US-Aussie refugee swap comes under fire
Thalif Deen
UNITED NATIONS: A controversial bilateral deal between Australia and
the United States to swap refugees has triggered a storm of protests
from human rights activists and legal experts.
According to the New York-based Human Rights Watch (HRW), some 90 Sri
Lankan and Burmese refugees held at an Australian-run detention centre
on the Pacific island nation of Nauru would be sent to live in the
United States.
Australia, in turn, would reciprocate by taking up to 200 Cuban and
Haitian refugees held at the US Navy base at Guant namo Bay, Cuba.
The deal, announced Wednesday, “is a real law point in the protection
of fundamental human rights,” says Michael Ratner, president of the
Centre for Constitutional Rights. Refugees are human beings; they are
not commodities and items of trade. This is absolutely outrageous, he
added.
“It appears that officials from these countries have lost all their
humanity,” Ratner told IPS.
Bill Frelick, HRW’s refugee policy director, said the two countries
have signed a deal that bargains with lives and flouts international
law.
He pointed out that the only conceivable reason for this refugee swap
is to deter future asylum seekers from trying to reach the United States
or Australia by boat.
“Yet, international refugee protection principles hold that detention
and similar measures should never be used solely as a deterrent to other
would-be refugees,” he added.
By housing refugees on Nauru and at Guant namo Bay, both Australia
and the United States are trying to avoid their legal obligations under
the 1951 Refugee Convention, HRW said in a statement released Thursday.
“The trade deal violates the spirit of the legal obligation not to
expel a refugee, except for national security reasons and only after a
decision in accordance with due process standards,” it added.
Neither government cited any national security rationales for the
exchange in refugees, HRW noted.
Ratner, whose Centre for Constitutional Rights is challenging the
legality of unlawfully detaining terror suspects in Guant namo Bay,
said: “There is no place in a just world for Guant namos or Naurus — and
certainly no place for trading human beings, as was done in the days of
the slave trader.”
Asked if Australia and the United States may be trying to avoid their
legal obligations under the 1951 Refugee Convention, professor Tai-Heng
Cheng, associate director at the Centre for International Law at the New
York Law School, told IPS the two countries may not be technically
violating either the Refugee Convention or international law.
Article 32 of the Convention prohibits states from expelling refugees
lawfully in their territory, but Guant namo and Nauru are not part of
the United States and Australia’s sovereign territories, respectively,
he argued.
Cheng said the arrangement may not necessarily be contrary to the
spirit of the Convention.
Its preamble recognizes the humanitarian nature of the problem of
refugees, but also that the grant of asylum may place unduly heavy
burdens on certain countries, and mandates international cooperation to
obtain a satisfactory solution.
He pointed out that refugee law in 1951 responded to the horrors of
“hot” conflicts in the Second World War, when mass migration of humans
was not as easy as today.
Today, he said, many refugees from Cuba, Haiti, Sri Lanka and Burma
(Myanmar) flee political systems rather than hot conflicts, and may do
so en masse, with or without the involvement of human traffickers.
This latest arrangement shows the tremendous pressure that the
international system has now come under to balance the pressing needs of
refugees with the genuine sovereign interests of states, Cheng added.
The global community needs to seriously reconsider how we might
coordinate our efforts to protect refugees without unduly burdening
states.”
Norman Solomon, executive director of the Washington-based Institute
for Public Accuracy, says treating human beings as commodities is
“unfortunately”, in keeping with the policies of US President George W.
Bush and Australian Prime Minister John Howard.
“Apparently the sanctity of the family, so apt to be invoked in their
rhetoric, is a highly selective concern for the leaders of the US and
Australian governments.”
The concept of human rights for refugees, Solomon told IPS, “seems to
be foreign to the very leaders who have been eager to cite human rights
as a purported justification for the invasion and occupation of Iraq.”
Perhaps this is an extension of the Bush-Howard vision of
globalisation, he noted.
“Trade becomes debased into the exercise of elite conveniences at the
expense of unfortunate human beings.” In material terms, he argued, Bush
and Howard can hardly be called unfortunate.
“But their willingness to move refugees across the Earth, in a
geopolitical chess game, speaks to a depravity in their leadership that
makes a mockery of their rhetoric about democracy, compassion and
freedom,” said Solomon, author of “War Made Easy: How Presidents and
Pundits Keep Spinning Us to Death.”
Monique Beadle, refugee project director at the World Organization
for Human Rights USA, said the latest move by the U.S. government to
flout its obligations under the Refugee Convention and other
international human rights treaties comes as no surprise.
“The government has routinely and consistently asserted that its
obligations under human rights treaties do not apply in Guant namo
despite clear guidance from the Supreme Court to the contrary,” Beadle
told IPS.
She said it is well established that refugees have a right to seek
protection in the Western country they are able to reach, and that
family unity should be a key consideration in evaluating refugee claims.
“Nothing in the Refugee Convention permits Western countries to
detain refugees arbitrarily, or to transfer them to far flung continents
at whim,” she added.
Asked if there was any action the United Nations can take to prevent
similar deals in the future, Cheng said that as an immediate first step,
UN Secretary-General Ban Ki-moon might approach the United States and
Australia for their consent to dispatch small monitoring teams to ensure
that the new arrangement is consistent with international law.
“It is in the interests of both states to demonstrate to the world
that refugees under the arrangement are no worse off than they would
have been prior to this arrangement.”
He also said that an advisory opinion from the International Court of
Justice in The Hague might be sought to clarify the rights and
obligations of states under the Refugee Convention and International
Law, and specifically whether states are permitted to enter into
arrangements such as the present one.
In the medium term, the 192-member UN General Assembly might consider
how states can better coordinate their efforts to find acceptable
solutions to all parties to address the pressing human rights concerns
of genuine refugees, with a view to issuing a resolution on this issue.
Eventually, he said, the General Assembly might convene a conference
to revise the Refugee Convention to better account for the needs of
receiving states in exchange for more effective enforcement mechanisms.
IPS |