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

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.

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ARTICLE
A New History of Refugee Protection in Post-World War
Two Southeast Asia: Lessons from the Global South
Natasha Emma YACOUB
University of New South Wales, Sydney, Australia
n.yacoub@unsw.edu.au
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 develop-
ing—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.
Keywords: Other Areas of International Law; Human Rights; History and Theory of International
Law; International Organisations
People have been fleeing war, persecution and natural disasters seeing asylum in
Southeast Asia since “time immemorial”.
1
The literature has been characterised by a nar-
rative of “human rights exceptionalism”in Southeast Asia justifying a rejection of refu-
gees.
2
This article examines refugee protection in the under-studied decades following
World War Two (“WWII”), from 1945 to 1979
3
(the “post-WWII decades”). At this time, dis-
placement resulted from tensions as states emerged from colonial rule and the Cold War
played out in the region. An examination of state practice of non-signatory states to the
1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of
Refugees (the “1951 Refugee Convention”)
4
shows that they provided protection to
© The Author(s), 2022. Published by Cambridge University Press on behalf of the Asian Society of International Law
1
Vitit MUNTARBHORN, The Status of Refugees in Asia (New York: Clarendon Press, 1992) at 3-4. “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
Sara Ellen DAVIES, Legitimising Rejection: International Refugee Law in Southeast Asia (Boston: Martinus Nijhoff
Publishers, 2007).
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,
Asian Journal of International Law (2022), 1–24
doi:10.1017/S2044251322000510
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refugees that often aligned with its principles.
5
Moreover, these experiences influenced
their contribution to drafting international refugee law and regional refugee protection
standards. This article re-thinks the history of refugee protection in Southeast Asia to
counter the “human rights exceptionalism”narrative, focusing on the post-WWII decades
to argue there was a non-linear continuum of refugee protection throughout time.
There is a lacuna in the literature on refugee protection in Southeast Asia in the
post-WWII decades. This can be attributed in part to the fact that the Global North has
dominated the production of knowledge about the international refugee regime.
6
Some
scholarship in recent years has redressed the balance, offering perspectives of refugee
protection practices in South Asia
7
and Southeast Asia.
8
This paper contributes to this lit-
erature, providing a perspective on refugee protection in Southeast Asia in the post-WWII
decades. It draws on thousands of pages of archival material, including the travaux prepar-
atoires of the 1951 Refugee Convention, official records of the Asian-African Legal
Consultative Committee (“AALCC”),
9
and National Archives of Australia files. At an inter-
national level, the material reveals the intervention made by Southeast Asian states in the
1951 Refugee Convention drafting process. At a regional level, it shows the that the AALCC
drafters took into account state practice in refugee protection in drafting the 1961
Principles Concerning Admission and Treatment of Aliens (“Aliens Principles”)
10
as well as
the contribution of Southeast Asian states in drafting the 1966 Bangkok Principles on the
Status and Treatment of Refugees (“Bangkok Principles”).
11
At a national level, this archival
material shows state practice in Thailand to protect Vietnamese refugees who arrived
in 1946.
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 con-
form 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
B.S. CHIMNI, “The Geopolitics of Refugee Studies: A View from the Global South”(1998) 11 Journal of Refugee
Studies 350.
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: Jay RAMASUBRAMANYAM, “Regional
Refugee Regimes”in Cathryn COSTELLO, Michelle FOSTER and Jane MCADAM, eds., The Oxford Handbook of
International Refugee Law (Oxford: Oxford University Press, 2021) 407. For state practices of non-signatory states
outside Asia, in Latin America, and other states in the post-WWII period, see: Jacques VERNANT, The Refugee in the
Post-War World (London: Allen & Unwin, 1953) at 3. 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].
2 Natasha Emma Yacoub
https://doi.org/10.1017/S2044251322000510 Published online by Cambridge University Press

The literature on refugee protection in Southeast Asia has focused on the response to
the largescale movement of refugees following the Second Indochina War in 1975
12
and its
aftermath,
13
and this article puts a spotlight on the decades that preceded this. Clearly a
defining moment, the international community responded to a large flow of refugees
from Indochina with a conference in Geneva in 1979,
14
attended by 69 states, and agreed
that Southeast Asian countries would offer temporary refuge to Indochinese refugees on
the understanding that they would be resettled in the West.
15
One million Vietnamese
refugees were resettled and a decade later, in 1989, when more individuals without
international protection needs were leaving and resettlement numbers waned, another
international meeting was held and the Comprehensive Plan of Action (“CPA”) was signed,
offering a “focused political agreement”
16
for the remaining Indochinese refugees in
Southeast Asia.
17
This was a time when countries in the Global North were heavily
involved in both causing displacement and finding durable solutions for refugees.
While it may explain the focus in the literature on this period, it is not where the history
of refugee protection in Southeast Asia began. This article contributes to the literature
with a focus on the years following WWII,
18
re-thinking the relevance of the CPA to
refugee protection in the region.
Part I briefly explains the “human rights exceptionalism”narrative. Part II examines
the role of Southeast Asian states in drafting international and regional refugee protection
standards. The contribution of Southeast Asian participants in the drafting process of the
1951 Refugee Convention challenged colonial powers as well as affirmed the universality
of human rights. The AALCC, as a regional body grouping of post-colonial states from Asia,
Africa and the Middle East, drew upon international refugee law and human rights law to
craft refugee protection standards, namely the Aliens Principles, which make special pro-
vision for individuals seeking asylum and Bangkok Principles. Part III explores a national
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: Penelope MATHEW and Tristan HARLEY, Refugees, Regionalism and Responsibility (Cheltenham:
Edward Elgar Publishing, 2016); Sébastien MORETTI, The Protection of Refugees in Southeast Asia: A Legal Fiction
(Abingdon: Routledge, 2022); W.C. ROBINSON, “The Comprehensive Plan of Action for Indochinese Refugees,
1989-1997: Sharing the Burden and Passing the Buck”(2004) 17 Journal of Refugee Studies 3; 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 asy-
lum; 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).
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example, drawing on Thailand’s treatment of Vietnamese refugees who arrived in 1946.
Part IV re-thinks the relevance for Southeast Asia of the Indochinese exodus from the
mid-1970s onwards, and multilateral agreements to manage their situation, in the context
of refugee protection in the post WWII decades. The article concludes that there is a need
to re-think history with a longer lens, moving away from the “human rights exceptional-
ism”narrative to learn lessons in refugee protection from the past.
I. NARRATIVE ON REFUGEES AND HUMAN RIGHTS EXCEPTIONALISM
A narrative relating to Asian values and human rights exceptionalism in literature has
been used to explain a lack of engagement of Southeast Asian states in protecting refugees
and engaging with international refugee law. According to this narrative, human rights
are not universal and must be based on “Asian values”,
19
with the justification that
“the region is too diverse for uniform standards; contrarily, that ‘Asian values’differ
from western ‘international human rights standards’; that principles of sovereignty and
non-intervention preclude external scrutiny…”.
