Following the UN”s definition, is growing crisis in Burma ethnic cleansing? Or, is it more closely aligned with sectarian violence?

Given the atrocities experienced by the Rohingya ppl, who is to blame? Can/should the international community hold Aung Sun Suu Kyi accountable?

• How should the international community respond to the ongoing crisis?

According to the readings, do country specific modalities dictate integration?

response for only 1 question  of the 4 

300-350 words

MORE INFORMATION

https://www.reuters.com/article/us-myanmar-rohingya-qa/does-myanmar-violence-amount-to-human-rights-crimes-idUSKCN1BP0P9

https://www.alterinter.org/?Forced-Migration-and-Ethnic-Cleansing-Rohingya-Adrift-in-Southeast-Asia

—–

students examples:

1. According to the United Nations Office for the Coordination of Humanitarian Affairs (UN OCHA), the growing crisis in Burma can be associated with both of the above terms. In specific, the UN OCHA states that “up to 140,000 Rohingya and Burmese Muslims were displaced by sectarian violence and ethnic cleansing” (UN OCHA, 2013), implying that both have played a part in harming the Rohingya people. However, in the article titled, “Forced Migration and Ethnic Cleansing: Rohingya Adrift in Southeast Asia,” Sophie Smith and Jennifer Geleff explain that “[b]y denying them any patch of earth, the Myanmar government is directly implicated in the decimation of the Rohingya people; acts that must be deemed ethnic cleansing” (Smith & Geleff, 2015). Further, they continue on to describe the “blatantly oppressive and racist policies” that have been applied to the Rohingya people in Burma, emphasizing that their human rights have been stripped away, leaving them to suffer through unimaginable conditions. Given this, as well as the fact that the UN views the Rohingya as one of the most persecuted ethic groups across the globe, it is my opinion that the crisis aligns more closely to that of ethnic cleansing.

Sources:

Smith, Sophie, and Jennifer Geleff. “Forced Migration and Ethnic Cleansing: Rohingya Adrift in Southeast Asia.” Alternatives International, 2015, www.alterinter.org/?Forced-Migration-and-Ethnic-Cleansing-Rohingya-Adrift-in-Southeast-Asia.

UN OCHA (2013) Humanitarian Bulletin. Myanmar, 18 April–31 May

—–

another example 

How should the international community respond to the ongoing crisis?

– The situation that is occurring in Mynamar is cruel, inhumane, and needs to be addressed now; there are people being killed, raped, and tortured. Myanmar is continuing to experience the Rohingya refugee crisis, an estimated 800,000 Rohingya have been forced out of the country with violence and at least 6,700 Rohingya have been killed. In January 2020, the UN’s top court ordered the country to take measures to protect members of its Rohingya community from genocide, however, the army of Myanmar continues to state that they are fighting Rohingya militants and denies the targeting of innocent civilians. The president of the country, Aung San Suu Kyi, has repeatedly failed to acknowledge the allegations of genocide against the minority. Moreover, on February 1st, 2021 the country experienced a coup d’etat from the military in which government officials and members of civil society including the countries leader, Aung San Suu Kyi, were detained. The people of Myanmar have been protesting on the streets every day since the coup; the violence from the military has escalated and has caused an estimated 300 deaths, a number that rises every day. I believe that is clear that this country needs the international community to respond before the crisis worsens. The security council voiced concern over the state of emergency but Russia and China prevented the council from condemning the coup. Therefore, the states that condemn the crisis in this country need to continue to impose targeted sanctions on the military officials, pause all exports with Myanmar to avoid financial assistance to the military. The UNSC needs to immediately impose the R2P doctrine and begin by commanding an arms embargo on the country and sanction General Min Aung Hlaing, and other senior military officials. UN members have the responsibility to hold the Myanmar military accountable and should take measures to delegitimize the military regime. Lastly, the UN has a responsibility to condemn these acts against humanity and should use all of the resources possible to stop these inhumane actions that are occurring in Myanmar immediately. 

Sources:

Reuters. “UN envoy urges Security Council to take action against Myanmar’s junta.” france24.com,

https://www.france24.com/en/asia-pacific/20210306-un-envoy-urges-security-council-to-take-action-against-myanmar-s-junta (Links to an external site.)

.

Reuters. “UN envoy urges Security Council to take action against Myanmar’s junta.” france24.com, https://www.france24.com/en/asia-pacific/20210306-un-envoy-urges-security-council-to-take-action-against-myanmar-s-junta.

—–

2.) Aung Suu Kyi should have been held accountable when she was still in power, however circumstances have changed. During the peak of attention the world gave to the Rohingya genocide, Aung Suu Kyi failed to condemn the ethnic cleansing the military of Myanmar practiced in Rakhine state. Her failures to speak out against the ethnic cleansing was deeply criticized worldwide, and her accolades were revoked. There was, however, suspicions that the entrenched influence the Burmese military holds in Myanmar’s politics pressured Aung Suu Kyi to keep silent on the issues. There also existed the possibility that the military’s actions against the Rakhine were out of her control, although this should not excuse the absence of morals in defending any massacre. Now, post-February coup, it has become clear that the Burmese military was intent in assuming complete control of the country. Since the day of the coup, the Burmese military has mercilessly slaughtered unarmed civilians protesting against the coup’s assault on Myanmar’s fragile democracy. The track-record of the Burmese military indicates they hold most, if not all responsibility in the Rohingya genocide. The international community should do everything in its power to investigate the pernicious events unfolding within Myanmar, however China has already demonstrated their position on the situation by vetoing a UNSC measure to condemn the Myanmar coup. The question of can the international community hold anyone accountable in Myanmar would then be “no”, unless a coalition of states would be willing to break international law and potentially start a war over it.  Economic embargoes have a pitiful success rate, as demonstrated by its failure to halt human rights abuses in any country, even when they are imposed with UN authorization like on North Korea. With these factors in consideration, there is no way to hold anyone accountable unless western states would be willing to put down countless lives in order to depose the suspects perpetuating the genocide.

References:

https://www.bbc.com/news/world-asia-55882489

https://www.bbc.com/news/world-asia-46179292 (Links to an external site.)

https://www.bbc.com/news/world-asia-55913947 (Links to an external site.)

https://www.armscontrol.org/factsheets/UN-Security-Council-Resolutions-on-North-Korea

Week 11 Human rights Challenges & Asia

INR 4075

Myanamar
400,000 Rohingya Muslims
Do not recognize 1.1 Million Rohingya’s in Burma
ARSA—Opposition Faction
Is this ethnic cleansing?
“Rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area.”
Should ”ethnic cleansing,” be a stand alone international human rights law ?
Live in the Rakhine Region—the West on the Border of Bangladesh

Myanmar cont’d
“Crimes against humanity and genocide could be taking place even in the absence of war, but, under U.N. definitions, there would need to be proof of other conditions such as broader, systematic attacks against the Rohingyas.”
Who should we hold responsible?
Aung San Suu Kyi? –No Direct control over the military.
Part of the UN

Refugee Protection in Asia-–Cheung 2010
Looks at refugee integration/outcomes in Regional Context (during the 1990s)
Lack of signatories of the 1951 Convention and domestic legal frameworks.
Refugee policies in South/SE Asia are likely to be directed by punitive rather than formal legal famework.
Superior economic conditions to not produce greater success rates of integration (Malaysia vis-à-vis Bangladesh).
Refugees in the region are likely to continue to cross borders in search of greater economic opportunities, regardless of concerns for their own safety.
Informal economy.
De-facto Integration?

Ethnic Cleansing
Rohingya—Effectively Stateless.
Denied basic rights, which include citizenship and access to education.
Displacement 33.3 mil to 48 mil (2013-2014)
2015—25,000 smuggled, 8,000 estimated stranded at sea.
Indonesia, and Malaysia have a greed to provide refuge for one year
Thailand offered aid but no shelter.

EC CONT’d
Revoked temp res cards,. These allowed them to vote.
Also, rejected as Bangladeshi citizens as well.
Seems to be a “text book” example of ethnic cleansing.
Military have been launching attacks.
Most ended up in Bangladesh.
1962 was taken over in a coup-–promoted fierce nationalism
Rohingya singled out as the threat.
Second world war…

EC Cont’d
1978—Operation Dragon King 200,000 Fled to Bang.
170k returned
1982 the citizenship act—Rohingya not recognized
1991 Operation Clean and Beautiful Nation
2000s –2012 RHW an ethnic cleansing campaign.
Arakan Rohingya Salvation Army 2016
400 deaths and 400,000
210 villages have been burned to the ground.

Follow up questions
Following the UN”s definition, is growing crisis in Burma ethnic cleansing? Or, is it more closely aligned with sectarian violence?

Given the atrocities experienced by the Rohingya ppl, who is to blame? Can/should the international community hold Aung Sun Suu Kyi accountable?

How should the international community respond to the ongoing crisis?
According to the readings, do country specific modalities dictate integration?

‘Migration Control and the Solutions
Impasse in South and Southeast Asia:
Implications from the Rohingya Experience’

S A M U E L C H E U N G

UNHCR
1

cheung@unhcr.org

MS received November 2010; revised MS received March 2011

By examining the comparative experiences of Rohingya who fled in the early
1990s to Bangladesh and Malaysia, this paper discusses implications for refugee

protection in an Asian regional context characterized by generally applicable
immigration measures and a reluctance to offer formal durable solutions.
Somewhat secure from refoulement but undifferentiated or even deliberately
invisible among larger irregular migrant populations, refugees in the region

develop certain protection strategies and livelihood mechanisms outside the
boundaries of formal asylum, which suggest they possess significant capacities
to carve out their own protection space and achieve a level of de facto integra-

tion. Given the migration-focused discourse among states and regional processes
as well as the impasse on solutions in Asia, this paper makes the case for further
recognition of available, intermediate solutions which capitalize on ambiguities

between migration management and refugee protection and empower
refugee-driven solutions in all dimensions.

Keywords: refugee, asylum, migration, integration, Asia

Introduction

In the early 1990s, some 250,000 Rohingya from Northern Rakhine State in
Myanmar (Burma) fled an intensified post-election clampdown called Pyi
Thaya, and in the years that followed, have continued to flee repressive
state policies and practices. While the vast majority of this group fled to
neighbouring Bangladesh, a smaller group of some 15,000 fled further
away to Malaysia. For some two decades, these Rohingya refugees have
remained in a protracted situation of displacement in camps and semi-urban
settings in Bangladesh, and in the urban centres of Malaysia, caught in an
apparent impasse between migration control policies and dim prospects for
solutions.

