Imagining a new Refugee Convention

_77940918_hi023806431Paul Frijters’ fascinating post analysing Turkey’s successful employment of ruthless realpolitik tactics is fairly depressing. But maybe there’s some qualified good news hidden amongst all  the cynical manoeuvres.  Reported arrangements between the EU and Turkey for dealing with the massive numbers of Syrian and Iraqi  asylum seekers currently flooding into Europe might form part of a viable and humane new international refugee treaty to replace the current badly broken Refugee Convention 1951.

There is fairly general agreement among human rights experts that the Refugee Convention is a deeply flawed document.  The main reason it hasn’t been scrapped is that the general belief until now is that in the realpolitik world of the early 21st century any agreement capable of achieving widespread international acceptance would almost certainly be much weaker and less humane.

The problems inherent in the current Refugee Convention are fairly obvious, if seldom discussed in the mainstream media.  It covers only a small proportion of people fleeing their home country in genuine fear of their lives, and creates perverse incentives for both asylum seekers and destination countries to game the system.

The Convention was negotiated in the immediate aftermath of World War II, and therefore was understandably focused strongly on the plight of Jews fleeing from the Nazis (and similar situations).  Consequently, only people who have a genuine and well founded fear of persecution for reasons of race, ethnicity, religion, political persuasion, or “membership of a particular social group” (which picks up inter alia LGBTI asylum seekers) are “refugees” within the meaning of the Convention.  They are the only ones forbidden by the Convention to be “refouled” to their home country by signatory nations. People simply fleeing flood, drought, famine, civil war and a range of other life-threatening situations are not “refugees” under the Convention and have no right to asylum under international law, even though their plight may be just as hopeless and life threatening as  those lucky enough to fit within the Convention definition.

As a result, significant numbers of these people “game” the system by fabricating or radically exaggerating stories of political, racial or religious persecution in their home country, stories which will often be impossible to investigate or verify because of the violence, chaos, dysfunction and/or corruption that is endemic in the source countries generating the great bulk of asylum seekers.  It is neither surprising nor reprehensible that desperate people, in fear for their own and their children’s lives or basic welfare for whatever reason, will do just about anything to reach a safe, reasonably prosperous country where they can stay and build new lives.

Equally, given that there are at least 50 million displaced people around the world looking for a new home at any given moment, it is hardly surprising that the more desirable destination nations (e.g. Australia) have increasingly resorted to “gaming” the system themselves by employing dubiously legal and manifestly immoral measures to reduce the number of refugees/asylum seekers reaching their shores.

The Convention only obliges signatory nations to do anything to provide protection where an asylum seeker actually reaches their country (by whatever means), and where they haven’t arrived via another country that is a signatory or otherwise offers “durable protection”.  As a result, Australia has adopted boat turnback strategies, on-water secrecy measures and redefined its borders for migration purposes to exclude/excise its entire shoreline and offshore islands. As far as we can tell, given on-water secrecy, very few asylum seekers have actually managed to reach shore anyway since these measures were re-enacted by the Rudd and then Abbott governments.  The few who do are sent to punitive gulags on Manus Island or Nauru for processing with no right or hope of ever being allowed to settle in Australia.

Australia’s gaming of the Convention system is arguably more extreme than any other advanced country, but by no means unique.  The US long had (and possibly still has) a quite ruthless boat turnback/non-rescue policy towards Cuban asylum seekers, and Donald Trump’s Great Wall of Mexico is only a more extreme version of longstanding if dubiously effective measures designed to prevent irregular Mexican migration into Texas, New Mexico and southern California.  Italy also had a ruthless boat turnback policy under the Berlusconi government, as well as an agreement with the Libyan government of dictator Muammar Gaddafi to do whatever it took to disrupt and prevent people smuggling across the Mediterranean from that country.

It appears that the emergency provoked by the Syria/Iraq war, with literally millions currently flooding across Europe’s borders, has now resulted in the EU jettisoning (or at least sidestepping) its previous vaguely humane approach under the Dublin and Schengen Agreements in favour of a boat turnback policy every bit as ruthless as that of Australia and the US,  together with an offshore warehousing/processing solution brokered with Turkey. Apparently Turkey will co-operate with the EU’s naval blockade/boat turnback policy between Turkey and Greece, by accepting the return of asylum seekers to Turkish territory in return for billions of dollars to allow appropriate refugee camps to be established and operated.

The deal sounds cynical and it is.  But it could potentially form the basis of a humane and sustainable worldwide “burden-sharing” solution for people displaced from their homelands  for whatever reason (other than pure “economic migrants”) to replace the manifestly unsustainable Refugee Convention 1951.  All countries of first asylum (countries adjacent to those generating flows of refugees) could be offered similar deals, whereby like Turkey they would agree to accept return to their country of asylum seekers who have attempted irregular onwards migration to a more distant first world destination.