20
Even as the Association of Southeast
Asian Nations (“ASEAN”) regional human rights system developed, views persisted that
“[t]he emerging…system seems unable to undermine the absoluteness of the sovereignty
and non-interference principles which are still trademarks of the ASEAN human rights
approach”.
21
States were seen to rely on the “human rights exceptionalism”narrative
for their own political purposes.
22
“Human rights exceptionalism”and the failure to protect refugees has been a common
theme in the literature, dating back to practices in the 1970s when non-entrée policies of
Southeast Asian states to prevent Indochinese refugees entering their territory prompted
international action, including the CPA for Indochinese Refugees.
23
These agreements
secured temporary asylum in Southeast Asian countries on the understanding that refu-
gees would be resettled outside the region. The legacy of these agreements was seen as a
rejection of refugees in Southeast Asia in the decades that followed. For example, some
states refuse to use the term “refugee”or develop national asylum policies to protect the
status and rights of refugees,
24
and refugee rights are not respected.
25
Exceptionalism to
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
Ben SAUL, Jacqueline MOWBRAY and Irene BAGHOOMIANS “The Last Frontier of Human Rights Protection:
Interrogating Resistance to Regional Cooperation in the Asia-Pacific”(2011) 18(23) Australian International Law
Journal 23. For a summary of the ‘Asian way’to approach human rights, see: D. MAUZY, “The human rights and
‘Asian values’debate in Southeast Asia: Trying to clarify the key issues”(1997) 10(2) The Pacific Review 210.
21
Attilio PISANÒ, “Human Rights and Sovereignty in the ASEAN Path Towards a Human Rights Declaration”
(2014) 15(4) Human Rights Law Review 391 at 409.
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 excep-
tionalism’for their political advantage in the late 1990s. Catherine Shanahan RENSHAW, “The ASEAN Human
Rights Declaration 2012”(2013) 13(3) Human Rights Law Review 557.
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 auto-
matically 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 limbowithout 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
4 Natasha Emma Yacoub
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human rights and refugee protection at a regional level can be linked to non-entrée policies
in more recent times, such as turnback of boats on the Andaman Sea.
26
The exceptionalism narrative can also be used explain why there are very few
signatories to the 1951 Refugee Convention, arguably viewed by Southeast Asian states
as Western constructs.
27
Of the ten states in Southeast Asia—Brunei, Cambodia,
Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam
—two states (Cambodia and the Philippines) acceded to the 1951 Refugee Convention. It
does not sufficiently acknowledge the binding international human rights law framework
for the protection of refugees in many Southeast Asian states,
28
nor does it acknowledge
the intervention made by Southeast Asian states in the drafting process, set out below.
Examining the practice in refugee protection in Southeast Asia in the post-WWII dec-
ades disrupts the exceptionalism narrative, showing that it does not represent any “inher-
ent truths about the unsuitability of rights and institutions to Asian traditions, values,
diversity or cultural preferences”.
29
To the contrary, Southeast Asian states made a lim-
ited but poignant contribution in the drafting process for the 1951 Refugee Convention
and contributed to the AALCC’s regional refugee protection standards, drawing on state
practice in protecting refugees from 1945 to 1979.
II. SOUTHEAST ASIAN STATES, INTERNATIONAL REFUGEE LAW AND
REGIONAL REFUGEE PROTECTION PRINCIPLES
The post-WWII decades were critical in setting standards in Southeast Asia as states were
emerging from colonial rule, regional institutions were in nascent stages, and refugees
were on the move. There was limited accession to the 1951 Refugee Convention, which
was developed through a process that Kraus describes as a “prioritisation of ‘the West’
over ‘the Rest’”.
30
The contribution of Southeast Asian states in drafting the 1951
Refugee Convention was limited but powerful symbolically in asserting the universality
of human rights. This section examines the relevance of Southeast Asian states in drafting
international refugee law and regional refugee protection standards under the auspices of
the AALCC that disrupt the “human rights exceptionalism”narrative. The participation of
Southeast Asian states in drafting the 1951 Refugee Convention was limited but powerful.
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 uni-
versal 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: Ulrike KRAUSE, “Colonial roots of the 1951 Refugee Convention and its
effects on the global refugee regime”(2021) 24 Journal of International Relations and Development 599.
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A. Southeast Asian States and the 1951 Refugee Convention Drafting Process: Universal Human
Rights and Stand Against Colonial Power
The role of Southeast Asian states in the drafting process for the 1951 Refugee Convention
may have been small in scale but was significant in potence. Of 278 archival documents of
the traveaux preparatoires for the 1951 Refugee Convention that were reviewed, there was
documentation in relation to the involvement of Southeast Asian states in two of the
meetings to draft the Convention. The limited role of states can be attributed to
the fact that the majority remained under colonial rule at the time.
31
Indonesia and the
Philippines however, both of which had gained independence by 1950, made statements
supporting the universal application of human rights law to all individuals at the
Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons in 1951.
32
The Philippines made a joint statement with Syria,
33
in relation to the so-called “colo-
nial clauses”that stated, “[t]he provisions of the present Covenant shall extend to or be
applicable equally to a signatory metropolitan State and to all the territories, be they
Non-Self-Governing, Trust or Colonial Territories, which are being administered or gov-
erned by such metropolitan states”.
34
Emphasising the development in international law
to include individuals as subjects of the law, the Philippines stressed that: “metropolitan
powers might be regarded as principals whose international commitments should automat-
ically extend to the colonial territories …[since] inhabitants of the dependent territories
were clearly as much entitled to the enjoyment of human rights as anyone else.”
35
Colonial powers, they maintained, had responsibility under international human rights
law to all individuals on the territories they administered or governed.
At the same meeting, the Representative from Indonesia expressed that a “colonial
clause”would “in effect be giving a privileged class of human beings the right to decide
arbitrarily how far the rights enjoyed unreservedly by themselves could be granted to less
favoured classes.”
36
The delegation from Indonesia argued for the universal application of
international human rights law, stating that: “all peoples whoever they were could claim
the right to life, liberty and security of person and demand the abolition of slavery and
servitude and the suppression of torture and cruel and inhuman or degrading treatment
or punishment.”
37
At this drafting meeting, these Southeast Asian states did take a pos-
ition of “human rights exceptionalism”based on “Asian values”. To the contrary, the dele-
gates argued for the universal application of the law to all peoples. The role of Southeast
Asian states in drafting the 1951 Refugee Convention may have been small in scale but not
in magnitude, given its significance in expressing support for universalism of human
rights and countering the exceptionalism narrative.
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.
