Dilemmas of Human Rights and Security in Asia

By Christoph Bluth

Liberal democratic states have been dealing with major refugee flows. The migration of large numbers of people to Europe and North America has multiple causes which include regional conflicts, the consequences of global warming, political opposition to autocratic regimes and societal inequalities which involve the exploitation of people, trafficking and human slavery This study provides background information on the factors that drive refugees flows from Asia, including the general security situation, political repression and transnational criminal activity. It is a resource for volunteers and professionals involved in supporting refugees and victims of human slavery.

• Language: English
• Publisher: Xlibris UK
• Release date: Jul 20, 2022
• ISBN: 9781664118003

Book preview

Chapter 1

Introduction

In the last ten years, Europe has been dealing with significant refugee flows. The migration of large numbers of people to Europe and North America has multiple causes, which include regional conflicts, the consequences of global warming, political opposition to autocratic regimes and societal inequalities which involve the exploitation of people for labour or sexual purposes. The UNHCR states: There are 9.2 million people of concern to UNHCR across Asia and the Pacific, including 4.4 million refugees and asylum-seekers, 3.3 million internally displaced people and 2.3 million stateless persons.¹ The phenomenon of migration includes migration for labour, for economic advancement, fleeing political persecution as well as human trafficking/slavery.

The migration of people to Europe has become a significant political issue, especially in member states of the European Union and the United Kingdom. While protecting people from persecution and exploitation is part of the core values of liberal democracies, the practical implications have given rise to political controversy. The issue gained particular political salience during the refugee ‘crisis’ in 2015–2016, when 1.3 million asylum seekers arrived in Europe. This precipitated such a level of discord between the EU member states that the EU system for managing refugees practically collapsed.

The impact on European societies was summarised by an academic study as follows:

- "Europe is facing an unprecedented number of newcomers, diverse in terms of educational background and skills, a challenge for any socio-economic integration programs;

- Germany absorbed more refugees than any other country in the EU, in absolute terms. Still, Sweden and Austria are the most prominent destination countries on a per-capita basis. In 2015, Germany adopted the highly criticised open border policy, taking in 890,000 refugees and receiving 476,649 formal applications for political asylum;

- In the latest inflows, a relevant part is represented by unaccompanied children, exposed to severe emotional and physical distress;

- Economic migrants are blended in the general inflows of refugees, so it is essential to distinguish between those in need of humanitarian support and those in search of a better life, who may return to their home countries without endangering their lives;

- Most of the newcomers used illegal networks to access transit and destination countries in Europe;

- EU allocated more than 2 billion euros for humanitarian and non-humanitarian aid in order to support refugees;

- Due to the forced nature of their migration and the traumatic experiences frequently associated with it, many refugees suffer from psychological strain, a topic barely included in any host country intervention programs"²

Different countries have developed a variety of strategies for dealing with refugees. Some have tried to use the Dublin mechanism whereby refugees are required to apply for asylum in the first EU country they reach and external border controls to limit the influx of migrants and refugees and essentially pass the problem on to other EU states. Refugees claiming asylum are subjected to a rigorous process in which their applications are considered. If their claims are not accepted, they can go to court and quite frequently, administrative decisions are overturned, although this differs from country to country. In the United Kingdom, it could be argued that the process has been guided by the political priority to limit the number of migrants and recipients of asylum protection, the ultimate manifestation of which is now to compel refugees to go to Rwanda for the process to be completed and even if successful they will not be able to return to the United Kingdom.

The United Nations Universal Declaration of Human Rights of 1948 stated that everyone has the right to seek and to enjoy in other countries asylum from persecution. This principle was codified further in the 1951 Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees 1967. A refugee is defined as a person who is located outside the country of which he or she is a national due to fear of persecution on certain grounds, such as race, nationality, religion, political opinions or membership of a particular social group or participation in certain social activities. In the European Union, the right to asylum is also provided for by Article 8 of the European Convention on Human Rights which protects the right to a private and family life.

The United Kingdom has introduced a complex range of legislation to codify its adherence to international conventions including the ECHR. These include the Immigration Act 1971, Immigration and Asylum Act 1999, Nationality Immigration and Asylum Act 2002, Asylum and Immigration (Treatment of Claimants etc.) Act 2004, Borders Citizenship and Immigration Act 2009, Immigration Act 2014 and Immigration Act 2016. More recent legislation was introduced in 2022 which the Law Society has criticized in the following terms:

The Nationality and Borders Act will fundamentally change the UK immigration system for asylum seekers and refugees and damage Britain’s reputation as a just nation, the Law Society of England and Wales said as the bill became law… New rules will punish vulnerable refugees who arrive in the UK without prior permission from the government, giving them only temporary protection – which would be regularly reviewed. The threat of return could hang over them indefinitely and they may be denied the right to settle in the UK or to be joined by their family. ³

An assessment of an asylum application involves extensive interviews, often conducted with the aid of an interpreter, other evidence submitted by the applicant including testimonials, copies of arrest warrants or similar documents to prove persecution in their own country, and submissions from the solicitor if the applicant is represented.

