Fifty years after the adoption of the 1951 Refugee Convention, many Western governments are effectively curtailing its already limited provisions. In the words of one senior UNHCR official:
This paper attempts to address the following question: Should the existing Refugee Convention be defended, or should those concerned with the treatment of the oppressed advocate a new approach, one consonant with the globalisation of economic and social life?
It is clear that the existing system for dealing with refugees is in grave crisis. According to the available statistics, the flight of people from their countries of birth grew dramatically in the final two decades of the 20th Century and this mass movement is likely to grow in the 21st. In many cases, they are resorting to unauthorised methods of entry, often at great risk to their lives.
Despite implementing increasingly draconian measures, governments are having considerable difficulties, logistically, diplomatically and politically, in removing those denied refugee status. Governments are spending mounting sums on detecting and detaining unwanted arrivals, deciding their fate and administering the outcomes, while giving decreasing funds to the UNHCR, which is responsible for most of the world's displaced persons.
In Australia, successive governments during the 1990s have taken the policy of seeking to block and deter unwanted arrivals to its inherent end by compulsorily detaining asylum seekers, usually in remote, inhospitable semi-desert locations, and, since August 2001, by militarily barring entry to refugees. Severe police and security methods, including the use of mass arrests, water cannon, tear gas and solitary confinement, have failed to quell the unrest in the camps, expressed in hunger strikes, mass breakouts and determined protests, and this has fuelled concerns that damage is being done to Australia's international reputation.
Amnesty international has condemned the Australian government, saying the course of action taken 'is a flagrant violation of the 1951 UN Refugee Convention to which Australia is a state party.' Other authors have argued that the Australian regime undermines, if not breaches, the Refugee Convention, as well as other international covenants. In particular, the punishment of independently arriving asylum seekers arguably infringes Article 31 of the Convention. Refugees, by necessity, are often forced to escape from their countries and mislead authorities. Article 31 stipulates that governments should not penalise applicants 'on account of illegal entry or presence'.
Yet, in a general sense, the turning away and/or detention of asylum seekers does not infringe the Convention and it is necessary to examine why that is so. In this paper, I will review the fundamental flaws of the Refugee Convention and argue for a new perspective that overcomes what I contend is the artificial and inhumane dichotomy between refugees and immigrants and recognises the essential democratic right to travel and live where one chooses. At the heart of that perspective is the establishment of global citizenship.
|How the refugee numbers have grown|
In 1951, when the UNHCR was established, there were an estimated 1.5 million refugees worldwide. On January 1, 2000, the UNHCR considered 22.3 million people to be 'of concern'. They included 11.7 million refugees, 1.2 million asylum seekers, 2.5 million repatriated refugees and 6.9 million internally displaced persons and others of concern. Another 13-18 million internally displaced persons were outside the UNHCR's jurisdiction, as were an estimated 3.5 million Palestinians. This gives a total of 43 million.
The number of people 'of concern' to the UNHCR nearly doubled during the 1990s, from 14.9 million in 1990, reaching an all-time high of 27 million in 1995, in the wake of the Gulf War against Iraq, the fomenting of communalism in Yugoslavia, and the eruption of ethnic warfare in Rwanda and Africa's Great Lakes region.
Judging by the UNHCR's statistics for 'asylum applications lodged in selected countries,' the rise in the 1990s followed an even greater increase during the 1980s. That figure jumped from 180,000 in 1980 to 435,000 in 1989, before skyrocketing to almost 850,000 in 1992 and ending the decade at 538,000 in 1999.
Of the largest concentrations of refugees in 1999, 3.1 million came from Afghanistan and Iraq, about 2.7 million from sub-Saharan Africa and nearly 800,000 from Bosnia and Croatia. Most are living in camps in neighbouring countries, usually among the poorest in the world.
The rise in refugee numbers has been related to definite economic and political processes, particularly the collapse of the Stalinist-ruled states and restoration of full-blown capitalism in Russia and Eastern Europe from the late 1980s, the end of the Cold War, the US-led bombing of Iraq and Serbia and the outbreak of regional conflicts in Eastern Europe, the Middle East, Asia and Africa.
