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A New History of Refugee Protection in Post-World War Two Southeast Asia: Lessons from the Global South

Published online by Cambridge University Press:  26 August 2022

Natasha Emma YACOUB*
Affiliation:
University of New South Wales, Sydney, Australia

Abstract

This article proposes re-thinking the history of refugee protection in the Southeast Asia region, focusing on the post-World War Two period (1945–1979). It fills a gap in the literature on this period, drawing on archival material. It disrupts a narrative of “human rights exceptionalism” in Southeast Asia. First, it examines the small but powerful role of Southeast Asian states during the drafting of the 1951 Convention relating to the Status of Refugees. These states challenged colonial powers and asserted human rights. Second, it considers the role of key refugee-hosting states in Southeast Asia in developing—with other post-colonial states—regional standards to protect refugees under the auspices of the Asian-African Legal Consultative Committee, the Aliens Principles of 1961 and Bangkok Principles of 1966. Third, it places international and regional action in the domestic context by drawing on the example of Thailand's protection of Vietnamese refugees. It concludes that the approach in the post-WWII years points to an extended history of protecting refugees in Southeast Asia, and valuable lessons from the Global South for the region and beyond.

Type
Article
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the Asian Society of International Law

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References

1 MUNTARBHORN, Vitit, The Status of Refugees in Asia (New York: Clarendon Press, 1992) at 3-4Google Scholar. “Southeast Asia” as a region is defined as the Association of South East Asian States in this article. Debates around the definition of the region are outside the scope of this article.

2 DAVIES, Sara Ellen, Legitimising Rejection: International Refugee Law in Southeast Asia (Boston: Martinus Nijhoff Publishers, 2007)CrossRefGoogle Scholar.

3 1979 is when a multilateral agreement was signed to address the exodus of Indochinese refugees following the 1979 Geneva Conference (discussed further in section 5 below). Prior to this date, there is a gap in the literature.

4 United Nations General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, GA Res. 429(V), 189 U.N.T.S. 150 (entered into force 22 April 1954). Even though this treaty was limited to events occurring in Europe, until the 1967 Protocol removed this limitation, it was open for signature universally in the post-WWII period and several countries outside Europe acceded to it before 1967 (e.g. Australia, Ecuador).

5 This paper assesses refugee protection in Southeast Asia that aligned with the standards in the 1951 Refugee Convention. This is not to say that these laws or the practice of these states was perfect, which would not conform with the reality of refugee protection anywhere in the world. Potential breaches of the 1951 Refugee Convention are outside the scope of the article.

6 CHIMNI, B.S., “The Geopolitics of Refugee Studies: A View from the Global South” (1998) 11 Journal of Refugee Studies 350CrossRefGoogle Scholar.

7 A seminal text on state practice in refugee protection in South Asia, see Pia OBEROI, Exile and Belonging: Refugees and State Policy in South Asia (Oxford: Oxford University Press, 2006). Also, Ramasubramanyam examines the ad hoc protection mechanisms that have been established in the South Asia region, noting the “lacunae that persist with respect to conceptualizing displacement” in the region: RAMASUBRAMANYAM, Jay, “Regional Refugee Regimes” in COSTELLO, Cathryn, FOSTER, Michelle and MCADAM, Jane, eds., The Oxford Handbook of International Refugee Law (Oxford: Oxford University Press, 2021) 407Google Scholar. For state practices of non-signatory states outside Asia, in Latin America, and other states in the post-WWII period, see: VERNANT, Jacques, The Refugee in the Post-War World (London: Allen & Unwin, 1953) at 3Google Scholar. For a perspective of refugee protection in Southeast Asia after WWII, drawing on Thai Cabinet material (in Thai), see: Natasha YACOUB, Bongkot NAPAUMPORN, “Regional Refugee Protection in Southeast Asia in the post-World War Two decades: De-colonising the Narratives”, in Susan KNEEBONE, Antje MISSBACH and Reyvi MARINAS, eds., Rethinking Refugee Protection in Southeast Asia: Between Responsibility and Sovereignty (forthcoming).

8 A seminal text on national refugee law and protection in Southeast Asia, focusing on the 1970s onward, is: Muntarbhorn, supra note 1.