Protecting victims of trafficking and human slavery is codified into policy by European states to fulfil their obligations under the Trafficking Convention and the European Convention of Human Rights. But this creates conflict between the policy priority to control immigration and the duty to protect persons at risk which is particularly acute in the United Kingdom but has also become a high priority issue in some Scandinavian states. The UK government uses various legal instruments and policy measures to make it as difficult as possible for asylum seekers to enter or to remain in the UK. Now basically cutting off almost all legal routes and criminalising refugees for using illegal routes to enter the country and claim asylum.. This is known as removing the push and pull factors. However, contrary to the political declarations and expectations by policymakers, these policies may encourage rather than combat human slavery. The pull factors include networks of businesses which require labour from abroad but immigration laws close off most legal routes of entry. This increases the opportunity for traffickers. The United Kingdom has created a hostile environment whereby illegal immigrants are at risk from the authorities and unable to legally work, receive public services such as education and health care or acquire accommodation. This actually deters victims of trafficking from escaping from human slavery and contacting the authorities. Moreover, it promotes re-trafficking within the UK. The prosecution of those in forced labour in the cultivation of cannabis likewise inhibits victims from escaping, because if they do they are at risk of prosecution and imprisonment.

The key factors that give rise to migration from Asia to Europe are different in some respect from those that apply to Africa and the Middle East. Asian refugees are not generally fleeing violent conflict zones, but fall into several categories. One obvious category is political repression and fleeing from persecution for being part of pro-democracy groups that are engaged in political activism against authoritarian governments. This is the case in China, Vietnam, and North Korea although in the latter case refugees may just be fleeing repression and there is no scope for political activities as such. Another category is victims of human trafficking. The traffickers are criminal gangs who offer migration services to those seeking overseas work as they find it impossible to find work that enables them to build a decent life and they become trapped in labour exploitation (restaurants, households or nail salons, seafood harvesting and various other activities), prostitution or even various illegal activities such as selling illegal cigarettes or producing cannabis.

The research for this has focussed on migrants and refugees from Asia, in particular, China, North Korea and Vietnam in East Asia and Pakistan and India in South Asia. IT is acknowledged that there are other areas, especially in South East Asia where there are significant source and destination countries for refugees. Thus the Center for Strategic and International Studies in Washington, DC, reported: Though the global refugee crisis is often framed as a Western problem, developing countries host 85 percent of the world’s displaced populations. Southeast Asia hosted 2.1 million forced migrants in 2021, and among them, almost 300,000 are refugees and asylum seekers. However, most Southeast Asian countries are not signatories of international refugee treaties, and they have yet to develop a regional mechanism to coordinate policy responses to refugee populations. Mirroring ASEAN’s preference for non-interference and non-legally binding agreements, Southeast Asian countries have implemented a patchwork of regulations responding to crises as they arise. The region’s ad hoc approach to humanitarianism, combined with the international community’s apathy, has marginalized refugees.⁴

Like the UNHCR reported: The majority of refugees moving through South-East Asia are Rohingya, a stateless. Muslim minority from Myanmar. Rohingya suffer serious limitations on their basic human rights in their country of origin, depriving them of opportunities to lead decent lives and dimming their hopes for a secure future. Since August 2017, 741,947 Rohingya refugees have fled into neighbouring Bangladesh, from the northern part of Rakhine State in Myanmar to escape violence and persecution.⁵

Nevertheless, the case studies chosen for this study are considered appropriate for their purpose which is to provide important background information to the human rights issues that are salient and designed to illustrate key issues that affect refugees to the United Kingdom and some EU countries. This book is designed to be a resource for volunteers and professionals involved in supporting asylum seekers by providing an extensive analysis of country information that is frequently crucial in understanding why refugees believe they are at risk in their home country. If it supports the fair outcome in even a single case it will have served its purpose.

Part I

Democracy and Human Rights

Chapter 2

Pro-democracy movements in Vietnam

Persecution for political beliefs and actions is one of the important reasons for refugees to seek asylum in Western countries. Many of such refugees who come to the United Kingdom from Asia originate from Vietnam. For this reason, the situation in Vietnam is an excellent case study for the persecution of democracy activists. This chapter will analyse the challenges and threats facing pro-democracy activists in Vietnam and the human rights violations that they are exposed to.

