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
Cambodian refugees in the second conference because it was being addressed in ongoing Cambodian peace negotiations.35
At the 1989 conference, states agreed once again that Southeast Asian countries would provide temporary refuge in exchange for resettlement places offered by countries such as the USA, Australia and Canada.
However, the CPA proposed two additional mechanisms to address changes in political circumstances and reasons for flight, which were: (a)
‘the early establishment of a consistent region-wide refugee status- determination process’;36 and (b) the development of a repatriation programme to Vietnam for persons found not to be in need of inter- national protection.37
Under the new arrangement, government bodies in the countries of first asylum were responsible for determining the status of the asylum seekers, with UNHCR providing supervision and guidance.38 The arrangement provided for persons found to be refugees to be resettled to third countries,39 while persons determined not to be refugees were to be returned to Vietnam.40 The relevant law for determining the status of refugees throughout the region was the 1951 Refugee Convention and its 1967 Protocol, supplemented by the UNHCR’sHandbook on Procedures and Criteria for Determining Refugee Status.41 The Convention and
35 These negotiations culminated in the 1991Framework for a Comprehen- sive Political Settlement of the Cambodia Conflict, UN GAOR, 46th sess, Agenda Item 24, UN Doc A/46/608-S/23177 (30 October 1991).
36 UN General Assembly,Declaration and Comprehensive Plan of Action of the International Conference on Indo-Chinese Refugees, Report of the Secretary- General UN Doc A/44/523 (22 September 1989) <http://www.unhcr.org/
refworld/docid/3dda17d84.html> Part II, D [6].
37 Ibid Part II, F. The repatriation programme was initially made possible by the MOU between UNHCR and Vietnam. Under this MOU, the Vietnamese government agreed, inter alia, not to prosecute or implement other punitive measures for returned asylum seekers who left Vietnam without permission. See Memorandum of Understanding Between the Socialist Republic of Vietnam and the United Nations High Commissioner for Refugees (UNHCR), 13 December 1988 (‘1988 UNHCR–Vietnam MOU’) [3](a), reproduced in Drüke, above n 15, 242–3.
38 UN General Assembly, Declaration and Comprehensive Plan of Action, above n 36, Part II, D [6(a)].
39 Ibid Part E (2).
40 Ibid Part F [12].
41 Ibid Part II, D [6(b)&(c)]; UNHCR,Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees(UNHCR, 1979 rev ed 1992).
Protocol became operational in the region under the CPA, despite the fact that many of the countries of first asylum were not party to either of them.
In addition to these mechanisms, the CPA stressed the importance of reinvigorating the Orderly Departure Programme (ODP) and implement- ing measures to deter clandestine departures.42 In particular, the CPA aimed to target persons ‘organizing clandestine departures’,43which may be one of the first incarnations of the current global preoccupation with people smugglers. The CPA also developed a mass media campaign that focused on the dangers of maritime travel, the new refugee status determination (RSD) process, the benefits of orderly departure and the
‘absence of any advantage, real or perceived, particularly in relation to third-country resettlement, of clandestine and unsafe departures’.44 The aim of the ODP was that regular departure and migration procedures would eventually be ‘the sole mode of departure’.45
After the 1989 conference concluded, it became clear that UNHCR had successfully been able to renegotiate the pragmatic balance of responsibilities among states for dealing with Indochinese refugees. This balance of responsibilities addressed the apparent change in circum- stances regarding the reasons for flight of Vietnamese refugees46and the
42 UN General Assembly, Declaration and Comprehensive Plan of Action, above n 36, Part II, A(1).
43 Nancy Viviani,The Long Journey: Vietnamese Migration and Settlement in Australia(Melbourne University Press, 1984) 85–6.
44 UN General Assembly, Declaration and Comprehensive Plan of Action, above n 36, Part II, A(1)(b)(iii). In August 2012, the Australian government used similar language when it implemented a ‘no advantage’ policy with regard to asylum seekers. The policy was aimed at ensuring that asylum seekers received no benefit by ‘circumventing regular migration arrangements’ and arriving in Australia by boat (see Australian Government, Report of the Expert Panel on Asylum Seekers(August 2012) <http://expertpanelonasylumseekers.dpmc.gov.au/
sites/default/files/report/expert_panel_on_asylum_seekers_full_report.pdf> 8).
The Refugee Council of Australia criticized the policy, arguing that it ‘lacked decency and humanity and further downgraded Australia’s international reputa- tion on human rights’ (see Refugee Council of Australia, ‘“No Advantage” is Maximum Disadvantage for Boat Arrivals’ (21 November 2012) <http://www.
refugeecouncil.org.au/n/mr/121121_noadvantage.pdf> 1).
45 UN General Assembly, Declaration and Comprehensive Plan of Action, above n 36, Part II, B(3).
46 For a critical perspective on the shift from viewing all Vietnamese asylum seekers as refugees to viewing them as predominantly economic migrants and the way in which RSD was implemented, see James C Hathaway, ‘Labelling the
waning interests of states to engage in cooperative, humanitarian meas- ures. While there were repeated concerns that the arrangement would collapse,47the CPA managed to continue to operate until its conclusion in 1996.