9 Several ASEAN member states developed inter-regional refugee standards in the 1960s under the auspices of the Asian-African Legal Consultative Committee (AALCC), a grouping that emerged from the Conference between African and Asian states, most of which were newly independent, in Bandung in Indonesia in 1955. The AALCC's objective, stated in Article 1 of its Statute, includes: “to serve as an advisory body to its Member States in the field of international law and as a forum for Asian-African co-operation in legal matters of common concern…”. The original membership of AALCC in 1956 was Burma, India, Indonesia, Iraq, Japan, Sri Lanka and Egypt. In 1961, Thailand became a member. The Committee now has forty-seven Asian-African Members, including all ASEAN nations.

10 Principles Concerning Admission and Treatment of Aliens (25 February 1961) [Aliens Principles].

11 Bangkok Principles on the Status and Treatment of Refugees (17 August 1966) [Bangkok Principles].

12 The term “Indochina” originally referred to French Indochina (Vietnam, Laos and Cambodia) and later referred to a geographic rather than political area. The Second Indochinese War (1955–1975) began as a conflict between the United States-backed South Vietnamese government and its North Vietnamese-based communist opponents (supported by China and the Soviet Union). Fighting also occurred during this time in Cambodia and Laos between the US-backed government and Communist forces. A series of related conflicts followed. For a detailed analysis of displacement during these wars, see: United Nations High Commissioner for Refugees, Chapter 4 “Flight from Indochina” in State of the World's Refugees (Geneva: UNHCR, 2000) at 79-83.

13 For example: MATHEW, Penelope and HARLEY, Tristan, Refugees, Regionalism and Responsibility (Cheltenham: Edward Elgar Publishing, 2016)CrossRefGoogle Scholar; MORETTI, Sébastien, The Protection of Refugees in Southeast Asia: A Legal Fiction (Abingdon: Routledge, 2022)CrossRefGoogle Scholar; ROBINSON, W.C., “The Comprehensive Plan of Action for Indochinese Refugees, 1989-1997: Sharing the Burden and Passing the Buck” (2004) 17 Journal of Refugee Studies 3CrossRefGoogle Scholar; Davies, supra note 2; and UNHCR, supra note 10 at 79-103.

14 From the late 1970s, a number of multilateral arrangements were developed to address the large numbers of refugees leaving the Laos People's Democratic Republic and Vietnam by sea (Rescue-at-Sea Resettlement Offers Scheme and the Disembarkation Resettlement Offers Scheme). These agreements preceded the CPA.

15 UNHCR, supra note 12 at 84.

16 What was agreed was: resettlement states to take those found to be refugees according to individual status determination processes (until a certain ‘cut-off’ was reached); ASEAN states (plus Hong Kong) to offer first asylum; and Vietnam to facilitate return and prevent “clandestine departures”. See: Alexander BETTS, “Comprehensive Plans of Action: Lessons from CIREFCA and the Indochinese CPA”, UNHCR, New Issues in Refugee Research, Working Paper No. 120, January 2006 at 86.

17 UNHCR, supra note 12 at 84.

18 Although Southeast Asian states gained independence from Western powers over a period spanning almost four decades, the majority gained independence between 1948 and 1963. The dates of independence from Western colonial powers are as follows: Brunei, 1948 (from Britain); Burma, 1948 (from Britain); Cambodia, 1953 (from France); Indonesia, 1949 (from Holland); Laos, 1953 (from France); Malaya, 1957 (from Britain); the Republic of the Philippines, 1946 (from the United States); Singapore, 1963 (from Britain); Vietnam, 1954 (from France).

19 Damien KINGSBURY and Leena AVONIUS, “Introduction” in Damien KINGSBURY and Leena AVONIUS, eds., Human Rights in Asia: A Reassessment of the Asian Values Debate (New York: Springer, 2008) 1.

