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01 juli 2012

Mythbusting International Refugee Law - part 2

ERIC VAN BEMMEL
This is Up Close coming to you from the University of Melbourne, Australia.  I’m Eric van Bemmel and in this episode we’re trying to get a handle on international refugee law with professorial fellow and refugee law expert Jim Hathaway.  Jim the term boat people, which those of us around in the ‘70s remember applying to originally Vietnamese refugees fleeing war-torn Vietnam.  People who typically travel on dangerously overcrowded or dilapidated boats.  One still sees the term in the newspapers and typically the countries that they’re headed for tend to get up in arms about the term.  In Australia for example the media seem to really focus on them when they’re known to be on their way here.  Why is that?

JAMES HATHAWAY
It’s a great question.  I’ve often asked myself the same thing because many more people arrive to seek protection either directly by crossing over land on foot or on aircraft and they seem to attract dramatically less attention than those who arrive on boats.  It may simply be the visual spectre of a rickety boat pulling up on your shore or people popping out of cargo containers on boats that inspires fear.  But it is the case you’re quite right not just in Australia but in many other countries.  The sight of a boatload of people actually brings out the worst instincts as contrasted with significantly greater numbers actually arriving by other means.

ERIC VAN BEMMEL
This sort of links into those myths about refugees.  You talked about how people view refugees as being permanent entries into their countries and see it as a risk of overrunning ones country.  Another myth that you bring up is that refugees are seen as queue jumpers, they’re cutting in the line of legitimate legal migrant applicants.

JAMES HATHAWAY
Exactly I mean they aren’t queue jumpers because there’s no queue for them to jump.  Let me give you an analogy.  It’s a little bit like you know people who have been sitting patiently at a hospital waiting for elective surgery, seeing somebody rushed in an ambulance straight into surgery and they’re thinking gosh, you know I’ve been sitting here waiting for my nose job for weeks and this guy who had a heart attack all of a sudden gets operated on before I get to see the doctor.  Now we don’t see anything wrong with that.  We understand that that’s the way it works.  People who have an urgent need for lifesaving triage get to cut ahead.  It’s not queue jumping, it’s responding to the urgency of the situation in ways that are appropriate. The same is true of refugees.  Again remember by definition you’re only a refugee if you have the ability to show a well founded fear of being persecuted.  Persecuted meaning severe human rights abuse will accrue if you remain in your home country. 
International law gives refugees a trump card on the usual rules of migration control in the same way that the ambulance pulling up at the hospital gives the person having the cardiac arrest a trump card on the usual waiting lists of hospital for surgery.  It does so because these are people who cannot safely afford to wait.  If they are compelled to wait they may well not be alive.  The refugee convention recognises that and explicitly provides for them to have a right of immediate entry and access with no expectation that they wait in a queue or applied embassies.

ERIC VAN BEMMEL
Another myth that seems to need exploding is the one that claims that refugees, well they’re a bunch of criminals, they’re a security threat to the countries they seek to enter.

JAMES HATHAWAY
Sometimes they are, I mean let’s be frank.  In any refugee population there will be some bad eggs.  That’s probably true in virtually any social setting. The refugee convention recognises that in any group of refugees that there will be some persons who are either serious criminals who have yet to pay the price for their wrong doing or who otherwise present a security risk to the state to which they travel.  Because of that there are actually provisions in the treaty that give the state to whom a protection request is addressed extraordinary rights.  Indeed it goes beyond rights.  At the outset, if this state to which a refugee travels finds that there are simply reasonable grounds for believing that you might be a serious international criminal or indeed a serious domestic criminal who has yet to pay the price for your crime.
It must and I underscore must exclude that person from refugee status.  They have no discretion.  The treaty errs on the side of making sure that what the drafters refer to as the smelly fish are excluded from status.  Why because the fear was that admitting people who are serious criminals to what should be a protected status, would undermine the currency of the whole regime.  They decided and reasonable people disagree about the propriety of this decision, but the drafters decided to err on the side of states.  So if the state does find that there is a real chance that you’re a war criminal for example, it must exclude you even if it would be inclined to admit you for some other reason.  Even after you’re recognised as a refugee, a person who commits genuinely serious criminal acts or who presents security threats, can still after due process be forced, if there is no alternative back to the place where they would be persecuted.  That’s an extraordinary protection for states.
Now admittedly there’s a duty to avoid that result if there are other alternatives, there may be counter veiling treaties for example, the torture treaty that says even if you’re not a refugee and could be forced back we can’t send you home to torture.  But the refugee treaty itself errs on the side of giving states the tools that they need to protect their populace and to ensure that criminals aren’t rewarded.  So to suggest somehow that states can legitimately withdraw from the protection obligations under the treaty because to do otherwise would expose their citizenry to the entrance of criminals who are security threats is just patently wrong.  The treaty provides exactly the contrary.

ERIC VAN BEMMEL
You’re listening to Melbourne University Up Close coming to you from the University of Melbourne, Australia.  I’m Eric van Bemmel.  Our guest this episode is Professor Jim Hathaway, an international expert on refugee law.  Jim just briefly the more procedural matters around refugee law, refugee camps, resettlement, are these covered by the convention as well?