6 Natasha Emma Yacoub
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B. The AALCC’s Refugee Protection Principles: A South-South Regional Alliance
In addition to contributing to international refugee law, Southeast Asian states partici-
pated in drafting standards with the AALCC, a regional body that emerged from the
Conference between African and Asian states in Bandung in Indonesia in 1955. A
South-South alliance, most of these states were emerging from colonial rule. The
AALCC engaged with both refugee rights and international law. In this context, it distin-
guished itself from other regional institutions that emerged at the time that did not
engage with refugee rights, notably the Southeast Asian Treaty Organisation (SEATO)
that preceded ASEAN.
38
SEATO was established on 8 September 1954, a North-South alli-
ance including Australia, France, New Zealand, Great Britain, Pakistan, the Philippines,
Thailand, and the United States, and was more security-oriented to prevent the rise of
Communism. When Thailand called on SEATO in 1959 to help to negotiate for the return
to Vietnam of refugees who fled the first Indochina war in 1946, it declined to do so.
39
At
this time, the AALCC, a South-South initiative, was engaging actively on refugee rights.
The original membership of the AALCC in 1956 was Burma, India, Indonesia, Iraq,
Japan, Sri Lanka and Egypt. In 1961, Thailand became a member. 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…”.
40
The Committee now has forty-seven
Asian-African Members, including inter alia all Southeast Asian nations, with the addition
of Australia and New Zealand as its Permanent Observers.
41
As a body made up of govern-
ment representatives, it provides advice on issues referred to it or that are considered of
mutual concern to member states. In its first years, it engaged regularly with the issue of
the status and rights of refugees. In doing so, it drew on state practice of Southeast Asian
member states. It involved the cooperation of Southeast Asia with other states emerging
from colonial rule in Africa and the Middle East.
The AALCC agreed on two sets of principles that relate to the status and treatment of
aliens and refugees, the Aliens Principles in 1961, which made special provision for indi-
viduals seeking asylum, and the Bangkok Principles on the Status and Treatment of Refugees
(“Bangkok Principles:”) in 1966, which was re-affirmed in 2001. International refugee
and human rights law principles were considered, in the context of the state practice
and opinions of AALCC members. In preparation of the Bangkok Principles, states received
advice from the United Nations High Commissioner for Refugees (the “UNHCR”) as well as
eminent international law professors. This section examines the drafting process of the
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.
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Aliens Principles and Bangkok Principles, demonstrating that the AALCC accounted for
state practice as well as the views of key refugee hosting states from Southeast Asia.
1. The AALCC’s Aliens Principles
The AALCC adopted in 1961 the Aliens Principles,
42
standards for the status and rights of
aliens that contain protections for individuals seeking asylum. The issue of the status of
aliens had been referred to the AALCC by Japan in 1957. The discussion of states to adopt
the Principles took account of the status and rights of individuals seeking asylum, includ-
ing state practice of Southeast Asian member states as well as international law. Several
post-colonial Southeast Asia passed laws governing the treatment of aliens or foreign-
ers,
43
which were used to regulate the status and rights of refugees in the absence of spe-
cific national refugee laws. The AALCC drew on this practice. In the meeting to draft the
Aliens Principles, Burma and Indonesia participated in the discussions as AALCC members
and Cambodia attended as an observer.
44
The Aliens Principles define an alien and conditions for admission to a state’s territory,
providing exceptions for refugees and stateless persons. Article 1 of the Aliens Principles
define an “alien”as “a person who is not a citizen or national of the State concerned”.
While Article 2(1) sets out that the admission of aliens into a State shall be at the discre-
tion of that State, Article 2(2)(ii) provides that a State may, “except in special circum-
stances, refuse admission into its territory of aliens who do not possess travel
documents to its satisfaction”. Both “political refugees”and “stateless persons”could
exceptionally enter without travel documents to the country’s satisfaction, according to
the Committee’s Commentary on Article 2.
45
Although not explicitly mentioned in the
official records, this reflects state practice in several Southeast Asian countries where
refugees were regulated through aliens laws.
46
Drawing on state practice in Indonesia and Burma, the AALCC included an asylum
provision. Article 6 of the Aliens Principles provides that the state may “offer or provide
asylum in its territory to political refugees or to political offenders on such conditions as
the State may stipulate as being appropriate in the circumstances”. In drafting this pro-
vision, the Committee interpreted the “right to seek and to enjoy in other countries asy-
lum from persecution”, in Article 14(1) of the UDHR, as a right of the state and not an
obligation.
47
In the Commentary on the Asylum Principles, the Committee stated that
Article 6 “establishes the right of the State to grant asylum on its territory to foreign
nationals fleeing from political, racial or religious persecution in their own State”.
48
In
drafting this protection, the Committee drew on the practice of member states in granting
asylum to refugees, making particular reference to refugee hosting states in Southeast
Asia. It noted that Indonesia’s law provided for the grant of asylum to political refugees
while the laws of Burma were silent in this regard and yet, the government of Burma had
in practice been granting “asylum to political offenders”.
49
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.
8 Natasha Emma Yacoub
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The AALCC drew on international law to set out the human rights of aliens more gen-
erally in the Aliens Principles. Regarding freedom of movement, Article 7(1) states that
“subject to conditions imposed for his admission into the State, and subject also to the
local laws, regulations and orders”, aliens have the right to move freely throughout the
territory of the State; and to reside in any part of the territory of the State. However,
Article 7(2) provides that the State may require:
an alien to comply with provisions as to registration or reporting or otherwise so as
to regulate or restrict the right of movement and residence as it may consider appro-
priate in any special circumstances or in the national or public interest.
50
In preparing this Article, the Committee drew on the work of eminent international
law jurist, Oppenheim, that the “normal practice”of states is to “compel them to register
their names for the purpose of keeping them under control”, an opinion which other legal
scholars concurred with.
51
The Committee reviewed state practice of the member states
and found that, subject to exigencies or emergencies, “aliens in the Member Countries
of the Committee are permitted to travel about or reside in any part of the State they
visit”and “registration of aliens is required in all the countries participating in the
Committee”.
52
The Committee further set out the rights of aliens in Article 8 to freedom from arbi-
trary arrest, freedom to profess and practise his [or her] own religion, protection of the
executive and police authorities of the State, access to the courts of law, and legal assist-
ance “subject to local laws regulations and orders”. In its Commentary on Article 8, the
Committee noted that the rights of the individual may be derived from various sources.
For example, the alien’s rights to liberty, freedom of religion and protection for his or her
person and property had been viewed by “leading Western nations”as flowing from “the
duty of States to all alien residents under customary international law”, with “scores of
bilateral treaties and agreements”having been concluded providing for the enjoyment
of these rights and privileges for the nationals of contracting parties within the territory
of the other contracting party.
