporating principles which have developed in refugee law jurisprudence, as well as human rights principles. However, on some issues, such as the concept that refugee protection can be provided by non-state actors, the 2011 Qualification Directive has been criticised for adopting a ‘lowest common denominator’ approach.

The coherency of the CEAS is also challenged by the fact that there are two courts which have oversight of compliance with the CEAS, each of which has developed divergent approaches. As Madeline Garlick concludes, the approach of the European courts which have oversight of compliance with the CEAS and human rights:

… reveals two distinct strands: one in which significant weight has been accorded to the position and rights of the asylum-seeker, and the obligation of administrations and courts to ensure that these are respected in Dublin's application; and another which has placed emphasis on the importance of ‘mutual trust’ among states as a key element of the Common European Asylum System, and the function of Dublin as a convenient arrangement among states for dealing more efficiently with asylum-seekers.¹⁶

This conclusion points to two features of the Dublin system which have been revealed by the Syrian crisis as weaknesses of the EU approach. First, the notion of ‘durable solution’ in the EU is based not on refugee resettlement but on access to territory and asylum.¹⁷ Second, the ‘mutual trust’ among states has failed in the absence of binding commitments from states to agree on resettling refugees. That is, the Syrian refugee crisis is testing the ‘solidarity’ of EU members on this issue. In terms of development of a norm of responsibility sharing, the EU system has been shown to be lacking as, increasingly, states are polarised in their responses, and public debate on the issue is hostile to the new arrivals.¹⁸

The ‘normative deficit’ of the Dublin system¹⁹ is mirrored by the EU's ‘externalised burden-sharing model’. As Biondi in this collection describes the EU norm on responsibility sharing, the EU has developed this by promoting protection of refugees in regions of origin.²⁰ The idea of the ‘right to remain’ and temporary protection in the region of origin, which developed particularly during the Balkans crisis of the 1990s, is another example of an externalised approach to responsibility sharing. As Biondi explains, the EU's response to the Syrian crisis reflects the ‘externalised burden-sharing model’. Biondi argues that this model persists despite some commitments from EU countries to resettlement in 2013. This conclusion is borne out by the recent agreement between the EU and Turkey, which is currently hosting about two million Syrian refugees.²¹ Under this agreement the EU will contribute about three billion euros to stem the flow of refugees, in order to improve socio-economic conditions of refugees under temporary protection in Turkey. This is a furtherance of the EU's external border protection policy and another example of ‘externalised burden sharing'.

Development of norms in Latin and Central America

It is useful to make a comparison with how norms developed in Latin and Central America (the Americas), in contrast in particular to SEA, as another colonised region. There are some interesting parallels but also important differences in their histories. In contemporary Latin America, the adjective which summarises the protection norms is ‘solidarity’, whereas SEA as a region is often characterised as one of ‘rejection’ of refugee protection norms (see for example, Nah in this collection). Whereas SEA has a refugee ‘problem’ and crisis, the Americas host ‘relatively few’ refugees and asylum seekers.²²

Barichello explains how regional cooperation developed in Latin America through a long legacy of norm development. The background to this is the conflicts leading to mass displacement in the 1970s and 1980s in Central America, arising from land confiscations and disputes, unequal distribution of wealth and restricted enjoyment of political rights.²³ Almost two million people from El Salvador, Guatemala and Nicaragua were displaced during this period. These disputes, which took place against the backdrop of the Cold War, shaped the development of norm responses.

The 1984 Cartagena Declaration on Refugees, adopted at a Colloquium held at Cartagena, Colombia, in November 1984 (the Cartagena Declaration),²⁴ related to the ‘refugee situation’ in Central America, but 10 Latin American governments participated in the discussions leading to the declaration. Moreover, the Cartagena Declaration was approved by the 1985 General Assembly of the already extant Organization of American States (OAS) and was the basis of the process arising from the International Conference on Central American Refugees (CIREFCA), Guatemala City, 29–31 May 1989, which produced a Declaration and Concerted Plan of Action in Favour of Central American Refugees, Returnees and Displaced Persons.²⁵

CIREFCA was explicitly conceived as a follow up to the Cartagena Declaration.²⁶ It was a process which ran from 1987 to 1994, intended to promote peace, and to address the root causes of the conflicts. Thus it facilitated durable solutions such as voluntary repatriations through protection principles elaborated in its Plan of Action.²⁷ It was also a project-driven process, and the projects encouraged self-sufficiency and local integration.²⁸

Moreover CIREFCA led to the dissemination of refugee protection norms.²⁹ The prime purpose of the Cartagena Declaration was to promote the adoption of national laws to implement the 1951 Refugees Convention and 1967 Protocol, ‘thus fostering the necessary process of systematic harmonization [sic] of national legislation on refugees’.³⁰ For that purpose it was recommended that the definition of a refugee for ‘use in the region’ should complement the 1951 Refugees Convention. It was stated that in addition to the 1951 Refugees Convention definition, legislation should include:

[P]ersons who have fled their country because their lives, safety or freedom have been threatened by generalized [sic] violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order.³¹

Under this definition, refugees are primarily persons whose life, security or liberty is threatened. The inclusion of generalised violence, internal conflicts and massive violations of human rights expands the refugee definition beyond that of the 1969 Organization of African Unity (OAU) Convention,³² which was a direct inspiration,³³ and picks up the gaps in that definition.

Like the OAU Convention, the 1984 Cartagena Declaration linked the refugee definition to root causes. The declaration also confirms that the granting of asylum is ‘humanitarian’ in nature, and reiterates the importance and meaning of the principle of non-refoulement. The declaration reflects the contemporaneous experiences of refugees by expressing its ‘concern’ at the problem raised by military attacks on refugee camps and settlements in different parts of the world.³⁴ Additionally, going beyond the refugee issue, it expresses its ‘concern’ at the ‘situation of displaced persons within their own countries’.³⁵

As Barichello explains, since the 1984 Cartagena Declaration Latin American countries have developed mechanisms and concepts that have ‘sensibly approached the contemporary refugee problems that exist in the region’.³⁶ It has become the foundation of refugee policy in the region, incorporated into national legislation by a number of states; it has affirmed the importance of the non-refoulement principle, the importance of integration of refugees and the need to eradicate the causes of mass movements of people.³⁷

Barichello explains that, in 1994, a process of re-evaluation and revision led to the San Jose Declaration, which reiterated the importance of the 1984 Cartagena Declaration and broadened its scope in order to extend protection to internally displaced people. Furthermore, in 2004 the Mexico Plan of Action (MPA) was also adopted in order to deal with the new crisis of refugees and asylum seekers from Colombia.³⁸ This was necessitated by the intensification of the armed and socio-political conflict in Colombia from the end of the 1990s, which resulted in between three and four million displaced persons within Colombia and hundreds of thousands of asylum seekers in other countries in the region (Ecuador, Panama, Venezuela). This led to the ‘crowded borders' phenomenon, as Barichello describes it: the massing of displaced persons on either side of the Columbian border with neighbouring countries.

The first mechanism of the MPA is a regional responsibility-sharing programme focussed on the resettlement of refugees and internally displaced persons (IDPs), known as the ‘Solidarity Resettlement’ programme. The second pillar is the integration of refugees and IDPs in safe communities (the ‘Solidarity Cities’ programme). The third is the ‘Borders of Solidarity’ programme, which focuses on the development of the border regions of neighbouring countries to benefit displaced Colombians and their hosts, namely Ecuador, Panama and Venezuela.