JAMES HATHAWAY
Tangentially.  Procedures no.  States actually demanded the right in 1951 to do something they had not done previously been entitled to do namely to operationalise protection systems in whatever way they wished.  In the earlier refugee regimes in the 1920s and ‘30s the predecessor to the United Nations, the League of Nations actually appointed high commissioners who were entitled to issue identity documents to people that they determined to be refugees which all states simply agreed to honour.  It was a very simple internationally administered system.  Under the current treaty, governments resiled from that position and took the view that each and every one of them could set up its own system.  So long as they respect that common definition of a refugee to which I referred, a well founded fear of being persecuted for one of five grounds, they can administer that system in any way they want. 
Now you need to know that most countries in the world don’t actually operationalise that treaty based duty at all.  It’s only a minority of countries that actually have formal status determination systems.  But 80 per cent of the world’s refugees for example are in Africa.  There are very few African states that have any formal status determination system.

ERIC VAN BEMMEL
Despite being signatories?

JAMES HATHAWAY
Correct and there’s nothing illegal about that.  That’s perfectly fine so long as any person who crosses your border, claims to be a refugee is treated as such you are by definition honouring all of your duties under the treaty.  Most African states, where mass influx is the norm, have simply recognised the geo political reality that they can see the causes that push people across borders.

ERIC VAN BEMMEL
Despite the horrendous conditions we often see in images and in the media, you’re saying these states in which the refugee are situated are honouring the convention?

JAMES HATHAWAY
Well they’re honouring it at the point of entry and that’s what I want to come to. I mean the first duty is not to send the refugee back to the place where the harm would occur and by and large the countries to which you’re referring, Africa and other states facing mass influx.  By and large more often than not, the ability to get in is in fact honoured. But remember that’s only the first article of the refugee convention.  There are 30 somewhat articles that follow from it that speak about things like physical security, rights to movement, rights to work, rights to education.  The real challenge in much of the less developed world is actually that part of the protection regime.  People are often allowed in but treated abysmally.  They’re allowed to languish behind barbed wire for years if not decades on end, their children are not educated, they cannot work, there’s not freedom of movement.  These being the primary examples of illegal practice in host countries.
So we’ve got an odd dichotomy if you think about it this way.  If the developed world by and large - and again these are broad brushed characterisations.  By and large developed states are extraordinarily tough about the point of entry.  They will take steps either to prevent refugees from  getting anywhere near them or they will apply the definition in a very tough fashion.  But once recognised as a refugee, for the most part those states come fairly close to honouring their obligations in terms of the content of protection.  In the less developed world it tends to be precisely the reverse.  Little attempt to deter the entry of refugees, few efforts formally to access refugee status hence admission.  But lack of protection substantively in terms of rights protection.

ERIC VAN BEMMEL
I notice that in the list of signatory nations there are some large countries that are missing.  The 147 signatories do not include for example India or Indonesia, Vietnam.  Why is that?

JAMES HATHAWAY
Well I want to take one step back and talk about the importance of signing and not signing because sometimes lawyers can get a little fixated about signatures on a piece of paper.  A country like China, China actually, despite having signed the treaty, treats refugees abysmally.  People routinely cross the border from North Korea fleeing vicious forms of persecution and are similarly expelled back to North Korea despite being refugees under international law.  So that’s an example of a country that has signed the piece of paper but in practice routinely violates its obligations.  There are other countries that have not signed the piece of paper that actually do a pretty good job by refugees by and large so long as they are supported by states on the outside financially and logistically. 
There is this group though that you refer to and interestingly it’s predominantly a group of Asian states, largely in south Asia from the Indian sub continent straight through to Indonesia and into the whole of south east Asia that has historically refused formally to be bound by refugee law.   India for example has made the argument and I understand this argument, that it’s surrounded by a lot of countries that do in fact tend to produce a significant number of refugees.  That to sign on to an international treaty that requires them not to sent back any person who meets the definition whatever India’s own circumstances, and not only not to sent them back but to grant them rights to work, to education etc in a country that’s struggles to meet the needs of its own citizens, is to ask too much.
My argument has always been that what we need really to do in order to engender sufficient trust on the part of such states is to come up with a regime of what I call international burden and responsibility sharing.  Burden referring to the financial side and responsibility for the human side.  There’s no good reason that when this happened, 10 or 15 years ago a country like Tanzania gets hit by one and a half million refugees crossing their border in 36 hours.  Just imagine that.  That country and that country alone should bear the totality of the responsibility to protect.  An accident of geography in other words, not to be the determinant of how we share out responsibilities and indeed financial burdens.
So my sense is the key to bringing many more, particularly south Asian and south east Asian states into the regime is for them to understand that they will not be taking on unilateral responsibilities that no-one else has a duty to assist with.  If that change were to occur and it can occur without amending the current refugee treaty, then I think we’d have a chance at broader participation.

ERIC VAN BEMMEL
So that’s part of your wish list for reform of refugee law.  You mentioned common but differentiated responsibility, how does that?