20 SAUL, Ben, MOWBRAY, Jacqueline and BAGHOOMIANS, IreneThe Last Frontier of Human Rights Protection: Interrogating Resistance to Regional Cooperation in the Asia-Pacific” (2011) 18(23) Australian International Law Journal 23Google Scholar. For a summary of the ‘Asian way’ to approach human rights, see: MAUZY, D., “The human rights and ‘Asian values’ debate in Southeast Asia: Trying to clarify the key issues” (1997) 10(2) The Pacific Review 210CrossRefGoogle Scholar.

21 PISANÒ, Attilio, “Human Rights and Sovereignty in the ASEAN Path Towards a Human Rights Declaration” (2014) 15(4) Human Rights Law Review 391 at 409Google Scholar.

22 For example, Thabchumpon argues that the “Asian values” discourse was never really adopted by Thailand, but politicians would use rhetoric about the Thai style of human rights to suit their own purposes: Naruemon THABCHUMPON, “Human Rights in Thailand: Rhetoric or Substance on ‘Asian Values’” in Damien KINGSBURY and Leena Avonius, eds., Human Rights in Asia: A Reassessment of the Asian Values Debate (New York: Palgrave Macmillan, 2008) 141. Also, Renshaw explains how ‘tiger economies’ used the rhetoric of ‘human rights exceptionalism’ for their political advantage in the late 1990s. RENSHAW, Catherine Shanahan, “The ASEAN Human Rights Declaration 2012” (2013) 13(3) Human Rights Law Review 557CrossRefGoogle Scholar.

23 UNHCR, supra note 12 at 79-103. See also Robinson, supra note 13 at 3

24 Davies explains that it is difficult to determine who is a refugee; that the term “illegal immigrant” is automatically used in the absence of refugee status determination procedures; and there is a bifurcated approach to refugees and migrants that may be linked to the use of ‘illegal immigrant’ for people requiring protection. Davies, supra note 2 at 7-8.

25 Within the region, refugees remain in limbo without access to legal status or the legal right to work, subject to arrest and detention policies. For an overview of refugee protection in Southeast Asia, see Vitit MUNTARBHORN, “Regional Refugee Systems – Southeast Asia” in Catherine COSTELLO, Michelle FOSTER and Jane MCADAM, eds., Oxford Handbook of International Refugee Law (Oxford: Oxford University Press, 2021) 363.

26 Natasha YACOUB, Nikola ERRINGTON, Wai Wai NU, and Alexandra ROBINSON, “Rights Adrift: Sexual Violence Against Rohingya Women on the Andaman Sea” (2021) 22(1) Asia-Pacific Journal on Human Rights and the Law 96.

27 For example, Davies, supra note 2.

28 All but four ASEAN states (Brunei Darussalam, Malaysia, Myanmar, Singapore) have ratified the International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171 (entered into force 23 March 1976) [ICCPR]. All states have ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 U.N.T.S. 85, UN Doc. A/RES/39/46 (entered into force 26 June 1987) [CAT] except Malaysia, Myanmar and Singapore. Brunei Darussalam has signed and not ratified the CAT. There has been universal ratification of three human rights treaties in Southeast Asia: Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, 1249 U.N.T.S. 13, UN Doc. A/34/36 (entered into force 3 September 1981) [CEDAW]; Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3, UN Doc. A/RES/44/25 (entered into force 2 September 1990) [CRC]; and Convention on the Rights of Persons with Disabilities, 24 January 2007, 2515 U.N.T.S. 3 (entered into force 3 May 2008) [CPRD]. Notably, Malaysia and Brunei Darussalam ratified CEDAW, CRC and CPRD but none of the other core international human rights law treaties.

29 Saul, Mowbray, and Baghoomians, supra note 20 at 23.

30 For a thought-provoking piece on the dominance of states of the Global North in drafting the 1951 Refugee Convention and its lasting effect, see: KRAUSE, Ulrike, “Colonial roots of the 1951 Refugee Convention and its effects on the global refugee regime” (2021) 24 Journal of International Relations and Development 599Google Scholar.

31 Singapore, as a British Colonial Territory, participated the Ad Hoc Committee on Statelessness and Related Problems in 1950, raising in the context of statelessness the need for states to recognise travel documents. See: Memorandum Submitted by the Representative of the International Refugee Organisation, United Nations Economic and Social Council, Ad Hoc Committee on Statelessness and Related Problems, UN Doc E/AC.32/L.39 (19 February 1950) at 2.

