1.1 Asian Rejection

The Refugee Convention is the centerpiece of the international refugee regime. Despite the large number of refugees in Asia, few states have adopted the Convention. As of this writing, three of eleven Southeast Asian states have institutionalized the Convention: the Philippines, Cambodia, and, more recently, Timor-Leste (2003). In South Asia, only one of the eight states – Afghanistan (2005) – is a party to the Convention. Sara Davies’ research is essential for understanding the history of the Refugee Convention in Asia from its early conception. In her 2006 analysis, Davies attempts to address the issue in the broader Asian region – including East Asia, South Asia, and Southeast Asia – which she defines as the 30 states UNHCR identifies as belonging to the Asian region. She critiques as inadequate three common explanations in the scholarly literature for why the region with one of the highest numbers of refugees has such a low Convention ratification rate: that reluctance stems from “good neighborliness” or a principle of noninterference in other countries’ affairs, that “economic costs” to governments are too great, and that migrants, including refugees, contribute to “social disruption.” All three of these arguments are rooted in colonial legacies in the region: dividing territory, imposing boundaries, and tying together state territory and nationality, population migration, and ethnic hierarchies.

Good neighborliness, a norm throughout Asia and a foundational norm of the Association of Southeast Asian Nations (ASEAN), is rooted in the norm of nonintervention in the affairs of sovereign states. Nonintervention is one of the core norms of the United Nations and the post-WWII international system. It is meant to deter aggression, protect territorial integrity, eliminate war, and strive for peace between members (Franck and Rodley Reference Franck and Rodley1973). In Asia, nonintervention became closely tied to the argument that Asian values required a “culturally and developmentally specific interpretation of rights” based on values shared throughout the region (Kingsbury and Avonius Reference Kingsbury and Avonius2008).

The Cold War saw the development of the first stage of the Asian values debate, where attention was more focused on anti-colonial struggle and decolonization than on human rights. The second stage of the debate stretched from the end of the Cold War until the Asian financial crisis in the late 1990s. During this period, postcolonial countries focused on arguing that Asian culture offered an alternative to Western values of human rights and democracy. The most prominent voices in this alternative vision of modernity were Singapore’s Lee Kuan Yew and Malaysia’s Mahathir Mohammad. During this period, the nature of conflict had changed, and there was more international attention to human rights accompanied by increased pressure on repressive regimes in Asia to reform. In response, the Bangkok Declaration of 1993 exhibited a clear regional consensus that human rights, especially civil and political rights, were culturally specific and had to be understood within state contexts. This was essentially an argument against the universality of human rights. As East Asian developmental states, the “Asian Tiger” economies became more ambivalent about human rights, ASEAN broadened the norm of nonintervention to include not meddling in or criticizing the domestic affairs of neighboring states – good neighborliness. Good neighborliness includes not criticizing other ASEAN members for human rights abuses, such as the treatment of minorities within their borders, which could escalate into the cause of outward migration and refugee flows (Muntarbhorn Reference Muntarbhorn1992). Asian values and good neighborliness continued to prioritize economic growth over human rights.

The developing economies concentrated in Southeast Asia – many received development aid from the United States (Acharya Reference Acharya2004) – argued that they could not afford to provide refugees with social welfare support, including education and healthcare, required under the Refugee Convention. They argued that already stretched budgets could not adequately provide services to their populations, so admitting refugees would add a burden they were not in a position to bear. Southeast Asian states argued that they could not afford to host refugees despite economically poorer states opening their doors to refugees (Suhrke Reference Suhrke1993, 192). The history of colonialism and newly independent states in the region is one where there was significant overlap between domestic economic issues and ethnic identity, so these two issues are closely connected, and upsetting either can pose grave threats to state stability. Suhrke argues that ASEAN’s strong rejectionism, which members insisted was based on economic concerns, is better explained by a political calculus that receiving states such as Malaysia made regarding challenges that outsiders would pose to ethnic balance and, therefore, social cohesion (Suhrke Reference Suhrke1993).

When they gained independence, states such as Malaysia achieved internal peace and social cohesion by establishing delicate ethnic balances. Many of these states were especially sensitive to ethnic Chinese refugees because of the history of tensions between local ethnic populations and upwardly mobile Chinese migrants who settled throughout the region and became powerful actors in the economic landscape, often serving as middlemen between colonial settlers and native populations. In the case of Malaysia, the Muslim Malay-dominated government accepted a limited number of Muslim refugees from Cambodia and Burma but refused to accept any of the ethnic Chinese that largely made up the first and largest waves of refugees from Vietnam (Muntarbhorn Reference Muntarbhorn1992; Suhrke Reference Suhrke1993). This ethnic affiliation is the same reason why China accepted and resettled more than 150,000 refugees from Vietnam while they have not accepted ethnic Kokangs and others fleeing Burma to resettle as refugees (Ibsen Reference Kailey Anne2014; Choi Reference Choi2017; Song Reference Song2017). Even Singapore, with its majority ethnic Chinese population, supported the strong rejectionism of the region. In this case, as the state with the largest ethnic Chinese population outside of China, Singapore had an interest in not becoming the default destination for ethnic Chinese who periodically face targeted violence and expulsion in the region.

In some countries, such as Japan, concerns about social cohesion do not focus on one specific ethnic group but on outsiders in general. One manifestation of this was that Japan’s refugee policy is part of, not separate from, its immigration policy – a characteristic of refugee policies in all East Asian states that have adopted the Convention. The government amended the Immigration Control Act when Japan adopted the Refugee Convention and it became the Immigration Control and Refugee Recognition Act; South Korea undertook similar revisions to its immigration laws when it adopted the Convention. Approaching refugees as a migration issue instead of a human rights issue is a manifestation of the belief throughout Asia that refugees are really economic migrants; tying immigration and refugee policies together creates the migration-asylum nexus, discussed below. In multi-ethnic states such as Malaysia, which continues to reject the Refugee Convention, and states such as Japan, which eventually institutionalized the Convention but whose implementation policies continue to reflect the suspicion of all outsiders, there remains some flexibility in practice depending on shifting political calculations.

Davies (Reference Davies2008) argues that the Eurocentric process of writing the Convention marginalized Asian countries and their interests. The dominance of the United States and Europe in writing the Convention created a document that served their interests; thus, the gap between institutionalization and implementation has not been an issue. Later, when Southeast Asia experienced waves of refugee movements, beginning with the Indochinese refugee crisis after the United States left Vietnam, countries in the region that were not parties to the Refugee Convention could receive incentives from UNHCR and Western countries for protecting refugees. Indeed, it was exactly because these countries had no obligation to assist refugees crossing their borders that countries such as the United States stepped in with offers of financial assistance and refugee resettlement. Given that there was a benefit to the states in the region who were not party to the Convention in part because they had no obligation under the agreement, there remained no incentive to adopt the Convention later (Davies Reference Davies2006, Reference Davies2008).