Most recently, in 2010, the Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americas,³⁹ which strengthens the principle of non-refoulement (amongst other measures), was adopted. As these developments illustrate, regional cooperation in Latin America is well developed at the policy level, and it seems that this cooperation is implemented at the national level. For example, Freier identifies five stages of ‘liberalisation’ in Latin American asylum legislation, including the adoption of a constitutional right to asylum, which defines asylum as an individual human right, and recent reforms in refugee legislation, including provisions for integration of recognised refugees.⁴⁰ Thus Latin America has built on the norm of ‘political’ asylum that predated the 1951 Refugee Convention, and has comprehensively developed refugee protection norms through ‘solidarity’ measures, which are also supported by the OAS.

Southeast Asia

The UNHCR's overview of the Asia Pacific region in 2015 states that there are 3.5 million refugees and 1.4 million stateless persons, with the majority of refugees originating from Afghanistan and Myanmar.⁴¹ It is generally agreed that the Asia Pacific region contains 30% of the global refugee population (see Petcharamesree in this collection). Nah's article restates the UNHCR findings, adding also that Malaysia and Thailand are the two major destination and transit countries, whereas Indonesia is largely a country of transit for refugees intending to travel to Australia. The Asia Pacific region essentially contains two subregions: South Asia (which includes Afghanistan, Sri Lanka, India and Bangladesh) and SEA. Thus many refugees originating from South Asia are going to or through SEA. In this discussion I focus on the SEA subregion which has some important regional processes.

According to the September 2014 UNHCR Factsheet from the UNHCR Regional Office,⁴² there was a total ‘population of concern’ of 2.7 million persons in SEA, of which 1.4 million were stateless persons and 523,592 were asylum seekers\refugees. The total population also included over 700,000 IDPs. The geographical coverage of this report covered countries⁴³ which are also members of the ASEAN Community.⁴⁴ The main country of origin of asylum seekers\refugees was Myanmar (500,364). Currently the subregion is hosting about 500,000 Rohingya asylum seekers\refugees, and so the number has doubled since 2014.

The 2015 UNHCR overview of the subregion points out that:

Only three States are parties to the 1951 Refugee Convention⁴⁵ and only one State has signed the 1954 Statelessness Convention. The lack of asylum laws and diversity of national legal frameworks, as well as government practices and protection environments in the region's countries, make achieving regional harmonization challenging.⁴⁶

The UNHCR suggests further that:

Available protection space for refugees, asylum-seekers and stateless people in the region is fragile and unpredictable, due to a lack of national legal frameworks in most South-East Asian countries. Furthermore, some States have introduced increasingly restrictive policies – such as denying safe disembarkation or access at the airport, and narrowing protection space and access to asylum. There is also an increase in maritime ‘push backs' and instances of refoulement.⁴⁷

As Sriprapaha Petcharamesree explains in her article, national governments within SEA look upon refugees as ‘illegal’ or irregular migrants. Under the two regional processes which operate in SEA, namely ASEAN and the Bali Process, refugees are framed within a security\border control paradigm.⁴⁸ There is not, as such, a focus on forced migration or refugees except within that paradigm. Both ASEAN⁴⁹ and the Bali Process⁵⁰ focus on ‘securitising’ migration through eliminating human smuggling and trafficking. Individual states as well as ASEAN as a regional bloc also focus on skilled labour migration, rather than upon refugees and forced migrants as such. How did this lack of focus on forced migration evolve? The UNHCR refers to a ‘fragile’ protection space for refugees. Does this mean that refugee protection norms are lacking in a region which typically rejects international law?⁵¹

Nah explains that the Comprehensive Plan of Action (CPA) for Indo-Chinese Refugees⁵² which operated from 1989–1996⁵³ failed to imbue norms of refugee protection in the region; the region is characterised by a rejection of the protection norms, which were perceived to be ‘Eurocentric’, and to impose unacceptable burdens on ‘developing states’.⁵⁴

As Betts has pointed out, the CPA was devised in the context of a ‘specific historical and regional context’. The CPA came about to cope with the human fallout from an ideologically based war. Unlike CIREFCA, which was essentially a ‘peace process’, the CPA was focussed on preventing mass movements of (boat) people. The CPA was predicated upon two key precepts or norms of refugee protection: first, that countries in the region should offer ‘first asylum’ to fleeing refugees, second, that resettlement would be provided in third countries of the ‘developed’ world. These precepts and the context encouraged states in the region to consider that the refugees were the responsibility of the ‘developed’ world. It is suggested that the international community's willingness to take on the Indochinese burden helped to absolve them from any sense of responsibility or obligation.⁵⁵

However, it should be recalled that a unique feature of the CPA was the involvement of the country of origin (Vietnam) which undertook to promote orderly departures (the Orderly Departure Programme or ODP), in an effort to stem the illegal emigration of Vietnamese people. Furthermore, states in the region gained firsthand experience at processing refugees.

As Betts explains, the CPA demonstrated the interdependence of state interests regionally⁵⁶ and so there are probably stronger political and institutional reasons (to be discussed in the next section) which account for the lack of regional norm internalisation arising from the CPA. As Petcharamesree points out, some of the key players in the CPA, Cambodia, Lao PDR and Vietnam, were not part of ASEAN at the time, and neither was Myanmar, which is a major source of refugees in the region (and current chair of ASEAN). Thus these states were not part of the initial debate which might have led to the development of protection norms.⁵⁷

Apart from the CPA, another process, the Asian African Legal Consultative Organisation (AALCO), is relevant. In 1966 AALCO formulated an instrument for the protection of refugee rights, the Bangkok Principles (Principles Concerning Treatment of Refugees as adopted by the Asian-African Legal Consultative Committee at its Eighth Session 1966). These principles, which were reaffirmed in 2001, were contemporaneous with and possibly inspired the OAU Convention.⁵⁸ The Bangkok Principles constitute a progressive and respected set of principles on refugee protection within the region.⁵⁹ Yet these experiences did not leave a legacy of state-led protection norms.

Within SEA there is a range of state responses to refugees. Whilst Indonesia for example tolerates the existence of refugees, and works with the International Organisation for Migration (IOM) and the UNHCR to provide protection, by contrast, Malaysia (as Nah explains) regards UNHCR refugees as ‘illegal migrants’. Thailand, as Petcharamesree argues, has an independent approach: although not a signatory to the Refugee Convention it registers refugees through its Admission Boards, and permits the presence of refugee camps on the Thai-Burma border. As a whole, SEA is characterised as a region where there is lack of a uniform approach\solidarity on refugee issues, but rather a preoccupation on maintaining individual state sovereignty and regional harmony.

The recent crisis in the Bay of Bengal and the Andaman Sea

Petcharamesree points out that the flight of the Rohingya is not new but has been ignored by states in the region for some years. Indeed, it is evident that the failure of SEA to act decisively and collectively on this issue led the Rohingya into the clutches of smugglers and traffickers, as an increasingly marginalised and discriminated group fled. The Rohingya issue shows that the ‘irregular migrant’ label is one which states in the region use individually and collectively to avoid their obligations to displaced persons within their sphere of responsibility.