32 Draft Convention relating to the Status of Refugees - Memorandum Prepared by the Legal Department, United Nations General Assembly, UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, UN Doc A/CONF.2/21 (3 July 1951) [Draft Convention on Refugee Status].

33 Ibid., at 16.

34 “Colonial clause” as recommended in General Assembly Resolution 422(V): see Draft Convention on Refugee Status, ibid., at 21.

35 Ibid., at 16.

36 Ibid. at 13.

37 Ibid.

38 SEATO was established through the Southeast Asia Collective Defence Treaty, 209 U.N.T.S. 24 (entered into force 19 February 1955) also known as the Manila Pact.

39 The Australian Embassy provided the text of a letter presented by the Thai representative in a closed session of the Council of Representatives of SEATO on 18 March 1959. It stated that the Vietnamese had entered Thailand at the end of WWII. He said that they are estimated to be 50,000 and were generally law-abiding. However, there are a few Communists who have infiltrated the group and “have engaged in subversive activities at the detriment of Thailand's security”. The Thai representative called on SEATO to help to solve the problem. Australia reported that SEATO decided it should not get involved in the repatriation because it would cause problems with Communists. SEATO remained seized of the issue. See SEATO – Vietnamese in Thailand – Manila Treaty, Memo 2515/4 to the Secretary of the Department of External Affairs (Canberra) from the Australian Embassy in Bangkok, (20 March 1959).

40 “About AALCO”, online: Asian African Legal Consultative Organisation <https://www.aalco.int/about>.

41 There are presently 47 members: Arab Republic of Egypt; Bahrain; Bangladesh; Brunei Darussalam; Cameroon; Cyprus; Democratic People's Republic of Korea; The Gambia; Ghana; India; Indonesia; Iraq; Islamic Republic of Iran; Japan; Jordan; Kenya; Kuwait; Lebanon; Libya; Malaysia; Mauritius; Mongolia; Myanmar; Nepal; Nigeria; Oman; Pakistan; People's Republic of China; Qatar; Republic of Korea; Saudi Arabia; Senegal; Sierra Leone; Singapore; Somalia; South Africa, Sri Lanka; State of Palestine; Sudan; Syria; Tanzania; Thailand; Turkey; Uganda; United Arab Emirates; Socialist Republic of Vietnam and Republic of Yemen.

42 Aliens Principles, supra note 10.

43 For example: Burma: Registration of Foreigners Rules, 1948, 4 January 1949; Philippines: Act No. 562 of 1950, Alien Registration Act, 17 June 1950; Thailand Alien Registration Act B.E. 2493 (1950), 14 December 1950.

44 AALCC Secretariat, ‘Final Report of the Committee on the Status of Aliens’, in AALCC, Report of the Fourth Session, Tokyo, Asian-African Legal Consultative Committee Secretariat, February 1961, at 10-2 [AALCC Fourth Session Report].

45 Ibid., at 54.

46 See section below for an example of state practice in Thailand.

47 AALCC Fourth Session Report, supra note 45 at 68.

48 Ibid., at 67.

49 Ibid., at 68.

50 Ibid..

51 Ibid., at 71.

52 Ibid., at 72.

53 Ibid., at 75.

54 Ibid.., at 77-80.

55 AALCC, Report of the Eighth Session, Bangkok, Asian-African Legal Consultative Committee Secretariat, 1966 [AALCC Eighth Session Report].

56 AALCC, Report of the Sixth Session, Cairo, Asian-African Legal Consultative Committee Secretariat, March 1964, at 11-5.

57 AALCC, Report of the Seventh Session, Baghdad, Asian-African Legal Consultative Committee Secretariat, 1965, at 8.

58 Ibid., at 9.

59 Ibid.

60 Ibid., at 28-31.

61 Ibid., at 26.

62 Burma was a member of AALCC but did not send a representative. AALCC Eighth Session Report, supra note 56 at 15-19.

63 Ibid., at 9-10.

64 There is no explicit mention of the right to return or right to compensation in the 1951 Refugee Convention.

65 AALCC Eighth Session Report, supra note 56 at 214.

66 SEN, B., “Protection of Refugees: Bangkok Principles and After” (1992) 34(2) Journal of the Indian Law Institute 187 at 207Google Scholar.

