Image Credit: Hue 1972 by manhai/ Flickr ; Licence: 2.0 Generic (CC By 2.0)

Written by Itty Abraham.

In May 2019 a workshop was convened at the National University of Singapore (NUS)* for the purpose of understanding and synthesising current knowledge on the state of relations between host communities and refugees in Southeast Asia. (For convenience, ‘refugee’ is used to mean asylum seekers, refugees and other forced migrants who have crossed international borders.)

The event brought together academics, advocates and practitioners primarily from or with expertise on Southeast Asia for two days of discussion in a closed setting. Four countries, comprising the largest refugee-hosting or -producing countries in the region – Indonesia, Malaysia, Myanmar and Thailand – were the main focus of debate.

The main refugee-hosting countries of Southeast Asia have hosted refugee populations for decades: Thailand for at least thirty-five years, Malaysia for at least twenty-five years, and Indonesia for at least fifteen years

The workshop took the following assumptions as its starting point: (1) that the absence of robust domestic legislation addressing refugees was to be expected; (2) that what might be called the ‘refugee environment’ in each country was marked by significant legal, temporal, spatial and cultural diversity; (3) that the region’s experience with hosting refugees was not a recent phenomenon; and (4) that particular attention would be given to the role played by non-state actors.

The report presented here does not seek to cover all the issues discussed at the workshop. Rather, it presents a selective synthesis of what we believe are the key themes and concerns expressed by the participants. The report offers a range of conclusions and findings based on individual and collective knowledge while also identifying gaps in our knowledge and issues that need more research.

Historical backdrop

Forced migrants have been crossing national and imperial borders in Southeast Asia since the time of the Japanese occupation (1942–1945) and the ensuing period of decolonisation. Border crossings have taken place on land and by sea, but especially the former. Many forcibly displaced people have been assimilated into border communities and become accepted as legal residents with the passage of time. A flood of refugees entered Southeast Asia and Hong Kong following the formation of the People’s Republic of China in 1949. Throughout, however, refugee admissions have largely taken place within a legal vacuum.

Most independent Southeast Asian countries, with the particular exception of the Philippines (1981), have neither signed the United Nations (UN) Refugee Convention of 1951 nor crafted domestic legislation on refugees. Some regional countries did participate in the Asian-African Legal Consultative Committee’s deliberations on refugee policy, which led to the Bangkok Principles (1966), a non-binding statement of state obligations and recommendations on dealing with refugee populations.

Turning point

Most observers would agree that the turning point with regard to regional refugee policies was the multiple military, political and humanitarian crises that came to a head in the mid-1970s with the reunification of Vietnam and the fall of the Cambodian monarchy. It was from this moment that Southeast Asian countries collectively resisted acknowledging asylum seekers as persons entitled to special consideration under customary international law, insisting instead that finding a solution to the ‘Indochina refugee crisis’, as it came to be called, was the responsibility of the international community.

In some cases, Southeast Asian states returned asylum seekers involuntarily to their country of origin; in others, they defined their role as countries of transit and temporary residence for refugees who were to be resettled elsewhere in the world. This dominant understanding – of Southeast Asian states as countries of transit and temporary residence – has shaped regional policies with regard to refugees ever since.

Transitory and temporary

This understanding is no longer tenable. While recent developments at the global level may have exacerbated the problem (the rise in nationalist and populist sentiments in the global North means developed states are increasingly unwilling to fulfil their legal obligations for refugee resettlement), Thailand, Malaysia and Indonesia have de facto been countries of final destination for refugees since at least the mid-1980s. The governments of these countries have been loath to accept this understanding of their status and continue to shape their refugee policies – to the extent that they even exist – based on assumptions of transitory impermanence.

Moreover, the received understanding of the 1970s crisis as being the starting point of the Indochina refugee crisis has led to institutional and public amnesia around earlier refugee movements and the incorporation of displaced and moving communities into local populations. There is also little acknowledgement of the way the post-1970s geopolitical context informs how states in the region today respond to refugee movements.

