RETHINKING REGIONAL PROCESSING: THE COMPREHENSIVE PLAN OF ACTION FOR INDOCHINESE REFUGEES AS A ROADMAP FOR INTERNATIONAL COOPERATION

Riona Moodley

August 2020

In 2015 the European Union (EU) faced an unprecedented situation as over a million asylum seekers entered Europe irregularly in search of safety, and over 5000 died while attempting the journey. The situation sparked a humanitarian and political crisis within the EU as member states struggled to reach consensus on how best to manage the unfolding situation. While the large numbers of new arrivals did exert pressure on the asylum procedures of many EU members, the numbers alone were not a ‘crisis’ in themselves, nor were they unmanageable for a region comprising 28 countries and significant economic resources. By comparison, relative to their respective populations, neighbouring countries such as Turkey and Lebanon were sheltering far greater numbers of asylum seekers at the time, and with far fewer resources. There was an international dimension to the so-called ‘crisis’ of 2015-2016 that warranted a more coordinated response between states both within and outside the EU to provide protection to those in search of it. But what exactly might such a response have looked like in practice? Drawing on historical precedents of international cooperation, notably the Comprehensive Plan of Action for Indochinese Refugees, this article considers how past experiences might inform future responses to refugee crises.

The need for international cooperation

Arguably, with its supranational asylum system and human rights framework, the EU was in many ways uniquely placed to show leadership to achieve international cooperation during the ‘crisis’ in 2015-2016. And yet, despite the strong humanitarian and political imperatives to do so, a coordinated response never came. By the end of 2016, it became apparent that the real crisis was not the number of people arriving in Europe, but rather the failure of states to share responsibility and provide safe, accessible pathways to protection for those in search of it.

Since that time there has been greater emphasis on the need for the international community to address these failings. The adoption of the Global Compacts in 2018 by over 160 States is certainly seen as a positive development towards achieving this. But how are commitments to improve protection and share responsibility to translate in practice? Specifically, what could or should be done now and in the future to better manage refugee crisis situations?

Within Europe a number of options have been flagged. One possibility has been for the EU to work with its neighbours to process applications for international protection before asylum seekers arrive in Europe. This idea, referred to as ‘regional processing’, envisages several states engaging in an arrangement (typically, a multilateral one) to process claims for international protection in a particular country, or region that is, or is at risk of, being overwhelmed with large numbers of people seeking international protection. Assuming that such idea is implemented as a complementary pathway to protection in Europe (or elsewhere) and not an exclusive one, regional processing has the potential not only to address immediate humanitarian and protection needs, but it could also help ameliorate the risks associated with onward movement by improving access to protection. At a bare minimum, however, this would require not only international cooperation, but also firm commitments to respect key international law and human rights principles, notably the principle of non-refoulement.

The Comprehensive Plan of Action for Indochinese Refugees

While a protection-oriented approach to regional processing may sound novel, it is worth noting that a similarly ambitious plan to undertake region-wide processing – the Comprehensive Plan of Action for Indochinese Refugees 1989 (CPA) – was implemented successfully nearly thirty years ago, when over 65 states collaborated to resolve the Indochinese refugee crisis impacting South-East Asia in the 1970s and 1980s. The CPA’s unique international accord – launched at an international conference convened by then UN Secretary-General Perez de Cuellar in June 1989 – brought together a broad spectrum of stakeholders, including donor and resettlement countries, countries of first asylum, countries of origin, international organisations and NGOs. While one of the CPA’s principal objectives was to ‘restore asylum’ in the Southeast Asia region in circumstances where commitments made by countries of first asylum to provide temporary asylum were failing, its overriding aim was to bring an end to the ongoing movement of asylum seekers in the region following the fall of Saigon in 1975.

To achieve its key objectives, the CPA developed a comprehensive region-wide processing framework to enable refugee status determination (RSD) to be undertaken en masse. All who were assessed as refugees were resettled abroad in key receiving countries (such as the United States, Canada and Australia). In return, countries of first asylum (such as Thailand, Malaysia and Indonesia) agreed to restore asylum by providing shelter and temporary asylum to those in their territories pending resettlement abroad, or repatriation. Countries of first asylum also assumed primary responsibility for undertaking RSD under the supervision of UNHCR, and in accordance with the Refugee Convention and UNHCR Handbook criteria. Remarkably, the principal country of origin, Vietnam, was also involved and began cooperating with UNHCR to repatriate those who voluntarily returned to Vietnam on the basis that they would not suffer persecution. Vietnam also worked with UNHCR to create alternatives to irregular maritime travel for those wishing to leave Vietnam through its ‘orderly departure programme’. Through each of these commitments and compromises, the CPA managed to negotiate the varied interests, capacities and responsibilities of states within and outside South-East Asia.