More fundamentally, the increased demand for asylum has occurred amid an unprecedented globalisation of the world economy since the mid-1980s, creating massive flows of international capital, the rapid shift of production processes from country to country, and a worldwide labour market. At the same time, the ever-widening gulf between the capital-rich, technologically advanced and militarily powerful countries and the rest of the world has fuelled the demand for the right to escape poverty.
According to the 1998 United Nations World Development Report, the three richest people in the world have assets exceeding the combined Gross Domestic Product of the 48 least developed countries, the 15 richest people have assets worth more than the total GDP of sub-Saharan Africa and the 32 richest more assets than the GDP of South Asia. The wealth of the richest 84 individuals exceeds the GDP of China with its 1.2 billion inhabitants.
In 1997, the richest one fifth of the world's population received 86 percent of world income, with the poorest fifth receiving just 1.3 percent. More than 1.3 billion people are forced to subsist on less than $1 per day, a life-threatening situation.
Ultimately, the efforts of national governments to restrain the global movement of people are akin to King Canute trying to hold back the tides. Whether governments like it or not, there is a growing trend for millions of people to live outside their countries of birth, with or without official status. As a senior Canadian immigration official has observed:
|Moves to restrict the right to asylum|
While embracing the global restructuring of economic life, opening their borders to the movement of investment funds, many Western governments have sought to erect new barriers to the movement of ordinary working people. British writer Harding has observed that 'for a growing list of governments the best interpretation of the Convention Relating to the Status of Refugees can only be to run it through the shredder'.
In effect, the Howard government in Australia has already done so, with the bipartisan support of the Labor Party. A package of so-called Border Protection legislation rushed through parliament during the Tampa affair, sought to retrospectively legalise the seizure of all the refugees aboard the Tampa and other refugees detained on a naval troopship, the Manoora, as well as authorise similar operations in the future. The legislation gives government or military officers authority to board, search, detain and turn around refugee boats, using whatever means considered 'necessary and reasonable', including force. The legislation does not define 'necessary and reasonable force' but even if it did, the definition would seem to be academic because all conduct under the legislation is protected from legal challenge.
One section states: 'All action to which this Part applies is taken for all purposes to have been lawful when it occurred.' No legal challenges can be commenced or continued against the Commonwealth in relation to these actions.
On the face of it, this legislation removes any limit on the measures that a government or the armed forces can take against refugees within Australian territorial waters. Boats can now be sunk, legally. If this sounds far-fetched, shots have already been fired in the direction of at least one boat, whose occupants government ministers then accused of throwing children overboard.
The power may be so broad that it is unconstitutional on several grounds, including usurpation of judicial power. In November 2001, however, the High Court declined one opportunity to test the validity of the legislation and the government's actions. Three judges refused Victorian lawyer Eric Vadarlis leave to appeal in the Tampa case. By doing so, the High Court effectively endorsed, as a fait accompli, the seizure and removal of the asylum seekers to detention in Nauru.
The legislation further removes certain parts of Australia, including the Christmas, Cocos (Keeling), Cartier and Ashmore Islands, from the migration zone. Other areas can be added to these 'excision zones' by regulations. Refugees entering these zones are not permitted to apply for asylum or any Australian visa. Instead, they are incarcerated in camps inside the zones or transported to remote locations in other countries in the Pacific region. There, they are tested for refugee status by an undetermined process, with no right of appeal to Australian courts.
The Minister has an absolute discretion to deny them a protection visa and remove them to another country. Even if a visa is granted, most 'excision zone' asylum seekers will be prevented from ever obtaining permanent residency or citizenship in Australia, thus depriving them of basic legal and democratic rights, including family reunion rights, as well as access to essential welfare and health facilities.
The legislation contains other far-reaching attacks on fundamental legal rights. It abolishes most appeals to the courts in refugee cases, bans class actions to challenge refugee decisions in the High Court and arbitrarily narrows the Refugee Convention definition of refugee status. It also permits officials to easily deny refugee status to people arriving without identity documents.
These measures are only likely to lead to greater numbers of refugees undertaking longer voyages, trying to evade naval warships and reach the mainland. The first known victims of this legislation were more than 350 refugees who drowned in the Java Sea on October 20, 2001 trying to get to Australia. Among them were at least five women and 13 children who perished as a direct consequence of the denial of family reunion rights.