The arguments explaining Asian Rejection of the Refugee Convention outlined above focus on the importance of material concerns such as economic resources and local ideational concerns rooted in cultural values. Such concerns are present across Asia. Understanding institutionalization and implementation of international agreements, such as the Refugee Convention, requires attention to both international and domestic processes. I have argued elsewhere that Japan’s state and national identity were two conflicting impulses that affected adopting and implementing the Refugee Convention (Flowers Reference Flowers and Crépeau2006). National identity based on a narrow conceptualization of “the Japanese” as a homogeneous nation manifests in immigration restrictions and discrimination against non-Japanese. National identity limits domestic implementation of the Refugee Convention as it requires the admission and incorporation of non-Japanese into Japanese society (Flowers Reference Flowers and Crépeau2006).

By contrast, Japan’s state identity, based primarily on its status as an advanced economy and democracy, ties it very closely to the international community. Japan’s status as an economic power comes with specific international obligations that have increased over time with the country’s increasing wealth. Its status as a democracy shapes how these obligations are fulfilled (Flowers Reference Flowers and Crépeau2006). Subsequent research explored how international and domestic political practices interact and under what conditions international norms and law can contribute to domestic policy change. Analysis of three variables – state desire for legitimacy, strength of domestic advocates, and the degree of conflict between international and domestic norms – on the process of adopting the Refugee Convention shows that although there was a high degree of conflict between international and domestic norms on this issue, the state desire for legitimacy trumped that internal conflict and Japan adopted the Refugee Convention in 1981 (Flowers Reference Flowers2009, Reference Flowers2016). Analysis of Diet records reveals that government actors believed that if they reshaped Japan’s identity into one more appropriate for a world economic power and developed country, international legitimacy would follow (Flowers Reference Flowers2009, chapter 3). These analyses and findings offer useful insights into the actions of other East Asian states.

1.2 East Asian Acceptance

There remains the question of why those few Asian nations that have adopted the Refugee Convention have done so and to what effect. Most Asian nations that have ratified the Convention – or territories in Asia where the Convention has been otherwise institutionalized – are in East Asia. Theories of international norm diffusion best explain why East Asian nations with different political systems have institutionalized the Refugee Convention. International norms scholars have established that state interests and identities are mutually constituted. States that identify as democracies or market economies share interests with other democratic states or market economies. Such interests are many and reflect community values. In the case of democracies, these values include respect for human rights, the rule of law, freedom of thought, et cetera. In the case of market economies these include pursuit of strong economies with a focus on economic growth. These interests and identities lead states to adopt international norms that establish standards of appropriate behavior (Klotz Reference Klotz1995; March and Olsen Reference March and Olsen1998; Reus-Smit Reference Reus-Smit2017). I argue that democratization and marketization in states of the region (state identity) reconstituted state interests (as modern and/or democratic states) and led these states to institutionalize the Refugee Convention. Most studies that address the institutionalization of the Refugee Convention in East Asia offer (or take for granted) instrumental explanations of why individual East Asian states have adopted the Convention. These accounts outline a region where each state – China, Japan, and South Korea – acted independently to adopt the Refugee Convention without coordination or shared interests.

Traditionally, scholars understood Japan’s international relations as rationalist responses to foreign pressure, gaiatsu. In the first book focused solely on Japan’s refugee policy, Mukae (Reference Mukae2001) argues that Japan’s adoption of the Convention was a defensive action of a reactive state responding to foreign pressure. Adopting the Convention was possible because of the convergence of government interest to respond to foreign pressure and domestic supporters of the international refugee regime, who at the time consisted of elites such as Sadako Ogata, the longest-serving UN High Commissioner for Refugees. Japan adopted the Refugee Convention more than twenty-five years after joining the United Nations during the six years between 1979 and 1985 when it acceded to four core international human rights treaties – the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Refugee Convention. Adopting these treaties was Japan’s attempt to get on board with the growing importance of human rights in global politics (Mukae Reference Mukae2001). Early studies critique Japan’s failure to implement the rights and protections of the Refugee Convention into Japan’s domestic law as an institutional failure (Mukae Reference Mukae2001; Akashi Reference Akashi2006; Arakaki Reference Arakaki2007). Japan continued to have a poor record of protecting human rights, especially the human rights of foreigners. These and other rationalist explanations for Japan’s acceptance of international agreements do shed light on the role of outside pressure in Japan ratifying the Convention. However, because other states react differently to outside pressure, these explanations do not help us understand the other East Asian cases.

The normative turn in the study of international relations that began in the late 1990s offered new theoretical frameworks for understanding world politics. Two innovations from this literature, attention to the role of the mutually constituted relationship between state interests and identity in world politics and the relationship between states’ international and domestic politics, led to new insights on Japan’s institutionalization of the Refugee Convention and implementation of refugee policy domestically. These innovations ushered in a new line of research that sought to situate Japan in an international context (Flowers Reference Flowers and Crépeau2006, Reference 73Flowers2008, Reference Flowers2009, Reference Flowers, Leheny and Warren2010). Flowers (Reference Flowers and Crépeau2006) argues that Japan’s historically constituted and discursively constructed state identity accounts for the adoption of the Refugee Convention, and its national identity that conceptualizes “the Japanese” nation as monoethnic has been a limitation on compliance with the Convention. This study challenges the rationalist understanding of foreign pressure, gaiatsu, as materially based. Flowers shows how and why identity-based pressure affected Japan’s adoption of the Refugee Convention. Flowers (Reference 73Flowers2008) explores the role of nonstate actors in Japan’s implementation of the Refugee Convention and argues that the lack of access to domestic political institutions, specifically the Ministry of Justice, and ideational constraints have hindered efforts by nonstate actors in Japan to reform refugee policies and bring them more in line with the Convention. Increasing attention to the role of nonstate actors and transnational relations has added depth to our understanding of how refugee protection norms diffused into Japan (Arakaki Reference Arakaki2007; Dean and Nagashima Reference Dean and Nagashima2007; Flowers Reference Flowers, Leheny and Warren2010).

China adopted the Refugee Convention in 1981. In the most comprehensive study on refugee policy in China and its two special administrative regions, Song (Reference Song2020a) situates China’s adoption of the Convention into the reform and opening policies instituted in 1978–1979, followed by adoption of eight international human rights agreements from 1981 to 1984. She attributes China’s accession to the Convention, at least partly, to a “desire to integrate into the international community” (Song Reference Song2020a, 24). China’s refugee policies remain the least developed of the East Asian jurisdictions that have institutionalized the Convention. However, the government still has to contend with refugees who arrive in China due to conditions in the neighboring states of Vietnam, Burma/Myanmar, and North Korea. Ibsen (Reference Kailey Anne2014), Choi (Reference Choi2017), and Song (Reference Song2017) offer comparative analyses to try to understand China’s differential treatment of refugees depending on their origin. These three studies find that ethnicity matters in the government’s willingness to accept groups as refugees and resettle them in China, findings that confirm the conclusions of earlier research discussed above (e.g., Muntarbhorn Reference Muntarbhorn1992; Suhrke Reference Suhrke1993). Ethnic Kokangs and Kachins from Myanmar are not resettled or integrated to the extent that Vietnamese-born ethnic Chinese have been, but they have been allowed to stay in China as “border residents” (Song Reference Song2017). North Koreans have received the harshest treatment as they are designated illegal migrants who risk deportation to North Korea (Park Reference Park2011; Song Reference Song2018). Other studies do not focus on China’s refugee policy per se but make the case that the state should protect North Korean escapees as refugees under international refugee law (Chan and Schloehardt Reference Chan and Schloehardt2007; Kim 2012; Goedde Reference Goedde2011).

