First published in The Interpreter, 6 April 2017.
2016 was a year of ‘extraordinary meetings’, as various actors and institutions convened a series of summits ‘to respond to perceptions of an unprecedented global refugee crisis’. Although each was different in process, content, membership and outcome, these meetings shared the common goal of strengthening international cooperative systems and individual states’ commitments to addressing the needs of the world’s refugees and other displaced people.
The Global Compacts on Refugees and Migration
One of the most significant of these efforts was the High-Level Plenary on Addressing Large Movements of Refugees and Migrants on 19 September 2016 in New York, at which the United Nations General Assembly adopted a set of commitments to enhance the protection of refugees and migrants, known as the New York Declaration for Refugees and Migrants. In the Declaration, states reaffirmed the importance of the international protection regime, and undertook to ‘fully protect the human rights of all refugees and migrants, regardless of status’, including by demonstrating full respect for international human rights and refugee law. Professor Elizabeth Ferris, who was closely engaged in the process, observed that this ‘reaffirmation of core principles of refugee protection was not a foregone conclusion, especially given the xenophobic climate in which the document was negotiated’.
States agreed to work over two years towards the adoption of two ‘Global Compacts’: one on migration, the other on refugees. Although both were outcomes of the New York Declaration and are being developed at the same time, each is very different.
The first is a Global Compact for Safe, Orderly and Regular Migration, to be adopted at an intergovernmental conference in 2018. While its content and scope is still open to significant negotiation, a relatively comprehensive schedule of intergovernmental meetings on the compact is already underway. It is a state-led process, albeit with significant input from the International Organization for Migration, and will also seek input from other relevant stakeholders, including relevant UN entities.
The Global Compact on Refugees is quite a different creature. Its title is shorter, after states retreated from the UN Secretary-General’s original proposal for a ‘Global Compact on Responsibility-Sharing for Refugees’. Yet, its general content is easier to predict, as it will be based on the Comprehensive Refugee Response Framework described in Annex I to the New York Declaration, which is being developed through a series of pilot schemes in Djibouti, Ethiopia, Honduras, Somalia, Uganda and the United Republic of Tanzania. In terms of process, Annex I also sets out a proposed way forward. The drafting of this compact will be led by the Office of the United Nations High Commissioner for Refugees (UNHCR), which will ‘engage with states and consult with all relevant stakeholders’. The proposed Global Compact on Refugees will be presented by the UN High Commissioner for Refugees in his annual report to the General Assembly in 2018.
While the Global Compact on Refugees is being overseen by the UNHCR, this agency has developed a proposed roadmap for how states and other stakeholders will engage with the process as the compact is drafted. Government buy-in will be essential to ensuring its success, and, separate from the outcome document itself, the process of drafting the Global Compact may also serve as a catalyst for important changes in the way states meet the needs of displaced people.
In this regard, it is noteworthy that a number of Australian government departments have begun to consider how they might participate in shaping and contributing to this compact. Australia has a long - and strong - history as a resettlement country, and demonstrated success in settling refugees and others from abroad. As co-chair of the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime, a member of the East Asia Summit, and an important aid and development partner in the region, Australia has the capacity to play a leadership role in feeding through good lessons, building capacity, and sharing expertise. To the extent that these efforts might seek to reinforce international refugee law and even establish new norms on protection, they should be commended.
However, Australia’s track record on refugee protection is far from perfect, and warrants consideration before embarking on new initiatives. It has been observed that a sensible course would be for the Australian government to review Annex I to the New York Declaration and assess the extent to which its own policies accord with those standards, before making bold proposals or seeking to change policy in other countries. There is no shortage of material at the government’s disposal to aid in this assessment. Valid concerns about Australia’s treatment of refugees have been raised not only domestically by civil society and the Australian Human Rights Commission, but also on a consistent basis at the international level, most recently by Professor François Crépeau, UN Special Rapporteur on the Human Rights of Migrants.
Some of the more concerning aspects of current Australian asylum policy appear to enjoy bilateral support in Parliament, and are unlikely to be changed in the foreseeable future. While this should not prevent Australia from doing what it can to promote refugee protection elsewhere in the region, the government cannot, at the same time, simply dismiss international standards within Australia on the basis that change is not politically feasible. Australian law and policies must comply with at least the basic minimum standards of international human rights and refugee law, if Australia is to have true credibility in its engagement with the Global Compact on Refugees.
This is not simply a matter of legal purism. It is in line with the very reason why the extraordinary meetings of 2016 were convened in the first place, and both the language and content of the New York Declaration. Bringing Australia’s treatment of refugees into accordance with international standards is not idealistic, but rather a matter of its existing legal obligations; honouring the commitments made to the General Assembly last September; and acting in good faith as a member of the international community struggling to address the current realities of global displacement.
Respecting international norms is also strategic. There is no benefit in giving with one hand what the other takes away. If Australia intends to engage credibly and constructively with the Global Compact on Refugees, and to promote protection in the Asia-Pacific region, it must not undermine those objectives with its own policies. Leadership requires setting a good example, and modelling positive practices.
If, as a matter of political reality, it is not immediately possible to wind back those aspects of Australia’s deterrence policies that violate international law, it is essential that some degree of self-assessment and improvement nevertheless occurs. At the very least, there must be a shift in the divisive rhetoric of the asylum debate within Australia, and a genuine effort to ensure deterrence-based policies are linked to much more positive measures aimed at ensuring the full enjoyment of rights, on a non-discriminatory basis, of all refugees and other displaced people.
Ultimately, the core of any effort to improve the treatment of refugees, whether in the context of the Global Compacts or otherwise, must be protection. This requires commitment to not just the letter, but also the spirit, of the relevant bodies of law. This is where Australia’s greatest contribution to the Global Compacts process should lie.
For more information, see the Kaldor Centre Factsheet, 'The 2018 Global Compacts on Refugees and Migrants'.