The Refugees Convention 50 Years on

Globalisation and International Law

Susan Kneebone

• Publisher: Routledge
• Year: 2018
• Print ISBN:
  9781138715257
• eBook ISBN:
  9781351770675
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This title was first published in 2003. The authors of the essays in this collection, all internationally recognised refugee scholars and practitioners, look at the controversial "hot" topic of refugee rights. They consider whether, 50 years after its agreement, the Refugees' Convention can provide an adequate framework for protection. In particular, the authors address: the effect of globalization upon the human rights of asylum seekers and refugees; the efficacy of the Convention as an instrument of international law; the role of the UNHCR; whether NGOs are effective instruments for change; and nationality and citizenship issues. They also consider alternatives and options for solutions to the global refugee problem.

1 Overview

LIZ CURRAN AND SUSAN KNEEBONE

Introduction

The papers in this collection arise from a workshop organised by Dr Susan Kneebone of the Castan Centre for Human Rights Law, Faculty of Law, Monash University, Melbourne, Australia in June 2001. Liz Curran of La Trobe University was the rapporteur for the workshop. The participants in the workshop, namely the presenters, commentators (see the list of contributors at p vii) and invitees included members of government and non-governmental organisations (NGOs), academics, and practitioners (both legal and other) from diverse countries. Some participants were themselves from refugee backgrounds. The discussion in the one and a half days ranged enthusiastically over policies and practices in Europe, the United Kingdom, Australia, Canada and New Zealand.

The workshop, held on the eve of the 50^th anniversary of the 1951 Convention Relating to the Status of Refugees (the Refugees Convention),¹ addressed the issue of whether the Convention provides an adequate framework of protection in the context of globalisation and a developed international law regime. The title of the workshop and this book, The Refugees Convention 50 Years On: Globalisation and International Law reflects that theme. Primarily the workshop was concerned with whether the Convention can provide effective protection as an instrument of international human rights law in a globalised world. That is, in the context of economic globalisation and universally recognised human rights, is the Refugees Convention a relevant and effective international instrument?

Particular issues which the presenters at the workshop were asked to examine included:

• to what extent is the reaction of the western nations to the refugee problem a reflection of economic nationalism, and might the concept of economic globalisation be used to forge new international consensus?
• the Convention and other regimes of international human rights protection – is it being interpreted consistently with other international instruments?
• how and why are other instruments such as the Convention Against Torture being used to complement the Refugees Convention?
• a comparison of alternative internal (national) avenues for the exercise of administrative discretion on humanitarian grounds;
• new uses of the refugee definition – the role of the state and private issues, including abused women and gender issues – are they legitimate or marginal extensions of the Convention?
• an evaluation of the role of the United Nations High Commissioner for Refugees (UNHCR);
• the role of NGOs – are they effective instruments for change?
• nationality and citizenship issues – effective nationality and the non-refoulement obligation – Articles 1C and 1E of the Refugees Convention, ‘safe third country’ exemptions.

Presenters were asked to engage with a policy paper prepared for the Australian government by Adrienne Millbank.² In that paper the author canvasses problems and perceptions associated with the Refugees Convention and concludes that:

There is a concern in both major political parties that asylum seekers could undermine support for migration programs … It seems likely that Australian governments will take whatever measures are necessary to curtail illegal entry and rising numbers of asylum seekers, including challenging the UNHCR and rethinking our obligations under the Refugee Convention.³

In hindsight that conclusion was prophetic. At the time the workshop was held we could not have predicted the dramatic events of the Tampa crisis, which took place in waters to the north of Australia, and the subsequent ‘Pacific Solution’ introduced by the Australian government in response to that incident.⁴ This refers to the refusal of the Australian government to allow a Norwegian cargo ship, MV Tampa, to enter into Australian waters with 433 asylum seekers rescued at sea. The incident took place in the last weeks of the second term of office of the Howard Liberal government and just prior to the terrorist attacks on the USA on 11 September 2001. The Howard government, which subsequently won a third term of office, created the Pacific Solution by entering into agreements with small Pacific island nations for them to host the asylum seekers and to provide facilities for the processing of their refugee claims, in exchange for money payments.⁵ These events have put a spotlight on Australia and the way in which it has implemented its obligations under the Refugees Convention. Rather alarmingly, elements of the Australian ‘solutions’, including the rhetoric for dealing with the ever-increasing tide of refugees are now being mirrored in Europe.

The overwhelming view held by contributors to this book is that despite problems with its implementation, the Convention is fundamentally relevant 50 years on as a flexible statement of basic human rights and values. That message needs to be delivered even more firmly in the current global situation.

