Pearls and Irritations

Forgive me for repeating myself, but you might be interested in a presentation I gave on this subject in February 2012 (see below).

We have talked a lot about the need for regional arrangements, but progress has been extremely slow. Our political system based on ministerial and departmental responsibility has failed us badly on refugee issues. A new approach  involving civil society – NGOs, academics and others is necessary to help us break out of the awful situation into which we have spiralled.

A Regional Cooperation Framework

International Association of Refugee Law Judges

Melbourne 3 February 2012

There are 33 million persons of concern to the UNHCR throughout the world. There are about 15 million refugees. With instability and failed states, numbers are likely to increase, including in transit countries such as Malaysia, Thailand and Indonesia.

For our neighbourhood there will be no satisfactory arrangement concerning refugees and asylum seekers and particularly boat people without regional cooperation. It is so obvious, except for those who want to play politics with the lives of boat people.

I have chosen my words carefully in saying that there will be no ‘satisfactory arrangement’ rather than talking about ‘solutions’. For whatever we can accomplish together with our neighbours, asylum flows will remain chaotic and unpredictable. Desperate and vulnerable people will never abide by the ‘rules’ we seek to impose. But together with our neighbours we can do a lot better.

The successful resettlement of over 240,000 Indochinese in Australia, initiated by our acceptance of over 100,000 refugees followed by orderly departures and family reunion, could never have occurred without regional cooperation. The same is true today. Regional cooperation in the late seventies and eighties was not pretty at times, but it worked. Regional countries provided temporary protection for 1.4 million people who fled after the fall of Saigon. Resettlement countries were able to catch their breath and then generously respond. Just imagine if 50,000 of that 1.4 million had arrived by boat in northern Australia. The successful programs of the Fraser Government could not have succeeded in those circumstances.

But in dealing with our region we are often fair-weather friends, turning to them when we have a problem and then walking away. We also seem to have an unfortunate ability to project an air of superiority. Consider our record.

