Anna Talbot and Greg Barns from the Australian Lawyers Alliance report on the UN Refugee Summit in New York and why the Turnbull Government's current approach breaks our commitment to the UN Refugee Convention.
WORLD LEADERS are meeting in New York this week to talk about migration and refugees. According to the United Nations, we are currently in the midst of the 'highest levels of displacement on record'. Most of the displaced people who have crossed international borders are refugees.
However, despite what political detractors would have you believe, undermining fundamental principles of refugee law, in the way Australia has done since the late 1990s, is ensuring that the global crisis is made intractable.
The international principles of refugee law, as we currently know it, was a creation of the post-World War II world, when millions of people who were caught in impossibly dangerous situations were on the move. World leaders agreed that there was a need for order to manage this mass movement. They worked together to draft the 1951 Refugee Convention, which defined refugees as people who were outside of the country that they usually lived in, and felt they could not return to that country due to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.
The Convention included a commitment not to send such people back to where they have fled from, where they might face persecution or torture: non-refoulement is the term used.
Refugees are people who no longer enjoy the protection of their own government, and the Refugee Convention recognises that they desperately need to be protected by another nation.
Just like the situation following World War II, the refugees on the move today don’t have any other choice. They’re not moving because they want to “invade” nations like Australia, as some absurd conspiratorial types would have you believe. They’re moving because if they stay where they are, they will die. Or perhaps they will be tortured.
State sovereignty is it the foundation of international law as we currently know it. A sovereign state (or country, or nation, or nation-state, there are a lot of different terms that are more or less used interchangeably) is one that can make its own decisions about what happens within its borders. There is an inherent tension between state sovereignty and international law, especially when it comes to international law seeking to direct or constrain government action. Countries agree to these incursions into their sovereignty only when it suits them. Otherwise, what happens inside borders is no business of others.
Australia, along with over 140 other countries, has agreed to be bound by this Convention and its Protocol. We have agreed that it is fair that people who are not safe where they are living have a right to move somewhere else to build a life and that our sovereignty will not stop them. We have also agreed that people have a right to seek asylum — that’s in the Convention too.
This has not been forced on us by outside forces. We were there at the negotiating table. We helped to create this law. We have all benefited from it.
A few countries have decided not to be bound by these laws — perhaps because they don’t feel that they have the capacity to provide refugees with the security that they so desperately need. While, on the one hand, it would be great if all countries opened their doors to refugees, their choice has to be respected. Countries like India, Indonesia, Malaysia and Pakistan have all decided that they are not in a position to offer refuge to those in need.
While there are refugees in these countries, they are not protected by the Refugee Convention. The fact that a refugee has passed through countries like this does nothing to diminish their claim to refugee status when they reach Australia.
Australia will take 19,000 permanent refugees, Malcolm Turnbull tells UN - after Abbott cut Labor's intake of 20,000 in 2013 to 13,500. BTW: Obama increasing U.S. intake by 60%!
Australia has agreed to be bound by other human rights treaties that complement refugee law. We agreed that torture is illegal in all circumstances and that we would never send anyone to face torture or ill-treatment when we became a party to the Convention against Torture.
We agreed not to discriminate on the basis of race, religion or gender – among other things – when we became a party to the International Covenant on Civil and Political Rights and other treaties. No one forced us to sign up to these commitments. We signed them readily because we agreed they were worthy rules for a civilised nation.
It is clear that Australia’s current approach breaks the commitments we have given. People are punished when they ask us for help. They are turned around in international waters, sent back to countries where some of them have been tortured or even killed, in direct conflict with our non-refoulement obligations. If they do reach Australia (and none have for quite some time), they are sent to places where a UN expert has said that the right to be free from torture and ill-treatment is being violated.
Former Prime Minister John Howard’s commitment that “we will decide who comes to this country and the circumstances in which they come” puts us in direct conflict with the commitment we gave in more humane times to help those in need.
What those fulminating about borders and queues fail to realise is that our sovereignty is actually stronger for the flexibility that the Refugee Convention provides. By agreeing that we will help refugees find safety when they were not safe in their home countries, we allow a little breathing space into our otherwise rigid borders. The fact is that these people must move. All of us would if we were faced with the same circumstances that they flee from. Opening up this gap means that we are in a stronger position to make the decisions John Howard demanded.
Refugee supporters rightly appeal to humanity and kindness in aid of their campaigns. Refugees have had a terrible time and really do deserve to be welcomed. There is, however, also a much more pragmatic reason that we should be generous with refugees, receive those that seek our protection and offer them safety. The foundation of international law – state sovereignty – requires the pressure valve that refugee law offers to ensure its otherwise brittle structure stays strong.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
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