These combined factors – an unwillingness to acknowledge refugees’ change of status and the loss of historical memory of refugee assimilation – continue to shape policy in the primary refugee-receiving states in Southeast Asia. Yet almost every decade since the 1980s has seen at least one wave of forced migration into neighbouring countries, with Myanmar being the prime and continuing source of refugee outflows in the region.

The main refugee-hosting countries of Southeast Asia have hosted refugee populations for decades: Thailand for at least thirty-five years, Malaysia for at least twenty-five years, and Indonesia for at least fifteen years. In the absence of formal acknowledgment of this condition, it is impossible for the practical experience gained as a result to be systematised or incorporated into institutional practice.

This hands-off approach leads to the existence of multiple sovereignties in practice, with informal and socially grounded authorities contesting the formal authority of the territorial state around refugee settlements. Seen from another standpoint, what this also means is that a generation (or more) of refugees in each country have grown up there and have no lived memory of any other place of residence. Repatriation to an ostensible homeland for these young people under these conditions is no longer a ‘durable solution’, but rather becomes forced exile from the only home they have known.

This mismatch between policy and experience, reflected in the distance between state actions (and inactions) and social reality, should not be understood as an anomaly or distortion but instead seen as a characteristic condition of the refugee environment in Southeast Asia. Moreover, such a gap is not entirely malign, as it opens up a zone of ambiguity that, on many occasions, has been to the benefit both of the refugees seeking sanctuary and a means of livelihood as well as their hosts and civil society advocates offering informal protection and aid.

Refugee locations

Not all refugees are found in refugee camps. Many are residents on the margins of global cities. They may also be found in transit to a third country, in rural borderlands among ethnic kin, and incarcerated in detention centres as ‘irregular migrants’, among other sites. Each location is a distinct environment, making the character of interactions between asylum seekers and host communities hugely dependent on place.

While hospitality and hostility recur as the dominant tropes in the refugee studies literature to describe the relationship between refugees and host communities, this binary may not be the most useful frame of reference in Southeast Asia. This is due both to the conceptual limits of the guest/stranger/outsider categories that shape the refugee studies literature, and because a range of other affective relations and practices may be more relevant, from pity and charity to the religious duty to offer sanctuary to those in need.

Length of stay – a major fault line of the hospitality literature – does not appear to be prominent among the factors shaping relations between host communities and refugees in Southeast Asia. Further, there is huge variation in the extent to which the refugee is perceived as guest, outsider or stranger, based on social class, skin colour (the lighter the better), geographical origin (in general, Africans and Rohingya are treated worse than other Southeast Asian refugees), religious affiliation, proximity of the originating country, mode of arrival (air, land or sea; visa overstay or illegal entry), local understanding of the reasons for flight and, not least, linguistic familiarity.

Not surprisingly, local politics matter too. In one well-known case in eastern Malaysia (the notorious Project IC), official identity cards were handed out to irregular migrants from the Philippines in order to shape the outcome of the national elections in favour of the governing party.

If refugees are found in diverse locations, equally diverse are the ‘host’ communities they encounter and interact with. These can include local shopkeepers and urban neighbours, landlords and criminal gangs, labour recruiters, village leaders, local politicians and employers, civil society groups and advocates, religious organisations and places of worship, to name just the most common.

The state is likewise encountered at many scales and places, from the local beat policeman to the district police station and detention centres, health workers, nurses and doctors, immigration officials, court translators, prosecutors and judges. These officials often have different understandings or concerns regarding refugees and irregular migrants, adding to the ambiguities and gaps between the law and practice.

Private sector entities may also be part of the refugee experience, as when Malaysia attempted to outsource refugee registration to a digital start-up company, or when refugees attempt to open bank accounts or access remittance transfers from overseas. Finally, there are multilateral agencies such as the United Nations High Commission for Refugees (UNHCR) and the International Organisation for Migration, international advocacy groups, international charities, and aid and relief providers: all of these are another kind of ‘host’.