Rohingya is the name given to a predominantly Muslim ethnic group that resides in Rakhine State (formerly Arakan) on the west coast of Myanmar. The dominant ethnic group in Rakhine State is the Rakhine Buddhists (60–70%) who regard the Rohingya (30%) as intruders from Bangladesh, although they have lived in Rakhine State for generations. Initially they were encouraged to move to Arakan by the British colonisers. Tensions between the two groups date to at least the end of British colonial rule, and the creation of a socialist state under Ne Win in 1972. Many violent events have been documented since at least 1978. Further, in 1982 the Burmese government revoked their citizenship, thus making them de jure stateless. In addition to removing their nationality, there have been attempts to strip them of their identity, through laws restricting their rights to marry and to bear children, as well as in relation to education. Following widespread communal violence in 2012, many Rohingya fled Rakhine State and Myanmar.

An escalation of departures and push backs by the Thai navy in 2008 led to the revival of the Bali Process in 2009, which Petcharamesree describes as a ‘mini-crisis’.⁶⁰ In 2012, Surin Pitsuwan, the former ASEAN Secretary-General (2008–20–12) urged ASEAN to act collectively, as it had done during the Indochinese refugee crisis. The crisis of boat people in May 2015 emerged from neglect of the issue. In the same month as the crisis was unfolding, a meeting of Senior Officials under the Bali Process:

[W]elcomed a presentation from UNHCR on irregular maritime movements in the region, noting that they have tripled in the Bay of Bengal since 2012, to 63,000 in 2014, and a large proportion of movers have protection needs. Members agreed that there should be a standing item in future meetings on regional irregular migration trends, as useful context for discussions on specific issues.⁶¹

At the time, the UNHCR described the movement as ‘unregulated and until recently inconspicuous’.⁶² Yet these statements were contemporaneous with the unfolding crisis, which was precipitated by the fact that at ‘least 5,000 refugees and migrants from Myanmar and Bangladesh found themselves stranded at sea in May, when the people smugglers and ship crews who had promised to take them to Malaysia abandoned them en masse … ’⁶³

As the crisis unfolded, there were denials of responsibility by states in the region (with calls for the ‘richer’ countries to settle the refugees), and continued push backs of boats carrying the Rohingya people by Indonesia, Thailand and Malaysia. There were attempts to push the ‘blame’ for the crisis onto Thailand for failing to solve the trade and ‘trafficking’ of ‘illegal immigrants'\‘irregular migrants’, and to defend Myanmar from criticism. There was a debate in the Malaysian press as to whether the lives of the Rohingya were ‘worth saving’. A couple of ‘circuit breakers’ entered the arena when it became clear that the international community was not rushing to the rescue. The first was a statement by the Philippines government on 18 May 2015 that it would not push back the Rohingya but would shelter up to 3000 people. The second was more symbolic. On 19 May 2015 a group of fishermen from Aceh defied the Indonesian government's push-back policy and rescued a group of ‘boat migrants’. A tone of moral high-ground also entered the debate when parallels were drawn between Australia's push-back policy and the regional response. One commentator referred to the ‘pernicious influence’ of Australia's ‘stop the boats’ policy.⁶⁴

The Ministers of Foreign Affairs of Malaysia, Indonesia and Thailand met in Putrajaya, Malaysia on Wednesday 20 May 2015 ahead of an international meeting on 29 May 2015, to discuss the issue of ‘irregular movement of people’ into Indonesia, Malaysia and Thailand. It was stated that the purpose of the meeting was for: ‘ … finding a solution to the crisis of influx of irregular migrants and its serious impact on the national security of the affected countries'.⁶⁵ The joint statement issued following the meeting of 20 May 2015 asserted that these three states had taken ‘necessary measures … on humanitarian grounds, beyond their international obligations’⁶⁶ as ‘the issue cannot be addressed solely by these three countries' . It appealed to ASEAN and to the ‘spirit of unity and solidarity of ASEAN’, to play an active role in addressing the issue. It asserted the need to address the ‘root causes’; the ministers pledged to uphold their ‘responsibilities and obligations under international law and in accordance with their respective domestic laws, including the provision of humanitarian assistance to … those 7,000 irregular migrants still at sea'.⁶⁷ They agreed to offer them temporary shelter ‘provided that the resettlement and repatriation process will be done in one year by the international community’. Malaysia and Indonesia invited other countries in the region ‘to join in this endeavour'.

The 17 recommendations in the statement by states following the Special Meeting on Irregular Migration in the Indian Ocean, Bangkok, 29 May 2015,⁶⁸ largely endorse those of 20 May 2015. They focus upon preventing irregular migration and responding to the issue of ‘human trafficking’ and ‘people smuggling’ rather than lasting solutions. Only the final recommendation (q) which refers to root causes and improving livelihoods in ‘at-risk communities’ makes allusion to the protection needs of the Rohingya.

The outcome of the 29 May 2015 meeting has been condemned by human rights advocates who point to the failure to address root causes, including discrimination and persecution, or to provide asylum procedures and durable solutions.⁶⁹ The current situation of the Rohingya refugees supports this critique.  The UNHCR estimates that 94,000 refugees and migrants have left Bangladesh and Myanmar by boat since 2014.⁷⁰ They are receiving varying treatment – some countries have placed them into refugee camps, others have allowed them to find some work.⁷¹ There is evidence that some of the refugees have disappeared from camps in Indonesia.⁷² The Rohingya have not been granted ‘durable solutions’. For example, Indonesia is making statements that it will adhere to its one-year limit of allowing the refugees to stay. The Indonesian Director General of Immigration said:  ‘We will give them a year. If there's no certainty on the matter within the year, then with the UNHCR we will return them to their country.'⁷³ There is some further suggestion that a new wave of migration may be about to start as the monsoon season draws to an end.⁷⁴ The responses to the Rohingya confirm the fragility of solidarity on refugee issues arising from the May 2015 meetings.

Norm emergence\entrepreneurs and mechanisms at the regional level

In this section the focus turns to the role of norm entrepreneurs in the process of norm emergence, acceptance and internalisation. The articles in this collection identify various organisations within regions as ‘norm entrepreneurs’, including states (see Petcharamesree and Biondi), non-governmental (including civil society) and international organisations including UNHCR (Nah and Stevens in this collection, respectively), and regional organisations. In principle, states should be strong actors and promoters of refugee protection. In practice that role is often played by the UNHCR and civil society. As the articles in this collection illustrate, the UNHCR's ‘complementary’ role is often criticised by civil society.

In his article, Biondi describes how the European approach to norm emergence is largely ‘state centric’, consistent with the principle of territorial asylum embodied in the EU Dublin framework. The EU framework is arguably an aspect of the EU economic and political integration process.⁷⁵ The EU and UNHCR have a respectful relationship;⁷⁶ as Volker Turk has explained, the UNHCR's supervisory responsibility is recognised in many EU instruments, including the Qualification Directive.⁷⁷ More controversially, the UNHCR can claim to have provided the seed for the development of the EU's externalised refugee approach. In 1993, High Commissioner Sadako Osaka formulated ‘the right to remain’ in the context of mass displacement in the Balkans region, which influenced the development of EU ‘safe third country’ policy.

Biondi explains how these policies, which are aimed at containing refugees in their region of origin, have been justified by the notion of ‘human security’, or protection against security threats.⁷⁸ As he explains, this concept of ‘human security’, which is conflated with humanitarian assistance, is another strategy for externalising the EU's burden-sharing responsibilities. But as he also notes, ‘human security’ can also mutate into a focus on state security. Biondi explores this conflict between notions of human security, state security and burden sharing in the EU context. He points out that EU states are concerned about changes to ethnic composition as well as more ‘traditional’ security threats posed by asylum seekers.⁷⁹ These are points which are strongly confirmed by the current debates around Syrian refugees.

