Dr Mayumi Yamada, Assistant Professor and Head of the Doctoral Programme of the United Nations-mandated University for Peace, Costa Rica, discusses displaced populations within Asia in the light of their status within international law, questioning who can protect the stateless beyond national boundaries, in an article based on research presented at The Asia-Pacific Conference on Security & International Relations 2016.
UNHCR has indicated that 65.3 million individuals were forcibly displaced in 2015; 40.8 million people around the world were displaced within their own countries. These figures, however, did not include stateless persons and climate refugees – those who may not belong to any state. The number of climate refugees or Internally Displaced Persons by climate change is already growing, and is estimated at more than 150 million by 2050 worldwide (McGranahan, et al, 2007). However, both the stateless and climate refugees are not satisfactorily recognised by international law: law enforcement has been challenged by national sovereignty, national laws and territorial integrity. Similarly, the protection mandate of UNHCR is limited. Thus, this research investigates the following aspects of the problem of the stateless in Asia: 1) the crises and fears, 2) who is supposed to protect the stateless beyond national boundaries, and 3) who can alternatively protect them, including existing humanitarian assistance and the roles of the Association of Southeast Asia Nations (ASEAN).
Stateless persons and climate refugees in Asia
“The term climate ‘refugee’ is controversial, arguing with existing legal definitions, because such a refugee status may be granted for those who fled from an armed or political conflict, crossing a national border to take refuge.”
“Article 1 of the 1954 Convention Relating to the Status of Stateless Persons defines a stateless person as a person who is not considered a national by any state under the operation of its law” (UNHCR, 2014). According to the Report of UNHCR (2016), approximately 3.7 million stateless persons in 2015 (3.4 million in 2014) were officially reported while at least 10 million are estimated as the stateless. The definition of stateless persons, however, has its own problem. For instance, “Should a state cease to exist, citizenship of that state would cease, as there would no longer be a state of which person could be a national” (ISI, 2014). As a similar critique, the convention shall be questioned by climate change: will Small Island Developing States (SIDS) physically remain for certain in future? What if the small islands disappear and all the islanders become stateless and right-less? In fact, Asia has the largest number of stateless persons (more than 1.5 million out of 3.7 million stateless persons globally). Moreover, Asia comprises about one third of the world’s land in the “Low Evaluation Coastal Zones” (MacGordon et al., 2007), which indicates that the region and people are vulnerable to becoming climate refugees or the displaced. However, the term climate “refugee” is controversial (Atkins, 2011; UN News, 2014), arguing with existing legal definitions, because such a refugee status may be granted for those who fled from an armed or political conflict, crossing a national border to take refuge.
Two sides of the same coin: Crises and fears of the vulnerable and the host countries
“The stateless often remain invisible: they need protection, but they do not always wish to be identified in order to avoid deportation or detention.”
The personal crises and fears, the vulnerabilities of the stateless and climate refugees, are complex. The stateless often remain invisible: they need protection, but they do not always wish to be identified in order to avoid deportation or detention. Moreover, their free movement is restricted without a nationality, which makes them further vulnerable to human smugglers and traffickers. Many are caught in violence, sexual exploitation and abuse (Ullah, 2016; Persoob, 2010) and transnational crime (Emmers, 2003). Claiming climate refugee status was also denied in the Pacific (Dastgheib, 2015). Contrarily, the crises and fears caused in the host countries, those who receive them, by the influx of people, are different from those of stateless persons and climate refugees. Many states and their people are reluctant to welcome the vulnerable in their countries. At worst, the stateless might be seen as threats, troublemakers, terrorists or related to transnational organised crime. This kind of fear arises among people when they do not know “who is who”. A gender-unequal nationality law also contributes to increase the number of statelessness; e.g. mothers in Brunei have no right to confer their nationality on their children (Caster, 2016).
Existing humanitarian assistance and the roles of the Association of Southeast Asian Nations (ASEAN)
Sharing responsibilities for the stateless is critical, but “how” is uncommitted. International law enforcement has been challenged by national sovereignty, national laws and territorial integrity. However, international communities keep addressing humanitarian options to recognise and protect stateless persons and climate refugees, e.g. birth registration programme (Plan International, 2014), training for lawyers on arbitrary detention (UNGA, 2014) etc. The ASEAN member countries also have critical roles to play; in particular, they hold the largest number of the stateless, i.e. the Rohingya Muslims, in the region. Other than the Philippines, the ASEAN countries have not pledged to accede to the 1954 Convention (UNHCR, 2012); however, all signed the Convention on Eliminating Discrimination Against Women and Children (CEDAW). Moreover, the ASEAN also adopted the ASEAN Human Rights Declaration (AHRD) in the Phnom Penh statement (ASEAN, 2012). These existing processes and the transnational cooperation mechanism are the potential platform that can develop regional integration of the vulnerable (Renshaw, 2013) although ASEAN includes Islamic members such as Brunei, Indonesia and Malaysia and their involvement makes the issues of human rights of the Rohingya Muslims sensitive to Myanmar (Paik, 2016).
Concerning climate refugees, a global platform, namely the Nansen Initiative, has been established for providing humanitarian assistance for disaster-induced cross-border displacement (The Nansen Initiative Secretariat, 2014; Walter, 2012). Concerning recent humanitarian assistance in Southeast Asia, ASEAN’s role became visible with the cyclone Nargis flooding in Myanmar (Paik, 2016): all ASEAN member countries provided disaster relief materials to the cyclone-affected areas based on the ASEAN Agreement on Disaster Management and Emergency Response (AADMER). Furthermore, an ASEAN Emergency Rapid Assessment Team was deployed, comprising government officials, disaster experts and NonGovernmental Organizations (NGOs), from the ASEAN countries. The ASEAN-led coordination mechanism as a regional cooperation does exist to deliver humanitarian assistance to those who are in need.
“ASEAN has a critical role in defending and protecting the most vulnerable from transnational crime.”
We have fearful futures in Asia: more and more people need and seek nationality and protection. Current legal and policy frameworks need to be revisited because the complex issues of stateless persons and climate refugees cannot be addressed simply as legal issues in isolation. In December 2016, ASEAN took a further step, holding the ASEAN meeting on the Rohingya Muslims in Myanmar. Such political, cooperative measures are not always efficient, but have potential for understanding and framing the extensive impacts of stateless persons and climate refugees on all ASEAN countries (Neo, 2016). Furthermore, protecting the stateless needs to be reframed to include preventing transnational crime beyond regional security and/or domestic legal perspectives (Emmers, 2003). ASEAN has a critical role in defending and protecting the most vulnerable from transnational crime.
Image | Arek Socha, Pixabay
Dr Mayumi Yamada first presented this research at The Asia-Pacific Conference on Security & International Relations 2016.
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