To understand East Asian institutionalization of the Refugee Convention, we must situate these states and their concerns into an analysis framed by the broader international context characterized by rapid economic growth and emerging democratic governments. Recent theorizing of norm diffusion among states and from international to domestic contexts helps us understand why East Asian states stand apart in Asia as having institutionalized the Refugee Convention and how implementation is proceeding unevenly across the region. International norms and state identity are mutually constituted. International norms, including those codified in international agreements like the Refugee Convention, set standards of appropriate behavior and govern membership and status in the international community. Which states institutionalize which norms depend partly on community membership or membership aspirations (e.g. Checkel Reference Checkel1997, Gurowitz Reference Amy.1999). International norms both draw on and establish hierarchical social order among states; policy advocates draw on these hierarchies to frame policy demands as appropriate and perhaps even expected behavior for a state, given its rank in a given international hierarchy of states (Towns Reference Towns2012). For their part, states institutionalize international norms and policies to affirm their identity within a particular community of states and their rank in the international social hierarchy. In contemporary global politics, high status is accorded to those states that are modern and democratic. Flowers’ (2009) findings that Japan adopted the Refugee Convention as a way of gaining international legitimacy resonates with Towns’ theorizing on international norm diffusion and social rank. The broader framework of international norm diffusion and social hierarchy explains why East Asian nations, characterized by different regime types, adopted the Refugee Convention.

Human rights and refugee protection both emerged as central international concerns after WWII. Their status was highlighted and politicized when the United States made each an important part of the ideological war between the United States and the former Soviet Union and their respective allies. Human rights norms are both regulative and constitutive; they regulate state behavior by setting a standard of appropriate behavior, and they constitute certain kinds of states. Respect for human rights became one of the fundamental values of Western democracies, along with economic freedom (a market economy) and freedom of thought. Adoption of international human rights agreements has been an important way for states to demonstrate that they belong to the community of modern and/or democratic states. Mukae (Reference Mukae2001), Arakaki (Reference Arakaki2007), and Flowers (Reference Flowers2009, Reference Flowers2016) support the argument that Japan adopted the core international human rights treaties to demonstrate its membership in the club of liberal democracies.

During the Cold War era, “refugees” became synonymous with dissidents fleeing the former Soviet Union, Eastern Bloc, and other communist countries. The United States saw refugees from communist countries as an indictment of communism and a confirmation of the moral superiority of democracy. As a result, the US government accepted large numbers of people who were assumed to be fleeing based on a well-founded fear of persecution based on their political beliefs (Goodwin-Gil 2008). China’s adoption of both market reforms and the Refugee Convention challenged the narrative of these as characteristics that distinguished communist and democratic governments, as it was the first communist country to adopt this important human rights agreement.

Adopting the Refugee Convention in 1981, Japan affirmed its identity as an international economic power and democratic state. Institutionalizing the Refugee Convention in 1982 contributed to China’s efforts to establish its identity as a modern state defined by a market economy, a project led by Deng Xiaoping’s market reforms. When the South Korean government adopted the Convention in 1992 (Lee Reference Lee2014), it established itself as a member of the community of democracies soon after its democratic consolidation with the 1987 election. The country further burnished its human rights credentials with the establishment of its National Human Rights Commission in 2001. The historical context during the period when Japan, South Korea, and China institutionalized the Refugee Convention supports the argument that concern about their position in the international social hierarchy accounts for institutionalization. For Japan and South Korea, the primary concern was their democratic credentials; for China, it was its economic credentials. In sum, for China, Japan and South Korea state interests, not the desire to protect refugees was the motivating factor for ratifying the Convention.

International hierarchies, such as those related to the history of colonization and empire in East Asia, have been central in shaping the region’s migration patterns, including the movement of refugees (Morris-Suzuki Reference Morris-Suzuki2010). The legacy of empire is also evident in Hong Kong and Macau: the systems for dealing with refugees in both of these “special administrative regions” are the direct result of their status until the late twentieth century as British and Portuguese colonies, respectively. In Taiwan, international politics of a different sort bars participation in the international refugee regime altogether. Mongolia is a former Soviet-influenced state that is now a democracy in a complicated geopolitical region.

2.1 Asylum Applications

Although the number of recognized refugees remains low in East Asia, asylum applications in the region have increased steadily and dramatically over the last twenty years (see Figure 1). Most of the increase in asylum applications has been in Japan and South Korea, but Hong Kong also experienced a steady flow of applications, which only began to decline in 2014. Asylum applications in East Asia first began to grow after September 11, 2001, at a time of deepening democracy in the region, as demonstrated by a significant growth in and strengthening of civil society and public interest law organizations advocating for refugees. These developments led to the most significant changes in refugee policy in the region: Japan’s resettlement program, South Korea’s Refugee Act and resettlement program, and Hong Kong’s uniform status mechanism. These developments will be covered in more depth below.

Figure 1 Asylum Applications 2001–2019.

Compiled using data from the UNHCR https://www.unhcr.org/refugee-statistics/download/?url=G6a4tv, last accessed May 7, 2021.

2.2 Recognized Refugees

Figure 2 shows the number of refugees recognized in China, Japan, South Korea, Hong Kong, Macau, and Mongolia for each year from 2001 through 2019. Despite the increasing number of asylum applications in East Asia, the number of those granted refugee status remains low. Even though applications surpassed 1,000 per year in Japan in 2006 and South Korea in 2011 and reached a high of over 28,000 in Japan in 2017 and over 16,000 in South Korea in 2018, recognition decisions have never reached 100 in Japan, and in South Korea, recognition decisions peaked at 110 in 2018. Even so, South Korea has consistently had some of the highest recognition numbers in East Asia since it surpassed Japan in 2009 – this was not difficult given that Japan received 2,594 applications that year and recognized thirty-five people as refugees. Two other interesting trends illustrated by Figure 2 are the high numbers of recognition decisions made by the UNHCR in Hong Kong and China. In China, asylum applications and decisions are handled by the UNHCR office in Beijing. Asylum seekers must make it to Beijing to apply; if they are recognized, they are resettled in other countries. Hong Kong is not a party to the Refugee Convention, but until recently, the UNHCR received and evaluated asylum applications. In addition, Hong Kong does offer protection based on its obligation to protect individuals from refoulement under the International Convention for Civil and Political Rights and the Convention Against Torture. These two programs were unified under its Unified Status Mechanism (USM) established in 2014. The USM will be discussed in more detail below.

Figure 2 Recognition Decisions 2001–2019.

