Processes and critiques of the Indo-Chinese comprehensive plan of action: An instrument of international burden-sharing?

International Journal of Refugee Law

Volumn 18, Issue 3-4, 2006, Pages 537-570

  Towle, Richard ^a  

^a UNHCR

Author keywords

[No Author keywords available]

Indexed keywords

ASIAN IMMIGRANT; ASYLUM SEEKER; IMMIGRATION POLICY; REFUGEE;

ASIA; EURASIA; LAOS; SOUTHEAST ASIA; VIET NAM;

EID: 37849186808     PISSN: 09538186     EISSN: 14643715     Source Type: Journal    
DOI: 10.1093/ijrl/eel015     Document Type: Conference Paper

References (86)

1. Report of the Secretary-General to the 44th Session of the GA, UN doc. A/ 44/523, 22 Sept. 1989, with Annex Declaration and Comprehensive Plan of Action. The Plan had already been approved by the Preparatory meeting for the International Conference on Indo-Chinese Refugees (ICIC) on 8 Mar. 1989: A/CONF.148/2, 26 Apr. 1989 and adopted by consensus without debate by the ICIC on 13 and 14 June 1989.
2. Ibid., section II, para 2.
3. W. Courtland Robinson, Terms of Refuge, the Indochinese Exodus and the International Response (London: Zed Books, 1998), 222-6. The CPA was designed primarily to stem the exodus of Vietnamese but also covered asylum-seekers from the Democratic Republic of Laos. Laotians were little more than a 'footnote' in the more expansive and costly procedures for Vietnamese and refugees from Cambodia were not covered at all. Laotian displacement was not really an issue of regional or international concern as it was largely confined to Thailand and the USA, which offered resettlement. There was little prospect of new outflows and by 1989, Thailand and Laos had negotiated terms for the repatriation of both 'screened-out' and voluntary returnees.
4. Ibid., 188.
5. Statement given at the Fourth Steering Committee Meeting of the ICIC, 30 Apr. to 1 May 1991: Reproduced in 3 IJRL 364 (1991).
6. Malaysia and Thailand applied a cut-off date of 14 Mar. 1989; Philippines was 21 Mar. 1989; Indonesia was 17 Mar. 1989; and Hong Kong an earlier date of 16 June 1988.
7. CPA, section F, para. 14. This euphemism for involuntary or forced returns was to prove highly controversial.
8. CPA, Section A, para. 1.
9. Arts. 13(1) and 14, Universal Declaration of Human Rights (UDHR); Art. 12(2) of the International Covenant on Civil and Political Rights, 1966 (ICCPR). The legal counter-argument was that these measures were 'necessary restrictions' permitted by Art. 12(3) of the ICCPR but this was tenuous given they applied to men, women and children alike and without reference to their individual circumstances.
10. CPA, Section B, paras. 2-4.
11. A. Betts, Comprehensive Plans of Action: Insights from the CIREFCA and the Indochinese CPA (2005), unpublished - refer to author, who provides a broader assessment of the political dimensions of the two processes.
12. CPA, Section D, para.6 (b).
13. For more extensive discussion and analysis see: S. Bari, 'Refugee Status determination under the CPA', 4 IJRL 498 (1992)
14. and A. Helton, 'Refugee Determinatin under the CPA; Overview and Assessment's, 5 IJRL 544 (1993).
15. Ibid., Section D, para. 6(b).
16. Principally the ICCPR and 1966 International Covenant on Economic, Social and Cultural Rights (IESCR), but also the Convention on the Elimination of Discrimination against Women (CEDAW), Convention for the Elimination of all Forms of Racial Discrimination (CERD), Convention against Torture (CAT), and the recently ratified 1989 Convention on the Rights of the Child (CRC).
17. The latter tended to apply their own separate criteria of 'refugee' before they were prepared to accept for resettlement, individual refugees who had been 'screened in' under the CPA.
18. Handbook on Procedures and Criteria for Determining Refugee Status, 1979 (but reedited in Jan. 1992) HCR/IP/4/Eng/REV.2.
19. CPA, Part D, para. 6(c).
20. Ibid., Part D, para. 6(b).
21. CPA, section D para. 6(b).
22. Throughout the region, many single women tried to marry those who had refugee status simply to gain resettlement on 'family unity' grounds. This in turn, placed many at risk of abusive relationships. Similar problems were encountered with 'unaccompanied minors' and whether they could latch on to the successful claims of de facto caregivers or distant family members.