Implementation, though, was not without flaws. During its initial stages, RSD screening was fraught with procedural issues. Refugee recognition rates were inconsistent across the region prompting concerns of refoulement. Many asylum seekers were also held in closed detention with limited access to work rights and education. The CPA’s repatriation component was also criticised for having countenanced the possibility of involuntary returns. Nonetheless, despite its failings, the overall quality of procedural fairness and standard of regional consistency did improve over time. This was largely attributed to the central supervisory role provided by UNHCR during the CPA’s implementation.  

Over the quarter century that the Indochinese displacement endured, over 3 million people fled their countries across the region. However, as a consequence of the sustained international effort to resolve the crisis and respect the human rights of those impacted by it, approximately 2.5 million people were resettled elsewhere and half a million were repatriated (UNHCR 2000, p.102)

Lessons for the Future

Notwithstanding its historical and context-specific nature, the CPA offers valuable lessons for the development of future responses to address large refugee and irregular migration movements – be they in the Mediterranean or elsewhere. The movement of people is an international phenomenon, and so, too, are the drivers for it. As such, addressing the protection challenges that occasion such movements warrants a coordinated international response. Regional processing – if undertaken in the same vein as the CPA framework – has the potential to coordinate global efforts to address similar situations.

This calls for not only strong political leadership, but also a multi-stakeholder partnership including countries of resettlement, ‘transit’ or host countries, countries of origin, international organisations, NGOs, and where possible, refugees and migrants themselves.  As the CPA experience demonstrates, it is only through broad political engagement and the equitable sharing of responsibilities that a truly comprehensive refugee response can be implemented successfully.

Most importantly, however, for any future arrangement to be sustained, the sum of all its components must be premised on clear commitments to respect international and human rights law principles. While there are several problematic aspects of the CPA (such as its use of ‘closed reception’ facilities) that would require re-envisioning if a similar framework were to be implemented in the future, it is clear that the CPA’s sustained commitment to provide international protection and respect human rights did successfully restore peace and order to a humanitarian crisis that was threatening the stability of (what was) an already fragile region. For future plans to have similar success, they too would need to put human rights and protection at the fore.

Another key lesson that can be drawn from the CPA is that durable solutions are needed for all who travel irregularly, be they refugees or not. The drivers for irregular migration are complex, but one of the most critical issues facing those who move irregularly is the absence of safe, orderly and regular pathways for migration. The CPA provides a useful case study in this regard, because it was one of the first international attempts to provide durable solutions for both refugees and irregular migrants. However, while the CPA focused on resettlement for those found to be refugees and repatriation for those who did not, it noticeably excluded local integration in countries of first asylum. To be truly comprehensive, future efforts should accommodate all three traditional solutions, where it is safe to do so. Other options should also be explored. These might include ‘orderly departure programmes’ akin to the CPA regime, protected entry procedures in host countries, student visas and labour mobility programmes, to name but a few.

As the CPA demonstrates, through sustained international efforts to share responsibility for providing protection, regional processing has the potential to offer protection and durable solutions for refugees and irregular migrants. It is also capable of alleviating the ‘burden’ of responsibility disproportionately carried by countries in regions of origin that are directly impacted by large-scale movements and protracted refugee situations.

These are not lofty goals or aspirations. The CPA provides tangible evidence of what is possible, and what might have been possible during the events of 2015/16. It offers valuable lessons and opportunities for international cooperation. Regional processing is certainly not the only answer, but it is one of many possibilities that should be explored to address the needs of the future.

Riona Moodley is an Australian lawyer, lecturer and PhD Candidate at the Andrew and Renata Kaldor Centre for International Refugee Law (UNSW, Sydney). This commentary is based her research paper presented at the CONREP Conference on ‘Responsibility Sharing or Shredding’, Deakin University, Melbourne, 18-19 February 2020.