Journal of Refugee Studies � The Author 2011. Published by Oxford University Press.
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By examining the comparative experiences of these Rohingya who fled
to and remained in Bangladesh and Malaysia, this paper discusses pos-
sible implications for refugee protection in an Asian regional context where
few countries are signatory to the 1951 Convention and there is a corres-
ponding absence of domestic legal frameworks to deal with matters of
asylum. Shaped not by official state policies but rather by ad hoc institu-
tional practices which fluctuate along with domestic sentiments toward mi-
gration, the protection environment for refugees and asylum seekers in
many parts of South and Southeast Asia has often been characterized by
generally applicable immigration measures, which at times tend toward
being punitive, and a general reluctance to offer formal durable solutions
for the resolution of certain longstanding refugee situations. Somewhat
secure from refoulement but falling short of receiving a regularized right of
stay, refugees have suffered from the lack of formal, consistent policies and,
undifferentiated among larger populations of irregular migrants, have been
subjected to arrest and detention, lack formal access to labour markets and
have limited admission to certain public services such as education or health
programmes.

In this regional context, the experience of the Rohingya in Bangladesh and
Malaysia permits some useful observations regarding the protection strategies
and livelihood mechanisms that refugee populations develop when they are
unable to benefit from the legal provisions of the 1951 Convention and are
instead compelled to carve out for themselves their own protection space.
Their experience in adapting to migration control policies and enduring the
solutions impasse to find an intermediate, available solution, is indicative of
the refugee experience in much of South and Southeast Asia and has broader
implications for the meaning of refugee protection outside the boundaries of
formal asylum.

Rohingya Displacement to Bangladesh and Malaysia

The term ‘Rohingya’ commonly refers to Muslims from Northern Rakhine
State (formerly Arakan) in Myanmar who form an ethnic, linguistic and
religious minority and have been subjected to repeated waves of persecution
and forced displacement. These cycles of historical displacement, beginning
with the Burmese invasion of Arakan and deportation of Arakanese in 1784,
and followed by returns and armed struggle in the British colonial era (1824–
1948) and further displacements after independence, formed a justification for
the Myanmar government’s labelling of Rohingya as ‘illegal migrants’ and
forcing them out again on several occasions.

2

In 1974, at the time of constituting Rakhine State from the former Arakan
Division, the Emergency Immigration Act downgraded Rohingya to possess-
ing only foreign registration cards rather than national registration certifi-
cates. In 1978, the Myanmar military commenced the Nagamin (or Dragon
King) operation to register all citizens prior to a national census and screen

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out foreigners from citizens, an operation which allegedly resulted in wide-
spread violence (Human Rights Watch 1996). Some 200,000 Rohingya fled to
Bangladesh, which requested assistance from the United Nations and estab-
lished 13 camps along the border to deal with the influx. However, later
restrictions on food rations and the withdrawal of basic services from the
camps caused nearly all of the Rohingya to return due to the difficult
conditions.

In 1982, the revised Myanmar Citizenship Law excluded Rohingya from
the list of 135 national ethnic groups and this, combined with onerous evi-
dentiary requirements to apply for citizenship, caused Rohingya to become
stateless and more vulnerable to arbitrary denial of rights. Then in 1991–
1992, after the disputed multi-party elections won by the National League for
Democracy, the Myanmar military commenced another campaign called Pyi
Thaya (or Prosperous Country), which began with a build up of military
forces and formation of a border task force, called Nay-Sat Kut-kwey Ye
(or Nasaka) which consisted of police, military intelligence and immigra-
tion/customs and other officials. The intensified post-election clampdown
led to a second exodus. Some 250,000 Rohingya crossed into Bangladesh
while another 15,000 ultimately made their way to Malaysia. In the years
that followed, a small but steady flow of Rohingya have continued to flee to
both Bangladesh and Malaysia to escape persecution in Myanmar.

3

In Bangladesh, the majority of the 250,000 Rohingya who fled in
1991–1992 were initially sheltered in some 20 government-administered refu-
gee camps around Cox’s Bazaar District under the authority of the Ministry
of Food and Disaster Management (renamed from the Ministry of Relief)
which was entrusted with providing asylum, assistance and relief. By execu-
tive order, the Rohingya were recognized as prima facie refugees by the gov-
ernment on the single criterion of being Muslim. Not long after, Bangladesh
and Myanmar signed a bilateral agreement to return those Rohingya who
could establish a so-called bona fide residence in Myanmar. A controversial
repatriation programme followed, in which almost all of the 250,000 were
repatriated to Myanmar by 2000 (Human Rights Watch 2000). Today, only
some 28,000 remain in two camps, Nayapura and Kutupalong, in the south-
east district of Cox’s Bazaar, but there are an estimated 200,000 Rohingya
residing in various villages and towns outside the camps, many of whom fled
in 1991–1992, were repatriated and since then have returned to Bangladesh
again.

According to Bangladesh policy, the prima facie recognition of Rohingya
ended with a registration cut-off date in mid-1992; those estimated 200,000
who arrived or returned after the cut-off date are not refugees and are not
permitted in the camps. At the same time, the porous border with Myanmar
means there is a constant flow of persons who enter Bangladesh illegally,
obtain daily or weekly passes to visit relatives or find day labour, or remain
inter-mingled with the population. Consistent with the government’s policy,
UNHCR has not registered those outside the camps nor does it actively

Migration Control in South and Southeast Asia 3

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engage with this self-settled population. Refugees in camps were initially
provided with temporary ration cards which were then replaced by family
books and finally individual refugee identification cards issued by UNHCR.
Documentation is not provided to those refugees outside the camps.

Refugees in the camps live in generally poor, although improving, condi-
tions with an alleged government position against improving facilities for fear
of attracting more Rohingya (Hussain 2010). Refugees are not formally
allowed to leave the camps without specified reason as the government per-
ception is that access to the labour market would constitute local integration.
However, many refugees, especially men, do leave through private arrange-
ments with the authorities to work in nearby villages and towns and there is
significant inter-mingling with the local community. Official local integration
has not been considered an option for refugees in the camps and concerns
over an influx of more Rohingya and the potential social and environmental
problems in an already densely populated country have been often cited as
reasons not to regularize the status of those outside the camps (Daily Star
2010). Nevertheless, even with little assistance, many of the 200,000
self-settled outside the camps have achieved a degree of de facto integration
after years of stay in Bangladesh, aided by their cultural and linguistic simi-
larities to the local Chittagonian people and shared Muslim faith (Human
Rights Watch 2000).

The Rohingya’s irregular status, however, means that protection remains
insecure, both for those inside the camps affected by corruption, exploitation
and crime (Human Rights Watch 2000; Pittaway 2008) and those self-settled
outside the camps, their attempts to assimilate notwithstanding. This was
made clear in late 2009, when local authorities forcibly removed refugees
who had self-settled on the periphery of Kutupalong camp, and in early
2010, after rising anti-Rohingya sentiment among the host population, to-
gether with a campaign of violent arrests, detentions and forced repatriation
by the local authorities, caused refugees outside the camps to flee inside
Kutupalong camp for safety (MSF 2010; BBC 2010). Since then, the
Rohingya in Bangladesh continue to live as a stateless population in exile,
describing themselves as ‘caught between a crocodile and a snake’ (MSF
2002). Denied the right to return to Myanmar and, particularly for the
self-settled population, unrecognized as refugees in their country of asylum,
their statelessness and lack of recognition as citizens either in Myanmar or
Bangladesh makes it all the more difficult to address their status and plight as
refugees (Pittaway 2008).

While some 200,000 Rohingya were received in camps in Bangladesh, repa-
triated and returned again to self-settle in Bangladesh, another group of some
15,000 Rohingya ultimately made their way to Malaysia. Those who arrived
in the early 1990s were initially issued limited documentation in the form of
protection and attestation letters by UNHCR, and were provided financial
and material assistance through the Malaysian Red Crescent Society. For the
first decade after their arrival in Malaysia, little is reported on the Rohingya

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as the population was apparently stable and well-tolerated in local society,
having also achieved a level of unofficial, de facto integration in line with that
of other migrant groups from countries such as Indonesia. While still margin-
alized compared to local nationals due to lack of documentation, lower edu-
cational levels and socio-economic status, they were able to access the
informal labour market and had limited access to public services such as
health programmes and, in some cases, education.

However, this period of general acceptance and de facto integration for
Rohingya in Malaysia ended in 2002 when the Immigration Act was amended
to impose stiffer penalties on undocumented persons and the formerly toler-
ated Rohingya were now subjected to sometimes severe enforcement meas-
ures. This also marked the beginning of a stricter migration control strategy
embraced by the Malaysian government, to curb irregular migration through
large-scale crackdowns on undocumented persons. These ‘blitzes’ typically
involved intensified campaigns of immigration raids, sometimes preceded by
amnesty periods to encourage irregular migrants to leave. Such crack-
downs resulted in as many as 300,000 undocumented migrants reportedly
leaving in 2002 and another 400,000 in 2005 (Aglionby 2002; Yeo 2005). In
response to the increasing risk of arrest, detention and refoulement, UNHCR
began to re-issue documentation to previously registered Rohingya as
well as to new arrivals now being caught up in the enforcement of stricter
immigration laws.

In 2004, the Rohingya in Malaysia came very close to an official local
integration solution, due in part to a problem arising from the government’s
immigration crackdown strategy whereby the deportation of some one mil-
lion undocumented workers led to a severe labour shortage in the country.
After negotiation with UNHCR, the government announced in parliament
and in public that it had decided to grant temporary residence permits to
10,000 Rohingya residing in Malaysia, allowing the adults to work and their
children to attend school. The Deputy Prime Minister and Home Affairs
Minister hailed it as ‘a way to resolve a human rights issue and resolve the
labour crunch in the country’ (Agence France Press 2005; Bernama 2005).
The Home Minister reaffirmed: ‘It is time they are absorbed into the labour
force. They are already here and it would be a waste if we don’t recognize
them or give them job opportunities’ (Inter Press Service 2005). However, the
implementation exercise, which had been outsourced to local agencies and
Rohingya volunteers, was halted by the government days after it began in
August 2006 due to allegations of corruption in the process after many
non-Rohingya were being issued application forms (Malaysiakini 2006).
Despite the halt, the possibility of work permits reportedly sparked the
travel of as many as 8,000 Rohingya who either departed or transited
through Bangladesh by boat to Malaysia and Thailand in hopes of receiving
a work permit (Lewa 2008a).