Compiled using data from the UNHCR https://www.unhcr.org/refugee-statistics/download/?url=G6a4tv, last accessed May 7, 2021.

The high numbers of applicants and the low numbers of those granted recognition are troubling; they indicate that a large majority of those in need of protection are not receiving it and remain vulnerable, especially if they are returned to their countries of origin. Such low numbers of recognized refugees also suggest the need to reevaluate refugee status determination policies and procedures. Cases such as China and Mongolia, where the UNHCR conducts status determination, suggest that these procedures are qualitatively different when undertaken by UNHCR protection officers using the organization’s RSD procedures. The same holds for Hong Kong prior to 2015 when UNHCR conducted status determination there. After the universal status mechanism went into effect and UNHCR was relieved from RSD, the numbers recognized in Hong Kong significantly declined. It offers a sharp contrast to the outcomes of RSD carried out in Japan and South Korea by local immigration officers under national status recognition policies and procedures.

2.3 Sending and Receiving in East Asia

Japan and South Korea are major refugee-receiving states in East Asia. North Korea and China are major sending states. Hong Kong has been both a sending and receiving territory, and after the crackdowns on democracy activists in 2018–2020, it has been a net-sending jurisdiction. If Taiwan had a status determination system in place, it would also receive significant numbers of applications for refugee status, given the heavy flows from China and Hong Kong. Japan receives refugees from all over the world – Asia, Africa, the Middle East – but most of the refugees from 2001 to 2004 were from Turkey, mainly Turkish Kurds. In 2005, refugees from Myanmar became the largest group seeking protection in Japan. This remained the case until 2013, when refugees from Turkey again became the number one group, followed by those from Nepal as a close second. In 2019, the most recent year for which there is this kind of data available from the UNHCR, the largest number of people seeking protection in Japan was from Sri Lanka.

From 2001 until 2005, most of those seeking refugee status in South Korea were from China. In 2006 and 2007, the largest group was from Nepal. In 2008, those from Sri Lanka constituted the largest number of people seeking refugee status in South Korea. In 2009–2011, people from Pakistan constituted the largest number of people seeking refugee status in South Korea. In 2020, the most recent year for which UNHCR data for South Korea is available, most of the people seeking protection were from the Russian Federation. In Mongolia, the number of people seeking asylum is small; nonetheless, from 2006, the earliest year for which UNHCR data is available, until 2013, refugees seeking protection all came from China. In 2019, the most recent year for which there is UNHCR data, people seeking protection in Mongolia all originated from Turkey. In China, most of those seeking protection in 2002 were from Burundi; from 2003 to 2006, most of the asylum seekers in China originated in Pakistan. People coming from Iraq constituted the largest number seeking asylum in China from 2007 to 2010; those from Somalia took the position from 2011 to 2013. In 2020, the most recent year for which this information is available from UNHCR, the largest number of asylum seekers was from Cameroon (for these data and more, see unhcr.org/refugee-statistics [accessed April 24, 2023]).

2.4 Conclusion

The shifting international position of China from an underdeveloped communist country to an emerging market economy, of Japan from a postwar developing democracy to a fully developed economic powerhouse and strong democracy, and of South Korea from a developing authoritarian country to a developing democracy precipitated a shift in state interests and the institutionalization of the Refugee Convention in East Asia. The ten-year time period during which these three states ratified the Refugee Convention provided a specific context where all fit the description of middle powers interested in improving their international rank; their interests and identities might shift over time. In any case, East Asian acceptance of the Refugee Convention at this time is explained by constructivist theories of diffusion that uncover the role of state identity and international hierarchy in norm diffusion, as discussed above. The question of implementation is more complicated and began only after a long pause. Implementation has been uneven across all states and jurisdictions in East Asia where the Refugee Convention is in effect. Among these states, implementation is the least developed in China. Japan and South Korea’s initial implementation focused on revising laws to include refugee recognition in immigration law. These two countries’ historically strict immigration regimes (see Chung Reference Chung2020 and Chung Reference Hung2021) held a narrow definition of “refugee” and limited the number of refugees accepted. Implementation of the Refugee Convention is a politically contested process with uneven outcomes in these different jurisdictions. The remainder of the study will focus on the dynamic processes of implementation. The next section will discuss implementation, examine processes of international norm diffusion to the domestic level, and sketch out what this looks like in practice in East Asia with an initial examination of the highlights of developments in refugee protection in the region.

Many agents play a role in diffusing refugee protection norms and pushing for the implementation of refugee policy. These include lawyers, NGOs, IOs, government institutions, and refugees. To understand the politics behind the quantitative data presented in the previous section and the political processes driving refugee policy, it is important to understand who drives policy, who derails policy, how priorities are set, and the implications of those priorities. In each nation, there are complex politics of refugee acceptance that affect policymaking as well as implementation. For example, the decline in the number of asylum applications in Hong Kong probably reflects changes after the 1997 shift to “one country, two systems,” when the territory ceased being a British colony and became a special administrative region of China.

Moreover, since China passed a new national security law for Hong Kong in June 2020 that curbs the autonomy of individuals and the territory itself, there has been an increase in the number of people leaving Hong Kong and seeking protection abroad. Some have even argued for Taiwan to establish refugee laws specifically for Hong Kong’s political asylum seekers (Hung Reference Hung2021). The data for China, which shows a relatively low number of applications for refugee status as well as low admissions, raises questions about the politics and policy around North Korean refugees fleeing to China. It suggests both that most North Koreans do not make it as far as the UNHCR office in Beijing, the only place where they can seek asylum, that most North Koreans interested in seeking protection probably do not opt to do so in China, and that those who do stay in China are not seeking the protection of refugee status. On the other hand, the relatively high recognition rate demonstrates UNHCR’s responsibility for status determination procedures.

3.1 Implementation and Global-Local Connections in Refugee Protection

Implementation – the creation of law and policy – does not necessarily follow institutionalization – treaty adoption, ratification, and associated processes. That gap has become an important area of research (Betts and Orchard Reference Betts and Orchard2014). Institutionalization and implementation, as Betts and Orchard (Reference Betts and Orchard2014) argue, should be considered parallel processes, with institutionalization taking place at the international level and implementation at the domestic. Studying implementation allows us to understand how norms operate at the level of practice and to account for why norms change or are constrained in different contexts. Within Asia, the East Asian region is the leader in institutionalization, with most of the states in the region being parties to the Refugee Convention. However, implementation in the region is lacking. The gap between institutionalization and implementation illuminates the extent to which China (Choi Reference Choi2017), South Korea (Lee Reference Lee2014), and Japan (Flowers Reference Flowers and Crépeau2006, Reference 73Flowers2008, Reference Flowers2009) have adopted the Refugee Convention primarily to benefit the state with little concern for refugee protection and human rights. Implementation triggers a new phase of political contestation marked by ongoing processes whereby various actors, including NGOs, bureaucracies, lawyers, and other parties, shape norm diffusion, that is, the extent to which the Refugee Convention’s protection norms are translated to the local level and how they are changed or constrained in that process (Betts and Orchard Reference Betts and Orchard2014). In East Asia, it is possible to detect tension between authoritarian tendencies, democratic challenges, and colonial legacies. This research demonstrates that “implementation may lead to different outcomes in terms of practice at the national, regional, and local levels and within different organizations” (Betts and Orchard Reference Betts and Orchard2014, 12).