53
Thus, the Committee drew on international human rights
law in formulating its standards. Further, it assessed the rights of aliens in Member
Countries, finding that they were “normally permitted to enjoy personal liberty on par
with nationals”.
54
Far from exceptionalism to human rights, the Committee drew on inter-
national human rights law to draft the Aliens Principles and specify rights of refugees and
grounded it in state practice of the participating Southeast Asian member states.
2. The AALCC’s Bangkok Principles
At the Eighth Session to draft the Bangkok Principles in 1966, four Southeast Asian states
were present, Indonesia, Malaysia, Thailand and the Philippines.
55
Burma was a member
of the AALCC but did not send a representative. The subject “The Rights of Refugees”had
been referred to the Committee by Government of the United Arab Republic (Egypt). The
background for the referral by Egypt was to assist with the status and treatment of
Palestinian refugees. In the memo referring the issue to the Committee, Egypt stated it
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].
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considered the status and rights of refugees to be mutual interest to the member coun-
tries. This section examines the contributions of Southeast Asian states in the Eighth
Session to draft the Bangkok Principles, briefly charting the AALCC’s discussions on the
rights of refugees at preparatory meetings at the Sixth Session in 1964 and Seventh
Session in 1965.
A preliminary discussion on “the rights of refugees”at its Sixth Session of the
Committee was held in Cairo in 1964. Of the Southeast Asian member States, Indonesia
and Thailand participated but Burma did not send a representative.
56
The Philippines
attended as observers. At this session, the issues of the right to return to the country
of origin and compensation in the event that a refugee cannot return, both critical to
Palestinian refugees in the Middle East, were raised but could not be resolved. UNHCR
attended and was invited to prepare a memorandum setting out relevant international
refugee law for the Committee’s consideration. More preparatory work was planned,
and substantive discussions were held over until the following meeting.
The issue of the “rights of refugees”was considered in more detail at the Committee’s
Seventh Session in Baghdad in March 1965.
57
Indonesia, Thailand and Burma did not send
a representative, and Malaysia participated in an observer capacity. At the meeting, the
Committee identified further information that was needed but did not finalise the principles.
The Secretariat of the Committee presented a working paper on aspects of international law
and the UNHCR Deputy High Commissioner for Refugees Prince Sadruddin Aga Khan, parti-
cipated in an advisory capacity.
58
It was decided that no new regional convention would be
drafted but principles would be prepared and that, in the process of doing so, the Committee
would examine the 1951 Refugee Convention.
59
“Principles concerning treatment of refu-
gees”were prepared by the Secretariat, which reflected the text of the 1951 Refugee
Convention for the Committee’s consideration.
60
Issues that were to be resolved included
the minimum standard of treatment of a refugee in the state of asylum and the constitution
of international tribunals for determination of compensation claimed by refugees.
61
The agenda item, the “rights of refugees”, was a priority item at the Eighth Session of
the Committee in Bangkok in August 1966. Thailand and Indonesia participated, Malaysia
and the Philippines attended as observers, as did the UNHCR.
62
The points arising for con-
sideration were: (a) the draft principles adopted by the Committee at its Baghdad session;
(b) whether provisions should be made for the implementation of the right to return and
the right to compensation; and (c) how far the Principles should incorporate the 1951
Refugee Convention.
63
Southeast Asian member states contributed to crafting key provi-
sions, including the right to return, and right to compensation in the event of non-return,
as refugee rights.
64
The AALCC also included a provision on cessation of refugee status, which Thailand
expressed in terms of the “right of the state”that grants protection. Article II(1)(ii) of
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.,at9.
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.
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the Bangkok Principles provides that refugee status ceases where a refugee “has voluntar-
ily re-availed himself [or herself] of the protection of the State or Country of his [or her]
nationality”. Thailand expressed the opinion that the loss of status as a refugee under this
provision will “take place only when the refugee has successfully re-availed himself or
herself of the protection of the State of his (or her) nationality because the right of pro-
tection was that of his (or her) country and not that of the individual”.
65
More import-
antly, the AALCC included a right to return and compensation in the event that return
was not possible that are not included in 1951 Refugee Convention.
The right to return to the country of origin or former habitual residence is in Article IV
of the Bangkok Principles. In drafting this provision, the Committee:
recognised that to make this right effective and capable of practical implementation,
the return had to be voluntary, which would necessarily depend on the change in
conditions in the state of origin as well as possible steps for facilitating repatriation
and a degree of co-operation between the asylum state and state of origin. The
voluntary nature of repatriation was emphasised during the deliberations.
66
At the time the AALCC drafted these provisions, Thailand was implementing a policy of
voluntary repatriation for Vietnamese refugees, in which it emphasised the element of
voluntariness, examined further below.
Moreover, the AALCC included in the Bangkok Principles a right to compensation in
the event that return was not possible (Article V) and Southeast Asian member states
attending the meeting, notably Thailand and Indonesia, supported and shaped the text.
Article V(2) provides:
the compensation referred to in paragraph 1 shall be for such loss as bodily injury,
deprivation of personal liberty in denial of human rights, death of dependants of the
refugee or of the person whose dependant the refugee was and destruction of or
damage to property and assets, caused by the authorities of the State or Country,
public officials or mob violence.
67
Thailand expressed a view that the words “in the circumstances in which the State
would incur state responsibility for such treatment to aliens under international law”
should be added at the end of paragraph 2.
68
Indonesia expressed that paragraph 2
should specify that compensation should be linked to the reasons that the refugee
fled.
69
Far from taking exception to international human rights law, they expressed
the view that states should be held responsible for violating it. While there are few pre-
cedents in relation to compensation for refugees who are not able to return, this can be
attributed to complexity of applying the law in this area.
70
Moreover, it may be applied
in the future.
The Bangkok Principles extended the refugee definition beyond the 1951 Refugee
Convention, reflecting the broader definition that would be adopted in the 1969
Convention Governing the Specific Aspects of Refugee Problems in Africa (“OAU
65
AALCC Eighth Session Report, supra note 56 at 214.
66
B. SEN, “Protection of Refugees: Bangkok Principles and After”(1992) 34(2) Journal of the Indian Law
Institute 187 at 207.
67
AALCC Eighth Session Report, supra note 56 at 215.
68
Ibid., at 216.
69
Ibid.
70
Hannah R GARRY, “The Right to Compensation and Refugee Flows: A ‘Preventative Mechanism’in
International Law?”(1998) 10(1) International Journal of Refugee Law 97.
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Convention”).
71
There were lengthy debates and, with considerable difficulty, the
Committee agreed to a common definition of a refugee in the Bangkok Principles of
1966.
72
The AALCC extended the narrow definition of a refugee in Article 1A(2) of the
1951 Refugee Convention,
73
adding the grounds of “colour”and “gender”.