Dallal Stevens in this collection focuses upon the UNHCR's role in the Syrian crisis within the Middle East region. As her contribution illustrates, discussion of the Syrian crisis involves consideration of two regional responses, namely, Europe and the Middle East. In her other writing Stevens has shown how the states in the Middle East region have developed a protection approach despite not being parties to the Refugee Convention. She explains that:

[M]any Muslim states have resisted signing the Refugee Convention or Protocol because of their ongoing frustration with the international community for the failure to implement numerous UN General Assembly resolutions on the right of return for Palestinian refugees.⁸⁰

As Stevens explains, countries such as Egypt and Jordan are heavily dependent on the UNHCR for both refugee status determination (RSD) and practical advice and assistance. Furthermore, many civil societies and charities fill the gap in refugee protection needs in the region.⁸¹

In her article in this collection, Stevens is critical of the UNHCR's role as a norm entrepreneur in this context. She critiques the UNHCR's ambiguous ‘rights-based’ language, which, she argues, does not reflect the reality of assistance or needs of refugees or the norms of international protection. Rather, she says, the UNHCR is focussed on humanitarian protection, on development and development outcomes. Stevens argues that asylum seekers need access to safe territory and freedom from refoulement. She is critical of the UNHCR's role in the Middle East as a both a norm entrepreneur and a norm setter.

Both Stevens and Biondi highlight the paradox or dual nature of the UNHCR's refugee protection mandate under its statute – its role as both provider of individual protection and group humanitarian protection.⁸² This discussion points to the paradox within the UNHCR as an institution – the fact that it has both an operational focus and a monitoring role. Both Stevens and Biondi discuss the UNHCR's use of the ‘good offices’ proviso to enlarge its role. A number of commentators have critiqued the UNHCR for its extension into humanitarian work.⁸³ For example, during the Indochinese War the UNHCR took on a monitoring role for the ODP – for which it has been much critiqued.⁸⁴

In Latin America, as in the EU, the states play a large role in promoting refugee protection, which involves working closely with the UNHCR. As Barichello explains, the MPA was guided by the UNHCR. It arose from intensification of the armed and socio-political conflict in Colombia and the resulting humanitarian crises, which led to three to four million displaced persons within Colombia and hundreds of thousands of asylum seekers in other countries in the region. The OAS is another important entrepreneur within the Latin American region. It includes a number of human rights mechanisms and instruments.⁸⁵

In the SEA region, as Petcharamesree explains, there is a lack of entrepreneurs for refugee rights as they are characterised as irregular migrants. She points out that despite the creation of the ASEAN Community, with its plethora of institutions, in reality the interests of ‘national governments predominate’. Within the ASEAN Community, refugees notably are included within the political-security community. Although within ASEAN there is a ‘soft law’ instrument⁸⁶ which promotes the right to seek asylum⁸⁷ and human rights,⁸⁸ it is notable that during the recent crisis it was individual states rather than ASEAN which took the initiative (despite calls for it to intervene). This is in contrast to the CPA situation which was an ASEAN-led initiative, together with the UNHCR.

Thus the UNHCR plays a larger role in the SEA region due to the lack of national protection mechanisms. It fills the vacuum of ‘protection space’ created by the fact that few states in the region are parties to the Refugee Convention. In particular it is primarily responsible for RSD in the region, in Malaysia and Indonesia. It also leads the region's policy formulation. In recent years the UNHCR has promoted protection norms via the AALCO and other regional processes.⁸⁹ It has focussed on promoting rescue at sea, non-refoulement and addressing statelessness. In 2013 the UNHCR and Indonesia convened a meeting outside of the Bali Process which led to the Jakarta Declaration on Irregular Movement of Persons.⁹⁰ This declaration recognised the importance of burden sharing and collective responsibility.⁹¹ The UNHCR attempts to fill the gap within the two regional processes: the Bali Process⁹² and ASEAN.

Nah observes that there is a negative side to this: ‘government officials in Asia tend to see refugees as an “international” or “UNHCR” problem, rather than a domestic problem' . Her article shows that within the SEA region there is rivalry between the UNHCR and civil society for ‘entrepreneurship’ of the issue. Nah (and Martin Jones) critique the UNHCR's ‘protection space’ approach. Jones argues that it:

… privileges international interests, fora, and UNHCR as the negotiator; devalues the normative strength of obligations towards refugees; and, allows the underlying responsibility for the provision of refugee protection to drift from the state to UNHCR.⁹³

As Nah explains, local civil society actors often work under the protection of the UNHCR – but also ‘under their shadow’. The response of states to the recent Rohingya crisis confirms the prevalence of the UNHCR ‘protection space’ approach, as states in the region continue to regard refugee protection as a ‘humanitarian’ problem and response.

Nah examines the creation and work of the Asia Pacific Refugee Rights Network (APRRN), a new actor in norm entrepreneurship in the region.⁹⁴ She shows how local civil society can pressure states ‘from below’; that they have a ‘unique location vis à vis states’. Nah argues that working through a formalised network (APRRN) has changed the way in which local civil society actors engage in norm entrepreneurship in several important ways. She argues that it has changed the attributes of actors, helping them develop visibility, capacity and connectedness through the formation of a ‘community of practice’; it has changed power relations between them and other actors – in particular, the UNHCR; it has facilitated the development of ‘regional imagination’ and the practice of ‘scale shifting’, helping local actors move beyond domestic contexts to engage with state and non-state actors through regional and international fora.

The APRRN is an example of participatory regionalism which is intended to influence states in the region, and to shift their views that refugees are an ‘international’ and UNHCR problem. It is an important example of solidarity at the ‘grassroots’ level.

Can regional fora promote norm internalisation?

A final question which this collection of articles raises is whether existing regional fora can be effective in promoting norm internalisation of international refugee protection? In the EU today, this issue lies in the balance. The ‘normative deficit’ of the Dublin system has been noted, and the politicisation of the refugee issue within the EU is well-known. As Biondi explains, the EU approach is premised upon ‘externalised burden sharing’. By contrast, in Latin America, as Barichello explains, the regional approach, through the MPA has encouraged news ways of thinking about regional cooperation. As she says, the MPA is an important South–South initiative, ⁹⁵ and a break from the past. For example, one feature of CIREFCA was the fact that there was strong support from the global North (in particular from the European Commission and the Italian government).⁹⁶ Barichello concludes that the Latin American approach reinforces responsibility at the regional level.

In SEA, where the states are the key players, Petcharamesree concludes that there are ‘no guarantees’ that ASEAN will lead to the adoption of a ‘common regional approach’ on forced migration issues. As Petcharamesree explains, the ASEAN states are more concerned with issues about migrant workers – both ‘high skilled’ and ‘irregular’ migrant workers. The latter issue is the most prominent ‘forced migration’ issue within ASEAN, but as Petcharamesree explains, they are not included in the ASEAN framework. Even the issue of ‘regular’ migrant workers has gained little traction within ASEAN despite the existence of formal instruments and institutions, including civil society.⁹⁷ This raises an interesting question of whether civil society organisations such as APRRN can influence ASEAN, as some claim.⁹⁸ And indeed whether ASEAN itself will take the lead as others suggest they should, particularly on the Rohingya issue.⁹⁹ To this point however, ASEAN still adheres to the principle of non-interference in individual state affairs. Until such time as ASEAN as a collective stands up to Myanmar, the Rohingya issue, for example, will not be solved. However, Petcharamesree refers to ASEAN as an institution which has ‘an unbreakable paradigm that is dependent and partly threatened by the state’.

