The Australian Refugee Crisis: An International Law Issue

Australia, a country known for its laid-back culture, outback animals, and “shrimps on the barbie,” for the past sixteen years has recently been in the international law focus for a much less positive reason. In August of 2001, a Norwegian freight rescued 430 asylum seekers from a sinking vessel in the Indian Ocean.[1] The freight then sailed to Christmas Island, a remote territory of Australia, where it was refused permission to dock, a decision made by the former Prime Minister, John Howard.[2] In what has since been deemed the “Tampa Affair,” Howard declared that the rescued asylum seekers would not be granted relief on Australian shores.[3] In the years following the Tampa Affair, Australia’s polices and treatment of asylum seekers, or “boat people,” sailing to Australian shores has steadily placed the country’s actions in an unfavorable light in the international law community.

The Tampa Affair is now viewed as the event that sparked a significant shift in Australian refugee policy; a policy that transformed an already strict system into one that included even stricter standards to appear tough on illegal immigration. Unfortunately, an aversion to being soft on immigrants has led to the years of limbo for asylum seekers with valid claims of persecution in their countries of origin.

Since 2001, Australia has elected five different Prime Ministers, created offshore refugee detention centers, and committed what many scholars are calling human rights and international law violations. After the Tampa affair, due to an influx in migration and the increased arrival of “boat people,” the Australian government began to reform numerous refugee policies, which became known as the “Pacific Solution.”[4] This so-called solution created offshore processing for asylum seekers who arrived by boat via third countries. In an effort to “stop the boats,” asylum seekers who arrive to an Australian territory by boat are detained by Australian authorities and sent to another nearby country to have their refugee claims accessed under that third country’s laws.[5]

In general, the international community has condemned this type of offshore processing as a violation of the principle of non-refoulement. However, this condemnation did not soon stop the Australian government from contracting with two islands, Papua New Guinea (PNG) and the small island of Nauru, to house detained asylum seekers in detention centers. In exchange for their participation, the Australian government has offered financial support to PNG and Nauru totaling AU$500 million and AU$25 million respectively for education, poverty reduction, and lawlessness.[6] While it is not out of the ordinary for an economically stable country to aid countries that are less developed, in this case it is not difficult to conclude that the third countries are benefiting from Australia’s human rights violations considering the aid to both PNG and Nauru has quadrupled since the agreement began.[7]

Regardless of the figures above, Australian officials have consistently tried to show their “clean hands” in the matter. Australian leaders point to the fact that the asylum seekers being detained are outside of Australian territory, as if this fact separates the country from responsibility. Despite all the efforts by the Australian government to distance themselves from the detention centers, PNG officials have indicated that the Australian government is the sole administrator of the detention centers functions and operations.[8] In fact, “in late 2012, the Australian government hired private immigration consulting and security firms to handle the daily operation of the Nauru and Manus Island detention facilities.[9]

Australia’s continued involvement with the detention centers is not a trivial factor in the refugee crisis. As a signatory to both the Refugee Convention and the 1967 Protocol, Australia has accepted an obligation to “uphold the rights of detainees under its control.”[10] One Australian government report unequivocally recognized the country’s obligation that states “refuges will be subject to a state’s jurisdiction where the state exercises effective control over a person extraterritorially-in which case, relevant human rights obligations will apply.”[11] Such acknowledgment of obligation by the Australian government begs the question, how have the human rights violation taking place on the Island detention centers gone unresolved?

Many asylum seekers do not have an easy journey to reach their intended destination. They pay large sums of money to refugee-smugglers, separate themselves from their family, and often leave with little money for the chance of a better life. Additionally, the boats they take are rarely adequate for either the distance they must travel or the dangerous seas they must face. Upon arrival to the shores of another country, the chances are high that they do not speak the native language and have little knowledge of their rights as asylum seekers. However, this work must mention that it is not a violation of international law obligations by a sovereign nation to detain refugees. States often use detention to process the claims of asylum seekers and ensure national security. However, it must be highlighted that the way in which asylum seekers are housed is critical to an assessment of human rights violations. According to the UNHCR, states are encouraged to ensure that the detention not be “prolonged, arbitrary, or used to deter future refugee migration.”[12] However, Australian government seems to be doing exactly what the UNHCR cautions against.