2.1 Risks to political activists in Vietnam

Vietnam is a state with a one-party, authoritarian government ruled by the Vietnamese Communist Party. Although most forms of personal and religious expression are now permitted in principle, the government has followed a strategy of repressing individuals and organisations that it considers a threat to the rule of the party. While restrictions on private economic activity have been loosened since 1986 and private enterprise is now encouraged, this has not been extended to the realm of politics. Thus Human Rights Watch reported: The Communist Party of Vietnam monopolises power through the government, controls all major political and social organizations, and punishes people who dare to criticize or challenge its rule. Basic civil and political rights, including freedom of expression, association, and peaceful public assembly, are severely restricted. Independent media is not allowed as the government controls TV, radio, newspapers, and other publications. Vietnam prohibits the formation of independent labour unions, political associations, and human rights organisations. Police frequently use excessive force to disperse peaceful public protests that criticize the government.⁶ In contrast to the apparent liberalisation of Communist rule, the authorities crack down hard on what they perceive to be an anti-government activity, and this has given rise to international concerns about human rights in Vietnam. According to a report to the US Congress, since at least early 2007 the Vietnamese government’s suppression of dissent has intensified and its tolerance for criticism has lessened markedly. Moreover ... trends have worsened in the first half of 2013.⁷ This trend has continued to the present as the Vietnamese government has intensified its persecution of dissenters and opposition activists.⁸ Human Rights Watch stated in their 2017 report on Vietnam: Vietnam’s human rights record remains dire in all areas. The Communist Party maintains a monopoly on political power and allows no challenge to its leadership. Basic rights, including freedom of speech, opinion, press, association and religion, are restricted. Rights activists and bloggers face harassment, intimidation, physical assault and imprisonment. Farmers continue to lose land to development projects without adequate compensation, and workers are not allowed to form independent unions. The police use torture and beatings to extract confessions. The criminal justice system lacks independence.⁹ In 2019 Human Rights Watch reported: Vietnam’s appalling human rights record worsened in 2018 as the government imprisoned dissidents for longer prison terms, sanctioned thugs to attack rights defenders, and passed draconian laws that further threaten freedom of expression.¹⁰ This prevalence of torture and mistreatment in Vietnamese prisons has been confirmed in a recent Home Office Factfinding Report.¹¹ A report published by Human Rights Watch states: Vietnam continued to systematically violate basic civil and political rights in 2020. The government, under the one-party rule of the Communist Party of Vietnam, tightened restrictions on freedom of expression, association, peaceful assembly, movement, and religion.¹² A subsequent report stated: Prohibitions continued in 2021 on the formation or operation of independent unions and any other organizations or groups considered a threat to the Communist Party’s monopoly on power. Authorities blocked access to sensitive political websites and social media pages, and pressured social media and telecommunications companies to remove or restrict content critical of the government or the ruling party.¹³

There are various reports about persons being prosecuted under the criminal code on the charge of carrying out activities against the Vietnamese state, organising demonstrations, and causing social disturbances.¹⁴ There is a consensus among experts in that political repression in Vietnam is getting worse.¹⁵

The Vietnamese government is targeting specific individuals and organizations, going after those who called for democratic reforms or criticised government policy on sensitive matters such as Vietnam’s policy towards China.¹⁶ According to Human Rights Watch, the human rights situation in Vietnam deteriorated markedly in 2017, and the persecution of political activists intensified, with some receiving very substantial prison terms.¹⁷ The 2019 Human Rights Watch report noted: Activists questioning government policies or projects, or seeking to defend local resources or land, face daily harassment, intrusive surveillance, house arrest, travel bans, arbitrary detention, and interrogation. Thugs, apparently collaborating with police, have increasingly launched physical attacks against activists with impunity. Police subject dissidents to lengthy and bullying interrogations and detain them incommunicado for months without access to family members or legal counsel. Communist Party-controlled courts receive instructions on how to rule in criminal cases and have issued increasingly harsh prison sentences for activists convicted on bogus national security charges.¹⁸ Likewise, the 2021 Report stated: Vietnam continued to systematically violate basic civil and political rights in 2020. The government, under the one-party rule of the Communist Party of Vietnam, tightened restrictions on freedom of expression, association, peaceful assembly, movement, and religion. Prohibitions remained on the formation or operation of independent unions and any other organizations or groups considered to be a threat to the Communist Party’s monopoly of power. Authorities blocked access to several websites and social media pages and pressured social media and telecommunications companies to remove or restrict content critical of the government or the ruling party. Those who criticized the government or party faced police intimidation, harassment, restricted movement, physical assault, arbitrary arrest and detention, and imprisonment. Police detained political detainees for months without access to legal counsel and subjected them to abusive interrogations. Party-controlled courts sentenced bloggers and activists on fabricated national security charges."¹⁹

