Hi there,
Well, one of my colleagues from Dublin has moved to Germany in the second semester of the Masters, and he has been asked to write an essay on refugee policy in Australia. Naturally, he called in support from his good friend Jessie! Anyway, I gave him a lot of documents and things to read, and he wrote me an email in an attempt to clarify some questions. He said "i'm sorry if these sound like stupid questions but I'm confused", and then hit me with the following very good questions...
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Outsourced Detention Centres:
According to the Migration Amendment Bill (2006), the Australian government will use outsourced detention centres on Christmas Island, Manus Island, and Nauru.
1) Manus Island and Nauru are not signatories to either the Refugees convention nor the protocol on the status of refugees, therefore they are not obliged by conventional law to follow international standards for the treatment of refugees. However, according to the UNHCR, "States not signatories to the 1951 UN Refugee Convention and 1967 Protocol do not have treaty obligations but still have obligations under international law regarding the treatment of refugees" ( http://www.unhcr.org.uk/info/briefings/basic_facts/obligations.html). What governs this "other" international law? What is it? And are Nauru and the Manus Islands still obliged to follow it?
2) During the Tampa Affair, the Tampa was barred from entering the waters of the Australian protectorate of Christmas Island; according to conventional law, doing so would oblige Australia to provide refugee status to the stranded boatpeople. And yet, now the Australian government wants to use Christmas Island as a detention centre. How is this possible? How will it not oblige the Australian government to provide protective visas and status?
General Malaise:
Help me out here. It seems that the Australian government has violated the following legally binding documents:
Universal Declaration of Human Rights (1948). Article 14.1 "Everyone has the right to seek and to enjoy in other countries asylum from persecution."
Convention on the Status of Refugees (28 July 1951), ratified by Australia on 22 Jan, 1954. Various violations including non refoulment, persecution, etc.
The Australian "Migration Act" of 1958. Migration Amendment (Designated Unauthorised Arrivals) Bill 2006, Australian refugee policy was in violation of its own laws, including: Section 4 – "Minors shall be detained only as a last resort" – and section 36 – "a non citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol"
Protocol Relating to the Status of Refugees (4 October 1967), ratified by Australia on 13 Dec, 1973. See above stanza.
International Covenant on Civil and Political Rights ('ICCPR') (1966), ratified by Australia on 13 Nov, 1980. Article 9 expressly forbids "arbitrary detention," which Australia started doing in 1992
Convention on the Rights of the Child (CRC) (2 Sep 1990), ratified by Australia on 17 Dec, 1990. Article 37 expressly forbids detention of children in all cases but as a last resort, which in the case of Australian detention centres it is not.
What am I missing?
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An interesting email, full of good questions, I'm sure you'll agree! If you're interested, I'll post the answers in the comment section.
As you can see, Australia's behaviour is beginning to gain the negative attention of the international community.
I also wanted to point out this article in The Age today, which speaks volumes into the above questions....
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Sri Lankans look set to be moved to Nauru
A GROUP of Sri Lankan asylum seekers looks set to be processed on the Pacific Island of Nauru after Indonesia said it would simply return them to their homeland if it were asked to deal with the 83 men.
The Howard Government was told from the start the Sri Lankans would be immediately repatriated and prevented from making asylum claims if they were transferred to Indonesia, senior Indonesian officials have stated.
Contradicting claims by Australian ministers that they were waiting to find out if Jakarta would allow the asylum seekers to make claims through the United Nations High Commissioner for Refugees, Indonesia Foreign Ministry spokesman Desra Percaya said Canberra knew this was never an option.
Asked why Foreign Minister Alexander Downer was yesterday still claiming he is awaiting Indonesia's decision, Mr Percaya said: "I would suggest you ask Mr Downer himself."
Mr Downer said yesterday the Government had not made a final decision on where to send the refugees if Indonesia formally refused, but Nauru was most likely.
"If they decide that they don't want the processing to take place in Indonesia then obviously one of the options for us is to have them processed in Nauru," Mr Downer said in Adelaide.
"These people will be processed according to law and according to Australia's obligations under the refugee convention," he said.
Mr Downer has repeatedly said Australia would not transfer the Sri Lankans to Indonesia if they could not claim asylum there. The men were intercepted off Christmas Island last week after sailing from Indonesia.
Last Friday, Australian officials proposed the plan to quickly send the 83 Sri Lankans home, via Indonesia, to avoid asylum claims — as Indonesia is not a signatory to the United Nations refugee convention.
Indonesia and Sri Lanka agreed to the proposal. Sri Lankan ambassador to Indonesia, Janaka Perera, confirmed Australian officials had provided details of the plans for quick repatriation.
Mr Percaya yesterday said Canberra knew then that Indonesia would not allow the Sri Lankans to have access to UNHCR procedures. "Between Canberra and Jakarta contact has been established right from the time the incident happened," he said. "We expressed our position, we made it very clear."