Prime Minister Turnbull approved the closure of the detention center on Manus Island, which took effect in October of 2017. The hundreds of remaining men on Manus Island were offered the chance to move to Nauru’s detention center or into government provided housing, although many have refused the offer.[13] This refusal can be explained largely by the fear of locals, since on PNG it is common for refugees to face riots, fights, and locals breaking into the detention center.[14]

Critics of the arrangement suggest that Australia is again passing the issue from one dangerous environment to another, rather than offering the nearly 700 formally recognized refugees a safe place to resettle.[15] In response, the Minister for Immigration and Border Protection, Peter Dutton has stated that Australian officials are doing what they deem necessary to close the Manus detention center and provide housing for those detained there.[16]

While the closing of the detention center may be a step in the right direction, Australian officials are still refusing to resettle asylum seekers on Australian shores, which has led many human rights advocates and international law actors to believe that more can and should be done to remedy the Australian refugee crisis.

This work does not wish to suggest that the Australian refugee crisis is one that is simple or without numerous factors to consider. Reaching a solution that protects asylum seekers while simultaneously respecting Australia’s sovereignty is undoubtedly a difficult endeavor.

However, one step towards a resolution of this crisis is governmental transparency. It cannot be ignored that Australian authorities have failed to keep the public accurately informed as to the human rights violations that many asylum seekers and boat people suffer each day they are detained.

A more transparent Australian government is only one piece of a complex issue. By abandoning offshore processing and moving to a system of solely onshore processing, Australia would no longer be in violation of international law obligations and asylum seekers would likely be processed with fewer delays. Australia’s long history of settling large numbers of international migrants, detailed processing procedures, and services provided by NGOs all increase the likelihood that the country would transition with relative ease from offshore to onshore processing. Not only should the citizens of Australia encourage the government to abandon offshore processing, the international community and other sovereign states should also play a role in encouraging Australia’s transition.

Australia’s treatment of the “boat people” who reach their shores has been less than welcoming. While there is a plethora of factors to consider, the loudest of them all should be the human rights violations endured by the nearly one thousand refugees still held in an offshore detention center. These sixteen years have seen too many avoidable suicides committed by asylum seekers and protest by concerned citizens but little improvement of refugee policies. While critically important, transparency alone will not eradicate the issue. Australian officials must remember their international obligations and close offshore processing detention centers. This work seeks to act as a reminder that the “boat people” of Australia are still people; people with rights that must no longer be ignored and infringed upon.

 

Written By Carmen Jackson
Rule of Law Collaborative Fellow

 

Sources:

[1] Jared L. Lacertosa, Unfriendly Shores: An Examination of Australia’s “Pacific Solution” Under International Law. 40 Brook. J Int’l L. 321, 321, 2014.

[2] Id.

[3] Id.

[4] Id. at 321.

[5] Id.

[6] Id. at 338

[7] Id.

[8] Id.

[9] Id.

[10] Id.  at 340.

[11] Id. at 328

[12] Jared L. Lacertosa, Unfriendly Shores: An Examination of Australia’s “Pacific Solution” Under International Law. 40 Brook. J Int’l L. 321, 329, 2014.

[13] Ben Doherty, Refugees on Manus Island Offered Chance to Move to Nauru. The Guardian.

[14]

[15] Id.

[16] Manus Island Refugees Fear for Safety, Refufes to Leave Centre, Al Jazeera English. YouTube. https://www.youtube.com/watch?v=3C3vTnjZSH4

 

The views and opinions expressed in this post are those of the author and do not represent the views, opinion, policy, or position of the South Carolina Journal of International Law and Business, the University of South Carolina, or any other entity whatsoever with which the author has been, is now, or will be affiliated.

Information on this website is not intended to convey or constitute legal advice.