67 AALCC Eighth Session Report, supra note 56 at 215.

68 Ibid., at 216.

70 GARRY, Hannah R, “The Right to Compensation and Refugee Flows: A ‘Preventative Mechanism' in International Law?” (1998) 10(1) International Journal of Refugee Law 97CrossRefGoogle Scholar.

71 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa, 10 September 1969, 1001 U.N.T.S. 45 (entered into force 20 June 1974), online: Refworld <https://www.refworld.org/publisher,OAU,,,3ae6b36018,0.html> [OAU Convention].

72 Note that the Bangkok Principles were again revised and adopted on 24 June 2001 at the 45th Session in New Delhi.

73 Article 1A(2) of the 1951 Refugee Convention defines as a refugee a person who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

74 Article I of the Bangkok Principles, supra note 11.

75 Ibid., at Article II.

76 Ibid., at Article 1V(6).

77 Ibid., at Article 1V(7).

78 Ibid., at Article 1V(8).

79 AALCC Eighth Session Report, supra note 56.

80 Davies, supra note 2 at 4.

81 The Committee drew on General Assembly resolutions that emphasised the right of refugees to return to their homelands and reaffirm the right of those who do not wish to return to receive adequate compensation. It should be noted that these rights have not acquired the status of customary international law. Garry, supra note 70.

82 MORETTI, Sébastien, “Southeast Asia and the 1951 Convention relating to the Status of Refugees: Substance without Form?” (2021) 33(2) International Journal of Refugee Law 214 at 214CrossRefGoogle Scholar.

83 Ibid., at 229.

84 Article IX(3) Bangkok Principles: “A refugee shall not be deported or returned to a State or Country where his [or her] life or liberty would be threatened for reasons of race, colour, religion, political belief or membership of a particular social group.” In this formulation, the exceptions of “national security” or “safeguarding the populations” are left open to broad interpretation and potential breach of the international law prohibition of refoulement. However, Moretti points out that this does not make any difference in practice: ibid.

85 For example, some 700,000 Chinese nationals fled China in 1949 following the Communist take-over, many hosted by Southeast Asian states. Davies, supra note 2 at 1. Note that the total numbers of Chinese refugees fleeing China during the Cold War was much higher, with an estimated 1.5 million Chinese people fleeing to Hong Kong in the 1950s alone, cited in Laura MADOKORO, Elusive Refuge: Chinese Migrants in the Cold War (Harvard: Harvard University Press, 2016).

86 The first Indochina war concluded after the defeat of the French in May 1954 with the establishment of a communist state in the north (the Democratic Republic of Vietnam) and a separate state in the south (the Republic of Vietnam). With the founding of a communist government in the north, more than a million people moved south between 1954 and 1956. See: UNHCR, supra note 12 at 80.

87 A review of over 6,000 pages in these archives uncovered material about the approach to refugee protection in Thailand (regarding individuals fleeing Vietnam, Burma and Cambodia); Malaysia (regarding persons fleeing the Philippines and China); and Indonesia (regarding persons fleeing from India and China). The present paper focuses on refugees from Vietnam in Thailand.

88 Muntarbhorn explains that Thailand hosted Vietnamese refugees from two centuries ago. Mon people sought refuge in Thailand and were able to integrate, owing to common characteristics with Thai people. Under King Rama IV, one century ago, they acquired Thai nationality; see: Vitit MUNTARBHORN, “Refugees: Law and National Policy Concerning Displaced Persons and Illegal Immigrants in Thailand” (1986) 1 Thammasat Law Journal.

89 Bangkok was a small trading post during the Ayutthaya Kingdom in the 15th century, which eventually grew and became the site of two capital cities: Thonburi in 1768 and Rattanakosin in 1782. The ‘Bangkok period’ is that from 1782 until the present, a time when political power in Thailand has been centralised in Bangkok, ibid., at 233–4.