23. CPA, section D, paras. 6(d) and 7.
24. It had a two-tier decision-making procedure backed by the possibility of judicial review and UNHCR's mandate was introduced as a final 'safety net' a little later.
25. R v Director of Immigration and Refugee Status Review Board ex parte Do Giau et ors: See case abstract IRLJ/0166 in 5 IJRL 604 (1993).
26. S. Bari, n. 13 above, 505.
27. CPA, Section D, para.6: Reprinted in 5 IJRL 621 (1993).
28. Indonesia, Thailand, Malaysia and Singapore were not party to the 1951 CSR, ICCPR or ICESCR. China was a signatory to the 1951 CSR (24 Sept. 1982) but neither of the human rights instruments at the time. For its own political reasons, the United Kingdom had not extended the application of the Refugee Convention to the Territory of Hong Kong.
29. Robinson, n. 3 above, 207, Interview with Erika Feller, UNHCR Regional Coordinator for RSD.
30. Robinson, Table 8.1, ibid., 206.
31. 'Refugee Status Determination and Special Procedures under the CPA', UNHCR, Kuala Lumpur Nov. 1992.
32. UNHCR 'Procedural Standards for Refugee Status Determination under UNHCR's Mandate', 1 Sept. 2005: http://www.unhcr.ch/cgi-in/texis/vtx/ doclist?page=publ&id=3d4a53ad4.
33. In 1994, an Australian NGO, the New South Wales Refugee Fund Committee reported 'widespread corruption, including bribery and sexual favours'. After investigating these charges, UNHCR concluded that it was unlikely that deserving refugee claims were rejected because of any unmet demands of bribery or extortion. Although corruption may have occurred in some cases, the practice was not widespread and did not have any negative effect on the overall integrity of the procedures in Indonesia.
34. Paragraph 1 of the CPA Note described 'unaccompanied minors' as 'any person under the age of 18 years who is separated from both parents and not cared for by an adult who by law or custom had responsibility to do so'. The expression 'UAM' had now been replaced by the more appropriate 'separated children'.
35. 'Note on Unaccompanied Minors', Annex to the CPA.
36. UNHCR, 'Guidelines on Refugee Children', 1988.
37. UNHCR, 'Guidelines on the Special Procedures under the CPA', para. 2 ('UNHCR Guidelines').
38. CRC, Art. 22.
39. Convention on the Rights of the Child, Art. 3(1) requires 'that in all actions concerning children... the best interests of the child shall be the primary consideration' [emphasis added].
40. UNHCR Guidelines, paras. 6-32.
41. Ibid., para. 40.
42. Nordic Assistance to Repatriated Vietnamese (NARV) was a consortium of five Nordic NGOs working with UNHCR under an agreement of July 1992 both in the asylum states and in SRV.
43. UNHCR Guidelines, paras. 40-64.
44. UNHCR, 'Policy on Refugee Children, 6 Aug. 1993
45. UNHCR Guidelines on Policies and Procedures in dealing with Unaccompanied Children seeking Asylum', Feb. 1997.
46. CPA, Section E, para. 9.
47. Ibid., paras. 10-11.
48. Ibid., Section B, paras. 2-4.
49. To borrow a contemporary expression coined by the Government of Australia to justify its stringent measures to curb irregular and illegal migration and secondary movement of asylum-seekers from places of first asylum.
50. Robinson, n. 3 above, 198.
51. See generally G.Troeller, 3 IJRL 564 (1991).
52. Report of UNHCR's Evaluation and Policy Unit: 'Resettlement in the 1990's: A Review of Policy and Practice', 7, EVAL/RES/14, Dec. 1994.
53. UNHCR Paper, 'Resettlement as an Instrument of Protection: Traditional problems in achieving this durable solution and new directions in the 1990's', presented to 1991 ExCom 42nd Session;
54. and Conclusion No. 67 (XLII).
55. CPA, Section F, para. 12.
56. Reproduced in 5 IJRL 625-9 (1993).
57. Ibid., para. 3(a).
58. Ibid., para. 3(b).
59. Ibid., para. 3(c).
60. Ibid., para. 3(d).
61. Thailand, Malaysia, Philippines and Indonesia all signed tripartite agreements with the SRV and UNHCR where UNHCR was not involved in the use of force but provided logistic and other support.
