By Yulida Nuraini Santoso and Gading Gumilang Putra

Human rights groups worldwide are startled by the regression of support towards refugees and asylum seekers. Malaysia had recently deported over 1000 migrants to Myanmar, notwithstanding Kuala Lumpur High Court orders to stop repatriation in fear of further persecution upon arrival temporarily. This number includes a number of the United Nations High Commissioner for Refugees (UNHCR) identified persons of concern (POC) belonging to five ethnic minorities facing persecution in Myanmar. Despite claims that the deportees excluded refugees and asylum seekers and that all had agreed to return voluntarily, the truth remains that Malaysia has hindered international human rights organizations from accessing its immigration detention centers since August 2019. There is no clarity regarding the status of the deportees and the motive behind such a decision.

Malaysia has yet to ratify the 1951 Refugee Convention. It does not recognize asylum seekers nor refugees but has allowed a large population to stay on humanitarian grounds. It hosts at least 175,000 refugees and asylum seekers, most of whom come from Myanmar but have not been granted any legal status and remain unable to work or enroll in government schools. Due to this, refugees and asylum seekers who have been granted entrance have been detained as “illegal migrants” and face the risk of being deported despite being registered by the UNHCR as Persons of Concern (POC). In the past, Malaysia has also been known to refusing the arrival of boats carrying desperate Rohingya refugees when its neighboring recipient country, Indonesia, decided to welcome them in Aceh. Malaysia claims this was necessary to prevent the further spread of COVID-19.

Myanmar recently peaked in headlines due to the coup d’état. In early February, the military seized control after the general election won Aung San Suu Kyi’s National League for Democracy (NLD) party. This caused the military-backed opposition to claim that the results were frauds. With the military now in power and the recent deportation setting a precedent, we question why ASEAN has continuously failed to address this recurring problem? Despite Suu Kyi’s popularity, the civilian government has repeatedly refused to cooperate meaningfully with UN rights investigators’ pursuit of accountability for violations, including the persecution of refugees and asylum seekers causing them to flee. To this end, what workable actions can international communities take part in to move the issue of refugees and asylum seekers higher on the agenda of ASEAN policymakers?

The ASEAN Intergovernmental Commission on Human Rights (AICHR) is the only body to respond to the growing issue of refugees. The body was officially inaugurated in October 2009 with the initial focus on human rights promotion, but not the investigation of complaints of human rights violations. Being the first and a milestone for ASEAN at the time, it was deemed “the most prominent regional cooperation group in [South] East Asia”[1]. However, little has been done to develop a coordinated, comprehensive, and actionable plan that addresses both the proximate problems, such as the ongoing boat crisis and root problems concerning the Rohingya, to this day. Many argue that the root cause for the lack of response is influenced by the ASEAN Way.[2] Others blame AICHR’s Terms of Reference (TOR),[3] where a formal mandate to sanction human rights abusers is missing. Instead, it plays the role of mediator with civil society organizations (CSOs), formulates strategies to promote confirmation of international legal instruments, build capacities of member states, offer consultative services, and participate in conferences, discussions, and consultations.

Most of AICHR’s activities are held by organizations, forums, or networks that have helped them remain relevant, horizontally. However, these engagements are not as in-depth as most would prefer, as AICHR is restricted in the engagements they may conduct. To help, the ASEAN Coordinating Centre for Humanitarian Assistance (AHA Centre), the nearest ASEAN entity to resemble a working leg of ASEAN’s humanitarian approach, distributes relief or conducts need assessments where needed. Like AICHR, their mandate pivots on the consensus of all member states. Therefore, it is not a surprise that AICHR will continue to be questioned in the future if its TOR is not reviewed to include meaningful and workable clauses. The process of mainstreaming human rights in ASEAN is crucial as it depends on this. In the long run, it must establish itself as the most authoritative organ for human rights protection in the region if it wishes to remain relevant.

Nonetheless, there are several available opportunities to help remedy this situation. Firstly, to appropriately address the statelessness of Rohingya through ASEAN mechanisms, particularly the Committee of Permanent Representatives (CPR) from an international humanitarian point of view. The topic has been avoided mainly due to sensitivity. However, without appropriately responding to the core of the issue, namely persecution, refugees and asylum seekers will continue to live in limbo. In 2019, two high-level visits to Cox’s Bazar, Bangladesh, were conducted to conduct a Preliminary Needs Assessment (PNA). However, these visits were government-facilitated, focused on the repatriation without addressing the potential harm of further persecution, and had not consulted international humanitarian agencies working directly with refugees and asylum seekers themselves. As a result, the assessments have been heavily criticized by global humanitarian communities as being “misleading.”

