Ratana Ly, researcher at the Center for the Study of Humanitarian Law in Cambodia, recently visited the Raoul Wallenberg Institute where we got the opportunity to interview her on her research on the human rights implications of the bilateral resettlement agreement between Cambodia and Australia.
How would you describe the current state of migration in the Asia-Pacific region?
In the Asia-Pacific region, how countries, including Australia and Cambodia, approach issue of forced migration and refugees is critical. Within Asia-Pacific, Australia appears to be an attractive destination, yet only a very small portion of asylum seekers in the world has actually sought asylum in Australia. These refugees come from countries including Afghanistan or belong to the Rohingya minority coming from Myanmar, where they are not recognized as citizens.
Can you tell us about the resettlement agreement between Australia and Cambodia?
In the absence of a regional migration treaty, Cambodia and Australia entered into a resettlement agreement in September 2014. Asylum seekers who are intercepted in international waters on their way to Australia or have reached Australia may be transferred to a processing center in Nauru to have their refugee status determined. Those who are found to be refugees have the choice to remain in the processing center for five years or to be resettled in Cambodia. Australia has paid Cambodia some 45 million Australian dollars as part of this agreement. So far, only a handful of individuals have accepted the resettlement.
Who is legally responsible for the protection of the refugees?
It depends on which country has effective control over refugees in Cambodia. I argue that Australia may have effective control over refugees at Nauru regional processing center or earlier depending on when Australia comes into contact with these refugees. Should Australia has jurisdiction over refugees at Nauru regional processing center, under the principle of “non-refoulement,” Australia has an obligation not to transfer refugees to Cambodia should there be compelling evidence that the rights of the refugees be violated in Cambodia. According to the agreement, once they arrive in Cambodia, refugees can only stay temporarily in Phnom Penh, the capital and then will be resettled outside Phnom Penh. Further, Australia has advised its citizens of the poor facilities including healthcare outside Phnom Penh. There have also been widely media reports that minorities of Vietnam (Montagnard) and China (Uighur) who seek asylum in Cambodia are systematically sent back to their home countries. These may indicate that Australia is aware of Cambodia’s poor human rights record.
Australia’s legal obligation ends under the principle of effective control, while Cambodia has territorial jurisdiction over these people and is the sole country which is legally responsible for refugee protections in Cambodia.
To what extent can the theory of shared responsibility be helpful in determining liability for either Australia or Cambodia?
While Cambodia remains the principal actor, the theory of shared responsibility of States for international wrongful acts could allow for Australia to be qualified as assisting another State in the commission of a wrongful act if Cambodia does not fulfill its obligations under the international law. This means that Australia could then be held to some extent legally liable for rights protection of these refugees in Cambodia.
My responses here may be limited, but there is an academic paper forthcoming in Australian Law Journal where with my colleague, Dr Natalia Szablewska, we explore in more details legal and political implications of the Cambodia-Australia Resettlement Deal.
What’s the biggest challenge regarding the agreement?
The agreement itself and the lack of willingness to implement the agreement in accordance with international refugee law and international human rights law. But would a regional agreement have a better outcome? Should ASEAN or ASEAN plus 6 adopts a refugee treaty, it would of course be an absolutely good sign. However, such regional agreement would be a long way off. On a positive note, ASEAN has been taking steps to tackle human smuggling, trafficking and related issues. I personally think that another concrete step to take for southeast Asian countries should be to ratify the UN refugees conventions.