74
Moreover,
the AALCC incorporated a broader definition of a refugee to include:
every person, who, owing to external aggression, occupation, foreign domination or
events seriously disturbing public order in either part or the whole of his [or her]
country of origin or nationality, is compelled to leave his [or her] place of habitual
residence in order to seek refuge in another place outside his [or her] country of ori-
gin or nationality.
75
The extended refugee definition emerging from this South-South alliance allows for
greater inclusion of refugees than the 1951 Refugee Convention.
In setting out the rights of refugees, the Bangkok Principles provided a “minimum
standard of treatment”(Article IV). There is explicit mention of groups in need of protec-
tion that are not included in the 1951 Refugee Convention. The Bangkok Principles require
states to take “effective”and “additional”measures in order to meet the needs of
women,
76
children,
77
and elderly persons.
78
Southeast Asian states in cooperation with
other post-colonial states in the AALCC demonstrated a willingness to protect particular
groups of refugees that were not explicitly included in the 1951 Refugee Convention.
The Bangkok Principles have been criticised by some refugee law scholars because
they do not provide strong rights guarantees and have not been implemented in
national refugee laws but this does not reflect the full historical picture of refugee pro-
tection. The AALCC, in its Final Report on the Status and Treatment of Refugees at its
Eighth Session in Bangkok, emphasised that it was the role of the government of
each participating state to decide how it could give effect to their recommendations,
whether by entering into multilateral or bilateral arrangements or recognising the prin-
ciples formulated by it in their domestic laws.
79
Sara Davies argues that “[c]ompliance
with the Principles is neither enforced nor monitored. As a result, they have had little
discernible effect on Asian state practice in relation to refugees”.
80
This position
required nuance, since the AALCC drafters took into account key state practice in
Southeast Asia at the time of drafting the Bangkok Principles. While they may not
have been incorporated fully into domestic laws, they were re-affirmed by states in
2001 and may be adopted in laws in the future, reflecting the non-linear path of refugee
protection. They expanded the protection of the 1951 Refugee Convention, in particular
extending the refugee definition and including the right to return and compensation in
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.
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the event of non-return.
81
Rather than taking exception to international law, Southeast Asian
states as part of the AALCC engaged with it to produce standards for protecting refugees.
Moreover, the Bangkok Principles emerged from the experiences of states in Southeast
Asia hosting refugees. The participating member countries, Thailand and Indonesia,
together with the observer states, Malaysia and the Philippines, hosted some of the lar-
gest refugee populations in the region. State practice reinforces the standards for refugee
protection. Moretti argues that “Southeast Asian States have long recognized that refu-
gees…need protection…evidenced by their de facto different treatment of refugees com-
pared to other irregular migrants”.
82
In particular, states showed respect for the
customary principle of non-refoulement enshrined in Article 33(1) of the 1951 Refugee
Convention, which provides that states should not return a refugee “to the frontiers of
territories where his [or her] life or freedom would be threatened on account of his
race, religion, nationality, membership of a particular social group or political opinion”.
83
This principle of non-refoulement was also included in regional standards within Article
IX(3) of the Bangkok Principles.
84
The next section draws on archival material and litera-
ture to demonstrate an example of state practice in the key refugee-hosting state,
Thailand.
III. NATIONAL PRACTICE: VIETNAMESE REFUGEES IN THAILAND
In the post-WWII period, refugees were on the move within Southeast Asia due to inde-
pendence wars against colonial powers and the rise of Communism.
85
It is estimated that
one million people moved from the north to the south of Vietnam between 1954 and 1956
alone.
86
It is unrealistic to capture all laws, policy and practice to protect refugees in
Southeast Asia during this time, especially given the diverse legal and political systems.
It is illustrative to focus on the details of national practice of one refugee group to
show an example of Thailand’s treatment of Vietnamese refugees that points to a longer
history of refugee protection than the CPA. Further, it facilitates a comparison of national
practice against regional and international standards applicable in the post-WWII period,
while demonstrating the value of further research into historical refugee protection
practice.
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
Sébastien MORETTI, “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 214.
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 flee-
ing 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.
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A review of archival material from the National Archives of Australia and the United
Nations were drawn upon to analyse the national laws, policies and practices of refugee-
hosting states in Southeast Asia in the post-WWII period. This included: Thailand, regard-
ing refugees from Vietnam as well as Burma and China.
87
Each group of refugees had its
own history of displacement and connection with Thailand and were offered protection,
and there is a focus on Vietnamese refugees to enable sufficient detail of policy and prac-
tice at the time.
This paper draws on the information from the archives in relation to Vietnamese refu-
gees in Thailand. Vietnamese people sought asylum from harm in Thailand for at least
two centuries prior to WWII.
88
Throughout the history of the Bangkok period,
89
starting
in 1782, Vietnamese refugees fled to Thailand in several waves.
90
The archives are a rich
source of information on the nature of protection afforded to Vietnamese refugees who
arrived in 1946, including copies of Thai local regulations, Thai newspaper clippings,
declassified Australian government meeting notes with Thai officials. The Thai Gazette
from 1947–1960 was also reviewed for references to refugees.
91
In using archives as a source, Lustig cautions against a “statist bias”in international
legal history methodology and this is acknowledged.
92
Archives of governments and the
United Nations create a narrative about refugee protection historically from a state per-
spective, which represents the perspective of the ruling elite and is overwhelmingly male.
The limits of the archives are balanced against information in literature and other
sources. It is further acknowledged that protection of refugees extends far beyond the
state to the community level protection, as Thai communities welcomed and assisted
Vietnamese refugees,
93
although this is beyond the scope of the present study.
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, atime 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.
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A. Vietnamese Refugees in Thailand
Situated between Indochina (Vietnam, Cambodia, Laos) and Burma, Thailand hosted refu-
gees from both the east and the west in the post-WWII period.
94
This section presents
archival information on laws, policy and practice adopted by Thailand for Vietnamese
refugees who sought refuge in 1946.
95
Following the French attempt to re-colonise
Indochina in 1945, some 46,700 Vietnamese nationals fled over the Mekong River from
Laos to northern Thailand. The Government of Thailand provided refugee status as a
group, thus protecting them from being sent back to persecution in Vietnam and afforded
them rights on Thai territory until a durable solution was found. The Thai government
negotiated a return agreement, and eventually enabled those who remained to naturalise.
This section provides the details of the national standards of protection in Thailand for
Vietnamese refugees, comparing it with the protection adopted in the region during
the CPA and thereafter to demonstrate the nonlinear continuum of refugee protection.
B. Legal Status and Freedom of Movement
Refugees were given legal status and freedom of movement in Thailand in the decades
preceding the CPA. Vietnamese refugees who arrived in 1946 were legally allowed to
remain in Thailand on a group basis, with the status of “refugee”or “displaced person”.