The Bali Process is another important regional process which is the backdrop to the article by Maria O'Sullivan in this collection. The Bali Process is an Australia-Indonesia-led process which securitises the issue of forced ‘irregular’ migration (asylum seekers). It is the vehicle through which the Australian government promotes its policies in the region.¹⁰⁰ Maria O'Sullivan explains that Australian policy reflects a two-tiered system which prioritises the selection of refugees from overseas as part of a managed, ‘orderly’ resettlement programme, and penalises those who flee their countries of origin and come to Australian shores to apply for asylum. This policy prefers the resettlement of refugees from outside the region; that is, those who have not made ‘secondary movements’ to SEA as asylum seekers.

In her article O'Sullivan considers the ethics of Australia's approach to resettlement and concludes that it ‘is not solely a humanitarian act and is influenced greatly by factors other than refugee need’. She argues that although resettlement is supported by the rhetoric of burden and responsibility sharing, it is used by some resettlement states (such as Australia) to avoid responsibility for onshore arrivals. She argues that by contrast, ‘Australia has greater relational [ethical] obligations to refugees’ in the region because of its responsibility as a party to the Refugee Convention and its proximity to the region.¹⁰¹

The question that O'Sullivan's article raises is: Can the Bali Process become a vehicle of positive change in the region?  Can it encourage regional cooperation? There are indications suggesting both negative and positive answers to these questions.

On the negative side it needs to be noted that the July 2011 Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement, was a bilateral agreement concluded under the Bali Process, providing for the exchange of 800 asylum seekers arriving ‘irregularly’ by boat in Australian excised territory, or who are ‘intercepted in the course of trying to reach Australia by irregular means’ (clause 4(1)(a)), with up to 4000 recognised refugees awaiting resettlement in Malaysia. Although promoted as an arrangement which would alleviate Malaysia's protracted refugee problem, it had a ‘sting’ in that it was a deterrent measure in relation to the 800 asylum seekers who were to be ‘exchanged’. Following a challenge to the legality of a decision to implement the arrangement, a majority of 6:1 of the High Court of Australia declared that there was an invalid exercise of power.¹⁰²

Subsequent to the decision, a new Subdivision on Regional Processing inserted in the Migration Act made it clear that in order to enter into a cooperative arrangement with another country in the region, Australia does not expect that the other country will adhere to the full set of rights in the Refugee Convention. Australia thus legitimated a responsibility-shifting rather than responsibility-sharing regime, which is the antithesis to O'Sullivan's argument that Australia has ‘greater relational [ethical] obligations to refugees’ in the region.

Following the failed arrangement with Malaysia, in 2012 the Australian government commissioned a Report of the Expert Panel on Asylum Seekers (the Houston Report),¹⁰³ to canvass the development of a ‘regional cooperation framework’. Recommendation 1 includes a statement that the relevant policy principles include ‘managing asylum and mixed migration flows across the region’. The report explicitly asserts that Australia's policies towards asylum seekers operate as a ‘pull’ and seeks to promote ‘greater use of regular migration pathways and international protection arrangements’.¹⁰⁴

However, the response to the recent Rohingya crisis showed the limits of the boat push-back policy which Australia has practised (and arguably encouraged) in the region. Although the Bali Process does not have a specific protection mandate, the UNHCR has successfully, after some setbacks,¹⁰⁵ succeeded in promoting protection. Under the Bali Process there is an encouraging development through the creation of a Regional Support Office (RSO) which is supported by the UNHCR.¹⁰⁶

However, the protection discourse on refugees in SEA is limited both within ASEAN and the Bali Process. Both the IOM and the UNHCR play significant roles in this context. It is noteworthy that during the recent crisis the IOM played an important role in encouraging the states to cooperate, and to reach agreement on the treatment of the Rohingya people. A statement made by William Swing, Director General of the IOM, ahead of the meeting¹⁰⁷ of 29 May 2015, promotes the idea of managed migration, more avenues for labour migration, as well as ‘managing diversity’ and balancing ‘the paradox between national security and human security’. As Megan Bradley has said, states often prefer to work with the IOM precisely because it does not have a protection role.¹⁰⁸ But on this issue it is important to note that the UNHCR also promotes the grant of work permits to the Rohingya refugees to secure their human rights and development needs.¹⁰⁹ Thus it appears that there is no forum which is promoting regional collective solutions aimed at responsibility sharing as such.

The EU and SEA situations are thus the antithesis of the other. In the European context there is a well-developed scheme of state regional cooperation, uniform norms and institutions, based not on refugee resettlement but on access to asylum. SEA by contrast is characterised by lack of agreement on underlying protection norms, lack of institutions and strong respect for individual state sovereignty. However, at this moment in history each seems unable to respond adequately to the current refugee crises.

Conclusions

The articles in this special issue demonstrate the need for awareness of the roles of different norm ‘entrepreneurs’ in developing and promoting basic norms on refugee protection. In the European context, we have seen that some individual states appear to be pitting themselves against the supranational regional entity, the EU. By contrast, in Latin America, the regional cooperation is largely state-led, with support from extra regional institutions (e.g. the OAS) and international organisations (such as the UNHCR). Within SEA the issue of ‘entrepreneurship’ is more complex and fragmented, pointing to the need for strong leadership.

Within SEA, where states appear to reject ownership of the problem, they are the least likely candidates for successful ‘entrepreneurship’ of the issue. Nah argues that civil society cooperation working from below is likely to be the most effective entrepreneur in SEA. Other contenders for positions of entrepreneurship are ASEAN, Australia (through the Bali Process), the IOM and the UNHCR. Current efforts are however focussed on local integration through the recognition of labour rights. Durable solutions through resettlement are currently not an option and neither is there any attempt to harmonise the processing of refugees. This leads to several suggestions. Either ASEAN collectively needs to act decisively to tackle the source of the Rohingya issue, and\or Australia needs to ‘step up to the mark’ and accept its ethical responsibility as O'Sullivan argues, by accepting Rohingya refugees for resettlement. But, as a long-term approach, there needs to be collectivised processing of refugees on a regional basis.

As the articles in this special issue illustrate, regional solutions for refugee protection will be most effective when the norms have been solidly embedded in legal systems and institutions. The Latin American example is a relevant one, as Barichello argues. There, solutions for refugees focus on local integration, resettlement and development in source regions.

As Biondi shows, although the EU appears to be a model of norm development, the current fractured EU debate on refugees suggests that the norms have not been fully developed or equally internalised by all European states. He shows that although the EU has focussed upon the right to asylum, its approach to durable solutions suggests a failure to develop a norm of responsibility sharing, except by externalising the issue. Thus, the EU case shows that imperfect adoption of norms leads to imperfect solutions, as shown by the EU's failure to develop effective refugee resettlement or development programmes in regions of origin.

