The declared objective of the Bali II Conference was to reach a consensus on ways and means to promote and encourage regional efforts to combat people smuggling, trafficking in persons and related transnational crime based on the principles agreed upon at the first Bali Conference on 26 – 28 February 2002. More realistically, the main challenge for the Ministers was to agree on whether there would be anything post-Bali II and, if yes, what form the follow-up would take. The Preparatory Meeting, held in Jakarta on 27 March 2003, had ended with conflicting views as regards the way ahead and the follow-up to Bali II. While some States, in particular Australia, New Zealand, the Philippines and Thailand, were in favour of a proper and substantial continuation of Bali II, other States, such as Brunei-Darussalam, Malaysia and Singapore, were strongly opposed to any institutionalization of the Bali process and wanted it to be merged immediately into existing mechanisms, such as INTERPOL or the ASEAN Secretariat.

For UNHCR, one fundamental question had emerged prior to, and during, the Preparatory Meeting. Was it worth for UNHCR to invest in a process which was mainly focusing on combating transnational crimes, tightening border control, respecting State sovereignty and enforcing immigration laws, with little attention paid to mixed flows and refugee protection, to the fate and the human rights of victims of smugglers and traffickers, and to the root causes leading people to use the services of smugglers and traffickers. It was particularly distressing for UNHCR to realize that the elements of the Co-Chairs’ Statement, as discussed during the Jakarta Preparatory Meeting, was State-control oriented and made almost no reference to the humanitarian / human rights dimension of the problem. The position of Malaysia, Singapore, China and Thailand (the latter two in a more nuanced way), that had expressed reservation to mixed flows and refugee protection being discussed in the context of Bali II, was also a major problem and a drawback for UNHCR. In spite of such a relatively negative climate, but in view of both the relevance of the issue for UNHCR and the platform provided by Bali II, the High Commissioner took the decision to participate in person in Bali II and to address the Conference.

The Ministerial Meeting took place on 29 and 30 April and was preceded by a Senior Officials Meeting on 28 April, during which the delegates were invited to comment on and propose amendments to the Draft Co-Chairs’ Statement. The latter was shared with the participants only three days before the Senior Officials Meeting, as there had been relatively profound disagreements and difficult compromises between the Co-Chairs, Indonesia and Australia. It is worth mentioning that the organization of Bali II coincided with renewed uneasiness between Indonesia and Australia over a few issues, in particular the war in Iraq, the travel warning against Indonesia issued by Australia, and Indonesia’s "reluctance" to intercept two Vietnamese boats heading for Australia. From a UNHCR perspective, the Draft Co-Chairs’ Statement, shared on 25 April, represented a noticeable improvement, as compared to the elements discussed in the Preparatory Meeting. Some of UNHCR's concerns were incorporated, in particular the reference to the "legitimate rights of genuine refugees to seek and enjoy asylum in accordance with relevant UN Conventions and Protocols" and the fact that the reservation made by Malaysia, Singapore, China and Thailand was accommodated in a way which was acceptable to UNHCR, through the following language:

Ministers, while acknowledging that this Conference had not been convened to deal directly with the issue of refugees, affirmed that nothing in this statement was intended to prejudice the legitimate rights of genuine refugees…" (emphasis added).

To add the adverb "directly" was particularly fortunate, as it clearly indicated that nothing prevented the Bali process from being a forum to discuss inter alia mixed flows and refugee protection. But the 25 April’s Draft did not incorporate all UNHCR proposed changes and was clearly focusing on the criminal aspects, at the "expense" of victims’ (including asylum seekers and refugees) protection. In the afternoon and evening of 27 April, the UNHCR representatives lobbied some of the delegations, in particular Australia, Indonesia and New Zealand and submitted, in writing, four amendments to the Draft Co-Chairs’ Statement. The lobbying work continued during the Senior Officials Meeting and UNHCR proposed amendments were shared with all the delegations.

