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Refugee protection in South East Asia Michael Timmins.

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Presentation on theme: "Refugee protection in South East Asia Michael Timmins."— Presentation transcript:

1 Refugee protection in South East Asia Michael Timmins

2 Asia: 3,607,200

3 1951 CRSR and/or 1967 Protocol

4 o Few Signatories (Philippines, Cambodia) o Major camp populations o Large numbers of unregistered refugees

5 No legal status Forcible return back to persecution (refoulement) Arbitrary and prolonged detention Lack of access to healthcare, education, and livelihood Host country exploitation

6 Camps Urban refugees

7 Mandate of protection Direct operational assistance

8 Yet, the main responsibility for safeguarding the rights of refugees lies with states, not least because of the fundamental responsibility of states to guarantee the human rights of everyone (including non- citizens) subject to their jurisdiction and within their territory. Turk, V. & Eyster, E., Strengthening UNHCRs System of Accountability (2010)

9 Asylum Claims in 2011: 876,100

10 South Africa: 107,000 USA: 76,000 France: 52,100

11 UNHCR: 98,800

12 UNHCR Refugee Status Determination (RSD): Core protection mechanism Where states are unable or unwilling to conduct RSD 12

13 To make the right decision under the Convention. Objectively, on the facts found, is there a well-founded fear of being persecuted for a Convention reason? Easy. 13

14 Credibility assessment Country of origin information Legal assessment 14

15 Legal assessment: Treaty interpretation: Vienna Convention on the Law of Treaties 15

16 [A decision-maker] must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty. R. v. SSHD, ex parte Adan and Aitseguer [2001] 2 WLR 143 (U.K.H.L., Dec. 19, 2000) 16

17 The effectiveness of mandate RSD as a protection function depends upon the fairness and integrity of UNHCR RSD procedures and the quality of UNHCR RSD decisions. Unit 1-1, UNHCR, Procedural Standards for Refugee Status Determination Under UNHCR's Mandate (2003)

18 Michael Alexander (1999): 1. Publication of substantive criteria applied by UNHCR 2. Provision of information to asylum seekers 3. Availability and access to independent legal advice and assistance for asylum seekers 4. Allowing advisors or representatives to be present at interviews

19 5. Access to information on the asylum seekers file, and all information used in making a decision 6. Reasons for rejection 7. Right of appeal 8. Requirement of new information for appeals

20 Consistent violations of natural justice Lack of access to counsel No accountability mechanism Delays Minute protection space

21 Global Administrative Law: …the operation of existing or possible principles, procedural rules and reviewing and other mechanisms relating to accountability, participation, and assurance of legality in global governance. Kingsbury, B., Krisch, N., & Stewart, R., The Emergence of Global Administrative Law (2005)

22 Not legally trained Lack of experience Lack of sufficient support Credibility decision-making Compassion fatigue

23 Revision of the 2003 Procedural Standards: View applicants as rights holders, not beneficiaries Bring UNHCR RSD staff into the international judicial conversation

24 State responsibility Strategic litigation: CAT ICCPR CRC

25 Regional Cooperation Framework Externalising border control Exporting bad policies

26 ! 26

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