Since then, there have been no indications that Malaysia will resume im-
plementation of the Rohingya programme. In March 2010, the Ministry of

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Home Affairs announced plans to issue government identification cards to
refugees, including Rohingya and others, which would regularize their tem-
porary stay but, this time, without the right to work (Amnesty International
2010). However, the plan was discarded not long after under distinctly
different rhetoric from the Home Ministry spokesman who said: ‘no law
allows us to issue a card to an illegal’ (Zappei 2010). Meanwhile, hoping
to receive the promised permits, some Rohingya continue to arrive in
Malaysia via a hazardous land or boat journey exposing them to the exploit-
ation of brokers and traffickers (US Committee on Foreign Relations 2009)
or government push-backs, as occurred off the shores of Thailand in 2009
and 2010 (Human Rights Watch 2011). With normal population growth and
new arrivals, the Rohingya population in Malaysia has now reached an
estimated 20,000 who today cope with the stricter immigration environment
while struggling to retain the level of de facto integration they had earlier
achieved.

Migration Control and the Solutions Impasse

The experience of the Rohingya in Bangladesh and Malaysia illustrates the
situation faced by many refugees in parts of South and Southeast Asia. Given
the absence of legal frameworks dealing with matters of asylum, and given
the corresponding reliance on inconsistent ad hoc institutional practices, the
protection environment for refugees and asylum seekers in Bangladesh,
Malaysia and their regional neighbours in South and Southeast Asia has
been strongly characterized by generally applicable migration control meas-
ures and a reluctance to offer formal durable solutions.

Despite several refugee flows in the past century, most notably the
large-scale displacement of Indochinese refugees during the 1970s and
1980s, South and Southeast Asia continue to hold to what Davies (2008)
calls a ‘persistent rejection’ of international refugee law, and have some of
the least developed refugee legislation and asylum institutions in the world.
Among regional neighbours to Malaysia and Bangladesh, only Cambodia,
the Philippines and Timor-Leste are signatories to the 1951 Convention relat-
ing to the Status of Refugees or its 1967 Protocol. In the Philippines, domes-
tic legislation and permanent refugee institutions have been in place for some
time, whereas Cambodia passed national laws and established a Refugee
Office only in 2008. The fragility of this refugee framework in Cambodia
was seen in acts of refoulement in late 2009, which highlights the fact that
accession to the 1951 Convention is not in itself a cure-all. Among
non-signatory countries such as Vietnam and Laos, there is no domestic
refugee legislation and UNHCR remains a primary actor, where it works
with governments toward the resolution of situations such as that of the
Montagnard refugees and is involved in capacity-building of national immi-
gration institutions; while in Indonesia, there were positive indications toward
accession to the 1951 Convention but still no domestic legislation enacted to

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practically address a steady rise in new asylum seekers. Nevertheless, none of
these countries host a population of refugees and asylum seekers comparable
in size to that from Myanmar, which remains by far the largest source of
refugees for countries in South and

Southeast Asia.

The ongoing and protracted displacement from Myanmar exemplifies the
unresolved nature of disputes in South and Southeast Asia, some of which
are legacies of post-colonial power re-orderings and national integration ef-
forts, which have made it difficult for states to reconcile contested body
politics, regional cooperation initiatives and international human rights
standards (Hedman 2006). Of the major countries of asylum for refugees
from Myanmar, which include Thailand, Malaysia, India and Bangladesh,
none is a signatory to the 1951 Convention. Other than certain prima
facie determinations in response to mass influxes, refugee policies have
rarely been based on formally-stated national policies, but rather have been
formed through ad hoc practices adopted by primarily immigration or na-
tional security authorities in response to prevailing domestic sentiments
toward migration control and enforcement. With rapidly developing econo-
mies and increasing globalization, these countries continue to witness spon-
taneous regional migration to the extent that, in some instances, the
number of undocumented foreign workers has been higher than the
number of those documented (Weiss 2010). Mixed migration flows contribute
to a blurred distinction between the relatively smaller refugee groups and the
larger regular and irregular migrant population and this, combined with tenu-
ous lines of ethnic balance and national identity, further reinforces states’
reliance on generally applicable, sometimes punitive, migration policies and
a reluctance to offer formal durable solutions for even the most protracted
refugee situations.

Following large-scale displacement which began with the Karens as early as
1984, Thailand hosts the largest number of refugees from Myanmar with
some 140,000 camp-based refugees and some 200,000 more outside the
camps of varying ethnicities and political profiles,

4
many of whom are un-

recognized and inter-mingled among a large population of migrants from
Myanmar estimated at as many as 2 million persons (UNHCR 2011;
USCRI 2009). The Immigration Act of 1979 (amended in 1992) provides
the basis for immigration regulations and enforcement and is administered
by the immigration bureau of the Thai police department, operating under
the Ministry of Interior. Section 11 of the Act requires that entry into or exit
from Thailand be in conformity with the channels specified by the Ministry
of Interior, and Section 12 excludes entry of various persons. Penalties for
those who enter without permission and for those aiding and abetting illegal
migrants include arrest, prosecution, detention and deportation.

To these otherwise generally applicable enforcement measures, the Thai
government has enacted some limited legislative exemptions for refugees
and asylum seekers. These exemptions have been interpreted to be on the
basis of Article 17 of the Immigration Act, which stipulates that ‘[u]nder

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special circumstance[s], the Minister [of Interior], by the consent of the
Cabinet, may authorize an entry into the Kingdom subject to any condition
or exempt any alien from compliance with this [Immigration] Act.’ Several
cabinet resolutions and executive orders have been promulgated to this effect,
regulating the admission into and stay of specific groups of refugees.
Considering them under the rubric of national security, bodies such as the
military, the National Security Council and the Ministry of Interior have
played primary roles in dealing with refugees and asylum seekers. Their prac-
tices have unsurprisingly been ad hoc, depending on the evolving security and
political interests involved, with a variety of inconsistent terminologies having
arisen for categories of displaced persons.

After establishing camps along the Myanmar border following the displace-
ments which began in 1984, the Thai government convened provincial admis-
sions boards in 1999 to regularize the status of those existing camp residents
by screening them according to the term, ‘displaced persons fleeing fighting.’
Those who did not meet the criterion of ‘fleeing fighting’ and indeed all
refugees and asylum seekers outside the camps were considered illegal mi-
grants, subject to immigration regulations which include arrest, indefinite
detention and deportation. Functions of the provincial admissions boards
have been intermittently suspended since 2001 following two prominent se-
curity incidents at the Myanmar Embassy and Ratchaburi Hospital, after
which the Thai government chose to discourage new arrivals from
Myanmar (Nation 2000). In 2003, after UNHCR-recognized refugees were
discovered planning a demonstration, UNHCR was told to suspend refugee
status determination for asylum seekers from Myanmar. UNHCR then began
recognizing Myanmar asylum seekers as ‘persons of concern,’ or ‘POCs,’
further frustrating relations until the government announced in 2005 that
all ‘POCs’ would be required to move to government camps. UNHCR
ceased refugee status determination functions while the provincial admissions
boards, this time with an additional category of those ‘fleeing political per-
secution’ in an attempt to align the criteria more closely with the refugee
definition, resumed functions until being suspended again in 2007 and since
then functioning intermittently. For camp-based refugees, local integration
was never considered and resettlement has been the preferred durable solu-
tion. In 2009, Thailand was the largest resettlement operation globally with
over 16,800 refugees resettled (UNHCR 2009b). Meanwhile, those outside
the camps risk enforcement of generally applicable immigration measures,
with consequences which range from referral to provincial admissions
boards for relocation to camps or, for some new arrivals such as Rohingya
boat people, potentially deadly push-backs to sea (Human Rights Watch
2011). Depending on the political climate and their ability to blend in with
the migrant community in Bangkok or disappear into the Thailand–
Myanmar borderlands, some have been able to evade immigration enforce-
ment entirely. Lang (2002) observes how many refugees choose not to identify
themselves as ‘persons of concern’ to UNHCR and other international actors

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and instead ‘negotiate their existence and face the hazards to which ordinary
illegal immigrants are exposed as if the protection apparatus did not exist’ (p.
178).

Bangladesh hosts the second-largest number of refugees from Myanmar.
None of the laws governing immigration, such as the Passport Act of 1920,
the Foreigners Act of 1946 and the Control of Entry Act of 1952, make any
reference to refugees or asylum seekers. Hence, by law all those without a
visa or permit can be charged under the Foreigners Act for illegal entry or
stay, under penalty of imprisonment up to five years and a fine or deport-
ation. However, there exists an arguable tradition of providing asylum to
populations fleeing persecution and human rights violations in neighbouring
countries found in Article 31 of the constitution, which provides legal pro-
tection for ‘every other person for the time being in Bangladesh, and in
particular no action detrimental to the life, liberty, body, reputation of any
person shall be taken except in accordance with law.’ Article 25(1)(C) of the
Fundamental Principles of State Policy also asserts that Bangladesh shall
‘support oppressed peoples throughout the world waging a just struggle
against imperialism, colonialism and racism.’ Bangladesh’s history of hosting
Rohingya, with the earliest arrivals recorded in 1948, and its prima facie
recognition of those residing in the camps has arguably been on this basis.
As discussed above, local integration has not been considered for camp-based
refugees and, despite years of de facto integration and inter-mingling for
those self-settled outside the camps, the protection environment has remained
precarious, subject to change depending on the political climate and attitudes
of the host community.

While difficult to determine precisely, it is estimated that India hosts more
than 60,000 persons from Myanmar, primarily ethnic Chin who settled in the
Mizoram hills, with a much smaller number who travelled to Delhi to apply
for refugee status (Alexander 2008; USCRI 2009). In India, the Foreigners
Act of 1946 addresses the treatment of all foreigners, with persons violating
their conditions of entry liable to face prosecution and deportation. However,
the government of India has also introduced some measures for the protec-
tion of certain categories of refugees and asylum seekers, particularly in in-
stances of mass influx. These specific policies, which have included, at times,
land allocation, access to social services and issuance of travel documents,
depend greatly on India’s regional strategic or political considerations and the
nationality of the asylum seeker, and have most notably been implemented
for Tibetans and Sri Lankans.

Other refugees and asylum seekers in India, including those from
Myanmar, do not benefit from government assistance and would technically
fall under the generally applicable enforcement provisions of the Foreigners
Act of 1946, but for the Indian court system’s reading in of international law.
The Indian constitution states in Part IV, Article 51(c) that ‘the State shall
endeavour to foster respect for international law and treaty obligations in the
dealings of organized peoples with one another.’ On this basis, the Indian

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Supreme Court has also held that, subject to consistency with domestic
jurisprudence, courts can ‘read in’ provisions of international conventions
and norms into domestic law, including customary law principles of
non-refoulement. Nevertheless, interventions depend on the individual inter-
pretation of a particular judge or magistrate as well as the asylum seeker’s
status with UNHCR. A significant population have not been registered with
UNHCR and instead assimilate into the local population. Local integration
has also not been considered for refugees from Myanmar, with resettlement
being the preferred solution.

