Publications

Previous PageTable Of ContentsNext Page

VIII. FUTURE DIRECTIONS

Weakening commitment to international law
While the Universal Declaration of Human Rights enshrines the right to seek and enjoy asylum,252 it is true that the Refugee Convention does not speak of a right to asylum in any particular country. This is the contradiction at the heart of refugee law that certain states, wanting to delimit their responsibilities, have tried to exploit. Yet the Refugee Convention is not a document written for a system of refugee resettlement. It is based on territorial obligations. The Australian Immigration Minister has written to Human Rights Watch that the Convention was drafted to ensure states "retained the capacity to manage their responses to refugee crises in ways that can provide the best outcome for as many refugees as possible, and those in genuine need of protection." Human Rights Watch believes, on the contrary, that the Convention was drafted to protect the rights of individual refugees, regardless of utilitarian calculations.

Furthermore, given that the vast majority of the world's refugees will always remain within their regions, usually hosted by the world's poorest countries, Human Rights Watch does not consider the present crisis in the international refugee regime to be caused by an increase in secondary movement.

In his statement to the 2002 UNHCR Executive Committee, the Australian Immigration Minister spoke of the "hard choices" facing states, posing a false dichotomy between the needs of those refugees waiting in camps and the supposedly lesser needs of those who manage to reach Australia of their own volition: "We cannot simply focus our energy, our resources, our compassion on people who are reaching the borders of western countries through secondary and tertiary movements; we must remember the needs of those who are further away," he declared.253 While this is true, his belief that those further away can only be helped by means of rejecting those who come without an invitation is not.

It is to avert this dangerous logic that UNHCR is now searching for alternative ways to resolve the question of secondary movement, by means of "special agreements" that may supplement the Refugee Convention on a regional level.254 While it is hoped that such agreements could lead to more equitable global burden-sharing (that is, transfer of resources to first countries of asylum) and increased multilateral commitments for resettlement, it remains to be seen what rights of refugees arriving in the developed world may be the traded in exchange for these clear benefits. UNHCR is considering offering its services to screen asylum seekers in order to determine who has and has not abandoned prior effective protection in another country of asylum, with a view to returning and readmitting those who are screened out. Proposals along these lines are expected to be made to governments at the next meeting in the Bali Ministerial Process,255 to be held in April 2003.

Australia played a leading part in the establishment of today's international human rights framework: it was chair of the committee when the Universal Declaration of Human Rights was adopted, it was crucial to the development of the Convention on the Rights of the Child, and in 1950-51 Australia was actively involved in designing the Refugee Convention.0 By contrast, in 2001, the Australian government was threatening to withdraw from the UN treaty bodies1 and was undermining by advocacy at international for a long-established norms of refugee protection that have saved countless lives over the past fifty years.

Retrenchment to minimal obligations
The government of Australia describes itself as offering "Convention plus" protection,2 meaning more than it is obliged to provide under the Refugee Convention. It suggests that if Australia has historically exceeded its international legal commitments and is now, by democratic will, no longer inclined to do so, then all it is doing is withdrawing generosity and compassion, not denying rights. This is untrue. The Australian government fails to acknowledge that it is violating at least three rights embodied in the Refugee Convention by the terms of the Temporary Protection Visas, as well as blatantly violating the human right of asylum seekers and refugees not to be arbitrarily detained, whether in Australia or the Pacific. It is not, therefore, a question of Australia "going back to first principles"3 so much as searching unashamedly for the lowest common denominator,4 and in doing so, crossing the line and violating its international obligations.

A senior DIMIA representative stated before an Australian Senate Inquiry in April 2002: "The obligation of the Australian government is not to refoule anyone who enters our territories. That is the obligation; it is no more than that."5 In fact, the obligations of the Refugee Convention run far deeper than non-refoulement. International protection should be seen as a surrogate for national protection and, as such, should offer a secure legal status, overcoming restrictions on rights over the course of time, and, if return of the refugee remains impossible, offering access to the solution of local integration.

Need for increased accountability of IOM and UNHCR
IOM and UNHCR cannot be held accountable to the rule of law in the same way as sovereign states. When governments contract with IOM and UNHCR, and violations occur, these agencies must be held accountable, but ultimately the government concerned must also be held responsible. Therefore it is incumbent upon these organizations, when taking on activities and responsibilities that are usually the preserve of states, to work with the maximum transparency and impartiality.

IOM, in particular, must make public its position with regard to undertaking projects that may not comply with international human rights or refugee law, and must, in practice, defer to the advice of UNHCR and other UN bodies when considering projects that may raise such questions. While it is true that IOM probably provides better care, particularly health care, to asylum seekers and others in detention in Nauru and Papua New Guinea than the Australian state authorities provide in Australian facilities, IOM should acknowledge that its role in the "Pacific Solution" has been instrumental to the violation of rights rather than humanitarian in nature.