The Senior Officials Meeting was more dynamic and far less negative (at least as far as UNHCR was concerned) than the Preparatory Meeting held in Jakarta one month earlier. Singapore and Malaysia took the floor, but were more accommodating and seemed to be relatively happy with the language used in the Draft Co-Chairs’ Statement, including the references to refugees or UNHCR. Some delegations, in particular Afghanistan and India, made strong interventions in support of human rights of smuggled and trafficked persons. Some observers explained this slight but noticeable change of climate by both the good preparatory work of the Co-Chairs, in particular Australia (which had an obvious vested interest in the issue), and by the rapid spreading of SARS in the region, forcing some countries, like Singapore, to realize that absolute isolationism was no longer viable.

The Ministerial Conference itself was attended by 30 participating countries (from Asia and the Pacific), 2 associate agencies (UNHCR and IOM), 14 observer countries and 13 observer international organizations. Out of the 30 participating countries, 19 countries were represented at the ministerial level. UNHCR was represented by Mr Ruud Lubbers, High Commissioner, Mrs Erika Feller, Director of the Department of International Protection (DIP), Mr Michel Gabaudan, Regional Representative in Canberra, Mr Robert Ashe, Regional Representative in Jakarta, Ms Marissa Bandharangshi, Senior PI Clerk in Canberra, Mr Jon Hoisaeter, Executive Assistant to the Director of DIP and Mr Stephane Jaquemet, Deputy Regional Representative in Jakarta. UNHCR also circulated during the Conference a paper called "Co-operation to address the irregular movement of asylum-seekers and refugees: Elements for an international framework".

In his opening remarks, H.E. Dr N. Hassan Wirajuda, the Indonesian Minister for Foreign Affairs and Co-Chair of the Conference, welcomed the participants and highlighted that Indonesia and Australia, through their successful and enhanced collaboration, had managed to significantly reduce the number of illegal immigrants, in particular those who were using the services of smugglers. He also acknowledged the good cooperation Indonesia had with both IOM and UNHCR and mentioned, in an approximate language, UNHCR’s RSD and resettlement activities. The other Co-Chair, H.E. Mr Alexander Downer, the Australian Foreign Minister, highlighted that the Bali process was a unique, non-binding forum for exchange of views and sharing of experiences on how best to combat transnational crimes. He also paid tribute to the work of both UNHCR and IOM and made express reference to the Workshop on Best Practices in Asylum Management organized by UNHCR in Bangkok on 10-12 March 2003.

The first speaker after the opening session was the UN High Commissioner for Refugees. In his statement, Mr Lubbers highlighted that refugee protection was not only a humanitarian undertaking but also a concrete and effective contribution to combating smuggling and trafficking. Refugee protection had to be understood in the context of solutions - an initiative taken by the High Commissioner and called "Convention Plus" -. In the context of "Convention Plus", secondary flows could be reduced as refugees were to be offered both effective protection in the first country of asylum and long term solutions. Smugglers and traffickers were successful, partly because the reasons for moving were not properly addressed. Fighting transnational crime was essential, but not sufficient if the authorities did not also reduce the "oxygen" of crime. Combating crime, through disincentive measures, should be coupled with preventing crime, through real incentives, inter alia protection in the context of solutions. Promoting access to proper protection and solutions would indeed reduce crime and irregular flows. Convention Plus was not limited to States party to the refugee instruments, but was also open to other States, to include them in pragmatic arrangements. In Indonesia, UNHCR and IOM had proved to be successful partners of both Indonesia and Australia to address mixed flows of people, of which only a limited number were refugees.

The next speaker was Mr Denis Nihill, IOM Regional Representative in Australia, who read a statement from the IOM Director General, Mr Brunson McKinley, who was on the list of participants but was eventually unable to attend due to health problems. The IOM representative described both the complexity and the sharp increase of migratory movements in the Asia-Pacific region and reminded the audience that the real challenge facing governments was "how to combat trans-national crime, reduce irregular migration, address issues of labor supply and demand and preserve state sovereignty, with policies and responses that, at the same time, preserve fundamental human rights…".

