MELISSA CURLEY believes Australia’s much-criticised deal to resettle refugees in Cambodia could help raise awareness of international norms relating to refugee protection in a country where it is sorely required.
Australia’s decision to sign a memorandum of understanding with the Cambodian government on the resettlement of refugees in Cambodia—ostensibly as part of a wider ‘regional burden-sharing solution’—has drawn harsh criticism from human rights activists, refugee advocates and the United Nations High Commissioner for Refugees.
Signed in Phnom Penh on 26 September, the agreement allows for the voluntary resettlement of up to 1000 refugees in Cambodia, from the Nauru facility, once refugee status has been officially granted. Cambodia is only one of two Southeast Asian countries party to the 1951 UN Refugee Convention and the 1967 Protocol (the other being the Philippines) and with this deal, Australia seemingly has addressed the major hurdle that scuppered the ill-fated Australia–Malaysia refugee swap agreement in 2011.
Critics have highlighted two common themes regarding the deal. The first relates to the myriad of problems facing resettled refugees in post-conflict Cambodian society, including serious human rights abuses by government-sanctioned actors, a criminal justice system where executive and judicial powers are not separate (in practice or in perception), and the well-publicised treatment in recent years of asylum seeker groups from the ethnic Uyghur minority in China and ethnic minorities from Vietnam.
Critics also note the limitations in Cambodia’s domestic law regarding refugee rights and protections, the fact that Cambodia’s Immigration Minister retains absolute discretion in granting and cancelling refugee status, and that there are limited resources available to resettle refugees in a country which clearly has numerous development and societal challenges of its own.
The second problem relates to the perceived hypocrisy of the Australian government in resettling refugees seeking asylum in Australia in a country with a population suffering from high levels of poverty, child exploitation, and lack of access to adequate housing, sanitation, health and educational facilities, particularly in rural areas. While media reports quote assurances from Cambodian prime minister Hun Sen that those who are resettled ‘will have the same opportunities to study and work like the locals, without discrimination’, many are sceptical. Such scepticism relates, in part, to worries about the deteriorating quality of democracy in Cambodia, which has implications for the way in which Australia determines whether Cambodian can be considered a ‘safe third country’.
A deterioration of the rule of law is occurring in Cambodia, and is a serious negative development for further democratic consolidation.
The domestic reaction in Cambodia to the deal mirrors sentiments expressed about Australian agreements on refugee resettlement and processing on Nauru and Manus Island. As Virak Ou, head of the Cambodian Centre for Human Rights expressed it, ‘The Australian government is sending a very strong message that you are either going to be eaten by a crocodile or eaten by a tiger. You’re either going to be placed in an island where your life is going to be pretty much like hell, or you’re going to be sent to a country like Cambodia. So it’s the same kind of punishment’.
In doing this deal with the Cambodian government, the Australian authorities are entrusting the resettlement of refugees to a country where arguably the democratisation process is stalling. Despite the cordial diplomatic relationship between Australia and Cambodia, and leverage from Australian overseas development aid, the process of resettling refugees in Cambodia will move out of the control of Australian authorities. How Australian authorities monitor the resettlement process, and what degree of input they will have, may well prove problematic.
A deterioration of the rule of law is occurring in Cambodia, and is a serious negative development for further democratic consolidation. The judicial system continues to be influenced by the ruling political elite, which uses its powers to support a range of politically motivated decisions. The Cambodian criminal justice system therefore is faced with—and poses—a number of serious challenges to the promotion and consolidation of democracy.
Some specific challenges include the limited availability of resources in policing and legal arenas, lack of capacity and adequate training, lack of legal representation for victims as well as other pressing crime issues such as drug trafficking, and youth violence. Nevertheless, the presence of opposition figures in Cambodia willing to speak out, and strong opposition to the government’s attempt to further ‘regulate’ non-government organisations (NGOs) are positive points.
If there is a positive side to be found in the Australia–Cambodia refugee resettlement deal, it may be the opportunity to raise the capacity and awareness of the Cambodian bureaucracy that manages refugee determination status and resettlement—which is no doubt lacking in funds, human resources, and technical expertise. It is hoped that some of the slated additional $40 million in Australian aid money allocated for the arrangement will be directed to capacity building and training for these officials.
While this cannot be expected to trump or address the wider challenges facing the quality of Cambodian democracy, it can at least make a start in improving the Cambodian government’s capacity to implement its obligations under the 1951 UN Refugee Convention. Cambodia suffered enormously under the Khmer Rouge, and attempts to reconfigure democratic institutions in a war-ravaged country with a communist bureaucratic system were always going to be difficult. Recognition of what is a realistic expectation for Cambodian democracy two decades after the United Nations Transitional Authority in Cambodia-supervised elections is now being debated more openly. This has, in part, been prompted by research into the difficulties of building western institutions of rule of law and governance upon a system where patron–client relations play an ongoing role within state-society relations.
It remains to be seen whether Australia’s deal to resettle refugees in Cambodia will form part of an actual regional burden-sharing solution for asylum seeker and refugee populations, or will merely be another addition to the growing suite of policies to deter illegal maritime arrivals and turn back boats.
The Abbot government needs to make a better case in the public arena for how and whether the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime is actually progressing regional burden-sharing solutions. Better quality public debate on this and what our East Asian neighbours’ views are is crucial for such a claim to be credible—not least to counter the view that Australia is selfishly offloading its asylum seekers to be processed and resettled in poor countries in the region.
The Regional Cooperation Framework, endorsed by the Bali Process in 2011, and the Indonesian led Jakarta Dialogue has called for a ‘protection-sensitive regional approach’. In partnering with the Cambodian government, the Australian government now has an obligation, to the Australian public at least, to be transparent about how the money is being spent to implement the agreement, and report on the process and progress related to such protection norms in its implementation.
The optimist hopes the agreement thus will provide an opportunity, albeit limited, to further advocate for the rights of asylum seeker and refugee populations, and to promote international norms relating to their protection within a country where this is sorely required. While this may be a good thing, the Australian government should be under no illusions about the domestic challenges facing Cambodia’s democratisation process, and how it will affect resettled refugees.
Cambodians planting rice. High levels of poverty, child exploitation, and lack of access to adequate housing, sanitation, health and educational facilities, particularly in rural areas. (Wikimedia Commons)