On board the Tamil asylum boat By Atika Shubert, CNN, Jan 6, 2010

Refugees Are Not Bargaining Chips

by Bill Frelick

A virus is sweeping Asia. The symptoms are heightened xenophobia and amnesia about fundamental refugee rights. Australia and Indonesia succumbed first, in October, when they stopped boats carrying Sri Lankans. Neither country would allow the Sri Lankans to disembark even though they came from a country experiencing massive violence and displacement. Almost three months later, one of the boats, holding more than 250 Sri Lankans, remains moored in the West Javan port of Merak.

Cambodia was next to catch the fever. A small group of Uighur men, women and children fleeing the aftermath of the worst ethnic violence in decades in China sought asylum in Cambodia. The United Nations High Commissioner for Refugees issued “persons of concern” letters on their behalf and moved them into a facility it managed jointly with the Cambodian government. But Cambodia forcibly returned 20 Uighurs on Dec. 19, despite the protests of the U.N. agency, the diplomatic corps and human rights groups. They have not been heard from since.

Now Thailand has gone viral. On Monday, soldiers with truncheons and shields herded more than 4,000 Hmong asylum seekers onto buses back to Laos from the Huay Nam Khao camp in Petchabun Province, where they have lived since 2005. For four years, the Thai Army detained the Hmong in the closed camp, never allowing the U.N. refugee agency to interview them or assess their claims to refugee status. The Thai Army’s own screening process, based on criteria never made public, found that hundreds of the Hmong had legitimate protection concerns, but Thailand never provided any additional protections. The Thai government maintained that the Hmong were “economic migrants” but refused any fair determination process to assess that claim.

When it came, the forced repatriation was conducted in the face of loud international condemnation, from the refugee agency, top levels of the U.S. State Department, and the president of the European Union. Tellingly, a group of 158 Hmong who not only had been recognized as refugees by the U.N. refugee agency but also had been offered resettlement by Australia, Canada, the Netherlands and the United States were also deported. They had been detained separately in abysmal conditions for three years at Nong Khai immigration detention center.

The willingness to flout international refugee law and to ignore the entreaties of refugees not to be sent back to their home countries has become the mark of chummy bilateral relations between Asian states. Thailand sends back Hmong refugees — a group with a history of persecution at the hands of the Lao government dating back to the 1960s — citing a secret bilateral agreement and the Lao government’s assurances of their safe treatment. Cambodia forcibly repatriates Uighurs just as the Chinese vice president, Xi Jinping, arrives on a visit to Phnom Penh to announce a $1.2 billion aid package to Cambodia.

Governments in the region this month have lied outright to the U.N. refugee agency about their intentions to return “people of concern” to their home countries, blocked the agency from interviewing asylum seekers to assess their claims, and simply ignored the agency’s protests. The marginalization of the U.N. agency goes hand in hand with rapid erosion of the bedrock principle of international refugee law — called nonrefoulement, the prohibition on the forcible return of refugees to places where they would be likely to face persecution.

Like biological viruses, this latest strain of refugee mistreatment has its antecedents, in part, because Asia — unlike Africa, the Americas and Europe — has no legal regional framework for refugee protection. Few Asian governments have even signed the 1951 Refugee Convention, ratified by 147 countries, which sets the global standard for the treatment of refugees.

The African refugee convention has a provision that should be particularly instructive for Asian governments: “The grant of asylum to refugees is a peaceful and humanitarian act and shall not be regarded as an unfriendly act by any Member State.”

The spate of refugee returns has the urgency of an impending epidemic that needs to be contained. But the focus of immediate concern now shifts to the home countries to which these unfortunate people have been returned. China and Laos need to give the United Nations and other relevant agencies immediate and continuous access to the returnees in an atmosphere of complete openness and accountability. At the dawn of a new decade, Asian governments should commit themselves not only to the nonrefoulement principle, but also to the idea that granting asylum is a humanitarian act that should be entirely divorced from political relations between states.