Safe third countries: an asylum seeker solution?

There are some common elements between my recent post, which suggested a new asylum seeker assessment regime to take the place of universal mandatory detention during assessment, and proposals outlined last week by the Coalition Immigration spokesperson Scott Morrison in an address to the Lowy Institute:

AFGHAN asylum seekers who arrive illegally by boat would be returned overseas while more refugees in international camps would be accepted, under a new trade-off proposed by the Coalition.

In what represents a sharpening of Coalition policy, Opposition immigration spokesman Scott Morrison has proposed that the brunt of Australia’s efforts should focus on the establishment of refugee processing centres in the countries of “first asylum” like Pakistan and Iran.

Nevertheless, Darryl Kerrigan would have a succinct answer to Morrison’s idea, at least in its current form, from a practical viewpoint: Tell him he’s dreaming!  Why would poor Islamic countries like Pakistan or Iran accept return from a wealthy country like Australia of asylum seekers who aren’t nationals of either country?

Moreover, even if they did agree, no doubt in return for vast amounts of Australian taxpayers’ dollars,  the chances of either country actually being able to sustain genuinely safe refugee processing centres are remote.  Pakistan is notoriously corrupt (not only in cricket) and its government seems incapable of knowing at any given moment whether its armed forces are fighting against the Taliban or in secret alliance with it.

And it gets worse.

Morrison acknowledges that his concept “would require the creation of ‘safe resettlement zones’ backed by UNHCR observers who were able to ‘inspect and report’ on the ongoing welfare of returned asylum seekers.”  However the inspection and reporting record of UNHCR on the safety of refugee camps under its control is a problematic one, as Ahilan T. Arulanantham explains in this article from Human Rights Quarterly:

While in South India this past summer, I had the opportunity to speak with Tamil refugees who had fled Sri Lanka during the previous few months.  I was deeply dismayed to find that many of them had fled a United Nations High Commissioner for Refugees (UNHCR) camp designed to provide safety within Sri Lanka for the persecuted Tamil population.  Forces of the Sri Lankan government’s army had begun to arbitrarily take people from the UNHCR’s camp.  Many of those had returned with tales of torture, and still others had not returned at all.

Though these accounts were disturbing, the UNHCR’s reporting on the situation was even more troubling.  Refugees recounted to me how UNHCR officials attempted to help them recover disappeared friends and relatives (with mixed success) and that, at a certain point, the camp’s director actually told the refugees that the UNHCR could no longer guarantee their safety.  Yet, at a time when disappearances were increasing and thousands of refugees were fleeing the camp, the UNHCR published a report claiming that the camp was open and providing protection and relief for those seeking shelter from the conflict.  The report made no mention of the fact that protection failures in the camp were rampant and that many refugees were risking their lives on the high seas in order to leave it.  …

The architects of the international refugee system did not design the UNHCR to operate in situations of mass influx.  The UNHCR and the international refugee system as a whole were created by the Western bloc nations in 1951 shortly after the start of the Cold War.  The framers of this system envisioned individuals arriving in small numbers from Communist countries under conditions where granting refugee status to these individuals would prove, for the most part, politically expedient.  While international lawmakers expanded the scope of this protection in 1967, they never contemplated the kind of refugee “problem” that I found in India.  Today, the paradigmatic mass influx situation is one in which states find it politically unacceptable to take hundreds or thousands ( and sometimes hundreds of thousands) of refugees from a country that they do not particularly want to condemn.

Upon returning from India, I learned that the story of the UNHCR’s actions in Sri Lanka was not unique.  Governments had attacked refugees residing in safe havens created by the UNHCR in Bosnia, Rwanda, Iraq, and elsewhere, even while other countries refused to give those refugees protection, in part because of the existence of the safe havens.  This led me to believe that the situation that I had seen was indicative of systemic problems in the refugee protection regime.  If the absence of accurate reporting and adequate protection in safe havens was a recurring condition, perhaps the forces responsible for such reporting and protection found it politically expedient to shirk their responsibilities on a routine basis.

This article deals with “safe haven” camps within the country from which refugees are fleeing, but the problems apply almost equally for camps in countries of “first asylum” like Pakistan.

Morrison’s proposal relies on the so-called “safe third country” exception to the Refugee Convention.  The primary obligation of signatories to the Convention is not to “refoule” refugees (return them to their homeland where they face persecution on Convention grounds).  However it is accepted that a country will not be breaching that fundamental obligation if it returns refugees to a third country where they have a right to enter and reside and which is able and willing to offer effective protection.  Each of those elements is problematic for countries like Pakistan and Iran.