Acknowledgements

The articles in this special collection arise from a workshop on Comparative Regional Protection Frameworks for refugees, Norms and Norm Entrepreneurs that was conducted through the Refugee Law Initiative (RLI), School of Advanced Study, University of London on 15 November 2013. The workshop was the occasion for the launch of the Asia Pacific Forced Migration Connection (APFMC) which is supported by the Refugee Research Network, York University, Canada (see http://www.refugeereserach.netwww.refugeereserach.net). I thank David Cantor, Director of the RLI for providing financial and administrative support for the workshop, and the participants at the workshop for their helpful comments. In particular I thank the following: Professor Alexander Betts, Dr Maria-Teresa Gil-Bazo, Dr Martin Jones, Professor Hélène Lambert, Ms Anja Klug and Dr Violeta Lax-Moreno.

Finally, I thank Thomas Harré who has provided considerable and invaluable research and editorial assistance with this collection.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Susan Kneebone is a Professorial Fellow, Faculty of Law, University Melbourne and Secretary, International Association for the Study of Forced Migration. In 2013 she established the Asia Pacific Forced Migration Network with the support of the Refugee Research Network, York University, Canada. Formerly Professor, Faculty of Law, Monash University, she introduced research and teaching on refugee law and human trafficking issues. Her recent research, funded by Australia Research Council grants, focuses on issues on governance of forced migration issues in Southeast Asia.

Notes

1. Silvia di Gaetano, ‘How to Solve Asia's Refugee Crisis: Steps Can and Should be Taken to Alleviate the Plight of Rohingya', The Diplomat, 28 September 2015.

2. See http://www.baliprocess.net/http://www.baliprocess.net/ (accessed 4 January 2016).

3. David Armstrong, Theo Farrell, and Helene Lambert, International Law and International Relations (Cambridge: Cambridge University Press, 2007), 107.

4. Convention Relating to the Status of Refugees, Geneva, 28 July 1951, in force 22 April 1954, 1989 UNTS 137 (Refugee Convention) and the Protocol Relating to the Status of Refugees, New York, 31 January 1967, in force 4 October 1967, 19 UNTS 6223, 6257 (Refugee Protocol).

5. Armstrong, Farrell and Lambert, International Law and International Relations, 102.

6. Alexander Betts, Protection by Persuasion: International Cooperation in the Refugee Regime (Ithaca, NY: Cornell University Press, 2009), 2.

7. Ibid., 6.

8. Notably, Refugee Convention, preambular clauses 4, 6 and Art. 35.

9. United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Art1 (3).

10. Susan Kneebone and Felicity Rawlings-Sanaei, eds, New Regionalism and Asylum Seekers: Challenges Ahead (Oxford: Berghahn Books, 2007), 1.

11. Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’, International Organization 52, no. 4 (1998): 887–917.

12. Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the member state responsible for examining an application for international protection lodged in one of the member states by a third-country national or a stateless person, [2013] OJ L 180/31 (‘the 2013 Regulation’ or ‘Dublin III’). The ‘Dublin system’ refers to this, and its predecessor Regulation (EC) No. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the member state responsible for examining an asylum application lodged in one of the member states by a third-country national [2003] OJ L 50/1 (‘Dublin II’), as well as Regulation (EU) No. 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) No. 604/2013, [2013] OJ L 180/1, and its predecessor Regulation (EC) no. 2725/2000, as well as relevant implementing regulations (Regulation (EU) 118/2014 amending the Dublin Implementing Regulation 1560/2003).

13. Susan Kneebone, ‘The Legal and Ethical Implications of Extra-territorial Processing of Asylum Seekers: The Safe Third Country Concept', in Moving On: Forced Migration and Human Rights, ed. J. McAdam (Oxford: Hart Publishing, 2008), Chapter 5.

14. For example, MSS v. Belgium and Greece (European Court of Human Rights), Appn No. 30696/09, 21 January 2011, http://www.unhcr.org/refworld/docid/4d39bc7f2.html (accessed 8 January 2016).

15. EC Qualification Directive, Council Directive (EU) 95/2011 of The European Parliament and of The Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), [2011] OJ L 337/9 (2011 Qualification Directive).

16. Madeline Garlick, ‘Protecting Rights and Courting Controversy: Leading Jurisprudence of the European Courts on the EU Dublin Regulation', Journal of Immigration Asylum and Nationality Law 29, no. 2 (2015): 192, 210.

17. Joanne van Selm, ‘The Europeanization of Refugee Policy', in New Regionalism and Asylum Seekers: Challenges Ahead, ed. Susan Kneebone and Felicity Rawlings-Sanaei (Oxford: Berghahn Books, 2007), Chapter 4.

18. Daniel Thym, ‘Beyond Dublin – Merkel's Vision of EU Asylum Policy', Odysseus Blog, 26 October 2015, http://eumigrationlawblog.eu/beyond-dublin-merkels-vision-of-eu-asylum-policy/ (accessed 26 December 2015).

19. Ibid., 5. Additionally, the Schengen system has collapsed: Evelien Brouwer, ‘Migration Flows and the Reintroduction of Internal Border Controls: Assessing Necessity and Proportionality', Odysseus Blog, 12 November 2015, http://eumigrationlawblog.eu/migration-flows-and-the-reintroduction-of-internal-border-controls-assessing-necessity-and-proportionality/ (accessed 26 December 2015).

20. A. Betts and J.-F. Durieux, ‘Convention Plus as a Norm-Setting Exercise’, Journal of Refugee Studies 20, no. 3 (2007): 509; see also A. Hurwitz, ‘Norm-Making in International Refugee Law’, Proceedings of the American Society of International Law 106 (2012): 430.

21. Jean-Baptiste Farcy, ‘EU-Turkey Agreement: Solving the EU Asylum Crisis or Creating a New Calais in Bodrum?’, Odysseus Blog, 7 December 2015, http://eumigrationlawblog.eu/eu-turkey-agreement-solving-the-eu-asylum-crisis-or-creating-a-new-calais-in-bodrum/ (accessed 26 December 2015).

22. Luisa Feline Freier, ‘A Liberal Paradigm Shift? A Critical Appraisal of Recent Trends in Latin American Asylum Legislation', in Exploring the Boundaries of Refugee Law: Current Protection Challenges, ed. Jean-Pierre Gauci, Mariagiulia Giuffré, and Evangelia Tsourdi (Leiden/Boston: Brill Nijhoff, 2015), 118–45 at 119.

23. Stefania Barichello, ‘The Evolving System of Refugee Protection in Latin America', in Exploring the Boundaries of Refugee Law, ed. Jean-Pierre Gauci, Mariagiulia Giuffré, and Evangelia Tsourdi, 149–71 at 155.

24. Regional Refugee Instruments and Related, Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, 22 November 1984, http://www.refworld.org/docid/3ae6b36ec.html; OAS/Ser.L/V/II.66,doc.10, rev.1, 190–3.

25. CIREFCA, Declaration and Concerted Plan of Action in Favour of Central American Refugees, Returnees and Displaced Persons , 30 May 1989, CIREFCA 89/13/Rev.1, http://www.refworld.org/docid/3fbb5d094.html (accessed 2 January 2016).

26. Alexander Betts, ‘Comprehensive Plans of Action: Insights from CIREFCA and the Indochinese CPA’, UNHCR, New Issues in Refugee Research, Working Paper No. 120 (January 2006), 13; see also Alexander Betts, Protection by Persuasion: International Cooperation in the Refugee Regime (Ithaca, NY: Cornell University, 2009), Chapter 3.

