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Article Excerpt
CONTENTS
I Misinterpretation of International Refugee Law A Governmental Obfuscation B Advocates' Absolutism II Reinvigorating International Refugee Law A Refugee Law Embodies a Principled Compromise B Revitalising the Principled Compromise III Still a Convention-Based Regime
I MISINTERPRETATION OF INTERNATIONAL REFUGEE LAW
I am concerned that the singular importance of international refugee law is profoundly misunderstood. My more specific worry is that erroneous and competing claims by governments and the refugee advocacy community about the structure and purpose of refugee law threaten its continuing ability to play a truly unique human rights role at a time when no meaningful alternative is in sight.
In particular, governments of the developed world are now appropriating the language of burden-sharing in order to further an only mildly attenuated global apartheid regime under which most refugees not only remain in the less developed world, but remain there under conditions which are generally rights-abusive and often literally life-threatening. These states have distorted the true object and purpose of the Convention relating to the Status of Refugees ('Refugee Convention'), (1) erroneously suggesting that it sets only protection obligations of'last resort' (2)--that is, that refugees may be routinely sent away to any other state that will admit them without risk of return to their country of origin. Governments have further stigmatised refugees who arrive without pre-authorisation as 'illegal' (3) despite the fact that the Refugee Convention itself requires otherwise. (4) And perhaps most disingenuously, these same governments have sought to justify their harsh--and often illegal--treatment of refugees arriving at their territory on the grounds that such harshness is the necessary means to a more rational protection end, namely the reallocation of resources towards meeting the needs of the overwhelming majority of refugees located in the less developed world, with resettlement opportunities to be made available only to those said to be most acutely in need.
This rhetoric is largely a distortion of international refugee law.
A Governmental Obfuscation
First and most fundamentally, there is no duty whatsoever on a refugee to seek protection either in the first country where he or she arrives, or more generally within his or her region of origin. (5) Nothing in either the Refugee Convention (6) or in the so-called 'soft law standards' agreed to by the Member States of the Executive Committee of the United Nations High Commissioner's Programme ('UNHCR Executive Committee') so requires. To the contrary, unless a refugee has already found protection elsewhere (7)-'found' meaning actually acquired (not just 'could ask for') and 'protection' meaning the whole bundle of protections guaranteed by treaty (not just not being removed) (8)--then present standards actually require deference to the wishes of the refugee regarding where to take his or her chances. (9) This does not require deference to the wishes of the refugee as to where they are to be admitted. But the essential structure of the Refugee Convention makes clear that even as states were given the power of status determination once reserved to the international oversight agency, refugees were to be afforded the prerogative to decide where to take their chances on status determination. (10)
Second, refugees who arrive at a state's territory--indeed, refugees who come under a state party's jurisdiction, including parts of the high seas over which a state has taken effective jurisdiction--are entitled to the benefit of the Refugee Convention. (11) Efforts to resist such responsibility on the basis of the alleged illegality of arrival or presence are fundamentally at odds with the Refugee Convention's requirement that refugees in flight from persecution are to be granted immunity from any penalties for illegal entry or presence. (12) No state has ever been prepared to issue a visa for the purpose of travelling to its territory in order to make an asylum claim. And even if available, it would often be too risky or logistically challenging for a refugee to take advantage of such an option. The Refugee Convention therefore requires all state parties to treat refugees who make a clean breast of their illegal entry or presence as non-transgressors. This, in effect, creates a necessity-based exemption from the usual rules of migration control. (13) It is completely inappropriate to stigmatise refugees arriving without visas as law breakers when a treaty we have freely signed provides exactly the contrary.
Third, it is increasingly claimed that the harshness meted out to the minority of refugees who arrive at the frontiers of developed countries can be justified as part of an overarching strategy to reallocate protection resources from wealthier asylum countries to the regions of the world where most refugees actually live. (14) This strategy is justified not only on the grounds of the relative numbers of refugees in the developed world compared to the less developed world, but more fundamentally on the basis that refugees in the less developed world are--in the words of the Australian government--'most in need'. (15) The reallocation of fiscal resources towards the less developed world is, as in the case of Australia, sometimes accompanied by a commitment to resettle some number of 'those refugees most in need' from the less developed world. (16) Such a commitment is said by Australia to be possible '[d]ue to Australia's success in dramatically reducing the number of illegal [refugee] arrivals over recent years'. (17) In other words, it is claimed that a greater commitment to resettlement has been made possible by the savings realised from shutting down what the Australian government views as illegal, namely unauthorised, refugee arrivals.
This third component of recent refugee policy is somewhat more challenging to untangle than the first two components. There is certainly no doubt that the burdens and responsibilities of offering protection to refugees are today unfairly apportioned. More than 90 per cent of refugees remain in the less developed world, (18) with some states--Jordan, Lebanon, Syria, Chad, Tanzania, Iran and Sierra Leone--hosting more than one refugee for every 100 citizens. (19) In contrast, Australia's refugee to citizen ratio is nearly 1:1400, the European Union's roughly 1:2000, and Japan's approaches 1:50 000. (20) Not only is the less developed world hosting the overwhelming share of refugees, but it does so with a small fraction of the resources presently allocated to processing and assisting the tiny minority of refugees who reach richer states. In rough terms, less than US$1 per day is available to look after each one of the approximately 4.4 million refugees under direct UNHCR care in poorer states. (21) Furthermore, not even that tiny budget is guaranteed, but has to be garnered each year from voluntary contributions to the UNHCR of a small number of wealthier countries--there is no formula-based funding arrangement. (22) Meanwhile, developed states spend at least US$20 000 to process and meet the needs of each one of the tiny minority of refugees able to reach them. (23) On average, then, the world now spends more than fifty times as much on a refugee arriving in the developed world as it does to protect a refugee who remains in the less developed world. This is clearly not even on the equitable Richter scale.
In such circumstances, it should come as no surprise that the living conditions of refugees in less developed host countries are often dire. In far too many cases rights abuse is rampant, and rationalised on the basis of extreme resource shortages. (24) There is thus a very strong basis for the case being made by Australia and some other states that it makes sense more fairly to apportion resources in relation to relative need, and to require much more funding to be directed towards protecting refugees in the less developed world.
The reallocation, however, needs to be both much more significant and, most fundamentally, binding. Countries in regions of origin rightly protest that they cannot be expected to admit massive numbers of refugees--to whom they thus...
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