Under such a system first world nations could lawfully refuse to accept any asylum seekers reaching their shores where it is feasible to return them to a participating country of first asylum. In return, participating countries of first asylum would receive billions of dollars from first world countries (who would be required to make binding financial commitments to contribute rateably by an agreed formula) to establish and maintain humane refugee centres with decent housing and facilities including good health care and education.  Such centres generate employment and other economic opportunities for the citizens of those countries, which is no doubt why Turkey (not to mention Nauru and PNG) is willing to agree to the deal. Other benefits that could be offered to participating countries of first asylum might include preferential trade arrangements and priority access of their citizens to guest worker schemes in wealthier countries (e.g. Australian 457 visas).

The scheme would also need to include human as well as financial burden-sharing on the part of first world countries.  Those first world nations who could sensibly take significant numbers of “refugees” needing permanent resettlement (as opposed to those who can reasonably be required to go home once the crisis in their homeland has passed or reached tolerable proportions) would make commitments to take agreeed numbers each year, in return for a commensurate reduction in their financial commitment.  Countries like Australia, the US and Canada could certainly commit to taking 25-30,000 permanent resettlement refugees each year, and all or most EU countries might be expected to agree to take (say) 10,000 per year each. New Zealand and some more prosperous Asian and South American nations might also agree to take a lesser but useful number each year.  It isn’t unreasonable to envisage that worldwide commitments by reasonably prosperous nations to accept around 500,000 refugees in total each year might be achievable.  That should be sufficient over time to accommodate all those in genuine need of permanent  resettlement.

I’m not suggesting that achieving international agreement for  this sort of radically restructured world refugee convention would be quick or easy.  But if you accept (as I do) that the current Refugee Convention is now completely unserviceable and irrevocably broken beyond repair, and that effectively open borders are not a tolerable alternative, then what choice is there?

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 Immigration and refugees, Uncategorized. Bookmark the permalink.
Notify of
Newest Most Voted
Inline Feedbacks
View all comments
5 years ago

worldwide commitments by reasonably prosperous nations to accept around 500,000 refugees in total each year might be achievable.

And how many million will the world’s assorted misery factories produce each year?

There’s a brutal, depressing logic, explained in a YouTube video called ‘Gumballs and Immigration’ ( The developed world can go nuts on immigration, but that won’t change much. Sure, it’s a lottery ticket for the lucky few, but those lucky few are the most capable, most discontented members of their source countries, and hence the people who could do the most to change their countries and are often the skilled people needed for development. Indeed, nothing much will change until the misery factories are shut down.

One could cynically wonder whether these flows are people are for humanitarian purposes, or whether their main, yet unspoken, purpose is to salve the guilt of many in the developed, peaceful world.

Chris Lloyd
Chris Lloyd
5 years ago

For sure the convention is a farce Ken and you have explained it very nicely. I agree that an agreement along the lines you describe would be desirable, more humane and mean that countries like Australia would not have to deliberately act like bastards to deter refugees.

I am unconvinced that a new convention could ever be agreed though. I think the notion that Asian countries would accept uneducated middle Eastern refugees is fanciful. China, India, Japan accept foreigners as permanent settlers and citizens? That will never, ever happen. Only “multicultural” societies i.e. countries whose polity accept this ideal, will ever accept significant numbers. So we are down to the usual destination countries in North America, Europe, Australia and NZ.

So why would WASP countries negotiate a multilateral approach? Nothing much in it for U.S., Australia or NZ as far as I can see, all insulated as they are by distance. Europe definitely needs to try to address the problem at source (i.e. Turkey) which is what they are currently doing. So I see the current agreement as a rational response to the broken convention but that is about as far as it will extend. Europe and the UN need to commit some serious money to the camps in Turkey and Jordan.

5 years ago

There is not going to be a new refugee convention. Developing countries are not in the habit of rescuing poor little rich countries from their imaginary fears. You have been beating this drum in various forms for several years. Each time there is a a major development in refugee affairs you tend to announce that a new convention is possible.

The destination countries for refugee flows are overwhelmingly not in the developed world. They are countries neighbouring conflict zones. The figures for Jordan or Lebanon should when compared with the figures for Australia add a small dose of reality to this debate.

So should a recent article in Der Spiegel on Merkel’s isolation and Erdogan’s refusal to assist her. Canada has already accepted 25000 Syrian refugees and is committed to accepting another 10000, that is an interesting number to compare with our own allegedly frightful problems.

Perception matters. The numbers just do not support the claim that Australia has a refugee crisis. Deluding ourselves about the scale of our refugee intake or the likelihood of a new convention is part of the problem, not a solution.

5 years ago

Imagining is the word!

The future belongs to the cynical, it appears.