The Perpetual ‘Foreigner’: The Production of Statelessness among Cambodia’s Vietnamese Minority

Christoph Sperfeldt

Peter McMullin Centre on Statelessness, University of Melbourne, Melbourne, Australia

Building upon ethnographic research conducted since 2008, this paper considers the case of ethnic Vietnamese minority populations residing on floating villages in Cambodia. Members of this group are long-term residents of Cambodia, having been born and raised in the country for generations, with the exception of the period of the Khmer Rouge regime, when they were forcibly deported to Vietnam. Since their return to Cambodia in the early 1980s, individuals from this group have been portrayed by Cambodian authorities and society at large as ‘immigrants’ or ‘foreigners’. This paper examines how discriminatory policies, laws and practices regulate individual and collective identities in Cambodia, while creating categories that determine social inclusion and exclusion. It traces the origins of statelessness among Cambodia’s Vietnamese minority and examines the specific legal and administrative arrangements employed to deny citizenship and produce statelessness.


Biography:

Christoph Sperfeldt is Senior Research Fellow at the Peter McMullin Centre on Statelessness at Melbourne Law School. Prior to this, Christoph was Deputy Director at the Asian International Justice Initiative, a joint program of the East-West Center and the WSD Handa Center for Human Rights and International Justice, Stanford University. From 2007 to 2011, he was Senior Advisor with the Gesellschaft für Internationale Zusammenarbeit (GIZ) in Cambodia.

Colonial Jurisdictions and the Definition of Khmerness

Sally Low

Independent researcher, Melbourne, Australia,

During the French Protectorate (1863-1954) colonial actors and their interlocutors among new and old Cambodian elites contributed to a national ethos that conflates nationality with a culturally and racially defined Khmer identity. This paper outlines the ways that colonial law and in particular colonial jurisdictions lent legal authority to that notion, promoting the idea that ethnic Vietnamese cannot be Cambodians. Precolonial norms had placed all ethnic, religious and cultural groups under the King’s dominion. However, by 1897 the colonial authorities had subjected ethnic Vietnamese and Chinese living in Cambodia to French courts applying the indigenous laws of Cochin China (Southern Vietnam). Cochin China was a directly annexed colony and its inhabitants therefore French subjects. Those considered ethnically Khmer protégés remained under the jurisdiction of the indigenous Cambodian courts. The criteria for differentiating Khmer and non-Khmer ‘Asiatics’ were variable, but related to culture, language and ethnicity or race. Prior to independence the Cambodian government once again placed all people living in Cambodia under Cambodian courts and laws, regardless of ethnicity. Nevertheless, the legacy of the French jurisdictional divisions lent legal authority to a persistent postcolonial tendency to link citizenship and nationality with Khmer identity.


Biography:

Sally Low’s doctorate, ‘Courts, Codes and Power: the making of state law in colonised Cambodia,’ was awarded in 2017 through Melbourne University. Since 1993 she has worked at the intersection of law, development and human rights. She is now conducting independent research comparing colonial justice administration across Southeast Asia.

Practices of Citizenship and Politics of Irregular Movements

Ashraful Azad

UNSW, Sydney, Australia

Drawing on empirical data and using theories from critical migration studies and citizenship studies, this study intervenes into two sets of literature- firstly, it contributes to the growing literature on Rohingya which generally depicts them as vulnerable victims at the mercy of more powerful actors, either being persecuted or pitied. Here, I rather focus on the agency of Rohingya refugees and migrants emphasising their strategic engagement with the sovereign and other powers. I argue that many Rohingya ‘refugees’ in Bangladesh go beyond their victimhood and engage in practices of citizenship. Secondly, it contributes to citizenship and political practices of irregular migrants and refugees. Irregular migrants, particularly the stateless, cross local and international borders despite being denied legal avenues for travel. I argue that such movements challenge the sovereign control of the border and subvert the humanitarian-security discourse of migrant smuggling and human trafficking. The states in this region do not adhere to the legal refugee regime, and such practices lie beyond the intervention of humanitarian organisations as well. Through such practices, this research investigates, whether the irregular migrants participate in the making of border and sovereign, and actively engage in a new form of politics.


Biography:

Ashraful Azad is a PhD candidate at the Faculty of Law, University of New South Wales. He completed BSS and MSS in International Relations from the University of Chittagong and MPhil in International Law from Monash University. He is also an assistant professor in the Department of International Relations, University of Chittagong.

