Southeast Asia and the 1951 Convention relating to the Status of Refugees: Substance without Form?

Abstract

Abstract The 1951 Convention relating to the Status of Refugees, supplemented by its 1967 Protocol, is the most comprehensive and universal instrument adopted to date to safeguard the fundamental rights of refugees and to regulate their status in countries of asylum. Yet, 70 years after its adoption, many countries – most of them in Asia – are unwilling to accede to it. Focusing on the ASEAN States, this article explores the reasons behind Southeast Asia’s resistance to the Refugee Convention, thereby highlighting some of its limitations. Contrary to the so-called ‘rejection’ of the international refugee law approach that currently prevails in the region, this article argues that Southeast Asian States have long recognized that refugees, as defined in the Refugee Convention, need protection. This is evidenced by their de facto different treatment of refugees compared to other irregular migrants, especially when it comes to arrest, detention, and deportation. The fact that non-signatory States act in conformity with the provisions of a treaty by which they are not bound reinforces the relevance of the Convention, if not as a formal source of obligation, at least as a model to delineate the contours of refugee protection. Somewhat ironically, their practice also contributes to the strengthening of international refugee law.