Malaysia hosts more than 80,000 refugees from Myanmar, including
Rohingya as well as other ethnic groups; precise numbers may be much
higher depending on estimates of the unregistered population (USCRI
2009; UNHCR 2009b; Amnesty International 2010). As in its Southeast
Asian neighbours, the refugee population constitutes a small part of a
larger migrant population, with foreign migrants comprising some 2 million
out of Malaysia’s 12 million work force (Ng 2011) With no mention of
asylum in the constitution nor any legislative provisions dealing with the
right to seek asylum, refugees and asylum seekers are instead treated in ac-
cordance with generally applicable immigration regulations as implemented
by the immigration department, which operates under the authority of the
Ministry of Home Affairs. The amended Immigration Act 1959/63 provides
the basis for these immigration regulations, under which individuals are
divided into two simple categories: legally documented persons and illegal
undocumented persons.

As discussed above, the Immigration Act was amended in 2002 to impose
stiffer penalties on undocumented persons. Penalties under the Act include
arrest, detention, prosecution, imprisonment, deportation and even judicial
caning (or whipping). The Act also provides significant enforcement powers
to the police and immigration authorities for the arrest, detention and de-
portation of any undocumented person, and permits, for example, detention
for as long as is necessary to arrange for removal and deportation. The Act
not only penalizes refugees, but makes any occupier of land liable to face
similar fines, imprisonment or even judicial caning for ‘harbouring’ illegal
immigrants. These ‘harbouring’ provisions have caused even charitable or-
ganizations to fear that providing educational, health or other kinds of as-
sistance to refugees and asylum seekers may be construed as ‘harbouring’
under the Act and be penalized accordingly. In the absence of domestic in-
stitutions, UNHCR performs all functions of registration, status determin-
ation and documentation, but without written agreement from the
government, its interventions vary in effectiveness depending on the political
climate. UNHCR documentation has not been formally recognized and af-
fords a measure of protection only at the discretion of local enforcement
authorities who may or may not choose to recognize it. Other than the
aborted Rohingya permit programme in 2006 and withdrawn plans for
government-issued refugee cards in 2010, measures towards formal local

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integration have never been seriously considered in Malaysia and resettlement
remains the main, if not only, durable solution. In 2009, Malaysia represented
one of the largest resettlement operations for UNHCR with over 7,500
people resettled from Malaysia (UNHCR 2009b).

Protection Space and Intermediate Solutions

In this regional context, the Rohingya have remained for almost two decades
in a protracted situation and, without the benefit of the legal provisions of
the 1951 Convention nor a domestic framework for refugee protection, have
developed certain protection strategies and livelihood mechanisms to adapt to
these circumstances and carve out for themselves their own protection space
outside the boundaries of formal asylum. Adapting to migration control
policies which fail to differentiate them from larger populations of irregular
migrants, and sometimes subject to punitive immigration measures, they have
endeavoured to find an intermediate, available solution, largely secure from
refoulement but falling short of a regularized right to stay, with informal
access to labour markets and certain available public services, yet still shy
of the full realization of rights and entitlements which characterize local
integration.

Several UNHCR-commissioned non-governmental as well as independent
academic studies have examined the protection gaps and livelihoods of the
estimated 200,000 refugees who have self-settled in various villages and towns
outside the camps in the Cox’s Bazaar, Bandarban and Chittagong districts
of Bangladesh as well as the 28,000 in the two government-administered
camps of Nayapara and Kutupalong. In March 2007, UNHCR published
summaries of consultations held with refugees in the two
government-administered camps (UNHCR 2007a) and in May 2007, pub-
lished an analysis of gaps in protection for camp-based Rohingya refugees
based on statistical and sectoral reports by UNHCR, partner agencies and
participatory assessments (UNHCR 2007b). In August 2008, a study com-
missioned by the Netherlands examined the forced migration experiences,
protection problems and livelihoods of self-settled Rohingya in Bangladesh
through interviews conducted between June 2007 and February 2008 (Lewa
2008b). In May 2009, UNHCR and ILO commissioned a rapid appraisal of
the livelihood capabilities of camp-based refugees in Bangladesh (UNHCR
and ILO 2009). Other useful studies have also examined the situation of the
now 20,000 Rohingya who settled in Malaysia. In 2005, a group of academics
brought together by a local human rights organization interviewed Rohingya
in Malaysia, examining the overall demographic profile, socio-economic
status, livelihood, experiences and problems (Suaram 2005). Then in 2008–
2009, UNHCR conducted surveys of randomly selected heads of households
having their documentation renewed between October 2008 and March 2009,
as well as undertaking participatory assessments with focused groups of in-
dividuals (UNHCR 2009a).

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A comparative analysis of these studies, while certainly not conclusive,
permits some limited observations regarding the protection strategies and
livelihood mechanisms developed by Rohingya who left Myanmar at the
same time in the early 1990s but since then have remained in two separate
countries, each with its own particular refugee policies and available protec-
tion space. One observation is that, given the fluidity of borders in South and
Southeast Asia, refugees often follow normal urbanization trends in search of
greater economic opportunities, sometimes at the cost of personal security.

For example, the demographic profile of Rohingya in Malaysia reflects
certain traditional patterns of urban migration, with a higher proportion of
males, unmarried singles and smaller average household sizes in the relatively
more urban cities of Malaysia than in Bangladesh. Selection of geographic
location is also extremely urban in Malaysia with the vast majority centred in
the three major cities of Penang, Selangor and Kuala Lumpur, compared to
the more semi-urban coastal and hilly regions selected by refugees in Teknaf,
Cox’s Bazaar and Ukhiya in Bangladesh. A major driver in this trend is likely
the fact that wages in the informal labour market are several times higher in
Malaysia, where the average labourer earns RM601 to RM800 per month
(US$171–$228), compared to Bangladesh where a typical labourer earns
BDT1,800 to 3,300 per month ($26–$50) (UNHCR 2009a; Lewa 2008b).
Employment is more urban and service-oriented in Malaysia (construction,
factories, restaurants and cleaning), compared to seasonal and day labour in
agriculture and fishing in Bangladesh.

Given these economic parameters, Rohingya refugees remain in and con-
tinue to be attracted to Malaysia, despite the more punitive migration control
measures enforced there and potential exploitation or abuse by employers due
to their irregular status. Arrest and deportation rates are extremely high in
Malaysia, with almost half of all individuals having experienced arrest and
multiple deportations, as well as a significant number reporting being
whipped. In contrast, arrest and deportation were not significantly reported
in Bangladesh until recent crackdowns in early 2010. Despite this, the migra-
tory trend is that Rohingya travel from Bangladesh to Malaysia, and not vice
versa. One local media account portrays Rohingya in Bangladesh who ‘toil in
poverty and dream of better jobs in nearby Malaysia, which is viewed as a
Muslim promised land of prosperity and opportunity’ (Rahman 2010), con-
trasting strongly with human rights groups which describe Malaysia as an
‘unwelcome and dangerous place’ (Amnesty International 2010). Possession
of documentation is not determinative, as while many Rohingya in Malaysia
possess UNHCR documentation, this has not been formally recognized by
the government as a substitute for national identification cards and may not
prevent enforcement of immigration laws. By contrast, in Bangladesh, neither
the Rohingya outside the camps nor most local nationals possess formal
documentation. However, recently-listed voters have been issued with identity
cards after it was discovered that some Rohingya had been registered to vote,
in a development carrying negative effects for Rohingya no longer able to

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hide their identity (Lewa 2008b). Increasingly hostile popular attitudes and
decreasing assimilation have contributed to a deteriorating protection envir-
onment in Bangladesh since early 2010, which may persuade even more to
migrate to Malaysia.

This interplay of urban migration, access to livelihoods and personal se-
curity is one illustration of how refugees navigate their own protection space.
While not a strictly defined term, UNHCR has most recently described ‘pro-
tection space’ as ‘the extent to which a conducive environment exists for the
internationally recognized rights of refugees to be respected and their needs to
be met’ (UNHCR 2009c). Indicators include: absence of threats of refoule-
ment, arrest or detention; freedom of movement, association and expression;
access to livelihoods and the labour market; adequate shelter and living con-
ditions; legal residency rights and documentation; access to public services;
and harmonious relationships with other communities (ibid). Under this
rubric, the Rohingya example illustrates that, while refugees have limited
capacities to influence the legal and political factors of available protection
space, such as documentation and residency rights and risks of arrest, they do
demonstrate significant capacities in relation to livelihoods, access to public
services and relationships with the host community. Moreover, migratory
patterns indicate that their capacities in this respect, combined with available
social and economic opportunities, may drive them over and above personal
security concerns. With respect to urban refugees, Bruijn (2009) observes this
dualism in urban settings, noting increased exposure to exploitation and in-
security, on the one hand, and the particular resourcefulness of refugees and
potentially better access to education, health, credit and communication facil-
ities, on the other.

However, the superior economic opportunities available in Malaysia do not
necessarily correspond to greater de facto integration. Local integration has
been characterized as comprising three components, economic, social/cultural
and political (UNHCR 2003). The economic component includes progressive
self-reliance and sustainable livelihoods, the social and cultural component
relates to interactions with host communities without discrimination or ex-
ploitation, and the political component involves the progressive realization of
rights and entitlements enjoyed by local citizens (ibid). Jacobsen (2001) and
Banki (2004) have separately argued for the recognition of de facto or inter-
mediate integration, particularly in relation to self-settled refugees who
remain in an insecure and temporary legal status but who have achieved a
level of unofficial integration. Distinct from local integration as an end result,
they have set out some indicators of this sort of integration, including, among
others: refugees living dispersed among the local population, social network-
ing through, for example, intermarriage, and land ownership or unofficial or
official access to it.