The “safe third country” exception has a highly dubious history in Australia, as Nick Poynder explains in a 1995 article about the Keating government’s deplorable actions concerning Sino-Vietnamese refugees:

The  safe third country  principle took on great significance in Australia with the arrival of the boat people from China over the Christmas/New Year period. These arrivals were mainly ethnic Chinese who had been expelled from Vietnam to China in the late 1970s following a border war between the two countries. All were from the Behai area of southern China, and in subsequent hearings before the Senate Committee it was accepted that the trigger which had led to their departure was the demolition of their housing by the Chinese authorities, as they had been refused household registration in Behai and were treated as squatters. The claims by these Sino-Vietnamese, therefore, were against China, not Vietnam, and indeed, on the four boats which had arrived between 1991 and mid-1994 with similar claimants, almost all had been accepted by the Australian authorities as refugees.

Nevertheless, in an atmosphere approaching panic on the part of the Government, regulations were rushed through on 27 January 1995 designating China to be a  safe third country  for the purposes of all Vietnamese nationals who had been resettled in China …

Despite the problematic history of the “safe third country” exception, it might provide a basis for a just and durable international “burden-sharing” solution to the huge problem of mass influx of refugees and people fleeing a war zone, famine, health epidemic or economic collapse.  The latter groups are not refugees within the narrow Convention definition11. KP: The Convention defines as a refugee a person (who) owing to (a) well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. [] but also can’t sensibly be dismissed as mere “economic refugees”.   However, a truly just and durable solution would require a constructive, good faith approach to addressing the very real problems with the Refugee Convention rather than the sort of half-baked, cynical political stunt that Morrison appears to be proposing.  Adrienne Millbank canvasses the shortcomings of the Convention in an excellent Parliamentary Library publication some years ago:

The problem with the Convention is that it was designed in and for a different era. A number of resultant specific problems in its implementation in today’s very different world have been identified by academics and researchers:

  • the Convention definition of refugee is outdated, as is its notion of exile as a solution to refugee problems
  • it confers no right of assistance on refugees unless and until they reach a signatory country, it imposes no obligation on countries not to persecute or expel their citizens, and it imposes no requirement for burden sharing between states
  • the asylum channel is providing an avenue for irregular migration and is linked with people smuggling and criminality
  • the Convention takes no account of the impact (political, financial, social) of large numbers of asylum seekers on receiving countries
  • there is inequity of outcomes between ‘camp’ and ‘Convention’ refugees. Priority is given to those present, on the basis of their mobility, rather than to those with the greatest need
  • there is a gross disparity between what Western countries spend on processing and supporting asylum seekers, and what they contribute to the United Nations High Commissioner for Refugees (UNHCR) for the world refugee effort
  • asylum seekers do not elicit public sympathy in the way that ‘obvious’ (as seen on television) refugees do
  • the Convention has fostered simplistic and unfortunate characterisations of asylum seekers as either political and thus ‘genuine’ and deserving, or economic and thus ‘abusive’ and undeserving.

While the Convention-based asylum system may have operated well enough until the end of the Cold War, it was not designed with today’s mass refugee outflows or migratory movements in mind. At a time of intense migration pressure and limited opportunities, asylum systems in Western countries have come under increasing strain through their use as a migration channel. An estimated one million migrants were transported, worldwide, in illegal operations worth up to USD20 billion in 1999. Since 1985 the number of asylum seekers in Europe has outnumbered all legally admitted foreign workers.

Utilisation of genuinely safe third countries as bases for either assessment processing facilities or somewhat longer term safe havens may well have promise as part of a principled and co-ordinated international response, as long as:

  1. first world countries agree to back such camps with generous financial support including meeting all costs of running them as well as generous development aid, so that they become attractive propositions for a third world country of first asylum; and
  2. first world countries agree to share the burden in a more immediate sense by agreeing to accept a significantly larger number of refugees and displaced persons for permanent resettlement than at present, where it is clear that the conditions in their homeland are unlikely to improve enough to allow them to return there in the foreseeable future.

It occurs to me that India might be a very suitable candidate for such a role in relation to Australia’s current asylum seeker flows. It is adjacent to both Afghanistan and Sri Lanka, which are currently the largest sources of “boat people” arriving on Australia’s doorstep.  It is also a stable and relatively non-corrupt democracy which could feasibly provide durable protection to both Afghans and Sri Lankans if so minded.