‘Informal’ protection

The protection of asylum seekers is considered an irreplaceable standard by international lawyers and refugee advocates, making the idea of ‘informal protection’ an oxymoron. By this measure, protection is assumed to be missing in the absence of a formal legal framework, often leading advocates to push for legislation which explicitly protects refugees from – in particular – involuntary return or ‘refoulement’ (returning a forced migrant to a country where they would be at risk of persecution).

Without questioning the importance of non-refoulement as a universal principle of refugee protection, there are also everyday modes of protection that exceed a narrow legal definition. Just as informality should be understood as a normal social condition with its own practices and opportunities, protection can also emerge from gaps and ambiguities in the law.

In Thailand, advocates have used universal obligations imposed by other international laws  – notably, the Convention on the Rights of the Child and the Convention for the Elimination of Discrimination against Women – to permit refugee children to be enrolled in public schools and for women to be released from detention centres. In Malaysia and Indonesia, civil society organisations and religious charities offer informal modes of protection through refugee schools, medical camps, home-based work and literacy programmes.

Informality may even be embedded in formal practices by recognised agencies. In Malaysia, Indonesia and Thailand, asylum seekers can register with the UNHCR to be recognised as refugees. Given the huge backlog of applications in the UNHCR field offices, it is not uncommon for there to be delays of up to three years before interviews determining refugee status are conducted. In the interim, most asylum seekers have little option but to enter into illicit and sometimes illegal relationships with landlords and employers simply in order to survive.

While the UNHCR cannot acknowledge this openly, it is aware that, given this delay in processing, registered asylum seekers have no choice but to join the informal sector. For legitimate asylum seekers who are denied refugee status in error, there is also little option but to seek refuge in the informal sector, given the risks entailed in returning to their original homes. Informality, in other words, is an everyday and ubiquitous condition in the Southeast Asian refugee environment, while protection comes in many forms, including economic, cultural and social.

The ambivalent nature of possibilities opened up through ‘informal protection’ poses particular challenges for refugees and their advocates. For some asylum seekers, a degree of sustainable protection may be found outside the law, through fortunate conjunctures of goodwill, hospitality and/or faith-based charity. However, these are ‘non-durable solutions’ which can be lost at a moment’s notice in the absence of formal protection. The concern expressed by advocates is that if regional states are pressed too hard to accept the de facto reality that they are no longer ‘temporary transit’ spaces, they may see no other option but to crack down on even these small spaces of refuge made possible through informality.

Given the range of possibilities produced by the intersections between informality and protection, formalising legal protections may paradoxically end up imposing additional burdens on asylum seekers, including onerous conditions for being recognised as a refugee and legal restrictions on working. While informality carries no small cost in terms of its precarity, it also offers needed benefits that cannot be ignored, especially the chance to work and make a living. When the informal sector becomes the locus of attention, the asylum seeker waiting to be awarded refugee status by the international community becomes indistinguishable from the irregular migrant who has crossed borders looking for work.

Criminality and rights

‘Mixed’ migration is now a characteristic feature of international migration flows around the world. In the informal sectors of global cities such as Kuala Lumpur, Bangkok and Jakarta, internal migrants live alongside undocumented international migrants, while political refugees join with ‘economic’ migrants seeking work, making it difficult for state authorities to separate and distinguish ‘legitimate residents’ from irregular migrants due to their incomplete or partial legibility.

With the fear of international terrorism amplified due to endless conflicts and constantly reiterated through public anxiety, many governments have come to see all migration-related problems through the lens of state insecurity, leading to the denial of established rights and protections in the interests of public safety. This tendency has been given institutional shape through Australia’s effort to prevent refugees from reaching their shores in the form of its notorious turn-back policy (Operation Sovereign Borders), which effectively criminalises asylum seekers and places the burden of interdiction on ‘transit’ countries.

