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(Image via @ManusIsland)

In light of the crisis on Manus Island, what is a refugee and what are Australia's obligations to them? Barry Hindess considers.

THE SHAMBOLIC destructive closure of Australia's detention centre on Manus Island and New Zealand's offer to take some of the survivors off our hands offer yet another opportunity to reconsider Australia's refugee regime.

So, what exactly is a refugee? After noting that the term was first used to refer to Protestants fleeing religious persecution in 17th and 18th century France, the Oxford English Dictionary (OED) identifies the following meaning as one that is in extended use today:

'A person who has been forced to leave his or her home and seek refuge elsewhere, esp. in a foreign country, from war, religious persecution, political troubles, the effects of a natural disaster, etc.; a displaced person.'

 There are two elements here: someone who

  1. has been forced to leave home for reasons ranging from war through persecution to natural disaster; and
  2. is now seeking refuge elsewhere.

However, in today's Australia, the more specific definition provided by the 1951 U.N. Refugee Convention is probably the most prominent.

The Convention, at Article 1.A (2), says that a refugee is

'... any person who... [a]s a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is out-side the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.'

This differs from the OED definition, first, in the specific time-frame, before 1951, and second in the reference to a “well-founded fear” — neither of which figure in the OED definition. The reference to 1951 reflects the fact that the Refugee Convention was designed to acknowledge the widespread European failure to provide for refugees – mostly Jewish – from the Nazis, or for those displaced by the changes to national boundaries that followed the war.

Article 1B specifies that 'events occurring before 1 January 1951' should be taken to mean 'events occurring in Europe before 1 January 1951'; or 'events occurring in Europe or elsewhere before 1 January 1951'. Signatory states were asked to choose which interpretation they would opt for. European refugees are central here. Care for anyone else appears to be optional

Its hard not to notice the Eurocentric wording of the Convention. The 'or elsewhere' reads like the product of non-European states' efforts to get round the original focus on Europe. At the time of the Convention, there were many displaced persons in other parts of the world, notably in Palestine, South Asia (following partition) and China (from the civil war).

Palestine is covered by another part of Article 1D:

'This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.'

An introductory note from the UNHCR gives the example of refugees from Palestine who fall under the auspices of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). Here, Palestinian and other refugees from the Near East are not Europe's problem. Refugees from South Asia and China may be covered by the Convention's “or elsewhere” — otherwise they don't rate a mention.

After a few years, it became clear that any remaining refugees from Nazi oppression and Europe's post-WW2 chaos were declining in numbers. The reference to 1951 was finally removed by a 1967 Protocol, which left 'well-founded fear...' still in place. As David Marr suggested some years ago, this part of the Convention's definition appears to have been written more as an apologetic gesture towards those who fled Nazi persecution and post-war chaos, and who Western states so conspicuously failed, than as a comprehensive definition of those who might need support in the future.

Yet governments, in Australia and throughout the world, have read it as the latter. In fact, the Convention's definition tells signatory states who they are obliged to offer asylum — nothing more. Migrants who do not fall under the definition are people to whom Australia is not obliged by the Refugee Convention to provide asylum.The Convention does not say that we have no responsibilities for them, nor does it give us licence to malign or penalise them — for example, by asserting they are "economic refugees", or not "genuine refugees",' or to incarcerate them in conditions that reflect, at best, Australia's traditionally mean-spirited treatment of welfare recipients. We now have the absurd situation in which ABF officials are left to decide whether undocumented migrants fear of persecution is "well-founded. Isn't it enough that someone is afraid?

In fact, this part of the 1951 definition has always been incomplete. As the OED definition recognises, fear of persecution has never been the only reason people flee their homeland; also important are war and natural disasters. We should bear in mind that "natural disasters" may result from or be exacerbated by government policies — as they were in famines in 19th Century Ireland, Bengal under British rule, 1930s USSR, and during the American Dust Bowl Disaster. Moreover, in dry regions and many Pacific Islands, even small changes – a shift from very little rainfall to none at all, increasing salinisation of groundwater, or changes to the level of the water-table – can render existing agricultural/pastoral practices unviable. Here, New Zealand's decision to recognise climate change as producing a legitimate category of asylum seeker should be a welcome model for Australia.

Its high time that Australians faced up to the world in which we live, and in which, for the foreseeable future, there will be many people fleeing droughts, floods, wars and other conditions they regard as intolerable. There is no excuse for not respecting their judgements on such matters.

For the moment, Australia can decide who to allow in and who to keep out, but this fortunate condition is unlikely to last. Meanwhile, we should, at least, recognise that our responsibilities to others are not exhausted by the 1951 Refugee Convention.

Barry Hindess is an emeritus professor at Australian National University’s School of Politics and International Relations. You can follow Barry on Twitter @barryhindess.

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