By Camden Luxford

This essay analyses success of the United Nations High Commissioner for Refugees (UNHCR) in maintaining control of the international refugee protection regime with reference to Australian policies towards asylum seekers and refugees, especially irregular maritime arrivals (IMAs). I will begin by briefly outlining the development of the regime in the post-War period, as well as examining the fraught normative landscape in which it is embedded and the two areas in which the seeking of asylum has been constructed as a threat to Australia’s national interest: security and economics. Later, I will examine the ways in which Australia has sought to circumvent the refugee regime and the extent to which UNHCR has lost control over the debate.

The UNHCR plays a key role in maintaining the international refugee protection regime. Nevertheless, other actors, especially states, are able to shape the debate in pursuit of their own interests. The core of the regime is the 1951 Convention relating to the Status of Refugees, which defines refugees, outlines their rights, and provides UNHCR with its supervisory mandate. The Refugee Convention was produced during the post-War period of heightened concern for human rights and protection from persecution, in a context of almost exclusively European refugee flight. The 1967 Protocol to the Convention universalised refugee protection. A range of other regional legal instruments have since been enacted, all of which have essentially protected the definition of refugee as initially set out in the Refugee Convention.^[1] Australia is a signatory to both the Refugee Convention and the Protocol.

Albie Sachs, former judge for South Africa’s Constitutional Court and once a refugee himself, argues the “core binding elements [of refugee law] were respect for human dignity and insistence on fairness of procedure and respectfulness of outcome” and identifies a “positive obligation to admit refugees, provide them with asylum and treat them in accordance with specific standards”.^[2] The Refugee Convention explicitly links the regime with the United Nations Charter and the Human Rights Conventions, similarly indicating a basis in respect for human dignity and individual worth. The assertion that states and refugees (as represented by UNHCR) have different and indeed conflicting interests goes to the heart of the tension between order and justice in international relations, and the uneasy relationship between established international norms.

For Hedley Bull, the granting of asylum to political refugees mitigates the “conspiracy of silence entered into by governments about the rights and duties of their respective citizens”, a conspiracy made necessary by the “basic compact of coexistence between states, expressed in the exchange of recognition of sovereign jurisdictions”.^[3] The granting of asylum implies a value judgement on the domestic policies of the source state and may be seen as an affront to sovereignty: indeed, during the Cold War, the West saw the provision of asylum to refugees from Communist states as a convenient means of delegitimising the Soviet model.^[4] More recently, Australia’s granting of asylum to 42 West Papuan independence activists in 2006 led to the withdrawal of Indonesia’s ambassador from Canberra.^[5]

The norm of sovereignty is crucial to existing international order, and sits in uneasy tension with the norm of human rights, despite attempts to reconcile them through concepts of popular sovereignty and responsibility to protect. For Bull, the pursuit of human rights is inherently in tension with – even threatening to – currently existing order in international relations.^[6]  An asylum seeker on the doorstep cannot be ignored the way human rights or humanitarian issues in a distant country can, and the legal obligation of non-refoulement forces states to make explicit protection decisions that imply a weakening of their own sovereignty and that of the source country. Refugees bring home the porousness of borders in a way few other issues do. Beyond normative tensions, in the post-Cold War era of surging migration and increasingly complex and protracted civil conflict, states have increasingly seen the management of migration as a core national interest. In Australia, refugees, asylum seekers and especially IMAs have been constructed as a potential threat to the national interest in two broad areas: national security and economic wellbeing.

Securitisation as understood by the Copenhagen School is a discursive act by which the state, or elite groups within it, describes something as a security issue so as to gain control over it and justify the use of measures that would, in the absence of a threat to national security, be unacceptable.^[7] The issue is shifted outside the usual democratic process, and de-securitisation — a return to more moderate debate — becomes difficult.