Host governments are also concerned about political activism among refugee populations, for fear of endangering inter-state relations with neighbours. This concern is an especially fraught one in Southeast Asia, given the importance awarded to the norm of non-interference in the domestic affairs of other regional states. These tendencies have led to a weakening of informal refugee protection, with no sustainable alternatives emerging. In addition, it must be recognised that in environments where the protection of citizenship and the provision of economic rights are in abeyance, working to strengthen the rights of refugees may generate hostile local reactions.

Efforts by the international community to protect refugees by awarding them universal rights can lead to them being seen as a special and unwelcome category within the informal sector, a setting where citizens and migrants alike have a weak claim on the privileges of citizenship (public service delivery, right to a livelihood, etc.) and find themselves in competition for scarce jobs and economic resources.

Conclusion

This report seeks to reminds us of a long and largely forgotten history of refugee inclusion and asylum provision in a number of Southeast Asian states that are not signatories to the 1951 UN Refugee Convention. It also affirms a quality of refugee protection that is at odds with the hostility currently projected at asylum seekers by numerous developed states that have signed the Convention.

The report identifies the current policy vacuum in the region as the outcome of contemporary denial, itself a product of historical amnesia and overemphasis on the received memory of the Indochina refugee crisis dating back to the 1970s. It offers an alternative historical account of the refugee environment in Southeast Asia, emphasising the diversity of refugee and host community identities and the ensuing complexity of their mutual relations.

The report also points to the increased securitisation of international migration flows and its negative implications for urban refugees in particular. Finally, the report acknowledges the latent tension between marginal and subaltern host communities and refugees when the selective provision of universal rights becomes the main focus of refugee advocacy.

Informality – the prevailing condition of the refugee environment in Southeast Asia – is not an unmitigated bad, this report argues. Yet for all the short-term possibilities that informality offers in the context of a legal vacuum, it would be irresponsible to propose that it produces desirable or sustainable outcomes, whether for refugees or other irregular migrants. While all refugee crises are by definition transnational and regional, seeking a purely regional or international solution to the problems faced and produced by refugees does not appear to be practical.

There are at least two reasons for this. The first is the political unwillingness of Southeast Asian states to hold responsible the main cause of regional refugee flows, namely, Myanmar. The second is the effective breakdown of the international refugee regime, with so many countries now behaving in ways which explicitly violate their obligations under the UN Refugee Convention, most notably the United States and Australia.

While there are no easy or individual answers to these problems, some of us believe there is greater hope for sustainable solutions at the national (or in some cases sub-national) level, while others insist there is still space for international/regional action in order to stabilise the system, not least burden-sharing. Some judicious combination of the two levels is probably the most effective response.

State officials rarely want to take the lead in designing new refugee policies for fear of engendering pull forces that attract refugees to their shores. They may well be right, although there is no research-based evidence to support this conclusion. What does remain true is that, by and large and with some exceptions, national publics have often shown a willingness to be tolerant and welcoming of forcibly displaced communities.

Bridging this gap between states and their societies is an enormous challenge that is made worse by the limited time available to make it happen: it is obvious that this problem is only going to get worse and will be experienced more indiscriminately in the future as the numbers of forcibly displaced people around the world increase – for reasons which go beyond the political, including climate change and natural disasters. Given what we already know, it is important to explore solutions that do not begin with the elimination of informality.

Looking ahead, we consider there are two urgent imperatives. First, that academics and the policy research community produce the evidence and analysis needed to underpin innovative and sustainable responses to refugee movements, beginning with contemporary and historical experience rather than unfounded assumptions about the nature of the refugee environment. And second, that national governments in the region, despite their non-signatory status, find ways to come to terms with the fact that they are simultaneously countries of transit and of temporary, short-term and long-term residence for refugees, and then develop policies from that starting point.

It is clear that the status quo cannot continue indefinitely and that active rather than reactive or passive stances are needed now.

Itty Abraham is a professor in the department of Southeast Asain Studies, National University of Singapore (NUS). 

* The workshop was funded by the Faculty of Arts and Social Sciences of the NUS.

**Articles published by The Asia Dialogue represent the views of the author(s) and not necessarily those of The Asia Dialogue or affiliated institutions.

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