We could legitimately send asylum seekers to safe haven camps in India without breaching our Convention obligations if it had agreed to accept them and provide durable asylum.  Moreover, it would not be possible fairly to criticise such a policy if Australia implemented it in a broader context whereby we were:

(a) taking significantly more refugee and humanitarian migrants overall (say 20,000 instead of the current 13,000); and

(b) reserving those places for those in most need of permanent resettlement rather than those with enough money to get here and opportunistically take advantage of the “non-refouler’ provisions of the Convention to win permanent residency ahead of those in greater objective need.

However I suspect that Australia might have to sweeten the deal by (say) offering to sell uranium to India, a proposition that might well trouble refugee advocates who tend to be of a generally left-ish persuasion

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
This entry was posted in Law, Politics - international, Politics - national. Bookmark the permalink.

7 Responses to Safe third countries: an asylum seeker solution?

  1. Paul Frijters says:

    Ken,

    nice example of an international law meant for one situation that has become the legal backbone of another situation!

    I doubt India would be keen to take in significant numbers of muslims from Afghanistan or Tamils from Sri Lanka. There would indeed have to be a serious sweetener involved.

  2. Alan says:

    I cannot imagine why you think India would be a willing or suitable candidate. Apart from India’s very real problems with governance and service delivery, there is a strong historical antipathy between India and its neighbours to the northwest. That is the essential problem with ‘third country solutions’, they tend to be solutions for Australia’s domestic politics, not for refugees and certainly not for the third country.

    East Timor has had the generosity not to refuse the Gillard processing centre outright. I doubt India would be quite so kind.

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  4. Alan says:

    India, just quietly already has 420 thousand refugees and asylum seekers, with continuing refugee inflows from Tibet, Sri Lanka and Myanmar and is not a signatory to the Refugee Convention. It is really hard to see accommodating Australia’s hysterical concerns about its minuscule refugee numbers as a major item on the Indian agenda.

  5. Ken Parish says:

    Alan

    As you say, India already plays host to lots of asylum seekers. it is the principal country of “first asylum” for Sri Lankans. Almost certainly most of the Sri Lankan “boat people” arriving in Australia set out from refugee camps in India.

    You posit this as evidence that they’re unlikely to accede to an agreement with Australia to act as a “safe third country” to which Australia can return asylum seekers who arrive here. However, why would India not be prepared to enter into an agreement to accept return of a relatively small number of people (by comparison with the large numbers they already host) in return for lots of foreign aid money and Australia meeting the costs of running some camps, agreeing to take many more humanitarian migrants each year from those Indian camps, and agreeing to sell them uranium?

    I agree that taking Afghan asylum seekers on a similar basis is likely to meet with rather more resistance from India, however, in significant part because of the religion factor. It might be necessary to explore the possibility of creating genuinely safe havens within Afghanistan itself. However that would require an ongoing significant Australian troop presence to ensure real security in such a safe haven. The camp would be an automatic target for Taliban assault or suicide bombing.

    BTW There is no requirement either in international or Australian law for a “safe third country” necessarily to be a signatory to the Refugee Convention. All that is required is that the signatory nation (in this case Australia) must not send a refugee to a third country unless it provides a right to enter and reside there and “durable asylum”. Nauru met those requirements by signing an agreement with Australia containing a “non-refouler” provision.

    BTW 2 The sort of “burden-sharing” system that I’m proposing here is not dissimilar to proposals by several leading refugee law academics over the last decade or so e.g. James Hathaway. See the articles listed at the end of Adrienne Millbank’s article linked towards the end of the primary post. The reason for such suggestions springs not from some desire to assist western governments to evade responsibilities (as you seem to be implicitly suggesting) but from recognition that the current system is unsustainable for reasons covered in the primary post, and that there are almost certainly better ways to provide effective protection to a much greater number of refugees and displaced persons than the current manifestly dysfunctional regime.

  6. Alan says:

    Ken

    I am fairly old-fashioned, conservative even. It seems to me the the convention process, when we honoured it in full and governments defended it, worked reasonably well. I am aware that there is no requirement for nations to sign the convention before receiving refugees. I am just completely unpersuaded that India, which already has a refugee problem that dwarfs Australia’s is going to be eager to take on ours.

    I am completely and totally unpersuaded that Afghanistan, a country in a state of war and governmental collapse, is an appropriate destination for persons fleeing war and governmental collapse.

    The principal characteristic of both Afghanistan and India that seems to make them suitable relocation countries is they do not have have trisyllabic names that begin and end with A.

    I do agree that the principle of exile creates massive problems in receiving countries. I am just not convinced that abandoning it in favour of Pacific, Timor Sea, Indian Ocean or Mare Tranquillitatis solutions is going to improve the current situation.

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