Government action is necessary but not sufficient for implementing refugee protection. In East Asia, we have seen that NGOs, lawyers, and other non-governmental actors take the lead in implementation, and it is their initiative that pushes governments to create new policies or change existing policies to protect refugees. Advocacy for implementing the Refugee Convention was not limited to one nation but seemed to have been a wave carried around the region by transnational nonstate actors. Local, nonstate actors play a central role in leveraging global-local connections to advance the implementation of refugee protection. Localization (Acharya Reference Acharya2004), vernacularization (Merry Reference Merry2006), and a global-local feedback loop (Tsutsui Reference Tsutsui2017) offer three ways to understand the relationship between international norms and local contexts. These diffusion processes are not mutually exclusive; each emphasizes different aspects but all address how actors on the ground work to spread norms domestically. Localization tends to emphasize actors’ local knowledge and is a significant departure from scholarship that often privileged the role of Western norms gaining traction in non-Western contexts because of the moral superiority of these norms. Acharya’s localization is based on observations in Southeast Asian states where international norms were not adopted wholesale but changed to suit the local context. Vernacularization centers actors’ fluency in both international and local knowledge and highlights this fluency as expertise that sets actors apart from others with local knowledge. Merry clearly situates the action arena where translators learn norms in the international corridors of power at the United Nations. These actors then translate the international norms to the local arena. The norms are not translated wholesale but vernacularization requires tension between international norms and local practices to spur change at the local level. The global-local feedback loop emphasizes social movements over individual actors or other kinds of groups.

Implementation is a period of political contestation as different actors compete to gain leverage over the process in the interest of having their concerns addressed. This period is also characterized by ideational contestation since it is obligations from outside; in this case, those norms and ideas embedded in the Refugee Convention that may challenge or at least sit uneasily alongside domestic norms and ideas. So, how are international ideas made accessible and acceptable for a broad domestic audience?

One way that norms are made accessible and acceptable is through localization. Localization is a complex and dynamic process “whereby norm-takers build congruence between transnational norms and local beliefs and practices” (Acharya Reference Acharya2004, 241). In the localization process, even foreign norms that do not initially cohere with local beliefs and practices are incorporated into local norms. Opportunities for localization of these foreign norms are key for implementation. This conceptualization of international norm diffusion is a unidirectional process whereby norms move from the global to the local via local actors. Local actors’ agency is central to this process as they are the ones who reinterpret and then reconstitute norms of protection to fit within existing domestic ideas. One of Acharya’s primary contributions is the idea that international norms are not just grafted onto local norms as Price (Reference Price1997) established. But these norms are also “pruned” or shorn of aspects that do not cohere with local norms and practices.

We see this localization process at play in Hong Kong, Taiwan, and Macau, for example. Their histories of sheltering dissidents, even if temporarily, provide a context where local practices and beliefs are amenable to norms of protecting refugees. In Hong Kong and Taiwan, this contributes to efforts on the ground to protect refugees from nonrefoulement despite not being party to the Refugee Convention. The politics around this issue in these three contexts also shapes localization.

One could argue that Japan and South Korea’s approaches to protection also reflect a local preference for deciding who deserves protection and how they should be protected. The data presented later in Section 4 below shows a preference by Japanese and South Korean authorities to offer protection on humanitarian grounds instead of granting refugee status. This category of protection acknowledges that there is general support among the citizenry in Japan and South Korea to protect the most vulnerable based on conditions that are obviously and easily understood as humanitarian issues.

Vernacularization is a second process through which activists translate international norms to become meaningful to a domestic audience. This process focuses even more sharply on the agency of local actors as translators in the process of diffusing international norms to the local level: “Translators work at various levels to negotiate between local, regional, national, and global systems of meaning. Translators refashion global rights agendas for local contexts and reframe local grievances in terms of global human rights principles and activities” (Merry Reference Merry2006, 39). Working on implementation where political contestation is a defining characteristic, translators are powerful and vulnerable as they negotiate this terrain of unequal power. Translators occupy a powerful position as they are knowledge brokers who have mastered legal and institutional discourses of both the domestic and international arena – in this case, the Refugee Convention. Nevertheless, the established domestic discursive terrain constrains translators. The most significant change is in those areas where the international norms challenge domestic norms enough to make noticeable progress from the status quo but do not offer too much of a challenge where they will be dismissed outright as incompatible with domestic beliefs and practices (Merry Reference Merry2009). In addition to the degree to which domestic and international norms cohere, translators’ positionality also shapes their work – their funding sources, social commitments, and institutional frameworks (Merry Reference Merry2006, 40). One of the most interesting aspects of this theory of international norm vernacularization is Merry’s conceptualization of international norms as norms that emerged elsewhere locally and traveled through transnational chains of translators that extend from one locality to another via international institutions.

The positionality of the translators draws our attention to how internal and external forces influence translators. Japanese activists’ focus on human-rights-based arguments to advocate for refugee protection most clearly demonstrates vernacularization and the role of local translators in diffusing international norms domestically. These activists have a high level of expertise about the Refugee Convention, international refugee law, the situation in refugee-sending countries, and refugee policy worldwide. They also often have literal translation experience since many are fluent English speakers. They use their language skills in public education activities, which are important in creating broad public support for refugee rights and NGO activities.

Finally, the third process shifts the analytic focus from actor agency to the mutual constitution of global institutions and local social movements (Tsutsui Reference Tsutsui2017, Reference Tsutsui1050). Not only do global human rights constitute and reconstitute social movement actors by shaping how they understand the issues they work on but social movement actors also reinforce and even expand global norms (Tsutsui Reference Tsutsui2017, 1052). In other words, the global-local relationship goes in both directions, with local actors also influencing global norms and institutions. This global-local feedback is most visible in the transnational relationships between nonstate actors across Japan, South Korea, and Hong Kong. These relationships are formalized in the Asia Pacific Refugee Rights Network, the regional networking organization.

In Section 3.2, instead of presenting detailed individual accounts of China, Japan, South Korea, Hong Kong, Macau, Mongolia, and Taiwan, I will offer an overview of the status of refugee policy in the region by focusing on key developments, such as Japan’s resettlement program, creation of Hong Kong’s universal status mechanism, the response to Yemeni Refugees in South Korea, Taiwan’s draft Refugee Act with the goal of illuminating implementation processes. We will notice that the three processes of norm diffusion outlined here are not mutually exclusive.

3.2 Implementation and Diffusion in Practice

As discussed above, diffusion is the process through which norms spread. It is a crucial link between institutionalization and implementation. Section 3.1 considered diffusion across states at the international level. In this section, the focus is on norms spreading from the global to the local level (and back) and becoming a part of the social and political context in a specific place. Implementation refers to how these norms are put into practice. The International Refugee Convention does not specify how states should implement the Convention. The most basic act of implementation is enacting refugee recognition laws that grant legal status. Yet, even this requires that norms be diffused locally to create support necessary to pass legislation. Field research in Japan, South Korea, Taiwan, and Thailand reveals that pressure from activists is essential for implementation. Activists are central in leveraging international norms and agreements to frame the issues locally and demand government action.

