International Law Matters – Even On Manus


Most would agree that the situation leading up to the announcement of Kevin Rudd's plan for asylum seekers needed to change. The horror of deaths at sea, the self-harm and attempted suicide, and now the allegations at Manus – these are all indications of a system that leaves people without hope.

Neither the Government's PNG solution, nor Tony Abbott's Operation Sovereign Borders, improves on that unacceptable situation. It is surprising to have to say it, but let me be clear: international law matters. The Refugee Convention has described by some politicians as “outdated” or even “broken”. But although it may well have become “inconvenient” from a political point of view, the convention’s ongoing relevance and vital importance can be quickly demonstrated.

There is nothing inherently wrong with negotiating the resettlement of refugees in a third country. This is how European refugees came to Australia after World War II. But the success of such an arrangement depends on two crucial tests: (a).can the third country can provide adequate protection for the resettled refugees, and (b) will resettlement place an unsustainable burden on the third country?

The Rudd plan fails on both counts. Both PNG’s legal situation and the facts on the ground demonstrate that Australia cannot realistically outsource its responsibilities to PNG.

PNG is not party to the Convention Against Torture (which has standards on how people in detention must be treated), the Protocol against the Death Penalty (in fact PNG has recently strengthened its capital punishment laws), or the Human Trafficking Protocol. At a more practical level: PNG is a place where violence, insecurity and social unrest present serious problems for refugees.

More worryingly, some of the refugees are from PNG. In recent years Australia has given protection to dozens of PNG citizens fleeing violence and unable to gain police protection inside PNG. If such people arrive by boat in future, returning them to risk persecution in PNG would constitute the gravest possible breach of our legal and moral obligations.

The Rudd plan is asking too much of a country that has deep and difficult problems of its own. The arrangement will breach international law as well as being unworkable in practice.

Does this matter? The Refugee Convention is over 60 years old; is it the case, as Rudd says, that it needs a rethink? 

Quite the opposite: it embodies our own values and ideals, whatever the politicians may say. We benefit daily from living in a peaceful international system governed by law rather than shifting alliances of military power. In that sense our respect for international law is as important as our respect for Australian law, and for the same reasons. More selfishly, our compliance with international law is essential for our international standing and our ability to use international law to advance our national interests. If we don’t respect the law, why would we expect anyone else to?

When Australia signed up to the Refugee Convention, we made a commitment that we would not send a person to another country where they would be threatened because of race, religion, nationality, social group or political opinion. We also committed to provide refugees with certain minimum protections, including freedom of movement, religious freedom, and access to courts, basic education, and housing. These are not just dry legal propositions – they are basic human decency.

As many people are surprised to learn, the main obligation under international refugee law is not the resettlement of refugees from camps in far flung war-zones, but rather the treatment of people who arrive in our country with a minimum standard of care and protection. The basic reasoning behind this is that people fleeing persecution in their home country need to cross international borders, usually in circumstances that don’t allow for orderly visa applications.

The convention creates a system where every signatory country commits to give protection to those who come seeking it. Once that initial protection is in place, decisions can be made about resettlement, whether in the country of refuge or elsewhere.

Many might think that, as an island, Australia does not fit into the standard mould of a country of first refuge. But we have received refugees from East Timor, Sri Lanka, West Papua and other places with no alternative “regular migration route” for asylum-seekers. So our commitment to be a responsible country of refuge is as important to Australia as to anyone else.

Second, our membership of the convention is essential for maintaining the refugee protection system worldwide. The idealised system of “orderly” resettlement – people flee persecution, congregate in camps, and wait to be selected for resettlement – depends on the immediate neighbouring countries being willing to take people in. Those countries, such as India, Bangladesh, Lebanon, Jordan, Kenya or Ethiopia, bear the immediate responsibility of hosting refugees.

The burden on them – both in absolute terms and relative to Australia – is serious. For these often impoverished countries, the political and economic pressure to expel refugees may be very strong. If we want them to do the right thing, and provide necessary protection to refugees, we must demonstrate our willingness to do the same ourselves. If every country adopted the attitude that some in Australia are promoting – that they are happy to take resettled refugees from elsewhere but will not accept the right of people to seek asylum in Australia uninvited – then this would effectively mean the end of protection for refugees everywhere.

So there are two clear reasons for Australia to continue to honour our commitments under the Refugee Convention. What reasons could possibly detract from that?

The world certainly has moved on since World War II, but not in any way that makes the convention any less relevant or important. The fact that more people in 2013 are travelling abroad to seek better economic opportunities is entirely irrelevant to the convention. People who are not fleeing persecution are not refugees and do not fall within the convention’s protection. They can be legally returned to their country of origin, and Australia does this routinely. The convention does not prevent this and refugee advocates do not argue against that.

If people are concerned that the current system is unfair because people waiting in refugee camps may miss out on their chance for resettlement, then the answer is simple. The Australian Government just needs to end its policy of linking the onshore and offshore components of its resettlement program. At present, the Government chooses to reduce its intake from overseas camps whenever another person comes directly to Australia for asylum. According to the Refugee Council of Australia, no other country does this. It is that policy choice, rather than anything that the asylum-seekers do, that reduces the chances of resettlement for others. It also gives people in refugee camps and other transit points a clear incentive to get on boats.

The tragic drownings off Christmas Island are not a reason to walk away from the convention either. That humanitarian problem must be addressed, through a genuinely regional response. That means working within the region where refugees are coming from and passing through – not just the region where we can most easily push our diplomatic weight around.

All of the evidence from Europe, Africa, Latin America, and Australia’s own experience with Vietnam shows that the best way to address cross-border population displacement is to go “upstream” to the refugee camps and transit points, process people’s claims more quickly, and resettle more people. It has worked before and can work again.

We know that people have not been deterred by the fear of drowning nor by the fear of indefinite detention in substandard conditions. By offering them the possibility of resettlement we will give them a tangible reason for staying where they are. This can be done by improving the UNHCR’s capacity to assess refugees in Indonesia and Malaysia, and by showing those refugees that there is a viable alternative to risky boat trips. For people who are fleeing persecution, the most effective motivation is not fear but hope.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.