The chapters in the book are arranged around two main sub-themes. The first is the effect of globalisation upon the use of the Convention, and the second being to assess its ability and effectiveness as an instrument of human rights protection.

The Effect of Globalisation

Globalisation today is an epithet which has both positive and negative connotations. The negative points to the results of global economic and cultural imperialism. The manifestation of this is the continuing and increasing disparity in living standards in the industrialised nations and the developing world. The positive points to the role of universal standards and international law, to international cooperation in environmental matters, intervention in regional conflicts and in relation to war crimes, for example. It suggests a global sense of responsibility for the fate of humanity.

The first cluster of chapters provides us with an overview of what Matthew Gibney calls ‘the state of asylum’ in our globalised world.⁶ That is, the authors reflect upon national or state policies towards asylum seekers in a globalised world of interconnected societies and activities, which both work through and cut across nation states.⁷ In popular parlance they look at the battle between state or national sovereignty and the international protection regime provided by the Refugees Convention.

One fact that is often forgotten in this battle is that the problems leading to people seeking asylum,⁸ or the ‘refugee problem’ as we shall call it, are themselves often either a manifestation or a consequence of globalisation.⁹ It is no accident that of the estimated 21.8 million people ‘of concern’ to the UNHCR today,¹⁰ a major concentration occurs in the African countries,¹¹ with other concentrations occurring in the Middle East¹² and Asia. In the case of the African countries in particular, the causes of ‘refugeehood’ stem from de-colonisation, environmental degradation¹³ (sometimes deliberately inflicted as an adjunct to ethnic persecution), famine and civil wars caused by the vacuum of power. These problems are exacerbated by the negative effects of globalisation, as the gap between Africa and the industrialised nations increases.

As Robert Illingworth, the Assistant Secretary for Onshore Protection for the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA)¹⁴ observes in chapter 4,¹⁵ the bulk of the asylum seeking population in these countries has fled to neighbouring countries of first asylum. This leads to what Gibney calls a north-south dichotomy, with the poorer countries in the south hosting the larger number of refugees. The greatest burden is borne by the countries of the developing world who often house refugee camps on their borders next to the countries in turmoil. In a globalised context, and from an Australian geographical perspective, this equates to a dichotomy between the First and Third Worlds. This is the very imbalance which globalisation and global solutions should address.¹⁶ Yet as a number of the contributors to this book point out, often the preferred solution of governments is to contain refugee populations in those poorer countries of first asylum. Or, more recently, as the Pacific Solution demonstrates, asylum seekers are kept at bay in poorer nations which are prepared to host them in exchange for financial reward.

Ironically it is the knowledge and increased ease of communication and transport, themselves manifestations of globalisation, which facilitate the outflows of asylum seekers. These refugee seeking populations are intermingled with ‘illegal immigrants’ seeking to share the economic fruits of globalisation, thus complicating the ‘state of asylum’. Both groups are prey to people smugglers who seek to profit from these populations on the move. As Gibney and other contributors observe, these global indicators of the refugee problem have led to universal responses in the form of restrictive measures.

Mary Crock perceptively points out that there are two user-groups of the Convention.¹⁷ These are asylum seekers and their advocates on the one hand, and governments on the other. Crock and Illingworth represent those two respective groups. There are many interesting counterpoints in their chapters. In chapter 4, Robert Illingworth, in presenting the Australian government’s point of view, devotes much of his paper to the issue of people smuggling. He states that the increase in the total number of unauthorised arrivals:

has arisen primarily as a result of the influence of people smugglers and recent arrival...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Contributors – Presenters and Commentators from the 2001 Workshop
• Acknowledgements
• Preface
• 1 Overview
• 2 The State of Asylum: Democratisation, Judicialisation and Evolution of Refugee Policy
• 3 The Refugees Convention at 50: Mid-life Crisis or Terminal Inadequacy? An Australian Perspective
• 4 Durable Solutions: Refugee Status Determination and the Framework of International Protection
• 5 Criminality and State Protection: Structural Tensions in Canadian Refugee Law
• 6 Safe for Whom? The Safe Third Country Concept Finds a Home in Australia
• 7 ‘Mind the Gap’: Seeking Alternative Protection Under the Convention Against Torture and the International Covenant on Civil and Political Rights
• 8 The Human Rights of Rejected Asylum Seekers Being Removed From Australia
• 9 The Role of the United Nations High Commissioner for Refugees and the Refugee Definition
• 10 New Uses of the Refugees Convention: Sexuality and Refugee Status
• 11 Moving Beyond the State: Refugees, Accountability and Protection
• 12 Global Solutions
• Index