Japan and South Korea revised existing immigration laws to include refugees before ratifying the Convention, but implementation and the accompanying political contestation began in earnest in the early 2000s when activists decried the inadequacy of existing laws. In East Asia, implementing the Refugee Convention was not the result of governments taking steps to fulfill their international obligations. Indeed, the movement on implementation that we begin to see starting in 2001 resulted from demands made by civil society, lawyers, and other actors on the ground who began to use rights-based discourse to push their governments to protect refugees. Refugee advocacy organizations and lawyers working on refugee issues were emerging as essential proponents of implementation; they also helped raise the international profile of refugee protection in the region.

3.3 Conclusion

Despite Japan, South Korea, and China institutionalizing the Refugee Convention in the early 1980s and 1990s, there remained a significant gap between institutionalization and implementation in each country. Motivated by state interests and identity, governments took the initiative in institutionalization. However, they had no incentive to implement the Convention any further than their initial efforts that followed soon after adopting it. Further implementation would not be realized until NGOs in Japan and South Korea began advocating for change. Change has typically been piecemeal, coming in fits and starts. This was not surprising given that refugee protection challenges state sovereignty and the fundamental identity of the nation, thus making instituting more significant laws and policies to protect refugees difficult. Analysis of China and its SARs and East Asian states outside of China shows that the strength and openness of institutions, rule of law, and free and open societies increase the opportunities for norm diffusion and implementation even if governments are initially resistant. Norm diffusion is necessary for implementation, and this process largely depends on local activists; without them, norm diffusion and implementation are nearly impossible. The next two sections will focus more keenly on implementation by examining two central policies related to refugee protection – refugee status determination and complementary protection.

4.1 Refugee Status Determination by Country

After the Indochinese refugee crisis, China and Japan ratified the Refugee Convention and the 1967 Protocol. China adopted both the Convention and Protocol in 1982, while Japan adopted the Convention in 1981 and the Protocol in 1982. Forty years after ratifying the agreements, China has not yet established RSD procedures. Obligations under the Refugee Convention and Protocol extend to the Macau SAR but not Hong Kong SAR. Japan revised its immigration act to address refugee recognition. South Korea ratified the Refugee Convention and 1967 Protocol in 1992 and, like Japan, revised its immigration act to address how to recognize individual refugees officially. Because Taiwan is not a member of the United Nations, it cannot become a party to the Refugee Convention and Optional Protocol; Taiwan does not have refugee status determination procedures. Taiwan has, however, adopted the International Covenant on Civil and Political Rights (ICCPR), one of the core human rights agreements and one that prohibits refoulement. Civil society organizations advocate for refugee acceptance and protection, and a draft Refugee Act was initially introduced to the legislature in 2006 (author interview, Taiwan 2012). In 2009, Taiwanese NGOs became actively involved in revising the legislation and advocating for its passage (Choi Reference Choi2019). Ten years later, Taiwan’s Refugee Act still had not passed. Using the experiences of South Korean NGOs (all are APRRN members that contributed to drafting South Korea’s Refugee Act and advocating its passage), APRRN’s Legal Aid and Advocacy Working Group became involved in pushing Taiwan’s legislature to pass the Refugee Act. As of this writing, Taiwan’s Refugee Act has still not passed, and there have been increased calls for it since Reference Choi2019 by supporters of democracy activists in Hong Kong.

4.2 Conclusion

Creating policies such as those governing refugee status determination is the exclusive domain of national governments. Despite this, local activists use political space, societal support, and expertise to demand reforms when they perceive RSD procedures as inadequate or unjust. This bottom-up pressure is most effective in open societies with mature and robust civic organizations. China has no domestic RSD and no political space for organizations to form and advocate for refugee rights. Mongolia also has no domestic RSD, but it does have an active civil society that includes organizations focused on human rights. Mongolia’s civil society is relatively young, and its organizations are often small, limiting their networks’ organizational capacity and density. This hinders their ability to impact implementation by, for example, lobbying the government to create RSD procedures. Hong Kong has a very mature and robust civil society, as well as very strong legal institutions and a vibrant professional legal community. The advocacy of the legal community has been especially important in using the law to develop status determination procedures even though Hong Kong is not subject to the Refugee Convention, does not have RSD, and does not resettle refugees. Macau has what are formally ideal RSD procedures that fall short in practice. The nature of Macau’s civil society – limited in scope with organizations that make limited demands – does not include activists who challenge the status quo and do not advocate for refugee rights. Taiwan lacks RSD procedures; the government and civil society organizations handle requests for protection on a case-by-case basis. Taiwan has a strong civil society with a high international profile, productive relations with the government, and transnational connections in the region – complicated cross-strait issues with implications for Taiwan’s sovereignty limit progress on RSD. Japan and South Korea have mature, robust civil societies; their refugee advocacy organizations have strong national and transnational networks. These organizations operate in local contexts with an open society, strong legal institutions, and governments party to the Refugee Convention.

RSD procedures in East Asian countries reflect national interests, while attention to humanitarian obligations is largely absent. Framing refugee recognition as an immigration problem leads to a punitive approach that lacks transparency and confidence in refugees and their supporters. RSD procedures that attend to human rights and humanitarian obligations do so through their interview protocols and the information they gather on conditions in countries of origin. Of interest here is UNHCR’s experience of training a large number of people, mostly from Southeast Asia, to do refugee status determination as part of the Comprehensive Plan of Action to address the Vietnamese refugee crisis (Bari Reference Bari1992). The goal of establishing a consistent, fair, and humane system that was also attentive to differences in national interests presented a challenge. This challenge was exacerbated by most countries assigning immigration officials to undergo training to conduct interviews with those applying for refugee status. Having immigration officials conduct interviews is problematic because immigration officers have a mission that centers on securing the countries’ borders, and in East Asia, in particular, securing the border is closely connected to securitizing all foreigners, including refugees. Securitizing migrants means that migrants are understood first and foremost as potential threats and treated as such. This is in contrast to an approach to refugee status determination that has the protection of refugees’ human rights at the center. Most East Asian countries in this study take the same approach, as demonstrated in the tendency to situate refugee issues within immigration sections of Ministries of Justice or the equivalent. Interviewers rarely know of – let alone have expertise in – refugee law. This lack of expertise raises whether more focus on humanitarian concerns leads to better protection. The next section will consider an area of refugee protection in East Asia that seems more focused on humanitarian concerns.

