ENDNOTES 1 Ridwanul Hoque and Quazi Omar Foysal (Bangladesh); the organizations Febi Yonesta and Suaka (Indonesia); Deepa Nambiar (Malaysia); the research group Musawi (Pakistan); and Asylum Access Thailand. The experts consulted for the India portion of this project have requested to remain anonymous. 2 Brian Barbour is senior regional refugee protection officer at Act for Peace, and the chair of regional protection at the Asia Pacific Refugee Rights Network. 3 There Are Alternatives, International Detention Coalition. 4 Article 38(1)(b) of the Statute of the International Court of Justice. 5 1969 North Sea Continental Shelf cases. 6 “Sustainable Development Goal 16.9: ‘Legal Identity’, Nationality & Statelessness,” Institute on Statelessness and Inclusion (2018): 2. 7 Elihu Lauterpacht and Daniel Bethlehem, “The Scope and Content of the Principle of Non-Refoulement (Opinion)” (United Nations High Commissioner for Refugees (UNHCR), June 20, 2001), www.unhcr.org/protection/globalconsult/3b33574d1/scope-contentprinciple-non-refoulement-opinion.html, 1. 8 Article 1A(2) of the Refugee Convention. 9 While all refugees are migrants, not all migrants are refugees. For more on this distinction, see Article 1 in Kysel et al, “International Migrants Bill Of Rights, With Commentary,” Georgetown Immigration Law Journal, 28, no 23 (2013): 33, https://www.law.georgetown. edu/human-rights-institute/wp-content/uploads/sites/7/2017/08/04-IMBR-with-Commentary.pdf. 10 Joan Fitzpatrick, “Temporary Protection of Refugees: Elements of a Formalized Regime,” The American Journal of International Law 94, no. 2 (April 2000): 279, https://doi.org/10.2307/2555293. 11 Fitzpatrick 287. 12 Careful consideration of the South and Southeast Asian protection context reveals a region that is hesitant to offer a permanent refugee status, codified in law. Many states do not view the use of the term “refugee” favorably, associating the term with the 1951 Convention’s shortcomings in terms of international burden sharing. This guide intentionally considers protection mechanisms which are rooted in existing domestic law and policy as potentially more politically feasible avenues for extending crucially needed protections to vulnerable non-national populations. 13 Brian Barbour, “Beyond Asian Exceptionalism: Refugee Protection in Non-Signatory States,” Forced Migration Review, no. 67 (July 2021): 42–45. 14 For a more detailed discussion on interactions between non-signatory states and international refugee rights norms, see Maja Janmyr, “Non-Signatory States and the International Refugee Regime,” Forced Migration Review, no. 67 (July 2021): 39–42. 15 Article 2 of the AHRD provides guarantees for the freedoms that are at the base of the need for protection in the region, namely freedom from discrimination on the basis of “race, gender, age, language, religion, political or other opinion, national or social origin, economic status, birth, disability or other status.” Article 14 of the AHRD enshrines the principle of non-refoulement when it states without qualification, “No person shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.” Articles 15 and 16 refer to the right to freedom of movement and specifically the right to seek asylum. However, the right to seek asylum derived from the AHRD is “in accordance with the laws of such State and applicable international agreements,” and therefore it is a limited right in that it does not exist without supporting domestic legal provisions in any individual ASEAN state. 16 A detailed elaboration of the principle of non-refoulement and its place among other customary international law norms is given in Lauterpacht and Bethlehem. 17 Maja Janmyr, “The 1951 Refugee Convention and Non-Signatory States: Charting a Research Agenda,” International Journal of Refugee Law 33, No. 2 (June 2021): 188–213, https://doi.org/10.1093/ijrl/eeab043. 18 Esther Kiragu, Angela Li Rosi, and Tim Morris, “States of Denial: A Review of UNHCR’s Response to the Protracted Situation of Stateless Rohingya Refugees in Bangladesh” (Policy Development and Evaluation Service, UNHCR, 2011). 19 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar); Lindsey N. Kingston, “Protecting the World’s Most Persecuted: The Responsibility to Protect and Burma’s Rohingya Minority,” The International Journal of Human Rights 19, no. 8 (November 17, 2015): 1163, https://doi.org/10.1080/13642987.2015.1082831. 20 UNICEF, “Rohingya Crisis,” accessed October 29, 2019, https://www.unicef.org/emergencies/rohingya-crisis. 21 UNHCR Inter Sector Coordination Group - Bangladesh, “Rohingya Refugee Crisis, Cox’s Bazar - January 2019,” (ISCG Situation Report, Bangladesh, February 17, 2019), https://reliefweb.int/report/bangladesh/iscg-situation-report-rohingya-refugee-crisis-cox-sbazar-january-2019. 22 This study did not take into account significant Rohingya populations in Saudi Arabia and other Gulf states, as those communities have been treated as economic migrants subject to labor migration programs. 23 “Around 40,000 Rohingya in India: Government Tells Lok Sabha,” The New Indian Express, December 19, 2017, http://www. newindianexpress.com/nation/2017/dec/19/around-40000-rohingya-in-india-government-tells-lok-sabha-1731250.html. 24 “UNHCR Submission on Indonesia: UPR 27th Session,” (UNHCR, September 2016) https://www.refworld.org/docid/5a12b5432.html. 25 “Figures at a Glance in Malaysia,” UNHCR, accessed October 28, 2019, https://www.unhcr.org/figures-at-a-glance-in-malaysia.html. 26 Saad Sayeed and Syed Reza Hassan, “Rohingya Refugees in Pakistan Fear for Relatives in Myanmar,” Reuters, September 10, 2017, https://www.reuters.com/article/us-myanmar-royingya-pakistan/rohingya-refugees-in-pakistan-fear-for-relatives-in-myanmaridUSKCN1BL0B4. 27 “Thailand | Global Focus,” UNHCR, accessed October 28, 2019, https://reporting.unhcr.org/thailand. 28 “Afghanistan’s Refugees: Forty Years of Dispossession,” Amnesty International, June 20, 2019, https://www.amnesty.org/en/latest/ news/2019/06/afghanistan-refugees-forty-years/. 29 45 “UNHCR - Refugee Statistics,” UNHCR, August 27, 2021, https://www.unhcr.org/refugee-statistics/download/?url=Ai6A6z. UND OING PRECARIT Y: ELE VATING P OSITIVE PR ACTICES FOR REFU GEE PROTECTION IN SO U TH AND SO U THE AST ASIA