Banal Statelessness in and from Myanmar: A Comparative Study of Non-Rohingya Muslims

Dr Nyi Nyi Kyaw2, Dr Vanessa Lamb3

2ISEAS – Yusof Ishak Institute, Singapore, Singapore, 3University of Melbourne, Melbourne, Australia

This paper introduces the concept of ‘banal statelessness’—defined as the statelessness and/or undocumentedness of one or more populations that becomes so banal and unnoticed that it is consequently off radar of academic and policy scholarship—which may result in misunderstanding the broader problem of statelessness in Myanmar and beyond. This banality of statelessness of non-Rohingya Muslims in and from Myanmar is comparatively constructed from the case of ‘hot statelessness’ of the Rohingya—defined as the statelessness and/or undocumentedness of one or more populations that becomes so hot and repeatedly highlighted that it is constantly on the radar of academic and policy research. What we present in this paper, as a complement to the growing work focused on the Rohingya, are the other forms and cases of ‘statelessness’ faced by non-Rohingya Muslims, who are ‘eligible’ for citizenship under the Myanmar Citizenship Law but have been unable to attain identity cards or be recognised as citizens of Myanmar. Through analysis of experiences of statelessness or undocumentedness of non-Rohingya Muslims, the paper combines doctrinal analysis and real-life, outside-court cases, different from usual doctrinal research and court cases employed in statelessness research.


Biography:

Dr Nyi Nyi Kyaw is a Visiting Fellow with the Myanmar Studies Programme at the ISEAS – Yusof Ishak Institute in Singapore. Dr Vanessa Lamb is a Senior Lecturer in the School of Geography at the University of Melbourne. They have common research interests in state-society relations and political geography in Southeast Asia including Myanmar.

Citizenship and Statelessness in and from Myanmar and Cambodia

Dr Nick Cheesman6, Dr Nyi Nyi Kyaw2, Dr Vanessa Lamb3, Mr Ashraful Azad4, Dr Sally Low5, Dr Christoph Sperfeldt1

1Peter McMullin Centre on Statelessness, University of Melbourne, Melbourne, Australia, 2ISEAS – Yusof Ishak Institute, Singapore, Singapore, 3University of Melbourne, Melbourne, Australia, 4UNSW, Sydney, Australia, 5Independent researcher, Melbourne, Australia, 6Australian National University, Canberra, Australia

Chair: Dr Christoph Sperfeldt

Overview:

Statelessness is a phenomenon that affects millions of people worldwide. Those who are not considered as nationals by any state face daily obstructions from lack of access to a range of social, political and economic rights. Around 40 per cent of the identified stateless population of the world live in the Asia Pacific region, and Southeast Asia harbours some of the largest stateless populations in Asia. Although statelessness may result from migration, many people on the move are already stateless before they even cross a border. The vast majority of those individuals belong to minorities. Whilst the case of the Rohingya and their mass expulsion from Myanmar have heighted global awareness, other less well-observed examples of entrenched exclusion of minorities exist in Asia, such as in Cambodia. In this panel – proposed as part of the “Law and Society in Asia” stream – four papers examine the law and politics of citizenship in Southeast Asia. In particular, the panel seeks to identify productive ways to frame, conceptualise and understand large-scale state-sponsored exclusion from citizenship and in situ statelessness at the intersection of nation-building, domestic politics, violent conflict and displacement.

Trends and Challenges In Regtech: Australia and China Compared

Andrew Godwin

Melbourne Law School, The University Of Melbourne, Melbourne, Australia

The term “Regtech” is a contraction of the terms ‘regulatory’ and ‘technology’ and has emerged to describe the use of technology to help companies comply with regulation and help regulators perform their regulatory and supervisory functions. Regulators in Australia and China have made significant efforts to embrace and facilitate Regtech developments.  This paper compares the various ways in which key Australian and Chinese regulators have embraced and facilitated Regtech and highlights the trends and challenges in each jurisdiction. The paper also outlines the nature and extent of the information-sharing that has occurred between Australian and Chinese regulators in the area of Regtech and the potential for further co-operation and co-ordination. The comparative analysis of the policies and practices of these regulators identifies areas of convergence and divergence between the two jurisdictions by reference to the specific challenges that each jurisdiction faces. The paper also provides useful case studies for the development of Regtech in other jurisdictions.


Biography: To come

The impact of technology on corporate disclosure and directors’ duties

Rosemary Langford

Melbourne Law School, The University Of Melbourne, Melbourne, Australia

When a company breaches disclosure laws a question arises as to whether the directors or officers of the company might be personally liable. This question has traditionally involved discussion of accessory liability or liability for being involved in a contravention (as well as contravention of specific statutory provisions). However, a relatively recent mode of liability, known as ‘stepping stones’, is frequently litigated by the Australian corporate regulator (ASIC). Many stepping stones cases involve the company breaching disclosure laws. The implications of new technology for disclosure requirements (and the monitoring of disclosure by regulators and others) and the finely balanced decisions that directors have to make in relation to disclosure mean that objections have been raised to the use of the stepping stones model in this context. The aim of this paper is to outline and appraise the stepping stones model in the context of corporate disclosure. The paper will also make comparative reference to the position in Hong Kong and Singapore.


