What are Australia's obligations under the UN Refugee Convention?

By AZADEH DASTYARI

Prime minister Kevin Rudd has indicated that he would like to revisit Australia’s obligations under the United Nations Convention Relating to the Status of Refugees.

We are yet to learn what this may mean, but it is important to clarify some misconceptions about the convention in the lead-up to his announcement.

The convention was drafted as a response to the displacement of millions of people by World War Two and the refusal of many nations to take in Jewish refugees escaping the Holocaust. It is designed to ensure no country ever turns its back again on vulnerable groups who need to escape persecution. Australia ratified the convention in 1954.

The most important feature of the convention is that it defines a particular group of people as “refugees” and obliges countries who have signed the convention to give such individuals certain rights. A “refugee” is a person outside of their own country who fears persecution because of their race, nationality, membership of a particular social group or political opinion.

This is a difficult definition to satisfy. For example, if a person fears persecution because they are victims of generalised violence and not because of one of the listed grounds under the convention, they are not a refugee. Nor can we label people who are escaping natural disasters or poverty as “refugees”.

It is important to note that the term “asylum seeker” does not exist under the convention but is a politically expedient label given to people who are seeking recognition of their refugee status. Many asylum seekers (90% of those who have come to Australia in recent years by boat) are in fact refugees and have rights under the convention, regardless of whether or not Australia has processed their claim or recognised their refugee status.

What is interesting about the convention is that it obliges nations to provide certain rights to refugees who are in a nation’s “jurisdiction” (that is under the control or power of a country), or in a nation’s territory.

The convention does not oblige a country to go out and find refugees to bring back and resettle. This means that while there may be very strong moral reasons for Australia to resettle refugees from refugee camps in places like Africa or south east Asia, Australia only owes a legal obligation to refugees who reach its territory by boat or plane.

The convention gives a range of rights to refugees according to their connection to the receiving country. For example, refugees who are simply in the “jurisdiction” of a country but not within its territory, such as refugees on the high seas whose boat may be boarded by Australian authorities, have the right not be returned to persecution.

Refugees receive greater rights as they become more attached to a nation. For example, refugees who are in the territory of a country cannot be punished because of the way they travelled. Once the status of refugees within a country becomes regularised, for example, through the grant of a visa, they gain additional rights including the right not to be expelled from the country except in cases where they are a threat to the national security or public order of the country.

The fact that many people suffering extreme hardship do not fall within the definition of a “refugee”, and the convention’s prioritisation of refugees who come under the jurisdiction or territory of a country, has led some to argue that the convention is no longer relevant. It is argued, for example, that the refugee definition is very Eurocentric because of its history; that it does not account for the reasons people are forced to move; and that it leaves out many people, such as those trapped in their country.

Some of these arguments are sound. It is true that there are many people who are in need of protection who do not satisfy the definition of “refugee”. However, politicians like Kevin Rudd are not seeking to revisit the convention in order to broaden it. What they wish to do is limit its application and withdraw from its obligations.

If Australia was to attempt to water down its obligations under the convention or withdraw from it entirely, it would set an embarrassing precedent that will be extremely damaging to the international protection regime and leave many vulnerable individuals in danger of being left without protection.

Australia’s refugee “problem” is miniscule by international standards. The UN High Commissioner for Refugees reports that in 2012, 83,400 asylum seekers claimed refugee status in the United States, 64,500 claims were made in Germany and 54,900 claims were made in France.

Yet none of these countries are calling for re-examination of the convention. In the same time period Australia had 15,800 applications for asylum.

If Australia, with its tiny share of the refugee “burden” was to withdraw from its obligations, what is to stop nations with more than four times the number of asylum claims such as the US from doing the same? What would then happen to refugees who are fleeing serious human rights violations?

Unfortunately, we live in a world where people continue to flee persecution because of their race, religion, nationality, membership of a particular social group or political opinion. Many of the Afghan, Iraqi, Iranian, Sri Lankan and Syrian refugees coming to Australia are proof of the continuing relevance of the convention and our need to support it. We must learn from our modern history and avoid the mistakes of the past. To withdraw from the convention would be to turn our back, once again, to vulnerable groups who are in need our protection.

Azadeh Dastyari’s main areas of research are international and domestic laws relating to the treatment of asylum seekers and refugees. Her dissertation examined the operation and legal implications of the United States’ Migrant Interdiction Program in the high seas and in Guantánamo Bay, Cuba. Azadeh’s research is informed by her close work with various NGOs in the refugee area since 1999. Azadeh is an Associate of the Castan Centre for Human Rights Laws.

This article was originally published at The Conversation and has been republished with full permission. You can read the original article here.