11 July 2010

Gutting the UN Convention on Refugees

The 10-11 July edition of The Weekend Australian editorialised (see It’s time for a broader look at refugee policy here):

Under [Prime Minister Gillard’s] policy, Australia remains committed to fulfilling its obligations under the 1951 UN convention on refugees...

Australia has had no pretensions to fulfilling its obligations under the 1951 UN Convention and Protocol relating to the Status of Refugees since mandatory detention was introduced by Paul Keating in 1992, with bipartisan support. As noted in No card, no entry, a presumption against detention is central to contemporary practice in relation to the treatment of refugees. 

The handbook Refugee Protection: A Guide to International Refugee Law, a guide produced jointly by the International Parliamentary Union and the UN High Commissioner for Refugees to mark the 50th anniversary of the 1951 Convention, states (pp. 80-81):

UNHCR’s Executive Committee has expressed concern that large numbers of refugees and asylum-seekers in different areas of the world are currently the subject of detention or similar restrictive measures by reason of their illegal entry or presence in a country in search of asylum, pending resolution of their situation. The Committee is of the opinion that, in view of the hardship which it involves, detention should normally be avoided. If necessary, detention may be resorted to for specific purposes including to verify identity and to determine the elements on which the claim to refugee status or asylum is based.

Detaining asylum-seekers is considered lawful and not arbitrary if it complies with national law, the Refugee Convention and international law. Detention must be exercised in a non-discriminatory manner and must be subject to judicial or administrative review to ensure that it continues to be necessary, with the possibility of release when there are no grounds for continued detention.

The Keating legislation disallowed judicial review, notwithstanding the fact that Article 16(1) of the Convention provides that:

 A refugee shall have free access to the courts of law on the territory of all contracting states

 and the provision of the Handbook noted above that detention must be subject to judicial or administrative review.

The Keating legislation initially had a limit of 273 days for the period of detention, but that limit was removed in 1994, thus paving the way for indefinite detention.

The cruelty of the Howard Government’s Temporary Protection Visas, to which Opposition Leader Tony Abbott is so eager to return, deprives refugees of a number of rights under the Convention: the right to pursue wage-earning employment (Article 17(1)), the right to practice their profession where they hold qualifications which are recognised by the competent authorities (Article 19(1)), the right to “public relief and assistance” (Article 23); and the right to social security benefits (Article 24.1(b)).

It also denies the right to family reunion embodied in the Final Act of the 1951 United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons and the handbook Refugee Protection: A Guide to International Refugee Law, a guide produced jointly by the International Parliamentary Union and the UN High Commissioner for Refugees to mark the 50th anniversary of the 1951 Convention (see Family values).

Both Governments have been a party to the notion of returning refugees to their place of origin in spite of the evident dangers to the refugees involved in this course, and there is no provision in the Convention or the Handbook for suspending processing of asylum claims.

We are so far from fulfilling our obligations under the Convention that the only honest thing for either major political party to do, but which they both lack the honesty to tell us they would like to do, would be to take advantage of Article 44,  and notify the Secretary-General that we are “denouncing” the Convention. But that wouldn’t be a good look, would it?

1 comment:

TatteredRemnant said...

Australia should lobby for a root and branch review of the 1951 convention, to account for the reality of 2011.

It's appalling that we are not abiding by the Convention, but show me a country who is. We have to reset the global refugee policy framework so that people fleeing a well founded fear of persecution are assessed and protected.

In today's world there are too many refugees to permit any country from avoiding its responsibility and not joining the international effort to protect them. The Convention needs to be re-negotiated so that as many countries as possible commit to protection of refugees with assistance from the UN.

To ensure the sustainability and integrity of the international response to persecuted peoples, everyone needs to do their bit without their population getting (unreasonably in my view, but nevertheless)frightened about floods of refugees etc..

If non-signatory countries felt they could sign a new Convention that would not impose so great a financial and social burden on them, I'm sure that we could get more countries to get on board. Of course, this would take a serious increase in UN input and money, but just think of how much each country could save on its own border protection/detention/assessment regimes.

We need UN refugee camps in the right places with the right services that will allow refugees to have some hope for their future.

If we maintain the view that all refugees must be allowed to permanently settle in a Convention country, then we risk seeing a greater number of these refuge's rot in camps indefinitely.

Should we be appalled at rich countries denying asylum people? Absolutely. But while those that oppose our Convention obligations can mount convincing arguments that we must 'stop the boats' and lock refugees behind bars come what may, refugees will remain human footballs in a political game without end.