Almost all the press in Vietnam is government-controlled. The leading daily newspaper Thanh Nien is published by the Vietnam National Youth Federation of the Communist Party. Although in recent years more controversial press stories have been published and the authorities sometimes tend to find the revelation of government corruption to be useful, they come down hard on people that appear to have crossed a line. Punishment for journalists that offend the government can include dismissal of journalists, the closure of newspapers and the imprisonment of individuals. For example, in September 2012 a reporter for the Tuoi Tre daily newspaper by the name of Nguyen Van Khuong was sentenced to four years for writing about police corruption (i.e. acceptance of bribes) in Ho Chi Minh City.²⁰ In September 2018 it was reported: "The Committee to Protect Journalists today strongly condemned the sentencing of Vietnamese journalist Do Cong Duong and called for his immediate and unconditional release. A court in the northern province of Bac Ninh sentenced Duong on September 17 to four years in prison for disturbing public order, which is a criminal offence under article 318 of the penal code, Radio Free Asia reported.²¹ Similarly: The Committee to Protect Journalists today condemned the second prison sentence handed to Vietnamese journalist Do Cong Duong and strongly reiterated its call for his immediate and unconditional release. On October 12, in a half-day trial, a Vietnamese court in the northern province of Bac Ninh sentenced Duong to five years in prison on anti-state charges of abusing democratic freedoms, a criminal offence under Article 331 of the revised 2015 penal code, according to news reports.²²

In September 2012 three bloggers received extended prison sentences for activities undermining national unity and disseminating anti-government propaganda. Also, in September 2012 Prime Minister Dung called on the Ministry of Public Security to analyse websites and punish bloggers whose websites were not sanctioned by the authorities. In other words, the persecution of those who are critical of government policy in their internet blogs has been authorized at the highest level. Again, in January 2013 five bloggers were given sentences of up to thirteen years for similar offences. ²³ The Vietnamese authorities also have brought proceedings against lawyers who represented those accused of spreading anti-government propaganda on the internet or who spoke out against the government of Vietnam. A renewed crackdown on bloggers in Vietnam was reported in January 2018.²⁴ The new cybersecurity law provides additional instruments to constrain and persecute dissent. Thus, it was reported: Vietnam’s new Law on Cybersecurity was finally adopted by the National Assembly on June 12, 2018, after more than a dozen drafts and wide debate in the business and government sectors. The Cybersecurity Law will come into effect on January 1, 2019. The Cybersecurity Law applies to domestic and foreign companies providing services to customers in Vietnam over telecom networks or the internet, such as social networks, search engines, online advertising, online streaming/broadcasting, e-commerce websites/marketplaces, internet-based voice/text services (OTT services), cloud services, online games, and online applications. With its broad scope of application, the Cybersecurity Law potentially imposes tremendous obligations on both onshore and, especially, offshore companies providing online services to Vietnamese customers. For example, the new law requires that owners of websites, portals, and social networks do not provide, post, or transmit any information that is propaganda against the Vietnamese government; instigates violent disturbances, disrupts security, or disturbs public order; contains humiliating or slanderous information, or contains fabricated or untrue information (in specified contexts).²⁵ The law resembles the Chinese law where Google cannot operate and Facebook is banned, and the requirement to store data in the country means the authorities can force companies to give them access to personal data. Using social media in Vietnam for human right activities is strictly prohibited. Protests against the cybersecurity law have been for some time now a key activity for political activists in Vietnam. This persecution of political activists continues: Authorities use penal code provisions on undermining national unity and abusing the rights to democracy and freedom to infringe upon the interests of the state to crackdown on dissidents, though other laws such as disrupting public order are also used. Independent writers, bloggers, and rights activists face police intimidation, harassment, arbitrary arrest, and prolonged detention without access to legal counsel or family visits. In February 2014, activists Bui Thi Minh Hang, Nguyen Thi Thuy Quynh, and Nguyen Van Minh were arrested on their way to visit fellow activist Nguyen Bac Truyen on trumped-up charges of causing traffic jams. The three were convicted in August 2014 for causing public disorder under article 245 of the penal code and received sentences of between two and three years in prison.²⁶ Persons can be arrested for anything that is construed as political activity, such as attending meetings or distributing leaflets, or suspicion that they are associated with political activity.²⁷ Most recently the persecution of political activists and especially bloggers has intensified: "After the United States withdrew from the Trans-Pacific Partnership (TPP) trade deal, Vietnamese authorities engaged in a