• In 1996 Australia, together with other resettlement countries terminated the Comprehensive Plan of Action for Indochinese which had been a model of regional burden sharing. We left regional countries with thousands of difficult cases.
• In Bali in 2002 we sought regional help over boat people. But when boat arrivals fell away, although the problem of asylum seekers who came by air remained, we lost interest. We revived the Bali process again in 2009 when the boat arrivals resumed.
• The countries of our region are often criticised for their toughness towards refugees. But our regional neighbours carry a much heavier burden than we do. The number of refugees in Australia is minimal – 22,000 in 2010. But the countries of our region who have not signed the Convention put our performance to shame. Pakistan has 1.9 million refugees, Malaysia has 82,000 refugees with another 130,000 people of concern to UNHCR, India has 185,000 refugees, Nepal 90,000. In Bangladesh there are 229,000 people of concern to the UNHCR. Thailand has 97,000 refugees and another 550,000 people of concern to the UNHCR.
• The High Court and others declare that we should not cooperate in processing in a country that has not adopted certain legal obligations, either under international or domestic law. This narrow view makes sensible policy extremely difficult considering that there is not a signatory country to the Refugee Convention in the arc from Yemen to Australia – the route used by almost all asylum seekers fleeing to Australia.
• But the High Court’s legalistic view becomes more difficult to understand when we consider the performance of countries that have signed the Convention. China has signed the Convention, but regularly refouls North Koreans back across the Tumen River. PNG, a signatory, regularly refouls Irian Jayans back into Indonesia. Nauru obviously signed the convention in June 2011 for financial benefit. Japan, a signatory, collaborated with North Korea and the Japanese Red Cross to ‘repatriate’ about 90,000 Korean residents in Japan back to North Korea between 1959 and 1984. Most of them disappeared or escaped back to Japan.
• We point to the plank in other people’s eyes, but ignore the brutality of our treatment of asylum seekers in detention centres in this country. By any reasonable interpretation our punishment and cruelty towards boat people in detention is a breach of the Refugee Convention. As the regional representative, UNHCR in Australia, put it before a Joint Parliamentary Committee on Australia’s Immigration Detention Network in August 2011, ‘Australia’s mandatory detention policy, that denies the right to lawful stay and any opportunities for self-reliance in community-based settings, and is punitive on the basis of the method of entry to Australia, is arguably in contravention of Article 31 of the Refugee Convention and would fall well short of these criteria. UNHCR’s concerns about the legal and severe and negative implications of long-term mandatory detention in Australia are long-standing and well-known.’ Australians seem much more vexed over what happens in Malaysia than how we punish and brutalise vulnerable and defenceless people in our detention centres.
• Malaysia has made considerable progress on human rights which we choose to ignore. Together with ASEAN, Malaysia has embarked on the development of a human rights instrument, something that we have refused to do. In noting the decision to develop a Political and Human Security Blueprint in 2009, ASEAN ministers declared “Many kinds of human rights violations take place in South East Asia and a regional mechanism can help address this problem. First, the mechanism will ensure that ASEAN member states all adhere to international human rights standards. Second, the mechanism provides a common platform where ASEAN member states, being socio-politically different from each other, can articulate their human rights-related concerns. Lastly, with a human rights mechanism, the region can cooperate to address violations and collectively show its stand on human rights-related issues.’
  The much criticised Australia/Malaysian agreement was described by the Regional Director of UNHCR in Australia to the Legal and Constitutional Committee of the Australian Parliament on 30 September 2011 in the following terms. ‘Many persons of concern to UNHCR stand to benefit from this Program by having their status regularised. It would mean all refugees in Malaysia would, in addition to their registration and ID documents from UNHCR, be registered within the government’s immigration data base and thus protected from arbitrary arrest and detention. It would also mean that all refugees in Malaysia would have the right to work on a par with legal migrants in the country. This would also entitle them to the same insurance and health schemes as documented for legal migrant workers.’ Importantly, Malaysia does not punish boat people in mandatory detention as we do. For Malaysia the Agreement was quite remarkable progress. This is in a country that has the burden of a large number of refugees, is much poorer than we are and has a history of communal tensions. But the arrangement is not enshrined in law and so is discounted. This Agreement is also consistent with a decision of the Executive Committee of UNHCR in 1998 that recognised that irregular migration, people-smuggling and asylum flows are complex matters but concluded that return to a transit country like Malaysia may occur provided there are appropriate safeguards, accepted international standards and effective protection against refoulement. While such conclusions are not binding in law, they do guide the work of the UNHCR and governments in what are acceptable international standards of behaviour towards asylum seekers.

With so few convention signatories in our region, any regional cooperation framework will have to be constructed with non-signatory countries. A regional framework cannot be conjured out of thin air. It must be built from materials available. In that regard, there is an instructive precedent in the 1984 Cartagena (Colombia) Declaration on Refugees. At that time, 150,000 central American refugees were being assisted in the region. There were another 1.8 million people who had fled across a border or were displaced in their own country by conflict.

The Cartagena Declaration was adopted by a group of ‘government experts and eminent jurists’ from Belize, Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama and Venezuela.  Three of these countries were not signatories to the Refugee Convention in 1984 when the Declaration was agreed. The Declaration was a modest start, but it contained a number of important recommendations. Significantly the Declaration broadened the definition of a ‘refugee’ set out in the 1951 Convention to include those ‘who have fled their country because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order’.

The Cartagena Declaration was further enhanced by the 1989 International Conference on Central American Refugees and the Mexican Declaration of 2004. Argentina (a non-signatory to the Refugee Convention) and Chile (a signatory) subsequently became parties.

Not surprisingly, these developments have not been straight-forward. There have been restrictive interpretations of the Declaration and exclusion of some clauses by some countries. But the progress has been clear.

There are also some lessons that we can learn about a regional cooperation framework in Africa where the numbers and the problems have been much greater than in Central America. In 2009, the African Union Convention for the protection and assistance of internally displaced persons in Africa was signed. This African Union Convention was the first legally binding instrument on internal displacement on a continent-wide basis. It provides a comprehensive regional framework setting out provisions for the protection and assistance of internally displaced persons.  

In our region we must work actively with Malaysia, Thailand and Indonesia if we are ever to find an enduring arrangement. If the Malaysian agreement offered anything, it offered the chance of accelerating the process of developing sensible, practical and robust asylum policies in the region. We need to strengthen the Bali process. It could lead to common asylum policies and practices in the region and ultimately to a regional protection instrument. Bali was initially focused on enforcement and criminalisation of people-smuggling, but has progressively shifted to humanitarian issues and population flows.