Secondly, a regional instrument or body is to be established to provide protection specifically to refugees if any meaningful change is to occur. This body shall consult with experts, relevant agencies, CSOs, academics, and especially the refugee community to achieve solutions targeted at emergency responses, access to healthcare, livelihood initiatives, alternative pathways of migration, dignified repatriation, etc.

Thirdly, to call on states who have yet to grant access to international agencies, government social agencies, and NGOs for refugees/asylum seekers who are denied entry to the territory, the necessary legal representations. This should also include monitoring mechanisms for detainees.

Fourthly, to continue to work with governments through capacity-building programs on access to remedies and asylum. This can be aimed at judicial bodies, refugees, paralegals, and community interpreters.

Fifthly, to advocate for governments to consider providing civil documentation, such as birth certificates, and, further, to recognize the refugee status documented by the UNHCR. It is worth noting that the provision of birth certificates for refugees born in receiving countries is not necessarily a citizenship grant. It simply allows for protection and serves as a formal recognition of one’s refugee status.

Lastly, ASEAN must heighten its engagement with the public to address issues of refugees and asylum seekers. This includes partnerships with universities to create awareness and take part in protection measures and initiate solutions such as Model ASEAN meetings (MAM) initiated by the ASEAN Foundation. Governments can also consider issuing policies based on policy briefs, joint statements, Focus Group Discussions (FGDs), and consultations.

Source

[1]     Gamez, Kimberly Ramos. 2017. “Examining the ASEAN Intergovernmental Commission on Human Rights (AICHR): The Case Study of the Rohingya Crisis”. Tilburg University, Netherlands. Pg. 40 citation no. 157.

[2]    Op.Cit. Pg. 7 citation no. 5.

[3]    Up.Cit. Pg. 8 citation no. 13.

About writers:

• Yulida Nuraini Santoso is the Managing Director of the ASEAN Studies Center at Universitas Gadjah Mada, with researches and areas of interest surrounding the ASEAN Political-Security Community and transnationalism. The researcher can be reached through yulidanurainisantoso@ugm.ac.id.
• Gading Gumilang Putra is the National Information and Advocacy Officer for Jesuit Refugee Service (JRS) Indonesia. His work includes advocacy for refugees and asylum seekers and can be contacted at gading@jrs.or.id.

By Seon Young Yang

Political pundits, scholars, and diplomats have been inculcated with steadfast notions, i.e., norms and rules-based manners. Led by the school of liberalism, the values of multilateralism and international cooperation have been kept for decades as the ground rules to deter unnecessary bloodshed. Multilateralism, arguably spearheaded by the West, has been the unwavering doctrine in which the international and regional organizations, including the UN, EU, and ASEAN, have followed suit.

The invincible truth is that nothing lasts forever. Norms and rules-based frameworks are no exception. The United States, for example, the champion of these notions, cannot avoid reprimand as the Trump administration has caused upheavals in the multilateral trading system and in the international pledges to protect the green planet. Another champion, the United Kingdom, decided to leave the EU and went through a years-long divorce process.

While the West has been busy in their backyards, China has been quietly but substantially growing its power aspiring to become one of the superpowers, nudging the United States. Emerging hegemonies have cast a shadow looming in the region and elsewhere. Globalization and multilateralism have been recently challenged, and Asian countries, including ASEAN, have been almost pushed near the edge to choose the US or China. Nosy parkers even posit that ASEAN is stuck in the strategic proxy war between the US and China. Is this true? Recently, Prime Minister of Singapore Lee Hsien Loong expressed his modest but well-thought answers on this matter with BBC Interview.

