for Indochinese Refugees
The Comprehensive Plan of Action for Indochinese Refugees (CPA) is an example of a responsibility-sharing agreement in the Southeast Asian region. It was intended to bring temporary and durable solutions to thousands of people seeking international protection from Vietnam and Laos between 1979 and 1996. Under the CPA, countries of first asylum in the region, such as Indonesia, the Philippines, Malaysia, Thailand and Hong Kong, agreed to give temporary protection to thousands of Viet- namese and Laotians arriving in their territory. In return, states from outside the region committed to resettle large numbers of these refugees.
Although the name Comprehensive Plan of Action for Indochinese Refugees did not emerge until it was adopted at an international conference in June 1989, the foundations of the CPA were laid at the Meeting on Refugees and Displaced Persons in South-East Asia held in July 1979. The chapter will refer to both the 1979 arrangement and the CPA as needed.
food shortage, drought, floods and a desire to avoid military service in the border clashes Vietnam was having with Pol Pot’s regime in Cambodia’.3 Increasingly, minority groups such as the ethnic Chinese fled Vietnam to seek protection elsewhere.4 Refugees fled from Laos for similar reasons.5
On 20–21 July 1979, the UN Secretary-General, at the request of several states, convened the first international conference to deal with the problem. It brought together representatives from over 65 governments and others from international organizations and NGOs to reach a comprehensive agreement for the protection of the refugees. From the outset, the conference sought to apportion the responsibility of protecting refugees among states primarily on the basis of economic and social capacity, given the size of the outflow of refugees.6 Responsibility for refugees was assigned to states based on their categorization as countries of first asylum or of final settlement, while countries of origin were encouraged to respect freedom of movement.7
In his opening remarks to the conference, the UN Secretary-General highlighted the interrelationship of obligations and responsibilities in relation to these three categories of countries, emphasizing that ‘countries of origin had an obligation to respect the right of emigration and family reunification, while avoiding any action leading to the departure of their people under conditions which put their lives in jeopardy’.8 Meanwhile countries of first asylum ‘were expected to respect fully the principle of first asylum for refugees coming there by land and sea’.9 In turn, countries of final settlement were requested to take primary responsibility for the long-term resettlement of refugees outside the region and for financing resettlement processing centres in the countries of first asylum to ensure that these countries would not be overburdened with refugees or left with residual problems.10
3 Ibid 22.
4 Judith Kumin, ‘Orderly Departure from Vietnam: Cold War Anomaly or Humanitarian Innovation?’ (2008) 27Refugee Survey Quarterly104, 107–08.
5 W C Robinson, Terms of Refuge: the Indochinese Exodus & the Inter- national Response(Zed Books, 1998) 103–10.
6 Report of the Secretary-General, above n 1, [11]–[12].
7 Ibid [12].
8 Ibid.
9 Ibid.
10 Ibid. Although the agreement did not define ‘residual problems’, this terminology implicitly referred to the permanent stay of refugees in the countries of first asylum, as well as the perceived social and economic difficulties that such a situation would produce.
This allocation of responsibilities among states was intended to serve four purposes. First, it sought to address the shortage of resettlement places available for refugees in the region and the resultant backlog.
Second, it aimed to slow down the alarming rate at which asylum seekers were departing Vietnam, particularly in the lead up to the conference.
Third, it aimed to prevent first asylum states from turning back refugees arriving at their borders, by creating assurances for these states that they would not be left to deal with the refugees alone. Fourth, it sought to ensure that states from outside the region would provide financial assistance to the states of first asylum, which, apart from Hong Kong, were developing countries at the time. While it is unclear which actors initially proposed this political compromise behind closed doors, this agenda was clearly dominant from the outset of the conference and was popular among participating states.
At the conclusion of the conference, states agreed to this distribution of responsibilities and made firm commitments towards its implementation.
In particular, states of final settlement, such as Australia, Canada, France, Germany, the United Kingdom and the United States, more than doubled the number of resettlement places available for Indochinese refugees, increasing them from 125 000 at the end of May 1979 to 260 000 by the end of the July 1979 meeting.11 Indonesia and the Philippines immedi- ately committed to develop two regional processing centres to provide temporary shelter for refugees, with funds provided by UNHCR.12States of first asylum agreed to adhere to the principles of asylum and non-refoulement, by allowing refugees to seek temporary refuge in their territory instead of turning boats back. Donor states pledged financial and in-kind support amounting to US$160 million.13 Finally, Vietnam com- mitted to further enhance the Orderly Departure Programme that it had recently developed with UNHCR, and to ‘make every effort to stop illegal departures’.14
On 30 May 1979, UNHCR and Vietnam had signed a Memorandum of Understanding (MOU) that permitted ‘the orderly departure of persons who wish to leave Viet Nam for countries of new residence’.15 This
11 Ibid [18].
12 Refugee status was grantedprima facie, so the regional processing centres did not have to implement refugee status determination processes.