5.1 International and Regional Agreements as Sources of Complementary Protection

Sources of complementary protection include regional and international human rights treaties, humanitarian law, humanitarian principles, and national laws. Many countries not parties to the Refugee Convention have adopted regional agreements that address specific issues that cause people to flee. Regional agreements, such as the European Convention on Human Rights (discussed above), are important sources of complementary protection. Other regional complements to the Refugee Convention include the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, adopted in 1969 (hereafter the OAU Convention), and the Cartagena Declaration on Refugees adopted in 1984 (hereafter the Cartagena Declaration) in Latin America. These agreements were models of complementary protection when states began to take up the issue in the late 1980s (McAdam Reference McAdam2007, 47). In responding to regional concerns, each of these agreements expands the Convention’s definition of refugees, offering protection to a broader category of people by removing persecution as a reason for fleeing and recognizing those fleeing generalized violence as refugees (Crepin Reference Crepin2016). In short, these agreements broaden the definition of refugee beyond the persecution of an individual based on their identity as a member of one of the protected groups enumerated in the Refugee Convention (Banerjee Reference Banerjee2018). Notably, East Asia has no such regional agreement, but this is not surprising given that governments in East Asia tend to view refugees as economic migrants.

International human rights treaties that are complements to the Refugee Convention – including the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture – offer protection for those who do not fit the Convention’s definition of refugee and have a significant impact on refugee policy in East Asia, especially refugee status determination. Both of these agreements oblige states to protect individuals from refoulement; this protection in these and other human rights instruments is not tied to a particular status but is accorded to all equally (Gil-Bazo Reference Gil-Bazo2015, 14), which is particularly important for those asylum seekers who do not fit the Convention definition of refugee. “Article 3 CAT, article 7 ICCPR and article 3 ECHR are recognized as sources of human rights non-refoulement – complementary protection – which prohibit removal in circumstances additional to (and sometimes overlapping with) article 1A(2)” of the Refugee Convention (McAdam Reference McAdam2007, 32). However, there is some debate about whether complementary protection is a “shield from removal” or the basis upon which migrants are allowed to enter a territory (Lister Reference Lister2019, 224); this debate has significant implications for acceptance of norms of protection in East Asia.

Table 2 illustrates which international agreements codify nonrefoulement and prevent parties to the conventions – those who have signed and ratified the agreement – from returning people seeking protection to a place where they will face danger. “Yes” indicates nations that institutionalized an agreement. For UN members, this is usually indicated by a state having signed and ratified an agreement. For Taiwan, institutionalization is indicated by approving and incorporating the international agreement into law. For Macau, institutionalization came when Portugal extended its obligation to the international agreement in question to its then colony, an obligation that remained when the United Kingdom transferred power over the territory to China. “No” indicates nations without action on an agreement, either by formal ratification or otherwise approving the agreement if ratification is not an option. “Signed” indicates places that have signed but not ratified the agreement and are not bound by it; China is the only nation that falls in this latter category regarding its status under the International Covenant on Civil and Political Rights.

Although (East) Asia has no regional agreement, the Bali Process facilitates state interactions on issues related to refugees and asylum seekers. The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime was established at the 2002 Regional Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime. It is a state-centric organization that comprises forty-five member states; seventeen observer states; three member organizations – the IOM, UNHCR, and the United Nations Office on Drugs and Crime; and thirteen observer organizations such as the Asian Development Bank, International Committee of the Red Cross and INTERPOL. The only NGO/INGO involved in the Bali Process is the International Committee of the Red Cross, and it is limited to observer status. The Bali Process is a regional consultative process that provides a forum for the Asian region to address transnational crimes around the trafficking and smuggling of goods and people. The Bali Process Ad Hoc Group was formed in 2009. It comprises nineteen members – sixteen states and three IOs – and is meant to gather the most affected member states in the region and IOs to address specific problems related to people smuggling, trafficking in persons, and irregular migration. The Regional Support Office of the Bali Process was established to facilitate cooperation on regional migration management issues, including refugee protection, human trafficking, and people smuggling. Both Japan and South Korea are members of the Bali Process, but neither are members of the Ad Hoc Group. Bali Process projects include early detection programs focused on immigration, from early detection programs focused on immigration intelligence reporting and developing the capacity of member states/immigration officers through training protection programs that offer member states a tool kit to evaluate and improve birth, marriage, and death registrations of asylum seekers, refugees and stateless persons in their territory, guidelines on identification and protection of trafficking victims, managing irregular movements by sea; migration management programs; prevention programs that include policy guidelines for criminalizing people smuggling and trafficking in persons.

Some states, including South Korea, Hong Kong, and Japan, have codified complementary forms of protection into domestic law. Theoretically, complementary protection should not differ from protection under the Refugee Convention in form or content. Complementary is meant to refer to the source of protection: in this case, domestic law. As McAdam explains, “It does not mandate a lesser duration or quality of status” (McAdam Reference McAdam2007, 23). In practice, complementary protection codified in domestic law provides asylum seekers with legal status “less comprehensive than that accorded to Convention Refugees” (McAdam Reference McAdam2007, 22). Complementary protection, including those codified in domestic law, is qualitatively different from the protection provided to recognized refugees.

Hong Kong, Macau, and Taiwan have complementary protection programs based on international law. Hong Kong and Macau’s complementary protection policies are arguably the most robust in the region. They are “strong” insofar as they have a clear standard regarding who qualifies, standard application procedures, transparent decision-making procedures, and a stated basis in the Refugee Convention, the International Covenant on Civil and Political Rights, or the Convention Against Torture – the three agreements that explicitly enshrine protection through state obligation to observe the principle of non-refoulement.

5.2 Domestic Law as Complementary Protection

Before codifying complementary protection in domestic law, Hong Kong, Japan, and South Korea allowed some who authorities denied refugee status humanitarian permission to stay. Decision-making processes for granting this status were opaque. Although humanitarian permission to stay offered legal status, it did not include permission to work or access to social welfare benefits. When states grant humanitarian permission to stay without codified complementary protection, they elide obligation questions. This issue is not peculiar to East Asia. Until 2011, when it formally codified complementary protection in domestic law, Australia had a system that resembled what we see in much of East Asia, where, technically, refugee status determination is a separate process. However, in practice, it informs the granting of humanitarian protection. That is, granting permission to stay based on humanitarian reasons was largely seen (especially by refugee advocacy organizations) as a way to avoid granting refugee status without returning the applicants to dangerous situations. Allowing people to stay for humanitarian or compassionate reasons is based on the generosity of the state rather than a legal obligation (McAdam Reference 76McAdam2011, 60). In Australia, decisions to grant humanitarian protection often accompany denying an application for refugee status, and the basis of the decision on humanitarian status remained opaque. Prior to 1990, humanitarian status and refugee status were based on separate determination processes; an application for humanitarian protection was made based on humanitarian considerations and did not require an individual threat of discrimination, which is, of course, necessary to become a recognized refugee (McAdam Reference 76McAdam2011, 61).