Despite the realities of a highly multicultural modern Australia, the national identity tacks West: the parliamentary and legal systems are derived from Britain, and the United States, through ANZUS, is our most important strategic ally. Despite the security offered by a lack of land borders, the Australian psyche has a deeply embedded sense of isolation amidst heavily populated and culturally distinct Asian neighbours.^[8] The arrival of boats laden down with non-Western asylum seekers was ripe for securitisation even before the unhappy coincidence of the Tampa, the 9/11 attacks and a federal election in the latter part of 2001. Since then, “fear of the uninvited other” has been a permanent presence in the national debate on asylum, and has forced a pronounced shift in focus: the State, not the refugee, is in need of protection.^[9] A new culture of reduced transparency about interdiction activities – for military “operational reasons” – points to continued securitisation of the issue.

In economic terms, asylum seekers and refugees are often painted as semi-permanent welfare recipients who contribute little to the economy and take immigration places from skilled migrants. Little data is collected that disaggregates the long-term contribution of refugees from that of migrants, and the research base is subsequently thin.^[10] As a result, public debate is ill-informed and the stereotype of asylum seekers as ‘economic migrants’ and ‘queue-jumpers’ is easily perpetuated. UNHCR has failed to communicate with the Australian public to counteract these stereotypes. In response to these perceived threats to national security and economic wellbeing, Australia has sought to prevent and deter IMAs. Discussing the Pacific Solution, Mathew identifies the following potential violations of Australia’s treaty obligations: the possibility of refoulement, discrimination between asylum seekers, detention of asylum seekers, and the prevention of family reunion.^[11] The first three will be discussed here.

Refoulement of refugees to a country in which they may be exposed to torture or persecution is expressly prohibited under Article 33 of the Refugee Convention and is a principle of customary international law. This includes chain refoulement (return of a refugee to another country from which refoulement occurs) and, according to various conclusions of UNHCR’s Executive Committee (ExComm) and Article 3(1) of the General Assembly’s Declaration on Territorial Asylum, also extends to rejection of asylum seekers at the border.^[12] The Adan case found the UK could not send a person back to a country without the “same degree of protection from risk of torture as in the United Kingdom” and Suresh vs Canada highlighted that “diplomatic assurances are not to be trusted”.^[13]

The Australian government’s determination to “turn back the boats” is, therefore, highly problematic. Indonesia, the departure point for most asylum seeker boats, is not a signatory to the Refugee Convention, though under customary international law it is bound to adhere to non-refoulement. Still, given the realities of divergent state capacities and the existing refugee pressures on both Indonesia and Malaysia, a strong argument exists that refugees or asylum seekers in those countries may not receive the same degree of protection they would in Australia.

Issues of discrimination between asylum seekers are more contentious: the Refugee Convention requires non-discrimination between asylum-seekers on the basis of race, religion or country of origin; the introductory note by UNHCR expands this to other prohibited grounds of discrimination as outlined by international human rights law. Mathew suggests it is difficult to make the argument that withholding protection on the grounds that asylum seekers could have sought asylum in a country they passed through on their way to Australia constitutes illegal discrimination, given the discrimination is not on the identified grounds.^[14] However, she highlights ExComm’s efforts to delegitimise the ‘protection elsewhere’ concept as a clear example of the ongoing contestation between UNHCR and states over the regime.

Discrimination is also displayed in the new “By Boat, No Visa” policy, which denies settlement in Australia to all IMAs regardless of their assessed refugee status. While this policy seeks to tilt the balance in favour of processing from within host countries through Australia’s established humanitarian program, the absence of a similar penalty for onshore applicants who have arrived by plane and overstayed visas is clearly discriminatory based on mode of arrival. Although this is probably not prohibited under international law it is arguably contrary to the values of fairness and equality in which refugee law is embedded.