Australia believes that IOM is now "at a crossroads" with a decision between "remaining essentially a service delivery agency and moving strongly into migration policy matters." The Australian government is encouraging the organization to take a more "strategic role" on issues such as combating people-smuggling and deterring secondary movement.6 UNHCR and IOM should ensure, through their Joint Action Group on Asylum and Migration, that the IOM's work in these fields does not impinge on the right to seek asylum, including the ability of those without effective protection to move onward in search of it.

Australian legislation and policy has increasingly cited the presence of UNHCR as a measure of safety and/or access to effective protection in countries of first asylum and transit. IOM too needs the screening and protection-mandated authority of UNHCR as a precondition for its work with intercepted "irregular migrants" and voluntary returns. UNHCR therefore has to address the fact that its under-resourced refugee status determination procedures and resettlement system are being used as sufficient measures of effective protection and thereby as a means of weakening of refugees' rights in western asylum countries.

Support for countries of first asylum and transit

The Australian government has recognized the vastly disproportionate costs borne by Iran, Pakistan and other countries facing mass influxes7 and has even acknowledged the extent to which the international protection framework has failed to deliver durable solutions to refugees in those countries, resulting in "millions of people living in uncertainty and poverty in border regions."8 Yet Australia's humanitarian will evaporates when it comes to individuals wishing to escape this uncertainty and indeed the certainty of codified discrimination by coming to its shores without an invitation.

Australia's policies blur a fundamental distinction between two root causes of forced displacement: causes of primary displacement and causes of secondary displacement. Secondary displacement results from failures of refugee protection in many cases and therefore calls for capacity-building strategies for enhanced protection, as distinct from general development or human rights policies. Enhancing protection in regions of origin is a much more effective and ethical means of combating people-smuggling than building additional barriers to the movement of asylum seekers.9

Australian policy to date has been to the contrary. Beyond its core annual contribution to UNHCR (Australia is its eleventh largest donor), Australia pledged an additional A$11.35 million in aid to UNHCR and countries of first asylum in 1999-2000, over A$30 million in 2000-01, and A$54 million in 2001-2.10 Yet the A$21.5 million which Australia contributed to support countries bordering Afghanistan in 2000-01, or even the A$37.43 donated for this purpose in 2001-02, is dwarfed by the A$2.87 billion cost of maintaining the "Pacific Solution" over the next four to five years.11

Australia is strengthening the Indonesian authorities' ability to spot false documents and prevent embarkation12 and training them on Australian visa and entry systems. DIMIA admitted to Human Rights Watch in May 2002 that there was no refugee protection training provided to Indonesian officials - not even an explanation on the duty of non-refoulement regardless of validity of travel documents. Australia has twenty-six overseas postings active in gathering information on "irregular movements" and nine airport liaison officers (ALOs)13 who act in an advisory capacity in foreign airports to help intercept asylum seekers heading to Australia. Since a DIMIA "risk profile" weeds out anyone likely to apply for asylum after they enter legally on a tourist or student visa, entry of refugees by air is becoming nearly impossible.14 This fact makes Australia's closure of its coastal borders all the more irresponsible.

Australia has stated15 that part of a "comprehensive and integrated approach" must be "supporting and encouraging countries of first asylum to continue to provide effective protection." It appears, however, that Australia's current deterrent policy of non-admission resulted from the government's losing patience with the root causes approach. Human Rights Watch believes that a truly "comprehensive approach" by the Australian government should include:

    · Greater support not just for UNHCR's assistance work but also for its advocacy work wherever refugees are kept in an artificial state of prolonged temporary asylum or denied legal status and thereby denied their rights under the Refugee Convention;
    · Treating countries such as Iran, Pakistan and Indonesia not just as "staging points" for people-smugglers, but as partners in achieving better global protection, and in this spirit refraining from intercepting or returning refugees to countries with lesser capacity to process and host refugees, or where UNHCR provides the only protection;
    · Enhanced support for local nongovernmental organizations, including legal aid and human rights groups in countries of first asylum, particularly those who might provide legal advice to asylum seekers having their claims determined by either national authorities or by UNHCR in Iran, Pakistan, Turkey, Syria and Jordan.
    · Meaningful consultation with such groups as to how the protection situation of refugees in such countries can best be improved within their domestic contexts;
    · Support for UNHCR's partnerships with local nongovernmental organizations to set up safe houses or other local programs to ensure urgent protection needs are more fully met in countries of first asylum;
    · Supplement support currently provided to Southeast Asian transit countries to combat people-smuggling with assistance aimed at tackling the causes of internal displacement, training immigration officials and other authorities on refugee and migrant rights, and supporting civil society, including the work of local human rights groups;
    · Increasing resettlement quotas16 and reducing migration-oriented selection criteria for such quotas, which prevent the most vulnerable from qualifying. An expansion of the resettlement system, however, should serve only as a complement to, rather than substitute for, providing territorial asylum to those who arrive in Australia spontaneously.

The highest price that the Australian government has paid for its current policy is the loss of moral authority to call for more effective protection worldwide. Conversely, the best assistance that Australia could now provide to the global refugee protection regime would be once again to set a positive example by moving away from its hard-line position on secondary movement and reopening its coastal borders to those exercising their human right to seek asylum.