90 Kusol VAROPHAS, “The Vietnamese Refugees in Thailand” (1966) 128(4) World Affairs 233.

91 All copies of the Thai Gazette (official English translation) at the National Archives of Australia from 1945 to 1970 were reviewed in preparation of this article.

92 Doreen LUSTIG, “Governance Histories of International Law” in Markus D. DUBBER and Christopher L. TOMLINS, eds., The Oxford Handbook of Legal History (Oxford: Oxford University Press, 2018) 850, at 863-864.

93 Nguyen Anh Tai undertook interviews with Vietnamese refugees who fled in 1946 as well as Thai officials in charge of managing them. Several interviews with refugees highlight the welcome received initially from the Thai government and people. For example:

Dang Bang, a 79 year old Viet Kieu, from Nakhon Phanom. He still showed his gratitude towards the help from Thai people when he fled from Laos to the northeast of Thailand. At that time, the locals and soldiers went to the Mekong river bank to welcome Viet Kieu and carried food with them to give to Viet Kieu. Thai people were so kind to help Viet Kieu by using small boats to pick up Viet Kieu swimming across the Mekong to avoid French slaughter. Moreover, the locals helped the new comers to stabilize their lives by providing food, accommodation and also their sympathy.

See: Nguyen Anh TAI, “Thai-Vietnamese Relations During the First Indochina War (1946-1954)”, Masters’ Thesis, Chulalongkorn University, 2009, at 70.

94 While Thailand allowed significant number of refugees from China and Burma refuge in the country, the approach to their protection was different and is beyond the scope of this study.

95 Peter A. POOLE, “Thailand's Vietnamese Refugees: Can They Be Assimilated?” (1967) 40 Pacific Affairs 324, at 329.

96 Police Major-General Chan ANSUCHOTE, “The Vietnamese Refugees in Thailand: A Case Study in Decision-Making”, Master's thesis, Thammasat University, Bangkok, 1960, Appendix. Cited in: POOLE, Peter A., “Thailand's Vietnamese Minority” (1967) 7(12) Asian Survey, University of California Press 886, at 889Google Scholar.

97 Some refugees obtained legal status as ‘registered aliens’, although not many. By 1963 only 2,008 men and 1,152 women had managed to obtain this status. Statistical Yearbook, Thailand, No. 26 (Bangkok: National Statistical Office 1967). Quoted in Poole, ibid., at 887.

98 Kusol Varophas notes that more than 3,000 alien registration cards had been given to Vietnamese in the “latest figures” in 1966; Varophas, supra note 90 at 234.

99 Kusol Varophas notes that more than 3,000 alien registration cards had been given to Vietnamese in the “latest figures” in 1966. Ibid., at 234.

100 Ansuchote, supra note 96 at 889.

101 Ibid.

102 Muntarbhorn, supra note 1 at 7.

103 For an examination of the refugee definition in group contexts, see: JACKSON, Ivor C., The Refugee Concept in Group Situations (the Hague; Boston: Martinus Nijhoff Publishers, 1999)CrossRefGoogle Scholar.

104 While the majority of Chinese nationals entering Thailand in the Bangkok period, since 1782, had been seeking work, some Chinese nationalists fled to eastern Thailand opposing the formation of the People's Republic of China in the late 1940s. Many of the latter were perceived to be part of an armed resistance and not treated as refugees.

105 Muntarbhorn, supra note 1 at 129.

106 Ansuchote, supra note 96 at 889.

107 The Vietnamese Lawyers Association explained that: “the Vietnamese nationals from 16 years of age upwards were granted passes to move through Thai territory and were recognised as legal political refugees”. Lawyers Against Continued Repression of Vietnamese in Thailand, finalized by the Vietnamese Lawyers Association, National Archives of Australia: A1838, 3010/2/5/3 (1959).

108 Ibid.

109 Poole, supra note 95 at 326.

110 Children were encouraged by their communities to enter Thai pagoda schools, where they often formed a large percentage of the school population. This provided an opportunity for the children to “learn respect for the Thai monarchy and Buddhism”. Ibid., at 330.