27. Betts, ‘Comprehensive Plans of Action', 12.

28. Ibid.

29. Ibid., 13.

30. Cartagena Declaration, paragraph III(1).

31. Ibid., paragraph III(3).

32. Organization of African Unity (OAU), Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Convention), 10 September 1969, 1001 U.N.T.S. 45, http://www.refworld.org/docid/3ae6b36018.html (accessed 2 January 2016).

33. Susan Kneebone and Felicity Rawlings-Sanaei, ‘Introduction: Regionalism as a Response to a Global Challenge', in New Regionalism and Asylum Seekers: Challenges Ahead, ed. Susan Kneebone and Felicity Rawlings-Sanaei (Oxford: Berghahn Books, 2007), 8–11.

34. Cartagena Declaration, paragraph III(7).

35. Ibid., paragraph III(9).

36. Stefania Barichello ‘Refugee protection and responsibility sharing in Latin America: solidarity programmes and the Mexico Plan of Action’, The International Journal of Human Rights 20, no. 2 (2016): 191.

37. Barichello, ‘The Evolving System of Refugee Protection in Latin America', 157.

38. Regional Refugee Instruments & Related, Mexico Declaration and Plan of Action to Strengthen International Protection of Refugees in Latin America, 16 November 2004, http://www.refworld.org/docid/424bf6914.html (accessed 8 January 2016).

39. Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americas, 11 November 2010, http://www.refworld.org/docid/4cdd44582.html (accessed 8 January 2016).

40. Freier, ‘A Liberal Paradigm Shift?’, 121, 123, 139–40.

41. UNHCR, ‘2015 UNHCR Regional Operations Profile – Asia and the Pacific’, 2015, http://www.unhcr.org/pages/4a02d8ec6.html.

42. http://www.unhcr.org/519f67fc9.htmlt (accessed 8 January 2016).

43. Namely, Bangladesh, Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Mongolia, the Philippines, Singapore, Thailand, Timor-Leste and Vietnam.

44. ASEAN (Association of South East Asia Nations), founded in 1967, originally involved five states (Singapore, Malaysia, Thailand, Philippines and Indonesia) to promote ‘common political interests as well as a forum for private business and community-level interactions'. See ASEAN, The ASEAN Declaration (‘Bangkok Declaration'), Bangkok, Thailand, 8 August 1967, http://www.asean.org/news/item/the-asean-declaration-bangkok-declaration (accessed 25 February 2013). Brunei was added in 1984, Vietnam in 1995, Lao PDR and Mynamar in 1997 and Cambodia in 1999. Thus ASEAN does not include the following countries which are covered by UNHCR's report: Bangladesh, Mongolia and Timor-Leste.

45. Cambodia, the Philippines and East-Timor.

46. UNHCR, ‘2015 UNHCR Regional Operations Profile – Asia and the Pacific’.

47. Ibid.

48. Susan Kneebone, ‘ASEAN and the Conceptualisation of Refugee Protection', in Regional Approaches to the Protection of Asylum Seekers: An International Legal Perspective, ed. F. Ippolito et al. (Aldershot: Ashgate, 2014), Chapter 13; Susan Kneebone ‘The Bali Process and Global Refugee Policy in the Asia-Pacific Region', Journal of Refugee Studies 27, no. 4 (2014): 596–618.

49. Kneebone, ‘ASEAN and the Conceptualisation of Refugee Protection'.

50. Kneebone, ‘The Bali Process and Global Refugee Policy in the Asia-Pacific Region'.

51. Simon Chesterman, ‘Asia's Ambivalence about International Law and Institutions: Past, Present, and Futures' (paper presented at the 5th Biennial Asian Society of International Law Conference, Bangkok, 26 November 2015).

52. International Conference on Indo-Chinese Refugees, Geneva, 13–14 June 1989, Declaration and Comprehensive Plan of Action, UN Doc. A/CONF. 148/2, 13 June 1989.

53. Kneebone and Rawlings-Sanaei, New Regionalism and Asylum Seekers, 11–18.

54. Sara E. Davies, Legitimising Rejection: International Refugee Law in South East Asia (Leiden: Martinis Nijhoff Publishers, 2008).

55. Ibid., 225.

56. Betts, ‘Comprehensive Plans of Action', 50.

57. As discussed in Kneebone, ‘ASEAN and the Conceptualisation of Refugee Protection', 301–5, the debate on the role of human rights in the ASEAN region has been through many iterations.

58. Asian-African Legal Consultative Organization, ‘Final Text of the AALCO's 1966 Bangkok Principles on Status and Treatment of Refugees', AALCO's 40th Session, New Delhi, http://www.refworld.org/docid/3de5f2d52.htmlhttp://www.refworld.org/docid/3de5f2d52.html (accessed 2 January 2016).

59. Pia Oberoi, ‘Regional Initiatives on Refugee Protection in South Asia', International Journal of Refugee Law 11, no. 1 (1999): 193, 195.

60. Kneebone, ‘The Bali Process and Global Refugee Policy in the Asia-Pacific Region', 601.

61. Co-Chairs' Statement, Bali Process Ad Hoc Group Senior Officials Meeting, Wellington, New Zealand, 6 May 2015.

62. UNHCR, Bay of Bengal and Andaman Sea: Proposals for Action, May 2015, 1.

63. UNHCR South-East Asia, Mixed Maritime Movements April–June 2015: Highlights, 1.

64. Mathew Davies, ‘The Rohingya and Our Rule-Bending Arrogance', The Drum, 18 May 2015.

65. Ministry of Foreign Affairs, Malaysia, Press Statement, http://www.kln.gov.my/web/guest/press-release/-/asset_publisher/t3pS/content/joint-statement:-ministerial-meeting-on-irregular-movement-of-people-in-southeast-asia-english-version-only?redirect=%2Fweb%2Fguest%2Fpress-release (accessed 10 January 2016).

66. Emphasis added.

67. Emphasis added.

68. Summary Statement Ministry of Foreign Affairs of the Kingdom of Thailand, http://www.mfa.go.th/main/en/media-center/14/56880-Summary-Special-Meeting-on-Irregular-Migration-in.html (accessed 10 January 2016).

69. APRRN Statement on Maritime Movements in the Indian Ocean, 12 October 2015. See also Joint NGO Statement Ahead of the Special Meeting on Irregular Migration in the Indian Ocean, Bangkok, 29 May 2015, http://www.savethechildren.org.uk/2015-05/joint-ngo-statement-ahead-special-meeting-irregular-migration-indian-ocean-bangkok-29-may

70. Y. Kojima, ‘Rohingya Women in Migration: Lost Voices', United Nations University, http://ourworld.unu.edu/en/rohingya-women-in-migration-lost-voices (accessed 8 January 2016).

71. A. Cornish, ‘After Left Stranded at Sea, What Happened to the Rohingya Migrants?’, NPR, (online edition, 6 January 2016), http://www.npr.org/2016/01/04/461945017/after-left-stranded-at-sea-what-happened-to-the-rohingya-migrants (accessed 8 January 2016).

72. J. Vit, ‘Rohingya Refugees Vanish from Indonesia’, Irin News (online edition, 14 December 2015), http://www.irinnews.org/report/102293/rohingya-refugees-vanish-from-indonesia (accessed 8 January 2016).

73. E. Hall, ‘Rohingya and Bangladeshi Asylum Seekers Risk Being Returned if No-one Steps in’, ABC (online edition, 14 December 2015) http://www.abc.net.au/worldtoday/content/2015/s4371624.htm (accessed 8 January 2016).