13 Report of the Secretary-General,above n 1, [18].
14 Ibid [16].
15 Memorandum of Understanding Between the UN High Commissioner for Refugees (UNHCR) and the Government of the Socialist Republic of Vietnam Concerning the Orderly Departure of Persons Who Wish to Leave Vietnam for
MOU aimed to minimize clandestine departures from Vietnam by creat- ing orderly routes of departure through Hanoi and Ho Chi Minh City for the purposes of family reunion and ‘other humanitarian cases’.16 In signing this MOU, UNHCR responded to concerns from states of first asylum that migration from Vietnam had reached uncontrollable levels and that it was necessary to stem the flow. UNHCR also believed that in developing safer alternatives to the boat departures from Vietnam, it could minimize the potential for deaths at sea.17
In addition to these commitments, the 1979 conference also recom- mended that states meet to discuss practical arrangements for dealing with the rescue of refugees and other displaced persons in distress in the South China Sea.18On 14 August 1979, UNHCR convened a meeting to bring together representatives from ten affected governments, as well as experts from the Inter-Governmental Maritime Consultative Organization and the World Meteorological Organization, to discuss the issue.19At this meeting, participants agreed that it was necessary to engage with the shipping community to ensure that rescues at sea would take place when required.20Participants also considered the possibility of special resettle- ment arrangements for refugees following disembarkation.21 As Klug writes,
the Indochina crisis triggered, for the first time, international cooperation on rescue at sea, consisting of the following elements: disembarkation in the first port of call, resettlement guarantees by flag states and others, through the DISERO [Disembarkation Resettlement Offer] and RASRO [Rescue at Sea Resettlement Offer] schemes, and provision of care and maintenance of the rescued pending departure by UNHCR.22
DISERO commenced in 1979, and RASRO in 1985.23
Countries of New Residence, 30 May 1979 (‘1979 UNHCR–Vietnam MOU’), reproduced in Luise Drüke,Preventive Action for Refugee Producing Situations (Peter Lang, 1993) 241.
16 Ibid [1].
17 See Kumin, above n 4, 105.
18 Report of the Secretary-General, above n 1, [32].
19 Ibid [33].
20 Ibid [34].
21 Ibid.
22 Anja Klug, ‘Strengthening the Protection of Migrants and Refugees in Distress at Sea through International Cooperation and Burden-Sharing’ (2014) 26 International Journal of Refugee Law48, 56–7.
23 Ibid 57 note 46.
Finally, in response to the flight of refugees from Cambodia following the Vietnamese invasion and overthrow of the murderous Khmer Rouge, states agreed to provide US$210 million for emergency relief to Cam- bodians in Cambodia and in Thailand. This financial assistance was intended to provide food for malnourished Cambodians and to address shortages in doctors, hospitals and drugs24 and was part of a joint emergency relief programme operated by the UN Children’s Fund (UNICEF), the International Committee of the Red Cross (ICRC) and the UN World Food Programme (WFP).25
By the end of 1979, the agreement reached at the conference had produced many tangible benefits for both refugees and states. Boat arrivals decreased to approximately 2000 per month and the significant increase in resettlement had relieved much of the pressure on the camps;
during 1979, 132 845 refugees departed for resettlement countries and a total of 140 436 refugees remained in the camps.26 Luise Drüke argues that ‘[c]onsidering how easily the crisis could have degenerated into an unprecedented and unpredictable situation, jeopardizing regional political and security interests, the results obtained from the 1979 Geneva Meeting helped contain the flow of refugees to manageable proportions and defuse serious tensions’.27
However, as time went on, the burden-sharing arrangement that states had agreed to at the 1979 conference began to fray. When boat departures from Vietnam began to increase once again in 1986, states of final settlement did not offer enough resettlement places to keep pace with the increase in asylum seeker arrivals.28 Many of the resettlement countries had come to believe that the reasons for flight from Vietnam had changed considerably since 1979 and that there was no longer the same moral imperative to provide resettlement. As a US Congress research study on the motivations of persons departing Vietnam stated in 1984, there was a substantial increase in the number of ‘economic migrants’ departing Vietnam and ‘[t]he international community, and particularly the UNHCR, must begin to acknowledge this shift by developing new
24 Report of the Secretary-General, above n 1 [52–8].
25 Ibid [54].
26 Drüke, above n 15, 83.
27 Ibid.
28 See Arthur C Helton, ‘The Comprehensive Plan of Action for Indo- Chinese Refugees: An Experiment in Refugee Protection and Control’ (1990) 8 New York Law School Journal of Human Rights111, 113–15.
alternatives such as repatriation, UNHCR screening and local settlement without any longer relying only on third country resettlement’.29
In response, states of first asylum, such as Thailand and Malaysia, felt that they were once again overburdened by the arrival of Vietnamese asylum seekers. After initially appealing through the Association of Southeast Asian Nations (ASEAN) for resettlement states to increase their resettlement places for Indochinese refugees, some states of first asylum reneged on their commitments under the 1979 arrangement and recommenced forcibly pushing refugees back into the South China Sea.30 In late 1987, Thai government officials publicly announced that no more boat people would be allowed to enter Thailand31 and Malaysia imple- mented a ‘redirection policy’ whereby the Malaysian Navy intercepted boats in Malaysian waters and towed them back to the High Seas.32Hong Kong, in contrast, implemented screening and detention measures in June 1988 under which all new arrivals had to undergo a refugee status determination process.33