96
Whilst there was no national law setting out the status and rights of refugees in Thailand
at the end of WWII, a limited number Vietnamese refugees were able to obtain status as
aliens under the Thailand: Alien Registration Act B.E. 2493 (14 December 1950).
97
Varophas
explains that from 1938 onwards, the Thai and French Indochinese government concluded
a treaty that Vietnamese who went to Thailand would retain their status as French sub-
jects.
98
This meant that Vietnamese refugees entering Thailand were considered to be
“aliens”under the law, and required to register as such.
99
Those who were not able to
register as aliens were nonetheless afforded status as refugees on a group basis by the
state pursuant to local government “Rules for the Control of Vietnamese Refugees”of
1951.
100
The group of Vietnamese people who fled to Thailand in 1946, regardless of their regis-
tration under the Alien Registration Act, were treated differently from other non-
nationals. The Thai government referred to the group as “refugees”in official documents
from at least the early 1950s onwards. For example, the Ministry of Interior issued local
“Rules for the Control of Vietnamese Refugees”in 1951 to institute reporting
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: Peter A. POOLE,
“Thailand’s Vietnamese Minority”(1967) 7(12) Asian Survey, University of California Press 886, at 889.
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.
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requirements for refugees who wished to move outside of their villages of residence.
101
There was no procedure to undertake individual refugee status determination at the
time. Rather, Thailand provided the protection to Vietnamese refugees as a group.
Further, in 1954 Thailand defined “displaced persons”in clause 3 of the Regulation
Concerning Displaced Persons from Neighbouring States as “he who escapes from dangers
due to an uprising, fighting or war, and enters in breach of the Immigration Act.”
102
Thailand provided protection to individuals meeting this definition on a group or
“prima facie”basis without individual determinations.
103
A registration process for indi-
viduals did not take place until the repatriation exercise began in 1959.
Immigration restrictions for foreign nationals entering “illegally”during this time
were in direct response to the large number of Chinese nationals entering the country.
104
As Muntarbhorn explains, while immigration law applied to displaced persons, they were
exempt from it as a matter of policy: “because they [were] less politically sensitive to the
Thai authorities.”
105
Local government rules allowed for freedom of movement for
Vietnamese refugees, according to “Rules for the Control of Vietnamese Refugees”of
1951.
106
However, in reality, refugees could travel on Thai territory with appropriate per-
mits.
107
This aligned with international refugee law as per Article 26 of the 1951 Refugee
Convention according to which states should “accord to refugees lawfully in its territory
the right to choose their place of residence and to move freely within its territory, subject
to any regulations applicable to aliens generally in the same circumstances.”Thailand’s
approach to legal status and freedom of movement for these refugees is thus contrary
to the dominant narrative of exceptionalism in the literature.
C. Economic, Social and Cultural Rights
Thailand provided economic, social and cultural rights to Vietnamese refugees including
the right to work, own businesses and access education in the first years of displacement.
During this time, such policies were more generous than under the CPA. The archives
reveal that refugees were given plots of land to work, and were allowed to own businesses
and seek employment. The Vietnamese Lawyers Association, an advocacy group for
Vietnamese in Thailand after WWII, explained that:
The Thai government not only allowed these refugees to enter the country, but also
instructed local authorities to help refugees in setting themselves up in a normal life
on Thai soil. Loans and other assistance were granted by the Thai government to the
Vietnamese nationals for clearing land to found what are now densely populated vil-
lages in [North East] Thailand …
108
101
Ibid.
102
Muntarbhorn, supra note 1 at 7.
103
For an examination of the refugee definition in group contexts, see: Ivor C. JACKSON, The Refugee Concept in
Group Situations (the Hague; Boston: Martinus Nijhoff Publishers, 1999).
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.
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Additionally, Poole observed that refugees were able to resume their previous occupa-
tions as shopkeepers and skilled workpeople such as carpenters, masons, mechanics, tai-
lors, and electricians.
109
The Thai government’s provision of land to refugees for cultivation and to run busi-
nesses aligns with Article 17(1) of the 1951 Refugee Convention, which calls on member
states to enable “wage-earning employment”in accordance with the “most favourable
treatment accorded to nationals of a foreign country.”
The Thai government also allowed Vietnamese children to enter schools. Vietnamese
refugee children were encouraged by their communities to go to local Thai schools, and
the Thai government also allowed informal Vietnamese schools to continue to operate.
110
The admission of Vietnamese children into Thai schools was in conformity with Article 19
(1) of the 1951 Refugee Convention requirement to “accord to refugees the same treat-
ment as is accorded to nationals with respect to elementary education”, and the tolerance
of Vietnamese-run schools went beyond this requirement. Thailand’s approach to eco-
nomic, social, and cultural rights for Vietnamese refugees is thus contrary to the narrative
of exceptionalism to international refugee law and the practice that emerged after the
1970s.
D. Durable Solutions –‘Voluntary Repatriation’and Local Integration
Refugees in the post-WWII period were afforded protection and durable solutions by asy-
lum states in Southeast Asia. The official Thai policy to end the plight of Vietnamese refu-
gees was the expectation that they would return to Indochina when the fighting between
France and Vietnam ended. However, many were eventually allowed to integrate locally in
Thailand, as former waves of Vietnamese refugees had done in the past.
111
By the
mid-1950s, the conflict with France had ended and Thailand was becoming increasingly
concerned about the presence of “a potentially subversive minority group on Thai soil”
and thus planned for them to repatriate.
112
The International Committee of the Red
Cross (“ICRC”) brought Thai and North Vietnamese representatives together to agree
on a repatriation arrangement, which resulted in an agreement on 14 August 1959.
113
Through this agreement, renewed in 1962, some 35,000 refugees returned to Vietnam
between January 1960 and July 1964.
114
The Australian Embassy reported that the
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 immigra-
tion 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.
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agreement had provisions to prevent forcible repatriation, which was to take place
“according to their own will”.
115
However, by 1964, North Vietnam refused to take
more refugees, and informal solutions were found.
While repatriation remained the official policy of the Thai government, “local integra-
tion”became an unofficial practice whereby many Vietnamese refugees were naturalised
in processes tolerated by the local authorities. For example, official figures show that
22,000 people waiting to be repatriated in 1964 were children under age 18, suggesting
that many of them had been born in Thailand. Although not eligible for Thai nationality
by virtue of birth on the territory, a majority were able to obtain birth certificates by hav-
ing a Thai national “recognise”them as their own.
116
According to one scholar who also
worked on refugee protection in the region, this was known and tolerated by Thai
officials.
117
Thailand’s return agreement with Vietnam had provisions to protect against refoule-
ment, as per Article 33(1) of the 1951 Refugee Convention,
118
requiring states not to
send refugees to a territory where they fear persecution. Moreover, the eventual natur-
alisation of Vietnamese refugees aligns with Article 34 of the 1951 Refugee Convention
that requires that states “shall as far as possible facilitate the assimilation and naturaliza-
tion of refugees”(emphasis added). In this sense, Thailand’s local integration of refugees
and its approach to durable solutions is contrary to the narrative of exceptionalism to
international refugee law.