Biography: To come

China’s cybersecurity regulatory framework: implementation considerations

Stacey Steele

Melbourne Law School, The University Of Melbourne, Melbourne, Australia

China’s Cybersecurity Law (CSL) was enacted in 2016. Together with a suite of implementing measures, standards and guidelines such as the revised Multi-Level Protection Scheme, the CSL forms part of a comprehensive regulatory strategy for data management and data flows. The Chinese framework adopts some characteristics of regulations from other jurisdictions such as the European Union, but its drivers and underlying assumptions are different. Chinese officials are focused on establishing self-sufficiency in key technologies, national security, social stability and economic growth. This paper considers practical steps which companies can take to successfully navigate and implement this complex regulatory landscape with a view to compliance and information security governance.


Biography: To come

Regulation and Technology

A/Prof. Andrew Godwin1, A/Prof. Stacey Steele1, A/Prof. Rosemary  Langford1

1Melbourne Law School, The University Of Melbourne, Melbourne, Australia

Chair: A/Prof. Andrew Godwin

Overview:

Like other regions around the world, the Asia Pacific region is confronting the legal challenges brought about by technology. In the area of financial services, a key issue is how to achieve an appropriate balance between regulation and innovation. This applies both to technology for the provision of financial services, known as “Fintech”, and also to technology for the regulation of financial services, known as “Regtech”. In the area of cybersecurity, a key issue is how to facilitate data management and data flows while protecting data against security risks and cyberattacks. The three papers on this panel examine three areas in which the relationship between regulation and technology is of critical importance: cybersecurity regulation in China, corporate disclosure and directors’ duties in Australia and regulatory cooperation between Australia and China in relation to Regtech. The papers examine the various ways in which regulation is meeting the challenges brought about by technology and how jurisdictions in the Asia Pacific region are converging and diverging as a result.

 

Do Cities Really Need Human Rights? A Socio-Legal Inquiry of Governance Performance in Decentralised Indonesia

Herlambang P. Wiratraman (presenting author), Ekawestri P. Widiati and Dwi R. Kristianti

The city should be able to ensure its inhabitants access to essential public service such as education, health services, and freedom from all forms of discrimination and intolerances, as well as protect the rights of vulnerable people. In 2016, the Indonesian government, through Regulation of the Minister of Justice and Human Rights No. 34 of 2016, established a set of criteria on Human Rights Cities. This Regulation was passed in order to drive local governments to respect, protect and fulfil human rights. Subsequently this Regulation became the basis for the annual human rights cities award. By the end of 2018, hundreds of Indonesian cities received this award. This included cities known for serious human rights violations. At the same time, civil society organisations also initiated alternative approaches for human rights cities. Hence, the notion of ‘human rights cities’ appears to be contested. This paper analyses and examines achievement of local governments in implementing human rights using human rights-based approach. It identifies the challenges towards the effectiveness of the regulations in place. Based on field research, this paper argues that many cities have allowed oligarchs to exploit natural resources or build their business without considering the protection of rights. Local governments have used formal administrative law in order to facilitate political economic interests. Therefore, this paper argues that despite increasing acceptance of the notion of human rights cities, local governments continue to be complicit in the violation of rights.


Biography:

Herlambang P. Wiratraman is a Lecturer and researcher at Constitutional Law Department and the Center of Human Rights Law Studies (HRLS), Faculty of Law, Airlangga University. His research interests include Constitutional Law, Human Rights, Law and Society, and Press Freedom. He obtained PhD in Law at Van Vollenhoven Institute, Faculty of Law, Leiden University, the Netherlands (2014).

Ekawestri Prajwalita Widiati is a lecturer and researcher at Constitutional Law Department and the Center of Human Rights Law Studies (HRLS), Faculty of Law, Airlangga University. Her research focuses on Human Rights and Legislation.

Dwi Rahayu Kristianti is a lecturer and researcher at Constitutional Law Department and the Center of Human Rights Law Studies (HRLS), Faculty of Law, Airlangga University. Her research focuses on Constitutional Law, Human Rights, Citizenship, and Legislative Drafting.

ABOUT THE ASSOCIATION

The Asian Studies Association of Australia (ASAA) is the peak body of university experts and educators on Asia in Australia. Established in 1976, we promote and support the study of Asia in Australian universities and knowledge of Asia among the broader community. Our membership is drawn mainly from academics and students, but also includes industry and government Asia experts. We take a strong interest in promoting knowledge about Asia in schools and in contributing to state and Commonwealth government policies related to Asia. We provide informed comment on Asia to a broad public through our bulletin, Asian Currents, and specialist research articles in our journal, Asian Studies Review. Four book series published under our auspices cover Southeast Asia, South Asia, East Asia and Women in Asia.

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