252 Universal Declaration of Human Rights, Article 14.

253 Statement by Minister for Immigration and Multicultural and Indigenous Affairs, Geneva, 30 September 2002.

254 "...in the case of `secondary movement', a special agreement could be drawn up to define the roles and responsibilities of countries of origin, transit, and potential destination, with regard to asylum seekers." Statement by Mr. Ruud Lubbers, United Nations High Commissioner for Refugees, at the informal meeting of the European Union Justice and Home Affairs Council, September 13, 2002.

255 This process is the outcome of a regional conference on people-smuggling in the Asia-Pacific region, held in Bali in February 2002.

0 Australia was the 6th state to accede on January 22, 1954,

1 See ABC News Online: www.abc.net.au/worldtoday/s168888.htm

2 "Ruddock flags alternative plan," The Canberra Times, June 18, 2002.

3 Human Rights Watch interview with DIMIA, May 2002

4 A former teacher from Woomera Detention Centre testified that it felt like the Australian immigration authorities "just tried to imagine Third World conditions, and then said, `Right, we don't have to go anywhere past that." Business Review Weekly (Australia), July 11, 2002. Also see: Dr Dominic Meany, who worked as a health professional at Woomera, spoke of the deliberate provision of "Third World standards of medicine." "Detainees denied vaccines," The (Melbourne) Age, May 19, 2002.

5 DIMIA testimony to Australian Senate Inquiry into a Certain Maritime Incident, 821, 16 April 2002. The Australian Immigration Minister, Philip Ruddock, made a similar statement to Human Rights Watch in Geneva on October 2002: "The only obligation under the Convention is non-refoulement."

6 Australia's Statement to the IOM Council Meeting, 2001.

7 "[T]here has been outstanding generosity on the part of host countries in the region, particularly Iran and Pakistan. Millions of prima facie refugees have benefited from asylum for long periods." Australian Statement to 52nd Session of the UNHCR Executive Committee, October 2001.

8 Australian Statement to 52nd Session of the UNHCR Executive Committee, October 2001.

9 In the late 1990s, reception in regions of origin became the subject of numerous intergovernmental [see e.g. the Intergovernmental Consultations "Working Paper on Reception in the Region of Origin," Geneva, September 1994, and follow-up papers in 1995 and 1998] and independent [see e.g., James Hathaway ed., Reconceiving International Refugee Law (Kluwer Law Int'l, 1997; J. Hathaway & A. Neve, "Making International Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection," 10 HARVARD HUM. RTS. J. 115 (1997)] research projects. These projects were based on DIMIA's favorite statistic - the US$10 billion spent on the asylum systems of industrialized states in comparison to the US$1 billion budget of UNHCR - and the moral argument that more and "needier" refugees could be helped if the resources currently spent on processing claims in the west could be redistributed overseas. Such arguments can be used in two alternative ways, however: they can be a principled response to the fact that migration controls of western states have become externalized during the past decade, and to the fact that territorial asylum has never been an equitably distributed resource, or, alternatively, they can be used to justify measures of containment and deterrent policies.

10 Table of Funds Pledged and Paid to International Organizations for Humanitarian Assistance for financial years 1999-2002, sent from DIMIA to Human Rights Watch.

11 For a summary of the financial costs of the "Pacific Solution" see CMI Report, Chapter 11.

12 This includes five speedboats worth over A$1.5 million and A$18.4 million over 2002-3 to combat people-smuggling (and then A$75 million over the following four years). DIMIA told Human Rights Watch that they were unconcerned about whether the trained officials extorted money from those they identify as holding false documents. Nearly every person interviewed for this report had had to pay a bribe, of between US$100-500, in order to pass through immigration at Jakarta or the checks in Medan and Batam. One unaccompanied Iraqi boy had been "arrested" and put in a police room at Jakarta airport, where he was threatened with deportation for six hours before agreeing to pay US$200 to be released. Human Rights Watch interview No.39, Melbourne, Australia, April 3, 2002. One Afghan refugee who flew from Karachi to Jakarta witnessed that his smuggler paid the immigration officials, whereas other refugees who did not pay enough were turned around and immediately deported, despite the fact that he heard them beg to see UNHCR. Human Rights Watch interview, No. 40, Melbourne, Australia, April 3, 2002.

13 All of these are accredited diplomatic officers attached to the Consulates.

14 Human Rights Watch interview with DIMIA Border Protection, May 2002.

15 DIMIA, "Principled Observance of Protection Obligations and Purposeful Action to Fight People Smuggling and Organized Crime: Australia's Commitment," 2001.

16 As stated in the summary to this report, Australia ranked third in the world, after the United States and Canada, in the number of refugees it resettled in 2001. Nevertheless there remain insufficient resettlement places available to meet resettlement needs worldwide, and countries such as Australia need to display greater leadership toward resolving this crisis. Such a valuable contribution to global responsibility sharing, however, in no way excuses the summary closure of Australia's coastal borders to a group comprising many persons urgently in need of protection.

Previous PageTable Of ContentsNext Page