JAMES HATHAWAY
Well the idea is, it’s a term that’s been used in international environmental law for some time and I’ve simply brought it to the refugee context.  Think about the environmental context for the moment and I’ll come back to the refugee parallel.  The idea is we have a common problem like global warming.  Some states can contribute to fixing that problem by immediately cutting industrial pollution, others can grow rainforests that will restore the ability of the environment to actually cope with pollution.  Each state does what it can in its own way to achieve a collective end namely restoring the environment.  The same is true of refugees.  Some states - take Tanzania that I referred to a moment ago that are right on the front lines of massive numbers of flows - will inevitably, just given where they are, be the states that are called upon to provide what is often called first asylum.  That is immediate triage, let me get out of the place where I’m about to be killed and be safe at least for now.
Other states, not necessarily on the front lines, could provide ongoing protection for refugees after that initial moment of safety for the two, three, four or five years that most refugees do tend to stay away.  About half of refugees tend to repatriate to their own countries within three to five years.  There’s no need for that to be the same country where you first arrived.  We could share out that responsibility amongst others largely in the region.  About half the refugee population though won’t be able to go home safely after five years.  That’s a group that will need to be resettled.  That’s where countries that are further outside the region could and in my view should, make not discretionary but binding commitments to receive individuals who ultimately can never go home safely.  So the idea is three different sets of physical responsibilities, different states playing different roles rather than just where you show up being presumed to be the one state that will receive you immediately, look after you in the short-term and receive you permanently in the event you can’t go home.  That places too much pressure on accidents of geography.

ERIC VAN BEMMEL
So you’re envisioning an international system of coordination. How could that be brought about?  The convention as it stands now doesn’t really address that does it?

JAMES HATHAWAY
Well it’s interesting in one sense you’re correct that it doesn’t.  In another way the preamble to the refugee convention actually does speak about the desirability of states working in common to make the regime a reality.  Remember the history of this.  Prior to 1951 that’s precisely what did happen.  We did have a League of Nations high commissioner who made decisions on behalf of states.  We could do that again.  UNHCR could make that decision for all states.  It would probably save tens of millions of dollars in status determination costs.  We could then use those dollars to actually fund the protection of people in countries that can’t look after them and to provide for the physical resettlement mechanisms that we need to make durable protection possible.  The beauty is that the money is actually already in the regime.  I actually don’t believe there is a need for a significant infusion of new cash to make the regime of common but differentiated responsibility work.
Nor do I believe and I want to emphasise this because I’ve been misquoted on this.  Nor do I believe the current convention needs or should be renegotiated. I do not believe that.  We can implement the current convention differently simply by agreeing to do so.  It’s as simple as that.  States can sign on to a revised globalised regime in much the way that in the 1970s people did respond to the boat crisis outflow from Vietnam into various states in the region.  Different countries took on different roles, different levels of fiscal responsibility and ultimately we came up with a common solution to the problem.  That is a really wonderful precedent.  Similar precedents in Africa and Latin America that we should draw on to reinvigorate the current regime.

ERIC VAN BEMMEL
As a final question there’s bound to be increasing  numbers of climate refugees so called or environmental refugees, people displaced by an environmental catastrophe or the effects of global warming, the refugee convention doesn’t appear to provide for these people.  How can that be dealt with?  Is that also on your wish list?

JAMES HATHAWAY
Look by and large the refugee treaty doesn’t deal with it.  There will be some subsets of persons in that circumstance who will be refugees.  If for example the whole country is about to sink and the government decides to provide assistance to blacks but not whites, to men but not women, then that discriminated minority would indeed qualify as refugees.  But the more common scenario of an environmental refugee is that the entire populace, whatever their religion, whatever their politics, whatever their social background are equally at risk.  You’re right in that circumstance the refugee treaty doesn’t apply.  They’re actually much more akin to stateless people than to refugees.  There are people who simply have no place to go.

ERIC VAN BEMMEL
Or they’re internally displaced.

JAMES HATHAWAY
Indeed and so my view of this is the way to deal with the problem of so called environmental refugees is to actually look at reinvigorating the statelessness convention.  To think about new modes of statelessness.  It’s not just kids being born abroad without citizenship in the country where their mother gave birth.  It’s also about whole countries disappearing or becoming un-habitable.  If we were actually to take that treaty which provides for comparable rights to the refugee convention  to work, to social security etc and again think about common but differentiated responsibility to share out that responsibility across the world, it seems to me that we could indeed cope with the crises that I agree with you are inevitable. 
The real key is forward planning to accept binding legal obligations because people deserve protection but to implement the mechanisms of protection in a way that is fair to the states that will be called upon to receive people.  Those are not mutually exclusive or antithetical goals.  The challenge is a political one not a legal one.  It has been done in the past, it can be done again and the time is right for us now to be doing the hard work of reinvigorating the regime in that fashion.

ERIC VAN BEMMEL
Jim Hathaway many thanks for joining us today and giving us an overview of this complex area of international refugee law.

JAMES HATHAWAY
You’re most welcome.


Bron: http://upclose.unimelb.edu.au/episode/85-mythbusting-international-refugee-law#transcription




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