E. Reflections on National Practice in Thailand
The protection of Vietnamese refugees by Thailand, as a key refugee-hosting country
between Burma and Indochina in the post-WWII period, is an important example of
state practice. Rather than human rights “exceptionalism”, it provides an example of
state practice reflecting international refugee law, including the principle of non-
refoulement, the right to work and to education. Although this section focused on the pro-
tection afforded to Vietnamese refugees in Thailand, these standards were reflected more
broadly in state practice. Moretti explains that other Southeast Asian States provided asy-
lum to groups of people fleeing conflict and generalised violence over time.
119
In addition
to providing protection to significant numbers of refugees at the national level, key
refugee-hosting states in Southeast Asia engaged with international refugee law in the
1960s to develop regional refugee protection standards, the Bangkok Principles, as seen
above. Non-accession to the 1951 Refugee Convention did not evidence “legitimising
the rejection”
120
of refugees historically. Rather, states in Southeast Asia, from at least
the end of WWII onwards, provided protection to refugees. A large-scale refugee flow
in the 1970s, which attracted the world’s attention, represented in many ways a departure
from the years of refugee protection preceding it and cannot be conflated with the history
of protection in the region.
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.
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IV. RE-THINKING HISTORY AND RELEVANCE OF THE CPA
The CPA was an important moment in time for refugee protection for Southeast Asia.
121
An over-emphasis of this period may skew the understanding of refugee protection in the
region, which requires a longer lens on history. The CPA was situation-specific, given the
large-scale flow of people as well as the fact that Global North states were politically
invested in finding durable solutions for refugees. In this sense, it represents an exception
rather than a rule. This section explores the importance of the CPA and places it in an
historical context of a non-linear continuum of refugee protection in Southeast Asia.
In 1975, significant numbers of Vietnamese, Laotian and Cambodian refugees fled east-
ward, and the response of asylum states in Southeast Asia varied from welcoming them to
turning them back.
122
However by 1979, several asylum states refused to allow boats of
asylum-seekers to land on their territory and pushed them back to sea, where they con-
sequently starved or drowned. Robinson explains the deterioration of refugee protection
standards:
[By] the summer of 1979, more than 350,000 Vietnamese and Laotian refugees were
scattered in camps from Thailand to Hong Kong, and another half a million
Cambodians were massed at the Thai border. Local promises of temporary asylum
collapsed. Vietnamese boats were pushed back by the hundreds, and thousands of
Cambodians were forced back at gunpoint into their country. Sea pirates raided help-
less refugee boats, raping and plundering at will. Camps were filled to bursting and
still they came, with untold numbers perishing along the way.
123
In this context, the UN Secretary General called a conference from 20 to 21 July 1979,
attended by sixty-five states as well as inter-governmental and non-governmental orga-
nizations. States outside the region were seen as “primarily responsible for eventual
resettlement”
124
and pledges of support were made:
Worldwide resettlement pledges increased from 125,000 to 260,000. Vietnam agreed
to try to halt illegal departures and, instead, to promote orderly and direct
departures from Vietnam. Indonesia and the Philippines pledged to establish
regional processing centres to speed resettlement and new pledges to UNHCR
totalled about $160 million in cash and in kind, more than doubling the totals of
the previous four years.
125
Asylum states in Southeast Asia “formalized a quid pro quo—temporary or “first”
asylum in the region for permanent resettlement elsewhere.”
126
The countries of first
asylum—Hong Kong, Malaysia, the Philippines, Singapore and Thailand—were concerned
to stop arrivals and find solutions other than local integration owing to “concerns about
internal security, being overwhelmed by the sheer number of people arriving, intolerance
in their own communities, and a wish to signal to other states that their compassion and
121
Ibid.
122
For example, Helton explained that Thailand, for example, initially reacted at times with ‘apparent com-
passion’, and at other times with ‘callousness’. See: Arthur C. HELTON, “Asylum and Refugee Protection in
Thailand”(1989) 1(1) International Journal of Refugee Law 20, at 21.
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.
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tolerance should not be taken for granted”.
127
In the short term, these states allowed refu-
gees to stay in camps and detention centres in exchange for resettlement elsewhere.
By 1988, the number of people seeking asylum increased and resettlement places in
Western states reduced.
128
In June 1989, another meeting was held in Geneva with 70 gov-
ernments in attendance which saw the adoption of the CPA. Some of the commitments in
the CPA resembled the 1979 Agreement such as the commitment to preserve first asylum,
to “reduce clandestine departures and promote legal migration”, and to resettle refugees
in third states.
129
The “radically new ingredients”, according to Robinson, were regional
screening and repatriation,
130
and “technical innovations”
131
were, inter alia, refugee sta-
tus determination, family reunification, resettlement screening, and monitoring of
returns.
132
In fact, only some of these developments were radically new in the region
and others were not. For example, as demonstrated above, Thailand had negotiated a
repatriation arrangement for Vietnamese refugees in 1950s that included guarantees of
voluntariness.
While refugee protection was not new to the region, the CPA was seen to have “brought
a regional dynamic to the international refugee system in Southeast Asia.”
133
It was seen
as only a “qualified success”in promoting asylum and solutions for the duration of the
Indochinese exodus.
134
On one hand, it represented an unprecedented level of cooperation
between Southeast Asia and States outside the region,
135
described by Türk and Garlick as
“arguably the most successful international refugee responsibility-sharing initiative.”
136
What made the CPA noteworthy was the scale of solutions provided by the Global
North, with one million Vietnamese refugees eventually being resettled.
137
127
Richard 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 540.
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 resettle-
ment 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 asy-
lum 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.
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On the other hand, it has been widely criticised for creating a legacy of diminished
standards of refugee protection in individual states in Southeast Asia,
138
whereby states
provide temporary asylum contingent solutions outside the region.
139
Davies criticised
that “Southeast Asian states conducted a form of “refugee manipulation”because their
persistent refusal to sign the instruments compelled Western states (the United States
in particular) to provide material assistance to the refugees and offer resettlement
places.”
140
This criticism does not sufficiently recognise the role of states in the Global
North in causing displacement, including the impact of neo-colonial imperialism,
141
and the need for these states to share responsibility in the spirit of the “international
cooperation”set out in Article VIII(2) of the Bangkok Principles.
142
Moreover, it fails to
sufficiently acknowledge the rich history of refugee protection that did not start or
end with Global North engagement in the CPA. The historical perspective of refugee
protection in the post-WWII period suggests that a longer view of history demonstrates
a continuum of refugee protection in the region that pre-dates colonialism.