The husbands of the five women were already living in Australia, having arrived on previous boats and won the right to refugee status. But under the legislation, the five Iraqi men had been banned from ever applying for family reunion visas for their wives and children.
During the Tampa affair, Australian Prime Minister John Howard made it clear that for the government the central issue was the defence of the national state. 'We cannot surrender our right as a sovereign country to control our borders,' he said, 'and we cannot have a situation where people can come to this country when they choose.' During the November 2001 election campaign, he again declared: 'We decide who comes to this country and the circumstances in which they come'.
This poses an issue of principle point-blank: if one defends the right of the national state to impose restrictions on the movement of people, one must reject the unfettered democratic right of people to move anywhere in the world.
Many people argue for a more 'humane' refugee policy, yet stand with the Howard government on one overriding principle: that at some point the state must set limits to the inflow of immigrants. The inexorable logic of their position is that if those limits are threatened, the armed forces must be called in to enforce them.
This raises the necessity for a completely opposed principle for which I argue in this paper: the right of people to free movement all over the globe.
|The Refugee Convention's fundamental flaws|
Those who oppose the treatment meted out to asylum seekers will, of course, seek to defend their basic democratic to the fullest extent possible within the existing framework of the Refugee Convention.
Others have sought to find ways around the 'gaps' in the Convention by invoking other international instruments, including the Convention Against Torture and the International Covenant on Civil and Political Rights, to intervene on behalf of those needing protection.
Unfortunately, even in instances of extreme vulnerability, such as those being deported against their will, courts have failed to intercede, even though violent deportation methods can lead to death. In some cases, the individual actions of airline pilots or collective opposition, in the form of trade union bans, have saved deportees from disaster.
More fundamentally, the fact remains that the Refugee Convention, even augmented by other treaties, does not assist the vast majority of the displaced persons. It is well established that the Convention is extremely narrow and restrictive. As noted a decade ago by James Hathaway:
The Convention is deficient in at least four primary respects.
* In the first place, it does not protect the starving, the destitute, those fleeing war and civil war, or even natural disaster, let alone those seeking to escape economic oppression. Its narrow focus on individuals who are persecuted does not allow for mass exoduses in the face of suffering, injustice or discrimination that is not considered serious enough to amount to persecution.
Its requirement that this persecution be on the specific grounds of race, nationality, religious belief, political opinion or membership of a particular social group, does not apply to people seeking refuge from torture, cruel punishment or other infringements of democratic rights, no matter how serious, inflicted for other reasons, despite efforts to extend the interpretation of 'particular social group' to include gender, sexual preference and child-bearing. For example, the Australian High Court has ruled that China's 'one-child' policy does not amount to persecution under the Convention.
* Secondly, the Convention does not create a right to enter another state; only a limited obligation on a national state not to expel or return a refugee to a state where he or she faces persecution. In fact, the Convention does not recognise the individual's right to asylum; only the right of national states to decide who enters their territory. As recently stated in the Australian High Court:
* Thirdly, even those accepted as refugees have no right to permanent residence and hence can be consigned to a tenuous and insecure status. The principle of non-refoulement under the Convention's Article 33(1) allows them to be removed to a so-called safe third country or to be forcibly repatriated to their home country once a government considers that the reasons for refugee status have ceased, as provided in Article 1C(5).
For that reason also, the Australian government's inhumane Temporary Protection Visas are permissible under the Refugee Convention. These visas blatantly relegate asylum seekers arriving independently by boat to second class status, and deprive them of essential rights, including family reunion.
* Fourthly, the Convention only assists asylum seekers who manage, invariably by means designated as 'illegal,' to arrive physically in the country where they seek refuge. It does not impose any obligation on a country to take off-shore applicants, that is, the overwhelming majority of people languishing in refugee camps throughout the poorest parts of the world, whether in their own countries or neighbouring states.
This fact further exposes the hypocrisy of governments that blackguard unwanted arrivals as 'queue jumpers', 'illegals' and 'forum shoppers'. Refugees can only obtain the limited protection available under the Convention by escaping and entering a 'safe' country without permission. (Moreover, the Convention upholds their right to do so, implicitly forbidding discrimination on the grounds of illegal entry.)