In the case of the Rohingya, inter-mixing with locals appears greater in
Bangladesh, where many Rohingya were supported by locals upon arrival
with easier interaction given their shared similar linguistic and cultural

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background. In Malaysia, however, few have friendships with locals and most
live near other Rohingya. In Bangladesh, a significant proportion of
Rohingya married locals and Rohingya men favour intermarriage with
Bangladeshis as a protection tool, compared to Malaysia, where Rohingya
rarely married locals and, if they did marry non-Rohingya, these were gen-
erally other illegal foreigners, primarily Indonesians. Accommodation is
strictly rental in Malaysia while options in Bangladesh include ownership,
rental or housing free-of-charge or in exchange for work. Hence, while
most Rohingya in Bangladesh have remained in the same place of residence
since the early 1990s, those in Malaysia have been more transient and mobile.
Access to education for children also appears higher in Bangladesh, where
there are several non-government schools and in Cox’s Bazaar refugees’
access to government schools is comparable to locals, whereas in Malaysia,
lack of documentation prevents almost all refugees from accessing public
education and there are only a few community-run or religious schools for
refugees. Access to education does not necessarily correspond with education
levels, as significant numbers are able to speak, read and write Malay,
Burmese and English in Malaysia where such skills are more necessary, com-
pared to very high levels of illiteracy in Bangladesh.

Indicators such as social networking and intermarriage, access to land
ownership and other access points to the local population suggest that su-
perior economic opportunities in Malaysia alone do not necessarily corres-
pond to greater de facto integration, particularly with respect to the social
and cultural components. On the other hand, migratory patterns and the
lure of greater earning potential in Malaysia, particularly where there is
even the remote possibility of an official integration solution, may continue
to outweigh the de facto social and cultural integration available in
Bangladesh.

Implications for Refugee Protection

Given the scarcity of state signatories to the 1951 Convention and domestic
legal frameworks, refugee policies in South and Southeast Asia will likely
continue to be dictated by generally applicable, sometimes punitive, migration
control policies rather than a formal legal framework for protection.
Case-by-case exceptions to the rule may arise but national treatment of refu-
gees and asylum seekers continues to be ad hoc, depending on the nationality
of the asylum seeker, regional strategic and political considerations and
otherwise based on a remote sense of international obligation or humanitar-
ianism left to the discretion of field-level immigration officials or magistrate
judges.

The predominance of this migration control-oriented approach, as well as
the general reluctance to assume additional responsibility for finding durable
solutions, have deep roots in Asia which arguably can be traced to the re-
gion’s first major responsibility-sharing agreement, the Comprehensive Plan

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of Action for Indochinese Refugees (CPA), adopted in 1989. In this plan,
recognized as a major multilateral achievement to address a continuing influx
of Indochinese boat people, push-backs by countries of first asylum and
decreasing third country resettlement opportunities, a local integration solu-
tion was never offered and instead resettlement was the primary mechanism,
entrenching in some Asian states a historical precedent for relying on
Western-supported permanent solutions (Robinson 2004). Davies (2008)
goes even further to suggest that Southeast Asian states learned from the
CPA that refusal to provide even temporary asylum would reap more reset-
tlement offers. Through the CPA, of the nearly 250,000 Vietnamese boat
people given temporary asylum in Malaysia in eight camps, some 240,000
were resettled in Western countries, while some 9,000 returned to Vietnam
(UNHCR 2001). Today, refugees from Myanmar represent the largest group
benefiting from resettlement with 24,800 resettled, primarily from Thailand
and Malaysia, in 2009 (UNHCR 2009b). Nevertheless, there remain constant
references to the CPA and a perception that the international community is
not doing enough to persuade third countries to resettle more refugees from
‘first’ asylum states. This persistent impasse on solutions is a major reason
why Rohingya refugees in Bangladesh were identified in June 2008 among
four other situations to be targeted under the Protracted Refugee Situation
Initiative aimed to ameliorate conditions, ensure protection and identify ap-
propriate solutions (UNHCR 2008a). Yet it is clear that this situation extends
beyond the Rohingya in the camps to those self-settled outside the camps in
Bangladesh, those in the cities of Malaysia as well as to other refugee groups
throughout South and Southeast Asia. Of the 5.2 million of the world’s
refugees identified as living in exile for more than five years, the largest
proportion are in Asia (ibid.).

Built into the CPA were also migration management components, such as
screening mechanisms and an orderly departure programme, devised on the
basis that not all of the boat people were leaving their country for
refugee-related reasons and that resettlement had created a pull factor, fuel-
ling migratory pressures by providing incentives for people to leave Vietnam
(UNHCR 1995). This recognition that the nature of the exodus had changed
from prima facie refugees to mixed migration, including both refugees and
economic migrants, similarly set a pattern for refugee protection overlapping
heavily with migration control, which carries on until now. Today, regional
and ministerial processes in South and Southeast Asia which deal with refu-
gees and asylum seekers focus primarily on labour migration or linkages
between security and migration. Refugees and asylum seekers are often men-
tioned but without clear reference to or foundation in the rights-based frame-
work of protection, in part out of a reluctance to encroach on regional
principles of ‘non-interference’ and national sovereignty (Abrar 2001;
Pearson 2009). When ASEAN states were confronted with the Rohingya
boat people issue in 2009, rather than activating human rights mechanisms
within the ASEAN charter, the issue was delegated to the Bali Process on

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People Smuggling, Trafficking in Persons and Related Transnational Crimes.
Despite the Bali Process’s positive initiatives on trafficking, the handling of a
protracted refugee situation within a process established to address border
control, security, law enforcement and documentation fraud, typifies the re-
gion’s preoccupation with notions of illegal migration and risks further se-
curitization of migration and displacement-related issues (Matthieson 2009;
Hedman 2009). Even processes such as the Asia-Pacific Consultations on
Refugees, Displaced Persons and Migrants struggle to gain traction when
outnumbered by other predominantly migration-oriented bodies, where pro-
gress is measured by the slow and gradual insertion of human rights language
rather than a direct discussion of the root causes of displacement or pro-
posals for comprehensive solutions.

Acknowledging the challenges for humanitarian actors and their limitations
in attempting to ‘unlock’ protracted refugee situations, UNHCR laid out a
targeted, staged, comprehensive and developmental approach which balances
long-term solutions with current protection interventions (UNHCR 2008a).
On protracted situations, Durieux (2009) has similarly acknowledged that
responsibility-sharing often fails to deliver fairness and the protection frame-
work ‘does not contain in itself either the normative or cooperative instru-
ments which will deliver the sought-after permanent solutions.’ Hence, he
advocates that protection and solutions be worked on creatively and dynam-
ically all the time to move a regime toward these twin objectives (ibid.). This
creative and dynamic approach is particularly relevant in the context of
South and Southeast Asia as conceptualizations of protection and solutions
become increasingly intertwined. Protection strategies which not only pro-
mote enjoyment of legal and political rights, such as safety from detention
and refoulement, but also incorporate many of the social and economic elem-
ents that constitute a local integration solution, such as access to livelihoods
and harmonious host community relations, are very relevant in the many
urban spaces of South and Southeast Asia (UNHCR 2009b). At the same
time, local integration is also increasingly being recognized not as a once and
for all solution but instead involving a complex and gradual two-way process,
both dynamic and multi-faceted (UNHCR 2005). Recognition of intermediate
stages of integration, often falling outside the boundaries of formal asylum,
independent of international assistance and, at times, in defiance of or delib-
erately invisible to host government regulations, is all the more important to
address the several protracted situations in the region and should be factored
into any protection strategy.

While providing a good example of the impasse between migration control
policies and durable solutions, the Rohingya displacement also illustrates
certain ambiguities in the protection space available to refugees and migrants
alike. In Bangladesh, government-recognized Rohingya refugees in camps live
next to unrecognized self-settled Rohingya who come from the same original
displacement group, with those within the camps awaiting a formal solution
through potential resettlement or repatriation and those outside the camps

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achieving a level of de facto integration despite being precariously without
status. In Malaysia, UNHCR-recognized Rohingya refugees also found a
level of unofficial integration similar to other migrant groups until an immi-
gration policy shift in 2002 exacerbated their undocumented status and the
attempt to regularize their status, reconciling their long-term presence in the
country with domestic labour needs and humanitarian considerations,
was abandoned. While not absolving states of their own obligations, an
acknowledgement of the solutions impasse in the context of South and
Southeast Asia implies understanding that, whereas governments may be
reluctant to assume additional formal responsibilities toward durable solu-
tions, there may nevertheless be room for intermediate solutions, such as
the de facto integration achieved by the Rohingya. Furthermore, the dis-
course of mixed migration continues to resonate strongly among states
in the region, reflected in Southeast Asia being a focal point for
UNHCR’s 10-Point Plan of Action (UNHCR 2007c). With mixed migration
likely to remain the norm and migration management the common language
of states and regional processes in South and Southeast Asia, intermediate
solutions most likely to find success will be those which capitalize on the
ambiguities and overlaps between migration management and refugee pro-
tection and can be framed in their migratory context with potential migra-
tion benefits.

The protection strategies and livelihood mechanisms developed by popula-
tions such as the Rohingya also raise certain worthwhile considerations re-
garding the meaning of protection and possibilities for solutions. Most
notably, these observations show that, without the benefit of the legal
terms of the 1951 Convention, refugees have the capacity to carve out their
own protection space and achieve a level of de facto integration, even in
the face of punitive immigration enforcement measures and sometimes
beyond what international actors or the formal refugee framework can
offer. While their capacity to influence the legal and political circumstances
may be limited, their ability and determination to navigate the economic,
social and cultural aspects of available protection space should not be
underestimated.

UNHCR’s Protracted Refugee Situation Initiative places particular focus
on, among other things, self-reliance possibilities for sustainable livelihoods,
rooted in the principle that exiled populations should be able to meet a
progressively greater proportion of their own needs and enjoy a steadily
growing level of prosperity and human security (UNHCR 2008a, 2008b).
With fluid borders and high human mobility in South and Southeast Asia,
refugees will likely continue to follow normal migratory patterns and urban-
ization trends in search of greater economic opportunities, despite concerns
over personal security, and have demonstrated significant capacities to do so.
In light of this, protection and solutions strategies should factor in self-
reliance and sustainable livelihoods by seeking to empower a refugee-driven
solution through refugee-demonstrated capacities. For example, while

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UNHCR’s urban policy acknowledges that refugees have little alternative but

to join the informal economy, and recommends initiatives toward self-reliance

‘in an unobtrusive manner’ (UNHCR 2009c), more overt efforts may be

required to match the fluid labour situation in the region. At the same

time, it is important to note that economic opportunities alone do not ne-

cessarily equate to greater social and cultural inclusion. Hence, a comprehen-

sive approach toward solutions would need to incorporate holistic social,

cultural as well as economic inclusion by advocating for measures which

authorize refugees to engage with the host community in all dimensions of

life. Successful protection and solution strategies in South and Southeast Asia

will be those which embrace the ambiguities between migration management

and refugee protection, focus on states not obstructing the de facto integra-

tion available to refugees and migrants alike, and empower the local capa-

cities of refugees to carve out their own protection space and find an

intermediate solution.

