THE BALI PROCESS AND REFUGEE PROTECTION IN SOUTHEAST ASIA

Carly Gordyn

The seventh ministerial conference of the Bali Process, co-chaired by Australia and Indonesia, took place in August 2018. This article explores the development of the Bali Process from a forum heavily focused on the securitisation of borders, to one which now considers refugee protection.

Australia works with Indonesia to prevent refugees arriving on Australian shores by funding detention centres in Indonesia, contracting the International Organization on Migration (IOM) to provide ‘case management and care’ for those waiting in Indonesia, and working with Indonesian police on disrupting boat ventures. Unilaterally, of course, Australia has turned boats back to Indonesia. 

These arrangements subvert the international refugee regime by bringing refugee law and protection – including the protection of refugee rights and their access to durable solutions – under the control of Australian and Indonesian cooperation. Australia and Indonesia promote this subversion on a broader scale by co-chairing the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (the Bali Process). Nevertheless, I argue that the Bali Process needed to begin with this security focus in order to bring states who were not signatories to the Refugee Convention to the same table – only then could the conversation shift towards protection. 

The Bali Process

The Bali Process was created in 2002 to bring together countries of origin, transit and destination to engage in policy dialogue, information-sharing, practical cooperation and capacity building to strengthen border control and curb irregular migration. The Bali Process has 45 member countries and 3 organisation members: the UNHCR, the IOM and the UNODC.

So what does this mean for refugee protection in the Asia-Pacific region? As per its title, the focus of the Bali Process is ‘people smuggling’, ‘human trafficking’, and ‘related transnational crime.’ This means that the way in which people cross borders has become the object of policies, as opposed to the needs and the protection of the people themselves. In the early years, the Bali Process paid more attention to border controls, visa and documentation fraud, and on policing to prevent irregular migration. After a hiatus between 2004 and 2009, the Bali Process was reignited when the number of irregular migrants – especially the number arriving on Australia’s shores – began to rise. As these movements continued, members of the Bali Process realised that the situation could not be solved without considering issues of protection. As a result, the Bali Process has gradually included more protection language – albeit far from comprehensive.

From Security to Protection

First, as mentioned, the Bali Process has a securitised focus. While this is problematic, irregular migration is something that all states can agree is a problem in which they need to do something about. Framing the problem in a way that is in states’ interests has brought them together to discuss these issues. Furthermore, having Indonesia, a non-signatory to the Refugee Convention as co-chair of the Bali Process, has encouraged other non-signatory states to come to the discussion table. This could both be a help and a hindrance to refugee protection depending the direction of discussions and influence of the UNHCR.

Second, because many non-signatory countries are sitting at the same table as the UNHCR, the Bali Process has been able promote the UNHCR agenda with states that would otherwise not be speaking about refugee protection. While the UNHCR has not always been successful at promoting its agenda, there has been progress in recent years. For example, in 2010 the UNHCR proposed a ‘Regional Cooperation Framework’, which offers a ‘win-win’ alternative to counter-smuggling efforts and includes ‘protection sensitive’ migration management practices. This was endorsed by the Bali Process in 2011 and a Regional Support Office was established in 2012 to support its work. In 2016, the Bali Process took a step further and adopted a declaration that recognises the importance of ‘victim-centred and protection-sensitive strategies’, with strict respect for the principle of non-refoulement and the ‘need for comprehensive and long-term solutions for mixed migration flows, which by definition can include refugees and irregular migrants.’ This could be considered a help to refugee protection.

Third, prior to the establishment of the Bali Process, Indonesia took little interest in irregular migration. Since 2002, however, Indonesia has taken a leading role on irregular migration in the region. For example, in 2013 Indonesia convened a Special Conference on Irregular Movements of Persons, bringing together 13 countries of origin, transit and destination to focus on four aspects of irregular migration: prevention, early detection, protection and legal action. The outcome of the conference was the Jakarta Declaration, which, despite the primary focus being management and control of borders, included a commitment to ‘ensuring that smuggled and trafficked people shall not be held liable for people smuggling and trafficking in persons offences’, and ‘enhancing communication and coordination to support search and rescue at sea, disembarkation, reception, processing, and outcomes.’ This indicates a movement towards a holistic approach to irregular migration.

Furthermore, Indonesia recently issued a presidential decree outlining how relevant departments should administer refugees within Indonesia, including instructions for search and rescue, living arrangements, voluntary return and funeral preparations for deceased refugees. Interestingly, the decree defines a refugee using the Refugee Convention definition. It also states that the handling of refugee issues should be based on cooperation between the Indonesian government and the UNHCR, while taking into account generally accepted international conventions. It does not, however, provide explicit protections from non-refoulement. Indonesia’s leadership could either be a help or a hindrance to refugee protection depending on the direction it takes – towards securitisation or protection – though early signs are positive.

Fourth, the Bali Process has provided Convention non-signatories with a basis to criticise signatory members, such as Australia, when practice does not match obligation. For example, many Indonesian officials argue that despite not being a signatory, Indonesia is in fact following the spirit of the Convention. They consider Australia’s actions of turning boats back inhumane and hypocritical. Despite having their own domestic problems, Indonesian officials argue that Indonesia would never copy Australia’s policies of return. This may be a little different in practice, but it is one of the main reasons that Indonesian officials put forward as a reason for not signing the Convention: why should they sign when they already follow the Convention, while signatory states such as Australia do not?

The Way Forward

In conclusion, the Bali Process is far from ideal. It undermines the international refugee regime by focusing on the criminality of people movements rather than protection. At the same time, it has allowed non-signatory states to come the same table as the UNHCR and introduced language and mechanisms towards protection that were unlikely without the original focus of securitisation. It has also allowed Indonesia, as co-chair, to bolster its leadership in this area. While Indonesia has not signed the Convention, it has adopted a presidential decree which, if harnessed, could be the forward momentum towards ratification. Finally, while Australia has set a poor example with its own harsh policies, including forced return of boats, the Refugee Convention has been used as a tool for other countries to criticise Australia’s actions.

What we can learn from this is that states may need self-interested rhetoric to bring them to the same table with the UNHCR, which would facilitate discussion on refugee protection once they have bought into the issue of irregular migration. This opportunity could then be harnessed with the right leadership, which could move the Bali Process forward towards furthering the refugee protection agenda. The questions is, with Australia and Indonesia as the co-chairs of the Bali Process, do we have the right leadership?

Carly Gordyn is a PhD candidate at the Australian National University’s Coral Bell School of Asia Pacific Affairs and a 2018 Endeavour Fellowship recipient. She is currently researching the history of Australia and Indonesia’s cooperation in managing irregular migration. You can follow her on Twitter at @CarlyGordyn.