International Law Asylum Seekers and Refugees

Exam: Section C, 20 minute short response. Use of stimulus.

Requires knowledge of four key areas:

1. The key international agreements (including, where relevant, agreements, declarations, treaties and conventions) that are applicable to states when asylum seekers arrive to claim refugee status.

2. The principal international legal institutions applicable to asylum seekers and evaluate their powers in upholding refugee international law. 

3. Considering International law relevant to a state taking in refugees, explain and evaluate how international law applies to Australian refugee law.

4. Explain and critically analyse why states obey international law when processing asylum seekers.

Key words in International Law:

Treaties: Formal, written international law. Based on consent of states.Contractual arrangements (reciprocal accord).Only apply to states who have ratified (signed/agreed to) treaty.Treaties entered into on the basis of Pacta suncta servanda (agreements must be kept).

Customs:Derives from the actual practices of states. Spreads from state to state. Practices that are common and well established over time come to be legally binding.Does not require explicit (obvious) consent of states, instead consent is inferred (suggested through participation).Has universal jurisdiction (applies to all).

States: countries.

Asylum seeker: An asylum seeker is a person who has fled their own country and applies to the government of another country for protection as a refugee (Gontier, 2015).

Refugee:According to the United Nations Refugee Convention (1951) a refugee is a person who is outside their own country and is unable or unwilling to return due to a well-founded fear of being persecuted because of their race, religion, nationality, membership of a particular social group or political opinion.

Migrant: Migrants are people who leave their country of origin voluntarily to seek a better life for a range of personal and economic reasons (Gontier, 2015).

Facts and figures in regard to asylum seekers and refugees:

Global context:

The United Nations’ Refugee Agency’s annual Global Trends report shows the number of people now fleeing violence and persecution is approaching 66 million. That’s more than the population of the United Kingdom and nearly three times Australia’s population. The conflict in Syria and the breakdown of peace effort in South Sudan have been the major contributing factors (ABC news, June 2017).

(Above infographics are from UNHR website, 2016)

- “The US has the highest number of incarcerated non-citizens in the world: a population which grew from around 240,000 in 2005 to 400,000 in 2010. Since 2009, there has been a congressional mandate to fill 34,000 immigration detention

beds each night. More than half of these beds are placed in privately run detention facilities, run by companies such as CoreCivic (formerly the Corrections Corporation of America), who lobbied for the passing of this mandate.” (The Conversation, 2017)

- The number of detainees, according to the latest numbers, has also been growing in many EU countries since the 1990s. The UK had capacity to detain 250 people in 1993. It held 27,594 people in detention in March 2012 and 32,163 in March 2016. France detained 28,220 in 2003 and 47,565 in 2015. Sweden placed 1,167 immigrants in detention in 2006 and 3,959 in 2015. (The Conversation, 2017)

- According to the Refugee Council, at the end of 2015, Australia ranked 26th overall, 31st per capita and 46th relative to national GDP when it came to the recognition and resettling of refugees.

Australian context:

Statistics sourced from Department of Immigration and Border Protection as at June 30th, 2017.

1262 people are being held in immigration detention centres in Australia (Villawood Detention Centre in Sydney has the highest number of detainees – with 452, followed by Christmas Island with 282 detainees).

553 people are in residence determination in Australia. Residence determination permits people to live in the community in a specified residence, but they are legally still in detention. They are monitored and not permitted to work.

22,154 people are on bridging visas in Australia. These individuals are able to live within the community and are permitted to work, though there are restrictions of this work.

1174 people are being held in offshore detention (371 in Nauru and 803 in Manus, Papua New Guinea). Of the 371 people held in Nauru, 42 are children.

1. The key international agreements (including, where relevant, agreements, declarations, treaties and conventions) that are applicable to states when asylum seekers arrive to claim refugee status.

Universal Declaration of Human Rights (UDHR, 1948)

This declaration was adopted by the United Nations General Assembly in Paris, 1948. It is a document that sets out fundamental human rights to be universally protected. The UNDHR was a response to the human rights atrocities of WWII (e.g. persecution of jews)List three rights listed in the UDHR that are relevant to asylum seekers and refugees in Australia:

The UDHR led to the rise of other important treaties – for example, the Refugee Convention (1951) and the International Covenant on Civil and Political Rights (ICCPR, 1976).

