The global asylum seeker crisis is immense, and so therefore only a global solution ‒ not piecemeal local solutions ‒ will have any realistic chance of success, says Dr Ted Christie.
ACTION TO DEAL WITH asylum seekers taken by our political parties – past and present - has resulted in a long-standing highly polarised public debate. It has created community conflict that persists in Australia today.
The newly sworn-in Abbott Government has a range of controversial measures they plan to implement, including Indonesian boat buybacks and a policy of turning boats around. These policies have been thrown into doubt before there is even the first attempt at implementation after reportedly being rejected over the last 24 hours by both the Indonesian Government and a former Defence Force Chief.
However, the most recent substantive action taken by the Commonwealth Government was by Labor Prime Minister Kevin Rudd, who also announced a profound change in Australia’s asylum seeker policy.
Regional settlement arrangements (the so-called Pacific Solution) were declared between Australia and Papua New Guinea (in July 2013) and later, between Australia and Nauru (in August 2013). Under the changes, no asylum seeker arriving in Australia by boat will be permitted to live in Australia. Instead, asylum seekers will be processed and resettled in Papua New Guinea or Nauru — even if they are found to be genuine refugees.
Reaction from Pacific Island nations was not unexpected. They complained that Australia had transferred its asylum seeker problems to small, vulnerable, powerless nations under the guise of a “collective regional solution”. For human rights, the solution may do more harm than good.
But there is also a legal dimension over this new Pacific Island arrangement that adds a further layer of concern for human rights.
The Law Council of Australia and the Commonwealth Lawyers’ Association have criticised the lack of appeal rights for asylum seekers in the regional arrangement. In particular, the current absence of appeal rights and whether the existing processing framework in Papua New Guinea reflects rule of law principles. There may also be shortcomings in the applicable legal framework in Manus Island.
But the asylum seeker issue, like climate change, is a global problem. A global solution ‒ not a national or regional one ‒ is necessary for finding a commitment that is firm, can be implemented and is sustainable.
As of 2012, of the 10.5 million refugees under UNHCR’s mandate worldwide, Pakistan hosted the largest number (1.6 million), followed by Iran (868,200), Germany (589,700) Kenya (564,900), Syria (476,500) and Ethiopia (376,400). Developing countries host over 80% of the world’s refugees. In absolute terms, Australia is ranked 49th, hosting 30,083 refugees, or 0.3% of the global total.
In 2012, the number of applications received globally from asylum seekers was around 2 million. The distinction between an “asylum seeker” and a “refugee” is that an asylum-seeker is someone claiming to be a refugee, however their claim has not been definitively evaluated.
Australia’s share of the global total of asylum seeker claims in 2012 was 29,610 — or 1.47% of the total. In absolute terms, Australia is 20th on a world rank, and 12th when ranked in absolute terms against 44 industrialized countries. Applications made by asylum seekers in Australia in 2012 resulted in 8,367 being recognised as refugees.
A viable, humanitarian solution for global refugee and asylum seeker issues requires developed and developing countries to reach an agreement that promotes global consensus and co-operation.
The UN approach for taking global action for the environmental problem of climate change under the United Nations Framework Convention on Climate Change and the Kyoto Protocol could be a springboard for finding a global solution for refugee and asylum seeker issues under the UN Refugee Convention and Protocol.
In taking global action for climate change, the UN was guided by the principle of ‘common but differentiated responsibilities’ under the UNFCCC and Kyoto Protocol:
Parties to the United Nations Framework Convention on Climate Change “should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities”.
The principle of ‘common but differentiated responsibilities’ is a feature of international law. The principle recognizes that global problems that are a common concern for humankind differ in their impact on all countries. There is a common responsibility for countries to participate, by sharing obligations in international response measures aimed at resolving the problem.
The impacts also reflect how countries respond to the global problem. This requires each countries contribution to the source of the global problem ‒ historical as well as current ‒ and their ability to prevent, reduce and control the problem ‒ including differences in a country’s economic capacity or capability to take action ‒ to be taken into account. The responsibilities for finding solutions for the global problem need to be differentiated by imposing differing obligations on developed and developing countries.
How can the approach under the UNFCCC and Kyoto for taking global action for climate change under the principle of ‘common but differentiated responsibilities’ be applied for finding a global humanitarian solution for refugee and asylum seeker issues?
One pathway for doing so would be for signatories to the UN Refugee Convention and Protocol ‒ developed and developing countries ‒ to revisit their rights and obligations and to negotiate their shared obligations in international response measures aimed at resolving the global problem of refugee and asylum seeker issues.
Signatories would also need to identify and define differing obligations that now need to be imposed on developed and developing countries in any international response for preventing, reducing or controlling the global problem of refugee and asylum seekers.
Resolving global refugee and asylum seeker issues requires visionaries from UN Member States to propose ‒ then evaluate ‒ creative, humanitarian solutions — ones that are amongst the best of the available options and that secure as much available value as possible for developed and developing countries. The process relied on for negotiating agreement should preserve or enhance the relationships between developed and developing countries.
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