1. The views expressed are the personal views of the author and may not necessarily

be shared by the United Nations or by UNHCR.

2. For a concise summary of the Rohingya’s historical displacement to Bangladesh,

see Human Rights Watch (2000).

3. For a recent overview of the situation of Rohingya in Myanmar, see Irish Centre

for Human Rights (2010).

4. For a detailed understanding of the nature and causes of displacement from

Myanmar to Thailand and the varying ethnic and political profiles of refugees,

see Lang (2002).

ABRAR, C. R. (2001) ‘Legal Protection of Refugees in South Asia’. Forced Migration Review 10:

21–23.

AGENCE FRANCE-PRESSE (2005) ‘Malaysia to Allow Thousands of Refugees to Work to

Solve Labour Crunch’, 5 July.

AGLIONBY, J. (2002) ‘Fury at Malaysian Expulsions: Deportations Halted after

300,000 Migrant Workers Flee Threat of Caning and Imprisonment’. The Observer,

1 September.

ALEXANDER, A. (2008) ‘Without Refuge: Chin Refugees in India and Malaysia’. Forced

Migration Review 30: 36–27.

AMNESTY INTERNATIONAL (2010) ‘Abused and Abandoned: Refugees Denied Rights in

Malaysia’, June, available at http://www.amnesty.org ASA 28/010/2010.

BANKI, S. (2004) Refugee Integration in the Intermediate Term: a Study of Nepal, Pakistan and

Kenya, New Issues in Refugee Research, Working Paper No. 108, UNHCR Evaluation and

Policy Analysis Unit.

BBC (2010) ‘Bangladesh Accused of ‘‘Crackdown’’ on Rohingya’, 18 February, available at:

http://news.bbc.co.uk/2/hi/8521280.stm (accessed: 30 July

2011).

BERNAMA (2005) ‘Malaysia Urged not to Deport Rohingya Refugees to Burma’. BBC

Monitoring Service, 3 September 2005.

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Development Research Paper 2009/25.

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141077 (ac

cessed: 30 July 2011).

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Forced Migration in South-East Asia and East Asia

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52433.013.004

8

Forced Migration in South-East Asia and East Asia
Kirsten McConnahie
The Oxford Handbook of Refugee and Forced Migration Studies
Edited by Elena Fiddian-Qasmiyeh, Gil Loescher, Katy Long, and Nando Sigona

Oxford Handbooks Online

Abstract and Keywords

This chapter provides an overview of responses to forced migration in South-East and East Asia. It begins by
outlining the extent of forced migration throughout the region, before discussing responses to forced migration and
protection challenges in selected national contexts. The latter sections of the chapter examine two protracted
refugee situations that have dominated this regional context: refugees from Indochina (1975–1995) and refugees
from Myanmar (late 1970s–present).

Keywords: forced migration, South-East Asia, East Asia, refugees, Indochina, Myanmar

Introduction

This chapter considers forced migration in South-East Asia and East Asia, a vast region that includes Brunei
Darussalam, Cambodia, China, Hong Kong, Indonesia, Japan, Lao People’s Democratic Republic, Macau, Malaysia,
Myanmar, the Republic of Korea, the Democratic People’s Republic of Korea, the Philippines, Singapore, Thailand,
Timor-Leste, and Vietnam. The chapter opens with a broad overview of regional dimensions of forced migration.
The second section provides more detail about selected individual country contexts. The third section examines
two protracted refugee situations that have dominated this regional context: refugees from Indochina and refugees
from Myanmar.

A Regional Overview

‘South-East and East Asia’ is a region of tremendous economic, political, and social diversity. To the extent that a
shared regional experience of forced migration can be identified, it is one of large mixed migration flows but very
limited formal legal protection. Few nations in the region have ratified the 1951 Refugee Convention (with the
exception of China, Cambodia, Japan, the Republic of Korea, Timor-Leste, and the Philippines) while none has
acceded to the 1961 Convention on the Reduction of Statelessness and only one (the Philippines) has acceded to
the 1954 Convention on the Status of Stateless Persons. There is much wider acceptance of general human rights
instruments with all states in the region as signatories to the Convention on the Rights of the Child and the
Convention on the Elimination of All Forms of Discrimination Against Women; including, perhaps surprisingly, such
‘pariah states’ as Myanmar and the Democratic People’s Republic of Korea.

(p. 627) Remaining outside the global refugee regime does not mean that states in the region have refused to
grant asylum, Thailand, in particular, has absorbed large-scale refugee flows continually for the past four decades.
It does mean, however, that approaches to asylum have not been mediated by formal legal obligations. As in much
of the rest of the world, South-East and East Asian nations’ primary concern has been with controlling irregular

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migration rather than with humanitarian objectives of asylum. Furthermore, with no binding document equivalent to
the 1951 Refugee Convention or the Organization of African Unity’s regional Convention, the ‘Asian approach’ to
forced migration has been founded on respect for sovereignty and the pursuit of economic development rather
than on international human rights or refugee law (Davies 2008; Hedman 2009).

In 2013, the total ‘population of concern’ to UNHCR in South-East Asia, East Asia, and the Pacific was slightly more
than 2.75 million people. Of this population approximately 1.4 million are stateless persons, 750,000 are refugees,
and 500,000 are IDPs assisted by UNHCR (UNHCR 2013: 116). Primary refugee-generating countries in the region
include Myanmar and Vietnam and, to a much lesser extent, Indonesia, Cambodia, Laos, and the Philippines.
Primary refugee-hosting nations include Thailand, Malaysia, and again to a much lesser extent, Indonesia. There
are large IDP populations in Indonesia, Myanmar, and the Philippines. Statelessness exists throughout the region
and is the consequence of both indirect denial of citizenship (i.e. children born to refugee parents) and the direct
exclusion of particular ethnic groups. The latter includes the Rohingya, who were denied nationality by the
Burmese Citizenship Law of 1982 and have endured extreme persecution and discrimination in Myanmar and
throughout the region (Human Rights Watch 2013).

Political conflict and repression have been at the root of the largest refugee outflows in recent decades, from
Vietnam, Cambodia, Laos, North Korea, and Myanmar. Forced migration has also been catalysed by ethnic conflict,
religious persecution, state-sponsored ‘development’ projects, famine (in North Korea), and natural disaster
(including Cyclone Nargis in Myanmar and the 2011 Tōhoku earthquake in Japan). Of course, it is not always
possible to identify a single cause of displacement as multiple causes often exist simultaneously. Likewise, the line
between ‘forced’ and ‘voluntary’ migration is often hard to determine (Turton 2003). This widely recognized
problem is particularly acute in Asia, where uneven economic development across the region has generated
massive labour migration. Migrant worker transit routes intersect with smuggling and trafficking pathways, creating
extremely complex contexts of mixed migration which typify the ‘asylum-migration nexus’ (Castles and Van Hear
2005—for a critique of trafficking discourse and policy, see Anderson, this volume).

Regional agendas have primarily focused on irregular migration rather than asylum, with the recent adoption of the
Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime and a number of other
initiatives establishing a common framework. In contrast, there is no comprehensive regional strategy for refugee
protection but rather ‘weakly institutionalized regional cooperation and a patchwork (p. 628) of intra-regional
protocols and bilateral agreements’ (Hedman 2010: 34). One example of such regional cooperation is the Bangkok
Principles on the Status and Treatment of Refugees (1966). Drafted under the auspices of the intergovernmental
Asian African Legal Consultative Committee, the Bangkok Principles have been widely adopted and serve as a
guideline framework for refugee protection. However, they are merely declaratory, non-binding, and unenforceable
and as such ‘have had little discernible effect on Asian state practice in relation to refugees’ (Davies 2008: 3).

The most significant regional initiative with implications for forced migration policy is the Association of South-East
Asian Nations (ASEAN), established by the 1967 Bangkok Declaration between Malaysia, Indonesia, the Philippines,
Singapore, and Thailand and later expanded to its current membership of ten nations (with Brunei Darussalam,
Cambodia, Lao PDR, Myanmar, and Vietnam). ASEAN was established to ‘reassert individual sovereignty, mutual
protection from foreign influence and ensure that each member was equally protected from another member’s
influence’ (Cook 2010: 440). A core policy principle was that of non-interference in the affairs of other states. The
ideal of the ‘ASEAN way’ is that solidarity between ASEAN nations in public keeps a door open for private dialogue
and negotiation (Acharya 2008). This approach has had important successes in individual cases (as, for example,
in the ASEAN intervention to secure international aid access to Myanmar in the aftermath of Cyclone Nargis (Marr
2010; Cook 2010)) but it has fundamentally restricted ASEAN’s capacity to shape a regional agenda on forced
migration—at least, one that is not solely based on security objectives. While the creation of an ASEAN
Intergovernmental Commission on Human Rights (AICHR) in 2009 hinted that ASEAN may take a more active role in
developing a harmonized regional approach that reflects human rights goals, as a consensus-based institution the
AICHR is likely to be restricted by the same political relationships that inhibit ASEAN overall.

The limited institutional framework for refugee protection lends particular importance to the role of civil society. At
the regional level, the Asia Pacific Refugee Rights Network was established in 2008 to conduct advocacy,
information sharing, and capacity building on refugee rights. By 2013, it had 160 organizational members. Key
agendas include lobbying states to adopt the 1951 Refugee Convention and 1967 Protocol, and to enact domestic

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legislation to protect refugees’ rights. The APRRN has also engaged with ASEAN to raise the profile of refugee and
statelessness issues within the organization and its member nations. These agendas have been pursued at the
national level by APRRN members such as the Thai Committee for Refugees and the Japan Association for
Refugees. In addition, local community-based organizations are often crucial in providing basic resources and
assistance to forced migrants, including education, healthcare, and legal aid. Such organizations and informal
networks play a central role in protection activities in areas where international agencies have had no or limited
access (including much of Myanmar (South 2012)) as well as in the management of refugee camps in Thailand
(McConnachie 2014), and in the urban environments of Bangkok and Kuala Lumpur (Smith 2012: 15; Palmgren
2013).

(p. 629) Receiving Refugees: Selected National Contexts

The lack of formal refugee protection continues at the domestic level as most countries do not have codified
national legislation or procedures for asylum claims (with one recent exception including the Republic of Korea,
where a national Refugee Act came into force in 2013). During the Indochinese refugee crisis, camps were
established throughout the region, including in Thailand, Hong Kong, Malaysia, Indonesia, and the Philippines.
Today, in contrast to responses to refugee flows in much of Africa, relatively few refugees in South-East Asia are
confined to camps (with the notable exception of approximately 130,000 refugees from Myanmar in Thailand).