Refugee Convention (R.C, 1951) and the 1967 protocol The R.C builds on Article 14 of the UDHR (the right for persons to seek asylum from persecution in other countries). The 1951 convention was limited to protecting European refugees, and this was changed with the 1967 protocol which expanded the scope of protection to include nations outside of Europe. 148 states have signed on to either one or both of these conventions. While states (countries) are responsible for protecting human rights, they are not always able to willing to do so (Gutteres, 2011). This is why the international community needs to be involved in protecting asylum seekers and refugees via instruments such as the R.C. Importantly, the R.C. defines what is meant by refugee:

A refugee is a person who is outside their own country and is unable or unwilling to return due to a well-founded fear of being persecuted because of their race, religion, nationality, membership of a particular social group or political opinion.

According to the RC, people who fulfill this definition are entitled to the rights and bound by the duties contained in the 1951 Convention.

Even states who have not ratified (signed) the R.C or 1967 protocol are still bound by the principle of non-refoulement, as this has become an international customary law. As noted above, non-refoulement states that ‘a refugee should not be returned to a country where he or she faces serious threats to his or her life or freedom’. Further, a refugee must not be prevented from entering a country as this would amount to refoulement.

International Covenant on Civil and Political Rights (1966 – came into force in 1976) The ICCPR was adopted by the United Nations and is an extension of the UDHR (1948). It forms part of the ‘International Bill of Human Rights’. The Covenant covers a number of rights including right to life, right to privacy and freedom of speech. List below the rights most relevant to asylum seekers and refugees:

Convention on the Rights of the Child (1989)

The need to protect children has been a key issue for international law since the Geneva Declaration of the Rights of the Child in 1924. Over half of the total global refugee population are under 18 years of age (UNHCR, 2016). Children remain imprisoned in immigration detention centres around the globe. Go to Article 37 in the CRC and summarise the rights of the child under this law relevant to asylum seekers and refugees:http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx

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The United Nations Convention against Transnational Organised Crime (UNCTOC, 2000) and the Protocol against Smuggling of Migrants by Land, Sea and Air.

While this international law recognises people smuggling as a serious crime, importantly it also notes:

‘People smuggling is a transnational crime, though people who are smuggled are not criminals, and international law forbids states from penalising asylum seekers solely for the manner of their entry into a country.’

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)

Summarise the key elements of convention noted above:

2. The principal international legal institutions applicable to asylum seekers and evaluate their powers in upholding refugee international law. 

What is the United Nations?

United Nations High Commissioner for Refugees (UNHCR) – Since 2016 the UNHCR has been Fillipo Grandi.

Described as the global refugee institution. The UNHCR was established at the same time as the Refugee

Convention (1951). The UN General Assembly set up this role and called upon governments to cooperate with the UNHCR in protecting the human rights of refugees and asylum seekers.

The role of the UNHCR is meant to be humanitarian and completely non-political. This role involves working with governments and non-government agencies around the world, in order to protect the asylum seeker and refugee rights.

The UNHCR is the leader of an Executive Committee, which is made up of representatives from 79 states, including Australia. Members of this committee are meant to share the UNHCR’s quest/vision to protect the rights of asylum seekers and refugees.

Powers of the UNHCR:

Those states who have signed the Refugee Convention 1951 and 1967 protocol are obliged to cooperate with the UNHCR.

The UNHCR is also legally entitled to and responsible for interceding (mediating/intervening) directly on behalf of refugees and stateless persons who would not otherwise be represented legally. This might involve calling in special agencies to do so on the UNHCR’s behalf. States are expected to provide relevant information and statistical date to the UNHCR.

The UNHCR is not financed by any government body, so it is better able to maintain independence.

The report that the UNHCR has to make to the General Assembly each year aims to keep states accountable for their treatment of asylum seekers and refugees.

However, all of these powers, depend upon the cooperation of the states. If states do not cooperate the role of the UNHCR is made difficult.

United Nations Human Rights Council (UNHRC)

The UNHRC was created by the UN in 2006. It is an inter-governmental body within the United Nations system made up of 47 member states responsible for the promotion and protection of all human rights around the world. These member states are selected by the General Assembly.

It has the ability to discuss all thematic human rights issues and situations that require its attention (UNHRC website, 2017).

Australia is not a current member of the UNHRC, but it wants to be, and is competing with France and Spain to win a place in 2018.

Powers of the UNHRC:

The UNHRC coordinates the Universal Periodic Review which reviews the human rights records of all UN member states. This encourages states to be accountable for their human rights standards.

The UNHRC also consults with its Advisory Committee – a “think thank” which provides expertise on human rights issues.

Another key power is the UNHRC’s Complaint Procedure which allows individuals and organisations to bring human rights violations to the attention of the Council. When a complaint is made, the state it concerns will be informed and views from that state will be obtained.