111 Between 1912 and 1945, there were Vietnamese refugees trickling into Thailand from Central Vietnam, mostly as a result of their opposition to the French authorities. They fled via Laos to Thailand and settled in Nakhorn Phanom province on the bank of the Mekong. Interestingly, Varophas observed that the majority of these refugees automatically acquired Thai citizenship between 1912 and 1937 “due to the absence of immigration law”. Varophas, supra note 90 at 234.

112 Australian diplomats advised, in de-classified reports from 1958, that at the Bandung Conference in April 1955, Thai Prince Wan discussed the issue of repatriation with the Viet Minh Foreign Minister. However, the return could not be carried out since the Thai government did not want to recognise the Viet Minh government and Laos would not allow repatriation through its territory. Moreover, the report indicated that Thai police were also taking money from the Vietnamese and possibly did not want to lose this income; Thailand Migration Policy – Repatriation of Refugees, Memo 538/58 to the Secretary of the Department of External Affairs (Canberra) from the Australian Embassy in Bangkok, National Archives of Australia: A1838, 3010/1/4 Part 1, Thailand Migration Policy (1958), at para. 3 [Thailand – Repatriation of Refugees].

113 The Problem of the Vietnamese Refugees in Thailand, Confidential report from P.I.B. No. 20, National Archives of Australia: A1838, 2498/4, Vietnamese in Thailand – Manila Treaty (1959).

114 Poole, supra note 95 at 325.

115 Inward Savingram from the Australian Embassy Bangkok to the Department of External Affairs Canberra, prepared by the Department of External Affairs, National Archives of Australia: A1838, 3006/6/3 Part 1, Thailand relations with North Vietnam (1959), at [p. 42].

116 Poole, supra note 95 at 325.

117 Poole, supra note 96 at 887.

118 See also, Article VII of the Bangkok Principles, supra note 11.

119 Sébastien Moretti, “Keeping up Appearances: State Sovereignty and the Protection of Refugees in Southeast Asia” (2018) 17(1) European Journal of East Asian Studies 3 at 12–6. See also Vitit MUNTARBHORN, “Discourses and Sources” in Vitit MUNTARBHORN, ed., Challenges of International Law in the Asian Region (Singapore: Springer, 2021) 1.

120 Davies, supra note 2.

121 Ibid.

122 For example, Helton explained that Thailand, for example, initially reacted at times with ‘apparent compassion’, and at other times with ‘callousness’. See: HELTON, Arthur C., “Asylum and Refugee Protection in Thailand” (1989) 1(1) International Journal of Refugee Law 20, at 21CrossRefGoogle Scholar.

123 Robinson, supra note 13 at 319.

124 Helton, supra note 122 at 24.

125 Robinson, supra note 12 at 319.

126 Ibid., at 320.

127 TOWLE, Richard, ‘Processes and Critiques of the Indo-Chinese Comprehensive Plan of Action: An Instrument of International Burden-Sharing?’ (2006) 18 International Journal of Refugee Law 537 at 540CrossRefGoogle Scholar.

128 Robinson explains the change:

Western states, faced with a rising tide of asylum-seekers at their own doors and persuaded that the Indochinese arrivals no longer warranted automatic refugee status, gradually had been reducing resettlement numbers and introducing more selective criteria. The agreement of 1979—first asylum for third-country resettlement—no longer held. Indeed, it seemed to some that open-ended resettlement, at least in part, was perpetuating an open-ended need for asylum.

Robinson, supra note 13 at 320.

129 The language surrounding “clandestine departures” shows the approach of states to refugees seeking asylum by sea had changed and was hardening.

130 Robinson, supra note 13 at 320.

131 Betts, supra note 16 at 86.

132 The involuntary and voluntary return of some 80,000 Vietnamese under the CPA, in which UNHCR was involved, has been described to be “problematic at best” for refugee protection; Robinson, supra note 13 at 331.

133 Alistair D. B. COOK, “Search for Responsibility: The Search for Solutions to Irregular Migration in Southeast Asia” (2016) 5 Middle East Institute 1

134 Robinson, supra note 13 at 324.

135 The level of engagement of Global North states, such as the United States, in resettling refugees from Vietnam was motivated as much by humanitarian concerns as it was political interests. It can be attributed to the responsibility for causing the displacement, following the United States’ involvement in the Vietnam War.