The statements of both associate agencies were followed by the presentation of the reports of both Ad Hoc Experts’ Groups, i.e. New Zealand (Coordinator of Ad Hoc Experts’ Group I dealing with international cooperation) and Thailand (Coordinator of Ad Hoc Experts’ Group II dealing with law enforcement). The report by the Foreign Minister of New Zealand, H.E. Mr Philip Bruce Goff, was the most relevant for UNHCR, both because New Zealand was probably, for UNHCR, the most supportive country in the process and UNHCR’s input (in particular the Bangkok Workshop on Best Practices in Asylum Management) took place in the context of Ad Hoc Experts’ Group I. In a lively and strong statement, the New Zealander Minister emphasized that transnational crime was a challenge not only to State sovereignty but also to the rule of law. He recognized that among the smuggled or trafficked people there was a small percentage of persons in need of international protection. It was important to put in place a system by which refugees were protected but smugglers and traffickers were not allowed to abuse the refugee instruments.

The floor was then opened to both participants and observers for their statements, comments and remarks. More than twenty delegations took the floor, most of the time in the form of prepared and read statements. None of the statements came as a surprise. They reflected the expected views of countries and organizations. Not surprisingly, source or origin countries (such as Afghanistan or Sri Lanka) were generally more interested in victim protection and in finding creative and principled ways of encouraging people to remain where they were, while destination countries unequivocally focused on combating crime and identifying credible deterrents.

Generally, there were no heated discussions in plenary, as all the delegates were aware that the real questions and the post-Bali II plan of action - if any - would be discussed during the so-called "Ministerial Level Retreat", which was in fact a business lunch on 29 April, to which only ministers and the High Commissioner were invited. The Ministers and the High Commissioner returned to the plenary looking relatively pleased with their discussions, which was an indication that these had been fruitful. It later transpired that they had agreed that the Bali process would continue. The afternoon session then continued with a number of non-conflicting country statements.

On 30 April, the Co-Chairs presented their final Draft Statement, which reflected both the intensive consultations conducted with the delegations and the outcome of the Ministerial Level Retreat. They underlined that their Co-Chairs’ Statement was now final, with only room for minor - mainly stylistic – changes, and that the text was no longer negotiable. They stressed that it was a non-binding document in a non-binding process. They highlighted that the Ministers had reached an "easy consensus" on a number of points, in particular:

1. The Bali process will continue at the Ministerial level, but there should be clear benchmarks, proper reporting and pre-identified ways of measuring progress.
2. It was felt that regional co-operation was needed to win the battle against organized trans-national crime.
3. Stopping the Bali process at this stage would have sent the wrong signal to the criminals, i.e. that States in the region were neither serious nor committed.
4. Bali is an incremental process. To stop it would have meant losing the momentum.
5. It was reiterated that the Bali process was based on the voluntary contribution of States and was non-binding by nature.
6. The work of both Ad Hoc Experts Groups will continue. New Zealand and Thailand will continue, for the time being, to act as coordinators.
7. A Senior Officials Meeting will be held next year to review the progress made and will report to the Co-Chairs and the ministers.
8. A Ministerial Meeting will be held in two to three years’ time.
9. Ministers invite IOM to launch an appeal to fund post-Bali II activities.

The final Draft Co-Chairs’ Statement, apart from reflecting the agreement reached on the follow-up to Bali II, incorporated some of the changes proposed by UNHCR and like-minded delegations. The following paragraphs are worth mentioning:

The only unfortunate language, against which UNHCR and the Afghan delegation fought but in vain, is to be found at paragraph 11, as follows:

The presence of the High Commissioner at the Bali II Conference could have aroused controversy, given the relatively negative climate which prevailed during the Preparatory Meeting held in Jakarta one month earlier. During the Conference, the High Commissioner convinced States that UNHCR had something to offer them and that refugee protection, coupled with solutions, could help reduce people smuggling and trafficking in persons. The first draft of the Co-Chairs’ Statement was disappointing from UNHCR’s viewpoint. It is now a more balanced text, taking into account most of our concerns. The Bali process is mainly about combating international crime, but UNHCR, with the help of like-minded countries, did manage to preserve a small, clearly identifiable, niche within the process. UNHCR’s main objective in the year to come will be to convince States in the region that the niche is worth a visit. This will require a pro-active, principled but non-doctrinal approach. It will require, above all, a proper strategy, a shared vision and a clear division of responsibilities between DIP, the Bureau and the offices in the region. The Bali process, though not the most "natural" one because of its anti-criminal and border control angle, is a unique platform, from which UNHCR can engage in a constructive dialogue with like-minded and less like-minded States in the region.

RO Jakarta

7 May 2003