These fundamental flaws reflect the Convention's Cold War origins. It was drawn up in the aftermath of the Second World War and the Nazi Holocaust, which had caused the displacement of more than 40 million people within Europe. The knowledge that the advanced capitalist countries had refused to open their borders to many fleeing fascist persecution led to a broadly held sentiment that never again should refugees be turned away.
In upholding the right to political asylum, the West sought to strengthen its democratic credentials against the Soviet Union and Eastern bloc countries, and specifically to hold the door open for political dissidents from the Stalinist regimes. The very conception of 'persecution' was tailored to give Western governments ideological kudos for providing sanctuary to 'defectors' to the 'free world'.
Nevertheless, key governments only accepted the Convention on the basis that it did not create any duty to grant permanent residence and that they retained the sovereign right to decide which refugees ought to be allowed entry to their countries. The 1967 Protocol has not altered these flaws. While it extended the Convention in time and space, it did not expand the notion of refugee.
Many writers in this field assert or assume a public opinion that is hostile to refugees and economic migrants. They tend to present governments as simply reacting to or appeasing this sentiment. Crock, for example, has deplored the fact that the UN Human Rights Committee has had occasion to condemn as 'arbitrary' (under the International Covenant on Civil and Political Rights) the automatic and indefinite imprisonment of unlawful entrants in Australian detention centres. She wrote:
These impressions have been reinforced by the outcome of the 2001 Australian election, which was dominated by anti-refugee rhetoric by both major parties. Yet, for that very reason, the election did not provide voters who wanted to determine the next government any real choice.
More generally, the supposed anti-refugee sentiment is, in reality, one that is aggressively cultivated by those who hold political office and by the media proprietors, and for definite purposes. The demonising of refugees serves to divert public attention from the declining living standards, deteriorating social services and growing social polarisation that confront most working people.
Another author has observed that mandatory detention has been maintained since 1992 with the support of all major parties and little dissent in parliament. He also noted that the Labor Party has consistently tried to outbid the government in its scapegoating of asylum seekers and would follow the same course in office. In part, he attributed this to the rise of the right-wing One Nation Party, with overt anti-Asian racism coming to the surface to catch 'the disaffected' who 'represented a lucrative block of voters waiting to be won over'. Moreover, he argued that anti-immigrant sentiment arises from the Australian population's 'deep-seated fear of invasion' from Asia.
This ignores the fact that Labor and conservative politicians alike, together with the trade union leadership, actively promoted the 'White Australia' policy for decades as a means of protecting national markets and dividing Australian workers from their class brothers and sisters in Asia. It also covers over the source of the 'disaffection' among voters -- the social blight and hardship produced by pro-market policies of both Labor and the Coalition. Faced with hostile electorates, the major parties have increasingly placed the blame for social problems on immigrants and refugees.
It must be stressed that this is a manufactured public opinion, that can be countered. Why else do government ministers feel the need to resort to misleading and inflammatory labelling such as 'queue jumping' and 'forum shopping'? These labels patently falsify the desperate situation that refugees find themselves in.
Ordinary working people are quite capable of identifying with the refugees when they begin to understand the injustices and issues involved. In August 2001, for example, a television documentary program on the barbaric conditions inside Sydney's Villawood refugee detention centre provoked a widespread outcry.
Moreover, there is a growing public recognition that the official attack on refugees is part of a wider social offensive. Some 50 years after the Geneva Convention was drafted, living and working conditions are in decline, secure employment is a thing of the past, social facilities, notably public education and health, are deteriorating and the right to decent housing and welfare is under attack in every advanced country. Society is increasingly polarised into wealthy and poor.
At the same time, basic democratic rights are being undermined, not just for asylum seekers but for others as well. Unprecedented measures are being introduced on the pretext of combating terrorism, but which have far-reaching implications. For example, in the United States, according to Amnesty International, more than 1,200 people have been detained without trial under anti-terrorist provisions since the events of September 11, 2001. Of these prisoners, 347 were still in custody in March 2002, deprived of basic protections against arbitrary detention under international law.
There is therefore, I suggest, an objective basis for a political struggle, unifying refugees and citizens alike, against the dismantling of basic rights and for the reorganisation of society along democratic, egalitarian and fraternal lines.
|The need for an alternative perspective|
For public opinion on refugees to be genuinely tested, a viable alternative perspective must be advanced, one that corresponds to the requirements of global economic and social life and the needs and aspirations of the vast majority of people, rather than the vested interests of corporate and government elites.