Both UNHCR in its ‘10 Point Plan of Action for Refugee Protection and Mixed Migration (2007)’ and OXFAM in its ‘Asylum Seekers; The Way Forward’ have outlined the key elements of a regional framework, including effective screening systems, protection-sensitive reception arrangements, durable solutions including resettlement, alternative migration pathways and repatriation, together with targeted development assistance. A critical element in any regional protection framework is that countries who commit to action are not left to carry the burden of managing and maintaining irregular migrants for prolonged periods.

There will be important roles for international agencies, jurists, local and international NGOs, regional governments and the Australian Government. Our government would assist by supporting the establishment of a well-resourced policy unit within the Bali Process Secretariat. That secretariat is a collaborative effort of more than 50 countries and international agencies. More strategically, Australia should target its humanitarian development assistance programs to benefit asylum populations in areas such as housing, health, jobs and education.

If the Malaysian Agreement is viewed through a regional lens, it can become the catalyst together with Bali to start the process of building a durable protection system and delivering protection dividends for all asylum seekers as well as nationals in the transit countries and Australia.

Second-track Dialogue and the Role of Jurists

It is noteworthy that the Cartagena Declaration was adopted by a group of ‘government experts and eminent jurists’ from ten countries. The UNHCR described the inaugural meeting in 1984 as a ‘colloquium of experts’.

Whilst the Declaration was not a treaty, its provisions became respected across the region. In particular the new refugee definition was incorporated in the legislation of most of the countries of the Americas.

Could the International Association of Refugee Law Judges initiate a similar regional ‘colloquium’ of experts? I notice that your website states that your Chapter is keen to encourage judges and decision-makers from our region to join in biennial regional deliberations. You comment that it might be possible for your Chapter to develop into an Asian-Pacific Chapter. I could only encourage you to explore that as soon as possible. A regional colloquium could help break the log-jamb on regional cooperation and related refugee issues. I think it is clear that the current ministerial/departmental model, together with the politicisation of refugee issues has brought us to the present sorry position, where good policy outcomes are very difficult to achieve. We need to break out of the party-political prison.

We need a more broadly based ‘track 2 dialogue’ in our region that can promote confidence and resolution of seemingly intractable issues. Such a dialogue would bring together a broad cross section of key players outside government with policy-makers, in their personal capacity as experts, to start the process of building a new dialogue and approach to both regional and domestic refugee issues. My comments here of course refer only to the regional issues.

Such an approach as this is not something that Australian Governments have traditionally engaged in except at the periphery through ‘consultation’ or commissioning one-off enquiries into certain matters. However, if done well, this type of approach could be transformational in breaking down the misunderstandings and suspicions of different countries and groups. The lack of such an approach serves only to perpetuate and reinforce the current stalemate.

The objective of this type of dialogue is to develop a shared understanding and a shared knowledge of the role of various countries and players on refugee issues. It can break down barriers and facilitate the development of a common understanding and knowledge of each other’s issues and concerns. This approach requires a long-term and sustained commitment by all parties.

Ideally this approach should start modestly and then progressively bring together actors from a broad spectrum of regional interests including jurists and the UNHCR. It would include social policy and refugee and asylum experts as well as persons familiar with intelligence and border security issues. Such a wide span of interests can help create a less hostile environment and open the door to mutually beneficial policies without the suspicion that pervades the present approach. It would enable players outside government to influence new policy thinking and create the space for government officials to ‘think aloud’.

Such an approach would need to have the implicit backing of government to allow officials to participate in their personal capacities.

Would your Chapter be prepared to sponsor a regional ‘colloquium of experts’ in Kuala Lumpur?

As I said at the beginning, no satisfactory arrangement is possible without active regional cooperation. We cannot do this on our own and neither can our neighbours. We need a Regional Refugee Instrument which whilst based on the 1951/67 Convention, recognises the particular problems of our region, one of which is that few regional countries are signatories to the Refugee Convention.

Governments are strengthened when they work collaboratively with each other and with civil society organisations.  We must build trust in the region. Importantly it will mean working with countries, who almost without exception are not signatories to the Refugee Convention.

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