A Half-Century of Universal Refugee Protection Under Threat

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First published in Refugees Deeply, 4 October 2017

Fifty years ago, the 1967 Protocol Relating to the Status of Refugees entered into force. It would finally put the international protection of refugees on a universal basis, without limit of time or place. It would thus provide the framework for a truly international response to international problems that no one state should bear alone.

In the following years, nations worked together to meet the humanitarian needs of those displaced by World War II, the survivors of genocide and persecution, and the victims of other totalitarian regimes. They were soon followed by other waves of displacement, refugees from violent attempts to suppress national liberation and the casualties of the struggle for freedom against authoritarianism – as we see today with the long six years of war in Syria.

We still need this international refugee regime today, which draws on nearly 100 years of knowledge and experience. It brings together the Office of the United Nations High Commissioner for Refugees (UNHCR), more than 100 states that make up UNHCR’s Executive Committee, and some 148 states that have signed on to one or both of the principal refugee treaties, the 1951 Convention and its 1967 Protocol.

The regime depends on a number of balances, expectations and commitments, as well as rules, obligations and principles: that a refugee is entitled to international protection; that no refugee should be sent back to where he or she may be at risk of persecution, torture, death or other relevant serious harm; that those in search of refuge should be treated humanely; and that solutions to the problem of refugees depend on, and demand, international cooperation.

In 1951, many states then negotiating the Refugee Convention were apprehensive about signing a proverbial blank check – they wanted to know who and how many people might be entitled to protection. But it was not long before they recognized that artificial constraints could not hold back the tyranny, persecution and conflict that would drive the many to seek refuge. So that is why, in 1967, they signed on to the Protocol, laying the foundations for something remarkable and universal.

Some things, of course, they could not or would not do. States were not then prepared, and still are not, to commit to fixed financial contributions to meet the material dimensions of protection; or to grant permanent asylum to refugees as a lasting solution; or to resettle agreed numbers of refugees from countries of first asylum.

Despite these and other systemic gaps, the international community has muddled through, for better or worse, with the majority of states committed to refugee protection playing their part, somewhat reluctantly on occasion, while others fall short of what they could do, and of what local communities often demand that they should do.

Into this imperfect working model, Australia threw a spanner, or something worse. Following the policies of the early 2000s, it proclaimed again in 2012 its intention to detain for so-called “off-shore processing” all and any asylum seekers arriving by boat or intercepted at sea. And in 2013, it added the further twist that all would be banned for ever from setting foot in Australia, let alone finding here a solution to their search for refuge and protection, family and other links notwithstanding.

No state that had ratified the 1951 Convention or 1967 Protocol had ever done this before. Australia chose not to play by the rules, unilaterally announcing to the world that it would no longer do its bit, and that the world would just have to pick up the pieces and pay the price. Australia let the side down.

The world, not having been consulted on this new approach, did not rush to Australia’s assistance to take off its hands those intercepted and detained, and found in need of protection. After all, what was the refugee regime getting back in return? In exchange for mollycoddling local hang-ups about boat arrivals, did Australia triple its financial contribution, or offer to raise its resettlement quota to 100,000 a year? No. Nothing.

Other countries might have been prepared to exceptionally indulge Australia’s fears, but this would have needed negotiation ahead of time – processes of discussion, cooperation, even compromise, which Australia seems never to have thought of, or was simply incompetent to advance. Having failed to do this groundwork, Australia’s position became yet more unattractive, once the abuse and ill-treatment of those detained become apparent. Why, now, would any other nation want to become party to all of this, and to indulge such policy and practices?

Australia’s unilateralism and misplaced assumptions have done damage to its reputation at a time when it seems to want to play an international human-rights role, and when its long track record of refugee resettlement and successful integration programs could enable it to make a strong contribution to the Global Compacts on refugees and migration now being negotiated in the UN.

Its ill-thought out policies have also done untold harm, of course, to hundreds of victims – the asylum seekers held for years in cruel conditions. Compensation, in a settlement approved by the courts, will now be paid and satisfy some of the civil liability. However it may now be time to consider, in the interests of democratic accountability and the rule of law, the question of criminal liability. Knowingly and intentionally placing individuals at foreseeable risk of physical and mental harm has all the makings of an offense, and there may be jurisdictions out there willing to take up the case.

It is ironic that 50 years ago nations were able to see the broader picture, while some today seem unable or unwilling to think and act internationally in the face of challenge that requires international and cooperative responses.

It is regrettable that billions more dollars look likely to be squandered servicing local, short-term, media-driven goals, while ignoring and underinvesting in critical elements of human security at home, such as education, poverty eradication, social protection; or in helping to address the drivers of displacement abroad, including conflict, persecution, and underdevelopment.