History suggests a profound connection between democratic rights and the rights of the most vulnerable in society, those denied entry to, or citizenship of, a country where they feel secure and able to participate in political life. Without the right to live securely with full political and social rights, democracy itself is meaningless. There is no realistic right to free speech or political expression unless one can escape from a repressive government. As one study noted, in the 20th century:
If the oppressed are to be given the same right to travel and live as the wealthy and if the right to immigrate as well as to emigrate is to be recognised, a new form a citizenship is needed, global citizenship. As currently instituted, citizenship is confined to a given nation-state, and does not extend beyond its borders. However, this conception stands in opposition to the development of the global economy, which has transcended the limits of the nation-state.
Genuine democracy now demands the right of all people to move wherever they wish around the world; the right to live, work and study wherever they choose, enjoying the political, civil and social rights and benefits available to all. Some commentators, while acknowledging the crisis of the nation-state system and its inability to deliver the democratic potential of globalised information technology, have dismissed this conception as utopian.
Nevertheless, various attempts have been made to elaborate such a new paradigm. In Empire, Hardt and Negri argue that the power of transnational corporations and new forms of labour and production have created a new imperial global order. They identify new conceptions of identity and difference, networks of communication and control, and paths of migration, contending that they establish the basis for a truly democratic global society without national state borders. This is not the place to discuss the flaws in their analysis, but the very fact that their volume has been widely discussed demonstrates an emerging popular recognition of the need for a global reshaping of human civilisation.
The realisation of a truly global perspective of liberating humanity from national straitjackets will require breaking the grip of the ruling elites and reorganising life completely along internationalist and socialist lines. Why not make that a goal for the 21st century? Anything less will leave the vast majority of refugees and displaced persons denied protection. Desperate working people, seeking to escape poverty and oppression, will still be treated as criminals to be rounded up and deported at the earliest opportunity, regardless of the consequences.
 E. Feller, 'The Convention at 50: the way ahead for refugee protection', Forced Migration Review 10 (2001) p. 6 at p. 7.
 See S. Castles and M.J. Miller, The Age of Migration: International Population Movement in the Modern World, Macmillan, London, 1993, pp. 5-8.
 See G. Van Kessel, 'Global migration and asylum', Forced Migration Review 10 (2001) p. 10 at p. 11.
 See J. Telford, 'UNHCR and emergencies: a new role or back to basics?' Forced Migration Review 10 (2001) p. 42.
 See, for example, P. Mares, Borderline: Australia's treatment of refugees and asylum seekers, Sydney, University of New South Wales Press, 2001, and the Australian Broadcasting Corporation television current affairs program, Four Corners report 'The Inside Story', broadcast on 13 August 2001: [https://www.abc.net.au/4corners/stories/s344246.htm] (accessed 14 August 2001).
 Amnesty International Australia 'Amnesty international calls for Urgent Action against Australia' 30 August 2001 [https://www.amnesty.org.au/news/tampa30Aug2001-press.html] (accessed 3 October 2001).
 See, for example, M. Crock & B. Saul, Future Seekers: Refugees and the Law in Australia, Sydney, The Federation Press, 2002.
 H Esmaeili & B Wells 'The Temporary' Refugees: Australia's Legal Response to the Arrival of Iraqi and Afghan Boat-people 23(3) 2000 UNSW Law Journal 224 at 229.
 D. McMaster, Asylum Seekers: Australia's Response to Refugees, Melbourne University Press, Melbourne, 2001, p. 9.
 Refugees by the Numbers, UNHCR, 2000 Edition, p. 6.
 Ibid, p. 5.
 See Refugees and Others of Concern to the UNHCR, 1999 [https://www.unhcr.ch/statist/99oview/tab501.pdf] (accessed July 2001). The selected countries are Germany, United Kingdom, Switzerland, Netherlands, Belgium, Italy, United States, France, Canada and Austria.
 Ibid, p. 8.
 See A. Bookstein, 'UNHCR and forgotten emergencies: can funds be found?' Forced Migration Review 10 (2001), 46 at p. 48.
 See, for example, P. Nygh, 'The Future of the United Nations' 1951 Refugees Convention', Australian International Law Journal  1 at 2.
