At a time when international cooperation on refugees is most sorely needed, countries are instead resorting to increasing unilateralism. Australia is at the forefront. Retreating inwards by trying to seal off borders to people in search of protection is both unrealistic and unsustainable.
The international protection regime itself – by which I mean the Refugee Convention, bolstered by human rights law and supporting soft law instruments – is normatively strong and legally sound. The reason there is such a large protection gap can be boiled down to one thing: political will – or rather, the lack thereof.
Khalid Koser argues in his new paper for the Lowy Institute (Australia and the 1951 Refugee Convention) that the international refugee regime is 'failing Australian national interests; the interests of the international community; and the interests of refugees themselves'. He suggests that 'Australia should lead a reform of the international system for assisting and protecting refugees'. Koser's suggestions need to be understood within the full context of his report, since his arguments are more nuanced than this snapshot from the executive summary suggests.
As Koser himself notes, the failure of protection lies not in the international refugee regime itself, but in government attempts to avoid the commitments they voluntarily assumed when they signed up to it. Indeed, any review of the 1951 Refugee Convention would be unlikely to resolve the protection gaps that we see throughout the world today. Given the reluctance of states to extend protection to the millions who need it, any formal renegotiation of obligations would likely see an even greater contraction of the protection space.
Still, Koser suggests that Australia is facing an 'asylum crisis', and that the international refugee regime is part of the problem. However, the numbers of asylum seekers attempting to arrive in Australia cannot be characterised as a 'crisis' on any objective measure. At the peak in 2013, 20,587 asylum seekers came by boat to Australia in search of protection. While that figure was certainly higher than in previous years, it paled in comparison to the 173,100 asylum seekers who entered Germany in 2014, or the 138,000 Syrians who entered Turkey in just a few days in September last year. On a per capita basis, between 2010–14 Australia received only 2.2 asylum seekers per 1,000 inhabitants.
This represented less than 2% of the world's asylum seekers.
Koser argues that many asylum seekers are not really refugees in need of protection. While it is true that refugees are increasingly part of mixed migration movements, in the Australian context the vast majority of asylum seekers who arrive by boat are, in fact, refugees – often around 90%. Publicly available recognition rates from Nauru and PNG are also high: around 70%, and even higher once appeals are taken into account.
There is clearly a need for states to take a different approach to the management of asylum movements. But the current Australian response is not it. Indeed, given Australia's disdain for any international criticism of its approach (see, for example, the Prime Minister's recent attack on the Special Rapporteur on Torture) it would be difficult for Australia to take the lead on any multilateral reform of the international protection system. Its credibility on this issue is at an all-time low.
Koser acknowledges that Australia's policies violate its obligations under the Refugee Convention, but suggests that it is not alone in this. Australia has forged an unprecedented attack on the Convention, and not just at the level of political rhetoric. It has changed its domestic law such that 'the failure to consider or comply with Australia's international obligations or a failure to consider the domestic law or international obligations of another country should not be able to form the basis of a domestic legal challenge'. Whereas many countries frame their domestic refugee law in light of their international treaty obligations, Australian law is now squarely pitted against fundamental principles of international refugee law.
Part of the reason this has occurred is that, unlike in many other parts of the world, there is no human rights court, domestic bill of rights or regional supervisory body that requires domestic law to be read consistently with international human rights obligations.
That many states in the Asia Pacific have not ratified the Refugee Convention is not an argument to retreat from its provisions, a point Koser accepts. Indeed, far from enhancing protection opportunities within the region, the current Australian approach is likely to diminish them further. When a rich, industrialised, well-resourced country like Australia drops its protection standards, then the incentive for other countries to step in and assist is similarly weakened. If Australia wants other countries to share responsibilities for protecting refugees, then it needs to set a positive example. Otherwise, it simply sends the message that refugees are unwanted and undesirable. A far more sustainable (and human-rights-attuned) approach to reducing the 'burden' shouldered by Australia would be to encourage our neighbours to increase their own protection capacity, and in so doing create durable solutions for refugees.
Koser emphasises the importance of creating better regional protection mechanisms 'as currently being promoted by the Australian Government'. While there is broad support among a range of stakeholders for enhanced regional cooperation on asylum, Australia's current approach is not focused on improving protection. Rather, Australia's engagement with its neighbours in the Asia Pacific is premised on stopping asylum seekers from moving onward to Australia, which includes returning asylum seekers whom Australian officials intercept, and asking them to host asylum seekers and refugees we refuse to admit or resettle. This is not an approach that should be encouraged or replicated elsewhere.
By contrast, UNHCR's 2010 proposals on what a regional cooperative approach in the Asia Pacific might look like have the potential to deliver more effective long-term results. Truly cooperative regional approaches may help states to develop more predictable responses to refugee movements, and over time enable a fairer distribution of responsibilities among states for their protection and assistance.
Finally, Koser notes the importance of adequately financing the international protection regime. In 2013–14, Australia spent $3.3 billion on the detention and processing of several thousand asylum seekers who arrived by boat. By contrast, the 2014 budget for UNHCR – an agency with over 50 million displaced persons under its mandate – was around $3.5 billion. There is an obvious imbalance here. If Australian funds were channeled into the international system, this would almost double UNHCR's budget to assist displaced people, and in turn reduce the need for onward movement. Taking a 'bigger picture' approach to the phenomenon of forced migration highlights why Australia's present unilateralist stance is not only unsustainable but also counterproductive.
Photo courtesy of Flickr user Photo Unit.