While this is broadly positive, the absence of mechanisms for verifying asylum means that refugees are not
distinguished from economic migrants and instead all are lumped together as undocumented ‘illegal’ migrants,
vulnerable to arrest, detention, and deportation. This creates acute protection challenges. Immigration detention is
widely used throughout the region but detention conditions in many countries in the region fall far short of
international standards; as, for example, in Malaysia, where punishments for immigration offences include whipping
and caning (APRRN 2013: 9).

At one end of the spectrum, Japan cooperates with the international refugee regime as both a donor country and
as a resettlement country but it also has a domestic political climate that broadly opposes immigration and a legal
system that imposes harsh penalties for illegal migration. The launch of Japan’s resettlement programme was
heralded as ‘historic’ (UNHCR 2008) but only 55 refugees were resettled in its first three years of operation (APRRN
2013).

Other countries receive much larger populations of forced migrants but ‘border control’ is all but indistinguishable
from ‘refoulement’. China is one of the few regional state parties to the 1951 Convention and during the
Indochinese refugee crisis accepted more than 300,000 Vietnamese refugees (mostly ethnic Chinese) for
resettlement. In recent refugee situations, however, its response has been rather less generous. Tens of thousands
of North Koreans have crossed illegally to China to escape famine and political and religious discrimination. Most, if
not all of those leaving would likely meet the criteria for refugee status under the 1951 Convention (Cohen 2012).
Nonetheless, if found in China they are considered irregular economic or ‘food’ migrants and returned to North
Korea where they face interrogation and detention in prison, forced labour camps, or re-education camps (Human
Rights Watch 2013; Haggard and Noland 2011). In 2012, mass repatriations were conducted to return thousands of
ethnic Kachin who fled to China after the collapse of a ceasefire between the Kachin Independence Army and the
Myanmar government. Both North Korean and Kachin women have become primary targets for trafficking in China
(Haggard and Noland 2011; KWAT 2013).

(p. 630) There are many more examples of rejections, push-backs, and refoulement across South-East and East
Asia. Khmer Krom asylum seekers who fled persecution in Vietnam have been forcibly returned from both
Cambodia and Thailand. In 2009, more than 4,000 Hmong who fled from Laos to Thailand were detained in camps
and detention centres, before being forcibly repatriated as illegal migrants (Mydans 2009). Rohingya boat arrivals
to Thailand have been pushed back or, under the euphemistically named ‘help on’ policy, provided with some
food, water, and other resources before being moved on to Malaysia or Indonesia.

Thailand and Malaysia receive the largest number of asylum seekers, though neither country has enacted
domestic legislation for the recognition and protection of refugees. Instead, huge populations of undocumented
migrants are ‘managed’ through a combination of border control, regularization campaigns, and criminal sanctions
(Hall 2012: 6). These efforts to control irregular migration sit uneasily with an economic dependence on unskilled7

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migrant labour. As Grundy-Warr (2004: 252) writes, ‘The fact is that the Kingdom of Thailand, like so many other
political economies, continues to officially restrict but unofficially (or less officially) encourage, or at least tolerate,
very large numbers of undocumented migrants on her soil.’ Undocumented migrants—a population including
potentially hundreds of thousands of people who would qualify for refugee status—thus exist in a precarious space
of tolerated illegality. They also represent a dual source of revenue to their host states: as a source of cheap
labour and as an income stream through migrant worker registration and regularization programmes (Grundy-Warr
2004: 252).

The protection environment for refugees and migrants is often bleak but there is some (albeit limited) cause for
optimism. In Malaysia, ‘illegal’ migrants live under an ever-present fear of arrest and detention, in a context where
police corruption is widespread (Smith 2012: 59–60). Nevertheless, there have been some improvements in the
treatment of refugees and asylum seekers in recent years. Refugees recognized by UNHCR and in possession of a
‘UNHCR card’ are less likely to be detained and since 2009, UNHCR has been able to negotiate the release of more
than 9,000 people from immigration detention (Crisp, Obi, and Umlas 2012: 13–14). However, thousands more
remain in detention, in a network of more than 40 camps and centres throughout the nation (Chin Refugee
Committee 2012: 25).

In 2012, the Indonesian Ministry of Foreign Affairs consulted with civil society in drafting ‘Standard Operating
Procedures’ which recognized the right to temporary asylum and right to non-refoulement and established
refugees’ entitlements to local integration, freedom of movement, right to education, right to work, and freedom of
religion. More than a year later they had still not been formally adopted by the Indonesian Government (APRRN
2013: 15).

Regional Refugee Crises

The brief introduction above gives some sense of the complexity of forced migration at the country level. In terms
of refugee situations with regional impact, the recent (p. 631) history of forced migration in South-East and East
Asia has been dominated by two situations: refugees from Indochina (1975–95) and refugees from Myanmar (late
1970s–present). These situations have obvious differences but also some important similarities, including rejection
of the international refugee regime, regional cohesion around shared political objectives, and the potential for
international cooperation in the search for durable solutions.

The Indochina Refugee Crisis

The Indochinese refugee crisis has been described as one of the ‘great population shifts in history’ (Robinson
1998: 50). Between 1975 and 1995, more than 3 million people from Vietnam, Laos, and Cambodia sought asylum in
surrounding countries. From the outset, the response of South-East Asian nations was that this massive exodus
was not their responsibility and that granting asylum would only lead to a larger influx. Instead, they consented to
provide temporary asylum only if resettlement places were secured in other nations; a position sealed when
Malaysia and Thailand began pushing back boatloads of arrivals (Loescher 1993: 87).

Initially, the majority of resettlement places were provided by the United States, a situation that echoed regional
and international perceptions of responsibility for the refugee flows and which, while hardly the preference of the
US government, also afforded significant political capital as a symbol of both the undesirability of communist
regimes and American generosity and tolerance. However, as the number of asylum seekers outpaced the number
of available resettlement places, South-East Asian nations became ‘increasingly determined, in the face of regional
instability, to maintain their domestic stability by stemming the flow of asylum seekers and guarantee international
assistance’ (Davies 2006: 14). ASEAN foreign ministers issued a joint statement that their countries had ‘reached
the limit of their endurance and would not accept any new arrivals’ unless international resettlement places were
guaranteed (Robinson 1998: 50). Tens of thousands of people who had travelled long distances in flimsy,
overcrowded boats were turned back or towed away from the Philippines, Indonesia, Singapore, and Thailand. Most
international attention was focused on the Vietnamese boat people, but even larger numbers of people were trying
to cross overland from Cambodia to Thailand. These people too were pushed back—into minefields and Khmer
Rouge controlled areas—in a process of mass refoulement as a result of which unknown numbers died (Robinson
1998).

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By July 1979, the situation had become desperate and the United Nations convened an international conference in
Geneva with the goals of preserving temporary first asylum, securing resettlement places, and reducing
clandestine departures from Vietnam. The conference was a success, as participating nations pledged 260,000
resettlement places and US$160 million in donations, and the government of Vietnam agreed to establish an
Orderly Departures Programme to permit legitimate departures (for family reunion and humanitarian cases) and
prevent clandestine departures. The situation was temporarily (p. 632) resolved, though the dynamics of its
resolution had troubling implications: violating international law had provided South-East Asian nations with the
outcome that they desired, where granting asylum had threatened to burden them with the sole responsibility for
the refugee crisis. The lesson for all concerned was that ‘hard hearts could drive hard bargains’ (Robinson 1998:
31).

For much of the next decade, resettlement places exceeded arrivals and the agreement held. As population
outflows continued into the 1980s, however, both Asian and Western nations began to view the automatic grant of
resettlement places as a ‘pull factor’ for economic migrants as well as genuine refugees. A second international
conference was convened, leading to the adoption of the Comprehensive Plan of Action (CPA) for Indochina
(1989), which maintained the same objectives as the previous agreement (to preserve temporary asylum, reduce
clandestine departures, and provide resettlement places) but added two new elements in a requirement of status
determination and the incorporation of repatriation as well as resettlement. The process would be that those
already based in camps would be resettled but all new arrivals thereafter would be screened to separate genuine
refugees from economic migrants. The former would be resettled while the latter would be repatriated.

Between 1975 and 1995, the CPA and its predecessor agreement processed the asylum claims of 1,436,556 people
and resettled 1,311,183 (UNHCR 2000: 98). More than 3 million people left Indochina during these years, and in
preserving the grant of first asylum agreement this process provided some measure of protection and security for
many of them. As such it must surely be considered a successful international response to a desperate
humanitarian emergency. As a collaborative multinational response to a regional refugee situation it also
established a powerful paradigm for north–south burden sharing (UNHCR 2006: 147; Betts 2006). Yet its impact on
regional and international refugee policy was arguably less positive. Regionally, the success of the ‘asylum for
resettlement’ bargaining strategy arguably consolidated South-East Asia as a region outside the global refugee
regime and entrenched the belief among those nations that the global refugee regime was not in their regional
interests (Davies 2006), while the scale of arrivals engendered suspicion of resettlement that would continue for
decades to come (Robinson 1998: 324).

UNHCR played a central role in securing international cooperation and the CPA process was a crucial period in the
agency’s history (Loescher 2001: 203–14). Yet here too, the lasting consequences of the operation are complex:
did UNHCR’s pragmatic approach preserve asylum and uphold the principle of non-refoulement for Indochinese
refugees, or was the agency tainted by complicity in forced repatriations and political bargaining with the right to
seek asylum (Robinson 1998; Loescher 2001: 211)? Finally, while the CPA established the potential for burden
sharing, its precedential value is questionable. Humanitarianism may have had something to do with Western
nations’ support for and participation in the CPA, but Cold War politics also played a significant role: just how
significant is perhaps most apparent when the Indochinese experience is compared with a more recent refugee
situation, that of refugees from Myanmar.

(p. 633) Myanmar’s Displaced

Where the plight of Indochinese refugees is frequently described as a crisis, forced migration from Myanmar is
more accurately described as chronic: persistent displacement over decades in a population exodus that has
been somewhat less dramatic than that of Indochinese refugees but which in numerical terms is likely comparable.
This context also differs from the Indochinese situation in that there is not one primary catalyst for forced migration
but a conjunction of causes including political violence, statelessness, religious and ethnic discrimination,
economic insecurity, and environmental disaster. The result has been a complex and continually evolving field of
forced migration, populated with multiple generations of forced migrants with very different experiences in and of
displacement (South 2007).