143
State
practice in the decades prior to the CPA yields important lessons, examined in the
next section.
V. COUNTERING ‘HUMAN RIGHTS EXCEPTIONALISM’: LESSONS FROM
HISTORY OF REFUGEE PROTECTION IN POST WWII SOUTHEAST ASIA
Whilst few states in Southeast Asia signed the 1951 Refugee Convention, this cannot be
conflated with a failure to protect refugees in state practice or to reject international
refugee law. Examples of state practice show that refugees have found protection in
the region over time. The history of refugee protection historically has been non-linear,
with some liberal practices and others that have been more restrictive. Many lessons
can be drawn from national state practice, regional cooperation, and international
and regional refugee protection standards of Southeast Asian states in the post-WWII
decades.
State practice from the post-WWII period provides important insights in relation to
Thailand’s treatment of Vietnamese refugees which extended to refugees from other
countries. Archival material drawn on in this article showed Thailand’s practice in pro-
tecting Vietnamese refugees included legal status, provision of plots of land to work
and access to education. There is evidence that Thailand protected refugees from other
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: James
C. HATHAWAY, “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 689.
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 involv-
ing all concerned States and relevant international organizations in the search for and implementation of dur-
able 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.
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countries in the period, including from Burma.
144
In fact: “In the period between the
Second World War and 1975 Thailand witnessed various influxes of asylum-seekers…
and by comparison with those who arrived after 1975, these asylum-seekers have been
treated with liberality”.
145
Beyond national state practice, there are examples of regional cooperation to protect
refugees. The example provided above was the multilateral arrangement between
Thailand, North Vietnam and the ICRC for the voluntary repatriation of Vietnamese refu-
gees.
146
This South-South cooperation to provide durable solutions for refugees predates
the CPA, and represented demonstrated asylum practices in Southeast Asia post-WWII
that conformed with key principles of international refugee law.
147
Regional practices
to protect refugees are part of a continuum of centuries-old history of asylum, an exam-
ination of which is outside the scope of the present article.
148
Southeast Asian states engaged in setting standards for refugee protection in the 1950s
and 1960s in international and regional fora. Their contribution to the 1951 Refugee
Convention drafting process asserted the universality of human rights and stood against
colonial power. Regional standards prepared through South-South cooperation with states
in Africa and the Middle East emerging from colonialism expanded the refugee definition
and included important protection of refugee rights, in particular in the context of return.
The Bangkok Principles offered progressive standards in conformity with international
law.
149
Beyond this, regional practice “contributes to the strengthening of international
refugee law”.
150
Thailand’s representative at the Committee from 1962 onward,
Sucharitkul, stated that the AALCC helped, in general, to formulate and articulate evolving
norms and practice rules of international law in the post-WWII era to the “benefit of man-
kind and the global community beyond Asia and Africa”.
151
He notes that African and
Asian states were preoccupied with the issues surrounding refugees and displaced people
as well as “their humanitarian treatment consistent with the evolving rules of inter-
national law”throughout the 1960s.
152
Reflecting on the impact of the Bangkok
Principles after two decades, Sen considered how the “principles have taken shape as
well as to review the development of new norms and practices in the field of refugee
law”.
153
Further work is required to document the impact of the Bangkok Principles glo-
bally but this does not diminish their importance as a South-South cooperation among
states emerging from colonialism, not restricted to the 1960s, since they were re-affirmed
in 2001.
Further research into the history of refugee protection in Southeast Asia prior to the
CPA is needed, since: “[r]eceived understandings of the 1970s crisis as a starting point for
the Indochina refugee crisis have led to institutional and public amnesia on pre Indochina
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.
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refugee movements and earlier incorporations of displaced and moving communities into
local populations”.
154
The regional standards and examples of national practice did not
start in the decades following WWII in Southeast Asia. There is much to gain from an
even wider historical lens on refugee protection in the region, which includes practices
at all levels of society.
155
There is much to be gained from greater understanding of
the origins of asylum in practices grounded in Confucianism, Buddhism and other
historical influences.
The lessons drawn from the history of refugee protection in the post-WWII decades
are many. Refugee protection in Southeast Asia did not start with the Indochinese refugee
exodus in 1975. Non-accession of Southeast Asian states to the 1951 Refugee Convention in
the post-WWII period does not mean that international refugee law was rejected.
Post-colonial states in Southeast Asia asserted human rights in the drafting process of
the 1951 Refugee Convention. Drafting regional refugee law standards with states
emerging from colonialism elsewhere under the auspices of the AALCC, Southeast
Asian states included rights that were more progressive than those in the 1951 Refugee
Convention, notably a right to compensation for individuals unable to return to their
country of origin. Some of these standards were grounded in state practice at the time,
with the example of Vietnamese refugees in Thailand showing domestic legal and policy
standards to allow refugees to remain on the territory and access basic social and rights.
“Human rights exceptionalism”is relevant, “exceptionalism”insofar as some regional
standards and national practice exceeded the protection afforded by the 1951 Refugee
Convention.
This article has addresses a gap in the literature about refugee law prior to the CPA. It
has challenged the narrative about “human rights exceptionalism”in non-signatory states
to the 1951 Refugee Convention in Southeast Asia by re-thinking the history of refugee
protection to include the decades following WWII. Southeast Asian states played a role
in drafting this Convention, challenging colonial powers and asserting the universality
of human rights. Key refugee-hosting states in Southeast Asia joined with post-colonial
states in other regions to draft the AALCC legal standards for refugee protection, the
Aliens Principles and Bangkok Principles. These standards were more than aspirational,
as the example of Thailand’s protection of Vietnamese refugees demonstrated. The
approach of key refugee-hosting states in Southeast Asia in these post-WWII years from
1945 to 1979 points to an extended history of engaging in refugee protection and import-
ant lessons in refugee protection from the Global South.
Acknowledgements. The author would like to thank Tristan HARLEY, Riona MOODLEY, Jane MCADAM and
Christine FORSTER for their comments on earlier drafts.
Funding Statement. None.
Competing interests. The author is on leave from the United Nations High Commissioner for Refugees
(UNHCR). The perspectives in the article are those of the author, and do not represent the views UNHCR.
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)”: Elena
FIDDIAN-QASMIYEH and Patricia DALEY, eds., Routledge Handbook of South-South Relations (Abingdon: Routledge,
2019).
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Natasha YACOUB is an Affiliate of the Andrew & Renata Centre for International
Refugee Law, at the University of New South Wales, Sydney, Australia.
Cite this article: YACOUB NE (2022). A New History of Refugee Protection in Post-World War Two Southeast Asia:
Lessons from the Global South. Asian Journal of International Law 1–24. https://doi.org/10.1017/S2044251322000510
24 Natasha Emma Yacoub
https://doi.org/10.1017/S2044251322000510 Published online by Cambridge University Press