Shaking the foundation of the Refugee Convention

This year marks the 60^th anniversary of the 1951 Universal Declaration of Human Rights and signing of the Refugee Convention.  The Refugee Convention is the key legal document in defining who is a refugee, their rights and the legal obligations of states.  Australia is a proud signatory and was one of the first countries to accede to the Convention (there are currently 147 signatory countries).  The Convention is upheld internationally as one of the earliest human rights instruments and is significant as it provides safeguards for people feeling from torture and trauma who are seeking protection.

The 2011 Refugee Conference held in Sydney last month and the recent Malaysia deal announcement reminded me of the relevance and importance of the Convention. There are currently 44 million displaced people in the world – people for who the refugee convention is their only legal status and avenue to protection.  Most people have a passport, drivers licence or birth certificate to prove their identity. Many refugees only have the Convention.  It’s their life, dignity, safety and legitimacy.  To question the relevance of the refugee convention is like questioning the relevance of having an identity.

As discussions of a Malaysia ‘people swap solution’ surfaced and have now been finalised and announced, not only has the relevance and importance of the Convention been illuminated, so has its legitimacy.  Its legitimacy in that a signatory country to the Convention, Australia, is looking to transfer people to a non signatory country – without the UNHCR’s endorsement.

How can this be?  How can it be that human rights groups internationally are condemning the deal and the Convention states that ‘state parties to the Refugee Convention can share responsibility to protect refugees as between them so long as those arrangements respect all of the refugees acquired rights but you can’t share obligations with a state that hasn’t got any obligations and that’s the case for Malaysia’. As identified by Professor James Hathaway the UN Refugee Convention is the only major UN human rights treaty that does not have an international supervisory body.  This means that Australia, as a signatory country, can breech the Refugee Convention without any ramifications or consequences.

In addition to the proposed swap with Malaysia, Australia is also in breach of three of the five fundamental principles of the Refugee Convention – namely no detention unless for a limited time, providing an opportunity for refugees to work and safe guards for those who are children or vulnerable.  Australia is knowingly breaching these aspects of the convention, yet the UNHCR is powerless to do anything.

This highlights that while the Convention is still as relevant and important as it was 60 years ago, it is restricted in its legitimacy by the lack of a regulatory body or consequences for signatory countries who breach their commitments.  Compliance to the Refugee Convention must be regulated to confirm and continue the importance of accession.

To be told at the Refugee Conference that standards for refugees in some non signatory South East Asian countries are better than standards for refugees in Australia, who is a signatory country, is shocking.  Australia should be a proud to be a signatory country and should be proud to uphold the principles.  The Malaysia Solution and policy of mandatory detention are not policies that uphold the principles, and for this we should be ashamed.