74. P. Winn, ‘Rohingya Refugee Crisis about to Begin, Again’, Thestar.com (online edition, 1 January 2016), http://www.thestar.com/news/world/2016/01/01/rohingya-refugee-crisis-about-to-begin-again.html (accessed 8 January 2016).

75. van Selm, ‘The Europeanization of Refugee Policy'; Elspeth Guild, ‘The Europeanisation of Europe's Asylum Policy', International Journal of Refugee Law 18, no. 3–4 (2006): 630.

76. See also van Selm, ‘The Europeanization of Refugee Policy’, 83 – strong commitment to UNHCR.

77. James Simeon, ed., The UNHCR and Supervision of International Refugee Law (Cambridge: Cambridge University Press, 2013), 44–5.

78. See also van Selm, ‘The Europeanization of Refugee Policy'.

79. See Elspeth Guild, ‘Conflicting Identities and Securitisation in Refugee Law: Lessons from the EU', in Refugee Protection and the Role of Law: Conflicting Identities, ed. Susan Kneebone, Dallal Stevens, and Loretta Baldassar (London: Routledge, 2014), Chapter 8.

80. Dallal Stevens, ‘Shifting Conceptions of Refugee Identity and Protection: European and Middle Eastern Approaches', in Refugee Protection and the Role of Law: Conflicting Identities, ed. Susan Kneebone, Dallal Stevens, and Loretta Baldassar (London: Routledge, 2014), 82, citing Kirsten Zaat, The Protection of Forced Migrants in Islamic Law (UNHCR, New Issues in Refugee Research, Research Paper No. 146, 2007).

81. Stevens, ‘Shifting Conceptions of Refugee Identity and Protection’, 88.

82. See Susan Kneebone, Loretta Baldassar, and Dallal Stevens, ‘Conflicting Identities, Protection and the Role of Law', in Refugee Protection and the Role of Law: Conflicting Identities, ed. Susan Kneebone, Dallal Stevens, and Loretta Baldassar (London: Routledge, 2014), Chapter 1, at 8.

83. See Davies, Legitimising Rejection.

84. Ibid., 110.

85. David J. Cantor and Stefania Barichello, ‘Protection of Asylum Seekers under the Inter-American Human Rights System', in Regional Approaches to the Protection of Asylum Seekers: An International Legal Perspective, ed. F. Ippolito et al. (Aldershot: Ashgate, 2014), Chapter 12.

86. ASEAN Human Rights Declaration (AHRD), http://jurist.org/paperchase/2012/11/asean-adopts-human-rights-declaration.php (accessed 2 January 2016).

87. Ibid., Art., 16.

88. Kneebone, ‘ASEAN and the Conceptualisation of Refugee Protection'.

89. Kneebone, ‘The Bali Process and Global Refugee Policy in the Asia-Pacific Region', 607. Since about 2004 the UNHCR has shifted its focus in AALCO consultations from implementing the Refugee Convention to a focus on broader practical protection issues such as rescue at sea, statelessness and support for IDPs. The UN Note on International Protection A/AC.96/989, 7 July 2004 is the last document I could find which called on governments to enact national asylum laws.

90. Jakarta Declaration on Irregular Movement of Persons, Jakarta, 20 August 2013. Notably this was subsequently incorporated into the Bali Process – see Co-Chairs' Statement, Bali Process Ad Hoc Group Senior Officials Meeting, Canberra, Australia, 6 August 2014 (Attachment B).

91. Ibid., [8].

92. Kneebone, ‘The Bali Process and Global Refugee Policy in the Asia-Pacific Region', 606–10.

93. Martin Jones, ‘Moving beyond Protection Space: Developing a Law of Asylum in South East Asia’, in Refugee Protection and the Role of Law: Conflicting Identities, ed. Susan Kneebone, Dallal Stevens, and Loretta Baldassar (London: Routledge, 2014), 257.

94. See also Kneebone, ‘The Bali Process and Global Refugee Policy in the Asia-Pacific Region', 610–13.

95. Tristan Harley, ‘Regional Cooperation and Refugee Protection in Latin America: A “South-South” Approach',

 International Journal of Refugee Law no. 26 (2014): 22–47.

96. Betts, ‘Comprehensive Plans of Action'.

97. Susan Kneebone, ‘ASEAN Norms and Setting the Agenda for the Rights of Migrant Workers', in Human Rights in the Asia Pacific Region, ed. Hitoshi Nasu and Ben Saul (London: Routledge, 2011), Chapter 8.

98. Maria-Gabriela Manea, ‘The Claims of the ASEAN to Human Rights and Democracy: What Role for Regional Civil Society?’, ASIEN 136 (2015): S73–97.

99. Elliot Dolan-Evans, ‘The Plight of the Rohingya', Australian Institute of International Affairs, 8 January 2016, http://www.internationalaffairs.org.au/australian_outlook/the-plight-of-the-rohingya/ (accessed 8 January 2016).

100. See Kneebone, ‘The Bali Process and Global Refugee Policy in the Asia-Pacific Region'.

101. In a note of irony, the link between Australia and the region is shown by the fact that the Thai official leading the investigation into trafficking of Rohingya mentioned at the outset in this article has sought asylum in Australia; see Mark Davis, ‘Top Thai Policeman Seeks Political Asylum in Australia, Fears for His Life', ABC (online edition, 10 December 2015), http://www.abc.net.au/news/2015-12-10/top-thai-cop-seeks-political-asylum-in-australia-fears-for-life/7018018 (accessed 10 January 2016).

102. Plaintiffs M70/2011 and M106 of 2011 v. Minister for Immigration and Citizenship [2011] HCA 32 (31 August 2011).

103. Australian Government, Report of the Expert Panel on Asylum Seekers, August 2012. http://apo.org.au/files/Resource/expert_panel_on_asylum_seekers_full_report_0.pdf (accessed 10 January 2016).

104. Ibid., 11.

105. Kneebone, ‘The Bali Process and Global Refugee Policy in the Asia-Pacific Region'.

106. For example, in January 2015, the RSO with the IOM and the UNHCR conducted a training workshop and developed a curriculum on good practices for addressing irregular movements by sea – see RSO Newsletter, Edition Eight – February 2015, 2–3, http://www.baliprocess.net/files/RSO%20Newsletter%20-%20Edition%20Eight.pdf (accessed 26 December 2015). Although most of the activities reported through the RSO can be characterised as related to preventing irregular migration, a UNHCR official in private conversation in August 2015 assured me that it is taking a ‘protection’ focus. Recently the RSO has developed guidelines on identification and protection of victims of trafficking – see RSO Newsletter, June 2015 Edition, http://www.baliprocess.net/files/RSO%20Newsletter%20-%20Edition%20Ten.pdf (accessed 26 December 2015). The new set of protection policy guides are available at: http://www.baliprocess.net/regional-support-office/policy-guides-on-identification-and-protection-of-victims-of-trafficking (accessed 7 January 2016).

107. William Lacy Swing, Special Meeting on Irregular Migration in the Indian Ocean, 3 June 2015, Bangkok http://www.iom.int/speeches-and-talks/special-meeting-irregular-migration-indian-ocean (accessed 25 June 2015).

108. Megan Bradley, ‘IOM: What Role in the Global Forced Migration Regime?’ (paper presented to Conference on Power and Influence in the Global Refugee Regime held at Carleton University, Canada, 24 September 2015).

109. UNHCR, Bay of Bengal and Andaman Sea: Proposals for Action, May 2015, 5.