"We made it clear we are ready to receive them back in Indonesia with the understanding that they are going to be sent back to their country of origin and secondly we are not ready for international organisations to be involved."
As Indonesia was not a party to the refugee convention "we don't have any obligation under this convention to process them in Indonesia", Mr Percaya said.
At the meeting in Jakarta last Friday, Australian officials said Indonesia could justify returning the asylum seekers to Sri Lanka as they had arrived in Indonesia illegally. They also said the Sri Lankans should be returned as quickly as possible to prevent them lodging asylum claims.
When Canberra's plan was revealed in The Age, Immigration Minister Kevin Andrews guaranteed that Australia would protect their rights under the convention to seek asylum and they would not be forcibly returned to face persecution. Mr Downer arrives in Indonesia tomorrow and will hold talks on the Sri Lankan case and the broader issues surrounding people smuggling.
Australia is concerned about the prospect of a new flood of asylum seekers, with an estimated 5000 Sri Lankans in the region having fled.
Refugee groups fear for the men if they are returned to Sri Lanka because of the ongoing civil war between the government and rebel Tamil Tigers.
With AAP
http://www.theage.com.au/news/national/sri-lankans-to-be-moved-to-nauru/2007/03/02/1172338882574.html
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2 comments:
Answers to the questions! For the hardcore nerd :)
QUESTION 1.
OK this refers to customary international law. Aspects of customary international law thought to cover refugees include Article 14 of the Universal Declaration of Human Rights & Article 33 of the 51 Refugees Convention (non-refoulement)... Customary international law is said to apply to *every* member of the international community, unless a country has made known its unequivocal objection to a particular provision, from its very formulation.
While the seminal source of refugee law is undoubtedly the 1951 Convention (and its Additional Protocol of 1967), there are also other human rights instruments which give rise to refugees’ rights and the protections that ought to be afforded to them. Perhaps the most philosophically important of these is the 1948 Universal Declaration of Human Rights, which sets out the very basic right to enter a territory for the purpose of seeking asylum. Article 14(1) of the Declaration states that “everyone has the right to seek and enjoy in other countries asylum from persecution”. At the time of its drafting, the Universal Declaration of Human Rights was intended as a statement of universal, inalienable rights afforded to every human being. It did not carry the same rules of application as a treaty (that is, obligations arising subject to signature and ratification), as it was to be applicable globally and universally. Since that time, however, the status of the Declaration has evolved. It is now seen by many as holding a place in customary international law due to its philosophical importance, and its constantly being referred to as a cornerstone of human rights in diverse fora, including national constitutions, domestic laws and international legal documents. So, it ought to be ‘binding’ on all states. However, the Declaration fails to entrench the ‘rights’ it contains by the creation of concomitant duties and obligations. When Article 14(1) was drafted, the possibility was mooted of substituting “the right to seek and enjoy asylum” for “the right to be granted asylum” (Goodwin-Gill 1996, p175) . However, there was strong opposition to this suggestion, as it is generally presumed that the granting of asylum is the sovereign prerogative of states, but not their duty. So, while there exists a right to seek asylum, there is no parallel duty incumbent upon states to grant it. It is all very well to uphold a right to seek and enjoy asylum, however without giving rise to state obligations which would support this right, the Declaration is a toothless tiger.
The principle of non-refoulement (enshrined in Article 33) is considered so fundamental that is has graduated beyond its status as a mere treaty obligation, and into the realm of customary international law, rendering it binding upon all states, regardless of the scope of their self-assumed obligations under the Convention. (UNHCR, ’The Principle of Non-Refoulement as a Norm of Customary International Law. Response to Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93, 31’ January 1994)
QUESTION 2.
Aaaaaah my favourite... This is where the magic word 'excision' comes in. Gaah! Traditionally, when an asylum seeker lands on the soil of a country, their rights under the refugee law are activated. BUT ... when the Tampa business was happening, the government *retroactively* "excised" a number of thousand islands off the Australian coast from the "migration zone". This set up an extraordinary distinction between Australia’s sovereign territory, and its "migration zone". This meant that anyone arriving on those islands was not arriving in Australia’s ‘migration zone’, therefore had no rights in Australian law, and no recourse to the Australian legal system. This idea was slammed from many angles, not least of all because it was enacted retroactively – that is, it stripped the rights of people who had landed on the islands even before the law was passed. HOWEVER - it was said not to affect the sovereignty of Australia over those islands... soooo Christmas Island is not 'Australia' for the purposes of seeking asylum, but it IS still Australia's sovereign territory, so they can safely detain people there without having any obligations to them, or 'activating' their rights under international and Australian law. If this sounds like bullshit nonsense and legal ridiculousness, you are not wrong. Simple as that.
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