Welcome to the blog for The Mess We’re In – Managing the Refugee Crisis which each week provides a section from the book. One Chapter a week. This week is from Chapter 4 which outlines international laws including the Refugee Convention and the framework through which forcibly displaced people can seek protection from signatory nations.
The Refugee Convention
The Refugee Convention grew out of Article 14 of the Universal Declaration of Human Rights 1948 and was originally created in 19511. The Refugee Convention contained 46 Articles over seven chapters. At the time of its drafting the Convention was focused on Europe, the events of World War II, and the development of the Cold War. It only applied to people displaced prior to 1 January 1951 and countries could choose to limit their efforts to those displaced by events within Europe2. In 1967, the Protocol to the Refugee Convention was introduced which expanded the application of the Convention to cover refugees all over the world and from any time period.
As of 2016 there are 142 member nations to both the 1951 Convention and the 1967 Protocol. Madagascar and Saint Kitts & Nevis only signed the 1951 Convention. Although some countries only signed the 1967 Protocol, it contains a provision that specifies signature countries agree to abide by the original Refugee Convention as well. A majority of the world’s countries have signed the convention. The most significant omissions from an Australian context are the Middle Eastern and Asian countries including Iraq, Saudi Arabia, Oman, Pakistan, India, Sri Lanka, Myanmar, Thailand, Malaysia and Indonesia. They are significant as they leave few viable options for a person fleeing a country in the Middle East or South Asia and looking for a signatory nation to the Refugee Convention through which to claim asylum.
As well as defining a refugee (article 1), The Refugee Convention and Protocol outline the rights provided to refugees. Some key rights are3:
- Under Chapter 1 – General Provisions: Non-discrimination based on race, religion or Country of Origin (article 3). Freedom of religion in line with freedoms of nationals of the host state (article 4).
- Under Chapter 2 – Judicial Status: Legal rights including free access to courts (article 16).
- Under Chapter 3 – Gainful Employment: The right to be employed (article 17), the right for self-employment (article 18) and the right to work in a profession should they possess suitable qualifications (article 19).
- Under Chapter 4 – Welfare: Public support in line with that provided to nationals of the host nation including the rights to housing (article 21), public education (article 22), and social security (article 24).
- Under Chapter 5 – Administrative Measures: Freedom of movement within the territory (article 26), the right to travel documents to travel outside the territory (article 28), the right to not be penalised for illegal entry (article 31), the right to not be expelled unless on the grounds of national security or public order (article 32), and the right not to undergo a return to a country where their life or freedom is threatened on account of race, religion, nationality, membership of a particular social group or political opinion (article 33). This right is widely known as the right to non-refoulement.
The non-refoulement right is a very important right as it protects refugees from the forcible return to places where they fear persecution. The importance of this right became apparent at the end of World War II through the violent resistance and suicides of many Eastern European and Soviet refugees who were being forced to return home against their will. As a consequence, Western powers ceased repatriating people to areas under Communist control in 19464. Not all of the rights provided to refugees apply to asylum seekers. However, the right of non-refoulement does apply. This is crucial in ensuring the ongoing safety to those legitimately fleeing persecution.
There are no limits in terms of the number of asylum seekers specified by The Convention. At the time of the original draft, this uncapped obligation was discussed. Some countries, including the United States and France, argued that if governments were to adhere to the Refugee Convention then specific numbers should be defined5. However, the timing and location constraints (restricting the definition of refugees as Europeans impacting by World War II) of the 1951 Convention allayed these concerns. These concerns did not appear to be as strong at the time the Protocol expanded the Convention’s scope in 1967. At this time the Cold War was at its height and the strong regimes of the Soviet Union and China tightly controlled departures from their countries.
This context may have resulted in the belief that large volumes requiring asylum was not a likely scenario. It is this uncapped obligation that now appears to be a driver for many industrialised nations to limit or deter asylum seekers through increasingly restrictive thresholds and harsh penalties. Australia has implemented such strategies. A recent insight into the potential consequences for industrialised nations through the uncapped obligation has been provided through the arrival of approximately one million people into Germany from North Africa and the Middle East in the last half of 2015.
In regard to such large numbers, an underlying understanding of the Refugee Convention is signatory countries would have the primary responsibility for protecting refugees and there would be cooperation between the states. This cooperation would play out in burden-sharing arrangements to help alleviate large volumes. The UNHCR could provide further assistance if needed, however it would be limited. Instead, the UNHCR’s role is to assist and oversee the states in meeting their obligations, not taking on roles on their behalf6. Although there is an underlying understanding, there are no documented rules or guidelines regarding burden-sharing. Nor are there rules regarding when and in what capacity the UNHCR will provide support. Times of high volumes are assessed and responded to on an as-needs basis. For instance, with the Syrian Civil War:
- At the time of writing the UNHCR is very active in supporting the protection of the high number of asylum seekers in camps across Jordan, Lebanon and Turkey.
- After Germany accepted the approximately 1 million refugees, it sought support from other members in the EU to share the burden.
The rights provided to refugees are essentially on par with citizens of the host nation. Naturally, there is a subsequent economic cost in providing rights such as courts, housing, education, and social security. As discussed in Chapter 2, the disparities between rich and poor nations are great. It is clear to many of the world’s poor that immigration to a wealthy country will improve their chances of prosperity. As many of the world’s wealthy countries are difficult to immigrate to, the avenue of claiming asylum and seeking refugee status is a rational option. Significantly, Australian law recognises extreme economic deprivation may amount to persecution in and of itself7.
- Alternatives to Offshore Processing: Submissions to the Expert Panel on Asylum Seekers 2012, Australia: Labor for Refugees, 2013), 2.
- Jane McAdam and Fiona Chong, Refugees: Why seeking asylum is legal and Australia’s policies are not, (Sydney: NewSouth Publishing, 2014), 10.
- Convention relating to the Status of Refugees, opened for signature 28 July 1951 (entered into force 22 April 1954) read together with the Protocol relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967).
- Alexander Betts, Gil Loescher and James Milner, UNHCR: The Politics and Practice of Refugee Protection, Second Edition (New York: Routledge, 2012), 11.
- Ibid 16.
- Ibid 82.
- Jane McAdam and Fiona Chong, Refugees: Why seeking asylum is legal and Australia’s policies are not, (Sydney: NewSouth Publishing, 2014), 39.
This was taken from the 2017 book, The Mess We’re In – Managing the Refugee Crisis. It can be purchased at any book store in Australia and online, including via this link.