The UNHRC also works with UN Special Procedures – this includes a group of special rapporteurs, representatives, and independent experts who monitor, examine, advise and publicly report on human rights issues in specific countries. What is a ‘special rapporteur’? What powers do they have?

Human Rights Committee:

The HRC was also set up by the UN as part of the International Covenant on Civil and Political Rights.

It is a body of independent experts that monitors implementation of the ICCPR by its State members.

Powers of the HRC:

All states are obliged to submit regular reports to the Committee on how the rights are being implemented (usually every four years). The Committee examines each report and addresses its concerns and recommendations to the State party in the form of “concluding observations”.

The International Criminal Court (ICC)

The ICC is the world’s first permanent international criminal court.

It was established by the Rome Statute in 1998 (with the Court coming into force in 2002). The Rome Statute is an agreement that came out of a diplomatic conference in Rome.

The ICC investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes and crimes against humanity (ICC website, 2017). The 15 forms of crimes against humanity listed in the Rome Statute include offences such as murder, rape, imprisonment, enforced disappearances, enslavement – particularly of women and children, sexual slavery, torture, apartheid and deportation (ICC website, 2017).

Australia has ratified (agreed to be bound by) the Rome Statute, and therefore is involved with the ICC.

Powers of the ICC:

As a court of last resort, it seeks to complement, not replace, national Courts (ICC website, 2017).

The ICC gives sentences to those found guilty of international crime. However, these sentences are only able to be served in countries that have agreed to enforce ICC sentences.

Use Google to research Australian Member of Parliament Andrew Wilkie’s attempt to take the Australian Government to the ICC for crimes against humanity in regard to asylum seekers and refugees. Write a short summary of what happened below:

3. Considering International law relevant to a state taking in refugees, explain and evaluate how international law applies to Australian refugee law.

For international law to be truly effective, it requires the cooperation of the states, and the passing of domestic law (i.e. national law) that reflects international law. When domestic laws reflect international treaty commitments, those commitments become enforceable through domestic responses to breaches of those laws.

Australian asylum seeker and refugee law (domestic law):

The law concerning asylum seekers and refugees in Australia is the Migration Act (Cwlth Act, 1958).

Key aspects of The Migration Act (1958) and amendments include:

- A narrowed definition of ‘refugee’.What is this narrowed definition? (hint: it relates to the term ‘persecution’)

- Mandatory detention of those arriving by boat/defined as unlawful non-citizens. When did mandatory detention become part of Australian law?

- Indefinite detention (no time limit on immigration detention)- Offshore detention (Introduced in 2012 - unlawful citizens can

be detained in a third party country – e.g. Nauru or the Manus Island Detention Centre in Papua New Guinea)

- If asylum seekers are transferred to a third country, their claims for protection will be processed under that country’s laws.

- Children are to be detained as a last resort (However, children still in detention – particularly in Nauru).

- Refoulement (return) is lawful (affirmed by The Migration and Maritime Powers Legislation Amendment Bill 2014).

- Fast track assessment of claims means no access to the Refugee Review Tribunal. This limits asylum seeker access to the Courts.

- The Minister in charge of Immigration has powers to cap number of protection visas.

The Department of Immigration and Border Protection (DIBP) is the government department that administers the law, as well as the immigration program.

The DIBP controls the immigration program that has two components:

- Humanitarian programFind out what the two components of this program are:Onshore:

Offshore:

- Migration program for skilled and family migrants

For those who arrive by boat after August 2012, there is a new fast track process (this is problematic for natural justice).

Read the article below and make three dot points in relation to it.

https://theconversation.com/explainer-how-australia-decides-who-is-a-genuine-refugee-72574

How does the Migration Act (1958) clash with Australia’s international obligations?

Further notes about the effect of international law on Australian asylum seeker and refugee law:

- Non-government agencies, particularly Amnesty International and Human Rights Watch also play a very important role in keeping Australia accountable, and attempt to influence Australia’s domestic refugee and asylum seeker laws. However, the current government remains unbending in its hard line approach to asylum seekers and refugees. Still, these pressure groups are vital in the law reform process.

- International law can influence judges – stat interp/common law. Justice Kirby. However, due to the amendments to the Migration Act regarding asylum seeker access to the justice system, this is undermined.

4. Explain and critically analyse why states obey international law when processing asylum seekers.

Below are the five broad reasons that states obey international law (Heywood, 2014).

Self-interest and reciprocity

Fear of disorder

Fear of isolation

Fear of punishment

Identification with international laws