Myanmar was ruled by a series of military regimes from 1962 to 2011, when political leadership was nominally
transferred to a civilian government (though one in which military and former military members continue to play a

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leading role). Over its half-century of military rule Myanmar became synonymous with political oppression and the
brutal suppression of dissent. Thousands of pro-democracy activists were forced into exile, particularly in the
aftermath of public protests in 1988 and in 2007. Many more people were displaced in and from ethnic border
regions, consequent to armed conflict, discrimination and persecution, state-sponsored ‘development’ projects,
and general livelihoods insecurity (South 2007). In 2012, it was estimated that there were at least 400,000 IDPs in
south-east Myanmar alone (TBBC 2012: 2). These are predominantly members of Kayin (Karen), Kayah (Karenni),
and Mon ethnic groups in contexts of long-term displacement, in conditions which range from intense insecurity in
short-term hiding-sites, to established camps and settlements, to strictly controlled government relocation sites.
International access to these populations has been very limited but strong community protection structures have
developed, often linked to ethnic insurgency organizations or to faith-based organizations (South 2012).

Recent political liberalization in Myanmar appears to have altered patterns of displacement but has not stopped it
occurring. Displacement in eastern Myanmar was much reduced in 2012 (almost certainly related to a provisional
ceasefire between the Karen National Union and the Myanmar government) (TBBC 2012). However, during the
same period around 85,000 people were displaced in Kachin State and Shan States, and up to 140,000 Rohingya
and Burmese Muslims were displaced by sectarian violence and ethnic cleansing (UN OCHA 2013; Human Rights
Watch 2013). Stateless and persecuted in Myanmar, unwanted in Bangladesh, and often turned away from
Thailand and Malaysia, the Rohingya are one of the most vulnerable refugee populations in the world today.
However, while anti-Rohingya violence has a long heritage in Myanmar, recent attacks have also been directed at
the Kaman (a Muslim minority group who, unlike the Rohingya, are formally recognized as Burmese citizens) and
against Muslims more widely.

(p. 634) In addition to the large populations of internally displaced, more than 3 million people from Myanmar are
estimated to have crossed international borders illegally in the past two decades (Hall 2012). Only a small fraction
of these have been formally granted asylum. At the end of 2013, in Thailand, around 130,000 refugees from
Myanmar were living in nine camps in the border region, but even among this population only 82,539 were
registered with UNHCR. In Malaysia, 94,670 people from Myanmar were registered with UNHCR, but tens of
thousands more were unregistered. In late 2013, UNHCR in Malaysia undertook a ‘mobile registration’ to conduct
initial registration of asylum seekers from Myanmar. It was anticipated that up to 20,000 people would be registered
through this programme. Millions more throughout the region subsist in shadow zones as illegal migrant workers,
with all the vulnerabilities and risks that entails. In contrast to the coordinated response for refugees from
Indochina, the plight of Myanmar’s refugees has generated limited international concern. At the regional level,
Myanmar was accepted into ASEAN in 1997, and other ASEAN members have maintained a policy of ‘constructive
engagement’ based on the belief that continuing dialogue with the Myanmar regime offered the best avenue for
regional influence. The principle of non-interference largely prevailed, although ASEAN foreign ministers have
made public statements after particularly egregious actions by the Myanmar regime, expressing ‘revulsion’ after
the suppression of the ‘Saffron Revolution’ in 2007 and intervening to ensure access for international relief
agencies in the aftermath of Cyclone Nargis (Loescher and Milner 2008; Marr 2010). Given Myanmar’s position as
ASEAN Chair in 2014, the centrality of ASEAN to Myanmar’s political rehabilitation is likely to grow over the coming
years.

The absence of regional and international cooperation has been particularly damaging for prospects of durable
solution. As in most recent protracted refugee situations in the post-Cold War era (see Milner, this volume), the
primary challenge has been a lack of available durable solutions: repatriation was impossible while conflict and
political repression continued in Myanmar, and both local integration and large-scale resettlement were rejected by
host nations. Initially wary of repeating the mass influx that had occurred during the Indochinese crisis, the Royal
Thai government eventually conceded to a resettlement programme for camp-based refugees, and between 2005
and 2013 more than 100,000 refugees were resettled to third countries. However, the total population in camps
barely decreased as new arrivals came to replace those who had left. Refugees in camps in Thailand have
repeatedly claimed that their preferred durable solution is to return safely to Myanmar (Banki and Lang 2008: 78)
and for the first time in decades this is beginning to seem a credible possibility.

However, it is essential that the conditions in Myanmar permit safe return and that repatriation is truly voluntary.
This is a particularly pertinent concern in the Myanmar context, where in 1994–5, UNHCR cooperated in the forced
repatriation of 230,000 Rohingya from Bangladesh to Myanmar, returning these people to statelessness, insecurity,
and continued persecution (Loescher and Milner 2008: 313). This process serves as a tragic reminder that caution

8

9

10

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must prevail in assessing security in Myanmar.

(p. 635) As noted above, there is a high level of community organization within many of Myanmar’s displaced
populations. To ensure voluntary repatriation, it is essential that these representatives are part of any and all
discussions about return. The Karen Refugee Committee (2013) issued a statement identifying ten preconditions
that must be met for repatriation to be feasible; these points include the existence of a nationwide ceasefire;
sustainable peace; respect for human rights; the removal of landmines from relocation areas; the availability of
land for those returning; monitoring and oversight of repatriation conditions; and agreement between all concerned
organizations (including refugee community organizations) that there is a genuine peace in Myanmar. This
statement highlights many important issues that are relevant for other displaced populations from Myanmar, and
indicates the scale of the challenges that lie ahead.

The need for a ‘comprehensive’ approach to Myanmar’s displaced has been widely recognized both in terms of
the need for regional cooperation (Loescher and Milner 2008) and for the inclusion of all forced migrants (Banki
and Lang 2008). Certainly, responding to displacement is an essential task before any genuine political transition
can take place in Myanmar. However, it remains to be seen whether the expertise, resources, and political will exist
to design and sustain an appropriately wide-ranging response. In particular, it remains to be seen whether there is
a genuine political will from the Myanmar government and military, which, as yet, has singularly failed to
acknowledge its responsibility in creating one of the world’s largest and most complex displacement situations.

Conclusion

The experiences of refugees from Indochina and Myanmar highlight important dimensions of refugee protection in
the region of South-East and East Asia, notably the difficulty of protecting refugees in the absence of binding legal
obligations. Davies (2008) has argued that Asian ‘rejection’ of the 1951 Refugee Convention and 1967 Protocol is
rooted in the perception of these documents as Eurocentric and unsuited to refugee contexts in Asia. Other
commentators (Abrar 2000) have suggested that it is also due to Asian nations’ unwillingness to bind themselves to
the humanitarian obligations underwriting that system; a position bolstered by comments such as those made by
the Malaysian Foreign Minister in 2012 that accession to the Refugee Convention would create obligations ‘to treat
these people better than our own people’ (Naidu 2012).

The failure of many South-East and East Asian nations to distinguish ‘real’ refugees from ‘voluntary’ migrants has
deeply problematic consequences for forced migrants, including vulnerability to arrest and detention, to labour
exploitation and trafficking, and to refoulement. Contradictory responses to migrant labour—on the one hand,
national economic dependence, on the other, a desire to control illegal movement—place millions of vulnerable
people in a limbo-state of insecurity. However, while (p. 636) there is much to criticize in these national policy
approaches, in their fundamental objectives and strategies they conform to the approach taken throughout Europe
and America: securitization objectives, the criminalization of migration, and a culture of disbelief with regard to
asylum seekers.

This raises the question of whether adoption of the 1951 Convention regime is really the ‘solution’ to refugee
protection in South-East and East Asia. Asian nations may indeed be more likely to support the 1951 Convention
regime if it is perceived as a truly global system that pursues parity of responsibility through genuine cooperation
and burden sharing. However, enhancing the protection environment for forced migrants will also require a
transformation in perceptions of forced migration, particularly in rejecting the notion that forced migrants are
always and inevitably a threat to security. Taking into account the clear strengths of regional cohesion and a
sense of shared interests, and bearing in mind the vast numbers of forced migrants within the region, the most
effective avenue for strengthening protection may be to focus on mechanisms and strategies that work within that
context and which operate to counterbalance (if not entirely to overcome) the security priorities that have
prevailed thus far. Such strategies might include strengthening regional and domestic civil society in advocating for
domestic legislation and supporting those organizations in enabling forced migrants to enforce their rights under
such legislation.

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Notes:

(1) . UNHCR regional categories consider ‘East Asia and the Pacific’ as the geographical scope, which includes all
of the states listed above and Australia, New Zealand, Papua New Guinea, and the Pacific Island Countries. The
latter group of states are covered in McNevin’s chapter in this volume.

(2) . For ratification of human rights treaties see: . Regional
non-recognition of the 1951 Convention is reflected in the UNHCR Executive Committee with only China, Japan, and
the Philippines as current EXCOM members.

(3) . Timor-Leste experienced massive internal and cross-border displacement between 1999 and 2010. In 2010, it
was announced that there were no more IDPs in the country, though the true sustainability of returns remains
unclear (IDMC 2011: 93).

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(4) . See McDowell (this volume) regarding development induced displacement in the context of China.

(5) . Including the Regional Roundtable on Irregular Movements by Sea in the Asia-Pacific region and ASEAN
Declarations on Trafficking in Persons (2004) and the Protection and Promotion of Rights of Migrant Workers (2007).

(6) . The Bangkok Principles were revised in the late 1990s and formally readopted by the Asian-African Legal
Consultative Organization on 24 June 2001.

(7) . Thailand’s National Security Council distinguishes four target groups for a new strategy on irregular migration:
stateless people (approximately 700,000 people); illegal migrant workers (approximately 2 million people of
Myanmar, Laos, and Cambodian nationality); migrants who are ‘threats to national security’ (from Myanmar and
North Korea) and illegal immigrants who have overstayed their visa (IOM Migrant Information Note October 2012).

(8) . Myanmar has eight recognized ‘ethnic nationalities’ (Bamar, Shan, Mon, Kayah [Karenni], Kayin [Karen], Chin,
Kachin, and Rakhine) and many more ethnic subgroups.

(9) . In an earlier ‘era’ of forced migration from Myanmar to Thailand, UNHCR was permitted to register Burmese
‘students’ who fled after the suppression of election results in 1990 (Loescher and Milner 2008: 306–7).

(10) . Of 103,010 refugees and asylum seekers in total. See UNHCR Malaysia: Figures at a Glance:
.

Kirsten McConnahie
Kirsten McConnahie is the Joyce Pearce Junior Research Fellow at Lady Margaret Hall and the Refugee Studies Centre, both at
the University if Oxford.