136 Volker TÜRK and Madeline GARLICK, “From Burdens and Responsibilities to Opportunities: The Comprehensive Refugee Response Framework and a Global Compact on Refugees” (2016) 28(4) International Journal of Refugee Law 656 at 667.

137 Office of the United Nations High Commissioner for Refugees: International Conference on Indo-Chinese Refugees: Report of the Secretary-General, United Nations General Assembly, A/44/523, 22 September 1989. However, not all solutions were ideal. Voluntary and involuntary repatriation of some 80,000 Vietnamese under the CPA involved force, and for refugee protection was “problematic at best”. See Robinson, supra note 13 at 331.

138 For example, Hathaway states that the CPA not only ended a presumption of refugee status for Vietnamese but “implicitly stigmatized Vietnamese asylum-seekers as economic by calling for departure procedures and migration programmes…with a view to making such programs the primary and event”; See: HATHAWAY, James C., “Labelling the ‘Boat People’: The Failure of the Human Rights Mandate of the Comprehensive Plan of Action for Indochinese Refugees” (1993) 15(4) Human Rights Quarterly 686 at 689CrossRefGoogle Scholar.

139 Robinson, supra note 13 at 319. See also: R. TOWLE, “Processes and critiques of the Indo-Chinese Comprehensive Plan of Action: an instrument of international burden-sharing?” (2006) 18 International Journal of Refugee Law 537, at 568; Sara E. DAVIES, “Saving refugees or saving borders? Southeast Asian States and the Indochinese refugee crisis” (2006) 18(1) Global Change, Peace & Security 3; Antje KLUG, “Enhancing Refugee Protection in the Asia-Pacific Region” (2013) 107 Proceedings of the Annual American Society of International Law Meeting 358.

140 Davies, ibid., at 3.

141 Tendayi E. ACHIUME “Migration as Decolonization” (2019) 71 Stanford Law Review 1509, at 1542.

142 Article VIII(2) states: “States shall promote comprehensive approaches, including a mix of solutions involving all concerned States and relevant international organizations in the search for and implementation of durable solutions to refugee problems”.

143 It is outside the scope of this paper to look at refugee protection practices in Southeast Asia for centuries prior to WWII. For an interesting analysis of this more distant history, see: Muntarbhorn, supra note 119.

144 In relation to informal refugee status for Burmese refugees, see: Muntarbhorn, supra note 88. See also Memo – Burmese Relations in Thailand, National Archives of Australia: A1838, 3006/1/5 Part 1, South East Asia - Intra-Regional - Burma - Thailand Relations, at 37.

145 Muntabhorn, supra note 1 at 126.

146 See Thailand – Repatriation of Refugees, supra note 112.

147 Helton, supra note 120 at 20. See also Muntarbhorn, supra note 88, referred to in Muntarbhorn, supra note 1 at 126.

148 Muntarbhorn, supra note 1.

149 Muntarbhorn, supra note 119.

150 Moretti, supra note 82 at 202.

151 Sompong SUCHARITKUL, “Contribution of the Asian-African Legal Consultative Organization to the Codification and Progressive Development of International Law” in AALCO, Essays in International Law, (Asian African Legal Consultative Organization, 2007) 8, at 20.

152 Ibid., at 16.

153 Sen, supra note 67.

154 Itty ABRAHAM, “Host Communities and Refugees in Southeast Asia: Report on a Workshop held at the National University of Singapore (NUS), 10-11 May 2019” 35 Journal of Social Issues in Southeast Asia, No 1 (2020) 178.

155 Although outside the scope of this paper, the longer lens of history should include community-level protection. See the important work exploring “diverse modes of South-South connection, exchange and support (including South-South aid, transnational activism, and migration), and responses to displacement, violence and conflict (including Southern-led humanitarianism, peace-building and conflict resolution)”: FIDDIAN-QASMIYEH, Elena and DALEY, Patricia, eds., Routledge Handbook of South-South Relations (Abingdon: Routledge, 2019)Google Scholar.