Long-term detention of asylum seekers is more clearly in breach of international law and has been explicitly criticised by UNHCR. Article 31 of the Refugee Convention prohibits the imposition of penalties  “on refugees who, coming directly from a territory where their life or freedom was threatened … provided they present themselves without delay … and show good cause for their illegal entry or presence”. Here three ‘escape hatches’ may be found to justify detention of IMAs: the protection is extended to refugees not asylum seekers, there is no elaboration on what qualifies as a penalty, and a threat to life or freedom is required to justify illegal entry. As for the first, Goodwin-Gill argues this protection from penalties must be extended to asylum seekers or be rendered completely meaningless: asylum seekers are potential refugees, and have the right to have their status determined.^[15]For the second, Nowak claims that “every sanction that has not only a preventive but also a retributive and/or deterrent character is … to be termed a penalty” (emphasis my own).^[16] Offshore detention is part of a policy package explicitly described by the government as necessary to deter IMAs. As for the third, notions of ‘good cause’ certainly allow for individual consideration of circumstances, which is not found under present arrangements.^[17] None of these three escape hatches serves to justify policies of long-term detention.

Certainly Australia makes a large contribution to resettlement through its humanitarian program, and that loss of life on perilous boat trips to Australia is a tragedy that must be addressed in some way. The expert panel commissioned by the Australian government in 2012 concluded some kind of deterrent was necessary, balanced with an increase in the annual offshore intake, a streamlining of family reunion mechanisms and an increase in aid and technical assistance given to host states throughout the region. This recognises that, short of the enactment of draconian deterrent measures unworthy of a developed democracy, desperate individuals and families who are unable to lead dignified, safe and stable lives in host or transit countries will continue to risk their lives in an attempt to reach Australia. The policies outlined in the Report of the Expert Panel seek to deter IMAs within a framework of human rights and respect for the regime, while providing a gateway for increased refugee intake.^[18] Nevertheless, the Abbott government has announced the reduction of the country’s humanitarian intake by 6,250 places a year to 13,750, and has pushed ahead with the PNG Solution and the imposition of temporary protection visas.

Australia is not alone: the global North has tended to perceive asylum seekers as threatening to its interests and has pursued policies of prevention and deterrence that are clearly adversarial to UNHCR understandings of the regime.^[19] Furthermore, global North states have encouraged ‘institutional proliferation’, creating new international forums and regional groupings that shift the discussion of refugee issues outside UNHCR’s immediate control.^[20] This proliferation is not per se detrimental to the maintenance of a rights-based regime; indeed, international regimes are necessarily complex creatures: international legal order will never be achieved “by any given set of primary” and secondary rules, third-party forums, and hybrid organs. Legislative and executive experimentation at the national or regional level are inevitable and important.^[21]

But this complexity is potentially detrimental. Current developments demonstrate a “deficit of required political will”. The regime “requires the engulfing effects and synergy with other accountability regimes such as human rights and humanitarian law that enhance the life chances of outsiders, marginal groups and vulnerable populations at a global scale”.^[22] This is certainly not being achieved: tensions between human rights and sovereignty encourage states, via elaborate contortions, to abide by the letter of the law but not the values that inform it. Efforts to shift the focus from the life chances of the vulnerable to the economic and strategic security of the State have been highly successful.

The refugee regime demonstrates little of the convergence of expectations characteristic, for Krasner, of an international regime: UNHCR, individual refugees, host states, donor states and source states perceive their interests in divergent ways and pursue them in different forums, via different interpretations of international law. It is difficult to see how UNHCR could regain control of the regime. Within Australia, the polarisation of a debate in which both sides accuse their opponents of being complicit in deaths at sea, a new climate of militarised secrecy, and a dominant social discourse that paints IMAs as security threats or economic migrants undermines the values on which the entire refugee regime is built, threatening to delegitimise it in the eyes of the public. In such an environment, UNHCR appears to face an insurmountable task.

Camden Luxford holds a Bachelor of International Studies/Bachelor of Commerce (Economics) from Deakin University is currently undertaking a Master of International and Community Development.