62. UNHCR Evaluation and Policy Analysis Unit (EPAU), 'Reintegration Programmes for Refugees in South-East Asia: Lessons learned from UNHCR's experience'. EPAU/2002/01, Apr. 2002, 42.
63. Robinson, n. 3 above, 265, 'Returnees to Vietnam were monitored more intensively and extensively than any other group of returnees in the world'.
64. Through Quick Impact Programmes (QIPs), vocational training, access to credit, micro projects and a range of income generation activities, UNHCR and its government counterpart, MOLISA, developed many economic, administrative and social links with the receiving communities: See UNHCR's LPAU Report on reintegration, n. 59 above, 31-43.
65. Statement by the UN High Commissioner to the Fourth Steering Committee Meeting, 30 Apr.-1 May 1991: Reprinted in 3 IJRL 363-7 (1991).
66. S. Bari, n. 13 above, 511.
67. This led, in part, to UNHCR's outreach to NGOs through the Partnership in Action (PARinAC) process.
68. Dato' Haji Abu Hassan bin Haji Omar, Malaysian Minister for Foreign Affairs: UN doc A/44/523 22 Sept. 1989, Section F, para. 2.1.
69. Much of the debate about asylum today is centred on the ethical and legal legitimacy of approaches such as extraterritorial screening, 'safe third country' and 'safe country of origin' notions and whether these are burden-sharing or burden-shifting arrangements.
70. An exception was Hong Kong's mandatory detention policy. Detention was required to purchase the commitment of the Hong Kong to the CPA but, arguably, it was 'arbitrary' and incompatible with principles of international law: See Arts. 9 of the UDHR and ICCPR;
71. and Art. 37 of the CRC, where the detention of children should be 'a measure of last resort' and 'for the shortest appropriate period of time'.
72. A. Shacknove, 'From Asylum to Containment', 5 IJRL 516 (1993).
73. In 1986, the Vietnamese Communist Party announced an abandonment of Stalinist central planning and collective agriculture and the adoption of a program of market socialism and reform called doi moi restructuring.
74. A term that was little used in the CPA but is frequently today in the 'migration management' debate.
75. UNHCR (1993), 'State of the World's Refugees: In Search of Solutions', 30.
76. Ibid., 43.
77. Robinson, n. 3 above, 286.
78. Statement of the US Deputy Secretary of State, Lawrence Eagleburger at the 1989 Conference. This position was only supported by Vietnam which was anxious to impart the impression that it had the human rights of the returnees firmly in mind: See also Robinson, ibid., 189.
79. E.g., readmission agreements that include assurances by the receiving state not to persecute or torture returnees.
80. UNHCR EPAU review of UNHCR 'Mass Information Activities', (1 Apr. 1998), EVAL/02/98, http://www.unhcr.ch/cgi-bin/texis/vtx/research/ opendoc.htm?tbl=RESEARCH&id=3ae6bd3f4.
81. The Bali Process brings participants together to work on practical measures to help combat people smuggling, trafficking in persons and related transnational crimes in the Asia-Pacific region and beyond. Initiated at the 'Regional Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime' held in Bali in Feb. 2002, the Bali Process follow-up is a collaborative effort participated in by over 50 countries and numerous international agencies: http://www.baliprocess.net.
82. http://www.apcprocess.net.
83. UNHCR 'Discussion Paper on Burden-Sharing' submitted to the APC 5th Annual Plenary Meeting: http://www.worldlii.org/int/journals/ISILYBIHRL/ 2001/17.html
84. and UNHCR Paper on 'Co-operation to Address the Irregular Movement of Asylum-Seekers and Refugees: Elements for an International Framework', pesented to the Bali II Conference, 17 Aug. 2003: http://www.unhcr.ch/ cgi-bin/texis/vtx/home/opendoc.pdf?tbl=RSDLEGAL&id=3edcdb781.
85. UNHCR's Lisbon Expert Roundtable, 9 & 10 Dec. 2002, 'Summary Conclusions on the Concept of 'Effective Protection' in the Context of Secondary Movements of Refugees and Asylum-Seekers'
86. Global Consultations Expert Roundtable, Lisbon 25-6 Mar. 2002, 'Summary of Discussions: Rescue-at-Sea: Specific Aspects Relating to the Protection of Asylum-Seekers and Refugees'.