The prime minister does not “hope the time would come” to choose either one or the other as the defining influence in the region. Southeast Asian countries, including Singapore, have extensively interconnected with the two superpowers. While ASEAN has been cautious as per usual, the US and their allies, mostly in western Europe and Japan, have leaned towards the US to counterbalance China’s rise under the fashionable term, the Indo-Pacific. In order to gain legitimacy to empower the Indo-Pacific logic, not only the US but also the UK, Germany, and France have become proactive to promote the ideas and advance their diplomatic strategies, heralding the “free and open” concept, deep-rooted norms in the liberalism. As reflected in the article published in Foreign Affairs (Kurt M. Campbell and Rush Doshi, January 2021) early this year, the Biden’s administration is expected to focus on regaining the US’s image in multilateral orders. The two largest member states of the EU, Germany and France, have also reiterated to enhance partnership with the Indo-Pacific countries. This month, the UK government has finally issued the Global Britain in a competitive age (March 2021), the strategy heavily focused on again, Indo-Pacific. The vivid commonality of all these Indo-Pacific strategies by the West caters down to respect and uphold norms and the rules-based orders in free and open manners.

Unlike the EU, ASEAN has actively engaged external parties in the so-called ASEAN-led mechanism, such as APT, EAS, ARF, and ADMM-Plus. ASEAN Centrality often leads to a chain of criticism of being vague and inefficient. Consensus and unanimity are the core of the ASEAN Centrality. In the second layer, ASEAN’s common position and stance have supported such a decision-making process. ASEAN often refers to itself as a family of 10 members, and they finalize their common position before vis-à-vis many in the regional meetings where the US and China also engage. Those who prefer straightforwardness can barely stand on the ASEAN Centrality, but so far, ASEAN has demonstrated a diplomatic adroitness to make everyone seemingly happy.

ASEAN has encouraged external parties, including its nearest neighbors, China, Japan, and the Republic of Korea, to engage in the regional matters. Naysayers can argue that ASEAN is incapable of moving their regional integration forward, which is why external engagement matters much. Nevertheless, ASEAN has amplified the sphere of a new age of diplomacy where different parties across the region can meet at least once a year to exchange views and explore ways forward. ‘Manners maketh men’ suits the ASEAN way. ASEAN will never degrade any country or make it lose face. China has advanced its influence in the region for the last few years, and the BRI initiative has consolidated its economic muscle even more, particularly in ASEAN. Japan, for example, has always been respected by ASEAN, as reflected in the 2021 ISEAS Survey. Japan is even considered one of the most preferred nations to counterbalance US-China rivalry in the region and the EU. Heralded by its enamoring K-Wave, Korea has gained popularity in the region, especially among younger generations.

Looking at the figures, ASEAN Plus Three reached USD 869.1 billion, equivalent to 31% of ASEAN’s total merchandise trade volume as of 2018 (ASEAN Secretariat, April 2020). ASEAN is economically intertwined with their neighbors in East Asia noticeably. However, ASEAN does not block the gate for other guests who wish to sign formal relationships. Despite the challenges brought by the COVID-19 pandemic, ASEAN welcomed France and Italy as Development Partners along with Germany and Chile last year. Cuba and Columbia signed the Treaty of Amity. There are more stakeholders than ever in the region. According to the 2021 ISEAS Survey, ASEAN prefers the US and other western countries, noticeably the EU. Economically, China is de facto the most influential power, but politically, the U.S. and the western influences still matter significantly. Thus, ASEAN has hedged between the norms and approaches from the East and the West. ASEAN will probably not whither its neutral position, at least in the foreseeable future. It is premature to tell which one is better, but ASEAN will again develop an inclusive concept to make every party satisfactory, as witnessed in ASEAN Outlook on Indo-Pacific.

ASEAN has paved its way to survive and develop regional integration for more than five decades. Some political pundits still pompously neglect ASEAN as the talk shop of insignificant emerging nations in the southern hemisphere. Despite all odds, ASEAN has achieved external parties’ engagement and has made ASEAN relevant to various stakeholders. ASEAN has embraced every guest who wishes to tie a knot, and it will continue its practice. Those guest countries have expressed and unveiled new norms to attract ASEAN’s attention. What can be reassured is that there will be competing norms with ASEAN’s subtle permission, but ASEAN reigns in the throne to cherry-pick the best options available no matter how hard external parties accentuate their norms.

Seon Young Yang (Ms)

Seon Young Yang is a Senior Research Officer in the Mission of the Republic of Korea to ASEAN in Jakarta (2013-Present). Her academic qualifications are BA in Linguistics (University of East Anglia, the UK, 2006-9), MSc in European Studies and Communication Science (Vrije Universiteit Brussel, Belgium, 2011-12), and Graduate Diplomat in International Relations (London School of Economics, the UK, 2016).

Email: seyyang13@mofa.go.kr | Linkedin: https://www.linkedin.com/in/seonyoung-sun-yang-37a07a45/