Usually, states that codify complementary protection in domestic law do so intending to address a gap in protection in international or regional agreements. In the United States, for example, Temporary Protected Status is often extended to entire groups following disasters that put people at risk and force them to migrate but do not fit the Refugee Convention’s definition of refugee (Frelick Reference Bill.2020, 43). The US government has granted nationals of Venezuela, El Salvador, and Honduras Temporary Protected Status; nationals from these countries make up most of the nearly 500,000 people in the United States who have this status. Venezuelans were first offered TPS in 2021, Salvadorans in 2001, and Hondurans in 1999. Initially, TPS is granted for six months, one year, or eighteen months, and officials can extend the protection. In September 2021, the Department of Homeland Security extended TPS for Salvadorans and Hondurans through December 2022. Venezuelans in the United States became eligible to apply for TPS in March 2021, which lasts through September 2022. Often, such attempts at creating domestic complementary protection prove ineffective for two reasons: (1) such policies often fall short of addressing the risks many asylum seekers face, and (2) the procedures for assessing each individual’s asylum claim are opaque (Frelick Reference Bill.2020). The underlying issue is that such policies are often not based on international obligations but are viewed as demonstrations of a state’s generosity. The standards are, at best, lax; at worst, they are nonexistent, applied unevenly, or applied at the discretion of the person making the decision. People granted TPS do not have a separate track to apply for citizenship or permanent residency; their status can end without much notice. There was panic when then-president Donald Trump announced the end of TPS for over 300,000 people in 2020. People with TPS from Nicaragua, Haiti, and Sudan would have seen their status end in March 2021, and those from El Salvador would have seen their status expire by November 2021. When President Joe Biden took office, he reversed this decision and extended TPS for nationals of these and two other countries through December 2022. The next section will consider which East Asian nations offer complementary protection and analyze the source of that protection: international law, humanitarian principles, or domestic statutes.

South Korea and Japan have implemented domestic statutes that protect those who fall outside the protection of the Refugee Convention. These legal frameworks are not explicitly based on international agreements and suffer from many other shortcomings that I will discuss below. China does not offer complementary protection, per se. Ethnic Kokangs, who began arriving from Burma/Myanmar in August 2009 and again in February 2015, and ethnic Kachin, who began arriving in June 2011, qualify as prima facie refugees based on the general conditions in the areas they are fleeing. They fit the Convention’s definition of a religious, racial, or social group. They are allowed to stay in China as “border residents” (Song Reference Song2017, 475).

Before codifying their complementary protection policies, Japan and South Korea allowed those not granted refugee status under the law to remain for humanitarian reasons – activists often referred to it colloquially as “humanitarian permission to stay.” The lack of transparency regarding who qualified for humanitarian permission to stay, the process for deciding whether they qualified, and their legal status under the program posed questions about the integrity of Japan’s asylum process. In addition, like Australia’s process discussed above, humanitarian permission to stay was usually granted when officials rejected an application for refugee status. Activists speculated that humanitarian permission to stay was a way for Japan to avoid its international obligations under the Refugee Convention.

Japan’s Special Permission to Stay was codified in the Immigration Control and Refugee Recognition Act when it underwent major revisions in 2004 (Aycock and Hashimoto Reference Aycock and Hashimoto2021). This codification was a welcome development as it legally instituted a way for the Japanese government to protect asylum seekers who did not qualify under the Convention’s definition of “refugee.” Despite this generally positive development, Aycock and Hashimoto’s (Reference Aycock and Hashimoto2021) exhaustive analysis of Japan’s Special Permission to Stay finds that, as written, the provision offers the government flexibility in applying the status, but the shortcomings that result from the vagueness of the language are significant. The Ministry of Justice immigration officials use their discretion to grant a Special Permission to Stay. The statute does not include clear eligibility criteria nor establish Special Permission to Stay as a right (Aycock and Hashimoto Reference Aycock and Hashimoto2021, 10). A Special Permission to Stay affirms the government’s discretion in offering protection in contravention of the international law understanding of refugee status as a right.

Moreover, the provision lacks the basic concept of international protection and the obligation of the Japanese state to provide such protection. The provision also does not specify the period of stay, but the visa category that it offers, designated activities, permits a one-year stay and is, in principle, renewable annually. Like other legal residents in Japan, those provided Special Permission to Stay have access to national health insurance and pension systems, but their access to social welfare benefits is questionable as the statute does not address the issue, and access to such benefits differs depending on the municipality and individual officials evaluating the application (Hashimoto Reference Naoko. and Takashi2019, 136; Aycock and Hashimoto Reference Aycock and Hashimoto2021, 20). This means that some services provided for refugees are unavailable to those who receive Special Permission to Stay. Special Permission to Stay is closely tied to refugee status; receiving it depends on having applied for refugee recognition. The Immigration Control and Refugee Recognition Act “allows for the granting of [Special Permission to Stay] after authorities deny an application for refugee status, and there is no need for an applicant to request it. [Special Permission to Stay] is only granted after an application for refugee status has been denied” (Aycock and Hashimoto Reference Aycock and Hashimoto2021, 21). The shortcomings of Japan’s Special Permission to Stay support McAdam’s assertion that domestic laws offering complementary protection provide a less comprehensive legal status than refugee recognition provides.

South Korea has also established a humanitarian status that has been refined over time. The country’s 2008 revision of its Immigration Control Act included a provision to grant legal status to those not granted refugee status but are still in need of humanitarian assistance (Im Reference Hyun2012, 588). The 2011 Refugee Act defined key concepts, including “humanitarian status holder.” Earlier drafts of the Refugee Act included more specific rights-based language, including reference to the rights of humanitarian status holders. These references were removed from the final version of the Act. The result was the continuation of a system that shares many of the shortcomings of Japan’s Special Permission to Stay: unclear criteria for who qualifies, lack of access to education and social welfare programs, limited access to work permits, and short-term discretionary protection that does not offer stability or continuity of stay. Recall that Lister argued that a moral distinction between refugees and people worthy of complementary protection provides the grounds for differential legal treatment, such as differences in the duration of protection granted. This statute, with its lack of specificity in form and structure, speaks to the practical shortcomings of Lister’s argument. Indeed, Japan’s Special Permission to Stay and South Korea’s humanitarian permission demonstrate these governments’ positions that this status is based on the state’s discretion, not an international obligation.

The situations in Japan and South Korea illuminate two arguments in the literature regarding complementary protection. First, the argument for a robust system of complementary protection with rights, benefits, and legal status equivalent to that provided to those recognized as refugees, and second, the argument that there is a moral basis for a different level or duration of protection for those who fall outside the parameters of the Refugee Convention. This is a significant area of investigation because authorities grant more people humanitarian permission to stay than are recognized as refugees in Japan and South Korea, countries with complementary programs based on domestic rather than international law. The fundamental issue with both of these arguments is that the humanitarian permission to stay programs in both countries fall far short of being robust complementary protection programs as defined in the literature and discussed above (Gorlick Reference Gorlick1999; McAdam Reference McAdam2006; McAdam Reference McAdam2007; Foster 2009; McAdam Reference 76McAdam2011a; McAdam Reference 76McAdam2011b; Crepin Reference Crepin2016; Boom Reference Boom2018; Lister Reference Lister2019; Frelick Reference Bill.2020). How do we address this, given that there are life-and-death reasons to support various protection programs, even if they fall short of providing robust protection?