 See Globalization and the International Working Class: A Marxist Assessment, International Committee of the Fourth International, Mehring Books, Sydney, 1999. See also Castles and Miller, op cit.
 A. Zolberg, 'International Migrants and Refugees in Historical Perspective', Refugees (1992 - 1993) pp. 36-42.
 United Nations World Development Report 1998.
 Van Kessel, op cit, p. 10. Van Kessel is the Director General, Refugees Branch, Department of Citizenship and Immigration Canada.
 J. Harding, The Uninvited: Refugees at the Rich Man's Gate, Profile Books, London, 2000.
 The legislation includes Migration Amendment (Excision From Migration Zone) Act 2001, Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001, Border Protection (Validation and Enforcement Powers) Act 2001, and Migration Legislation Amendment Acts (Nos 1,5, 6) 2001
 Border Protection (Validation and Enforcement Powers) Act 2001: Sch 2 s 233C(2).
 Border Protection (Validation and Enforcement Powers) Act 2001: Part 2 s 7(1).
 A Cock & M Ludlow, 'Parents throw children off ship; Navy intercepts asylum boat' Daily Telegraph, 8 October 2001 at 11.
 Vadarlis v MIMA & Ors M93/2001 (High Court transcript 27 November 2001)
 For example, N. Poynder, ''Mind the Gap': Seeking Alternative Protection under the Convention Against Torture and International Covenant on Civil and Political Rights', a paper presented to the Workshop on the Refugees Convention 50 Years On: Globalisation and International Law, Melbourne, 2001.
 See M. Head, 'When Fear of Death is not Sufficient for Refugee Status', Macarthur Law Review 2 (1998) 127.
 See, for example, the well-documented cases of Joy Gardiner, strangled by British police on 28 July 1993, and Semira Adamu, suffocated by gendarmes in Belgium on 22 September 1998. See Socialist Equality Party, A State Murder Exposed: The Truth About the Killing of Joy Gardiner, Mehring Books, London, 1996 and World Socialist Web Site, 'The death of Semira Adamu and deportation policy in Europe', [https://www.wsws.org/news/1998/blg-o06.shtml].
 See Note 29.
 J. Hathaway, The Law of Refugee Status, Toronto, Butterworths, 1991 at pp. 10-11.
 Ibid, pp. 6-11. See also Nygh, op cit, at pp. 3-7.
 See Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225.
 Per Gummow J in Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 175 ALR 585 at .
 See generally, S. Collinson, Beyond Borders: West European Migration Policy Towards the 21st Century, Royal Institute of International Affairs, London, 1993.
 J. Hathaway, Can International Refugee Law Be Made Relevant Again?, World Refugee Information, United States Committee for Refugees, 1999, 1 at 2 [https://www.refugees.org/world/articles/intl_law_wrs96.html].
 M. Crock, Immigration and Refugee Law in Australia, The Federation Press, Sydney, 1998, p. 32.
 Mares, op cit, pp. 26-29.
 See the Four Corners program, 'The Inside Story', broadcast on 13 August 2001: [https://www.abc.net.au/4corners/stories/s344246.htm] (accessed 14 August 2001).
 A. Dummett & A. Nicol, Subjects, Citizens, Aliens and Others, Nationality and Immigration Law, Weidenfeld and Nicholson, London, 1990 at p.13.
 See, for example, A. Davidson, 'Globalism, the Regional Citizen and Democracy' in B. Galligan & C. Sampford, Rethinking Human Rights, The Federation Press, Sydney, 1997.
 M. Hardt & A. Negri, Empire, Harvard University Press, 2000.
Michael Head, B.Juris, LLB (Monash), LLM (Columbia) teaches Immigration and Refugee Law at the University of Western Sydney, where he is a Senior Lecturer and Coordinator of the Community Law Program. He also teaches and writes in the fields of legal theory, Marxism and the law, civil liberties and Administrative Law. He is editor of the University of Western Sydney Law Review and a correspondent for the World Socialist Web Site.
|Paper presented at the International Conference "The Refugee Convention, Where to from Here?" convened by the Centre for Refugee Research (Sydney, December 2001).|
|This article is published in both Mots Pluriels and the Australian Journal of Human Rights (AJHR)|