Convention Relating to the Status of Refugees

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Convention Relating to the Status of Refugees

28 July 1951 (31 January 1967)

Signed
Location Geneva (Switzerland)
Effective 22 April 1954 (4 October 1967)
Signatories 144
Convention: 145[1]
Parties [1]
Protocol: 146
Depositary Secretary-General of the United Nations
English and French
Languages (Chinese, English, French, Russian and
Spanish)
1951 Refugee Convention at Wikisource

The Convention Relating to the Status of Refugees, also known as the 1951 Refugee Convention, is
a United Nations multilateral treaty that defines who is a refugee, and sets out the rights of individuals
who are granted asylum and the responsibilities of nations that grant asylum. The Convention also sets
out which people do not qualify as refugees, such as war criminals. The Convention also provides for
some visa-free travel for holders of travel documents issued under the convention.

The Convention builds on Article 14 of the 1948 Universal Declaration of Human Rights, which recognizes
the right of persons to seek asylum from persecution in other countries. A refugee may enjoy rights and
benefits in a state in addition to those provided for in the Convention. [2]

Contents

1 History

2 Definition of refugee

3 Responsibilities of parties to the Refugee Convention

4 The principle of non-refoulement

5 Today

6 See also

7 References

8 External links

History

The Convention was approved at a special United Nations conference on 28 July 1951. Denmark was the
first state to ratify the treaty on 4 December 1952, which entered into force on 22 April 1954. It was initially
limited to protecting European refugees from before 1 January 1951 (after World War II), though states
could make a declaration that the provisions would apply to refugees from other places.

The 1967 Protocol removed the time limits and applied to refugees "without any geographic limitation",
but declarations previously made by parties to the Convention on geographic scope were grandfathered. [3]
(Although, like many international treaties, the Refugee Convention was agreed in Geneva,[4] it is incorrect
to refer to it as "the Geneva Convention," because there are four treaties regulating armed conflict known
as the Geneva Conventions.)

As at 1 July 2013, there were 145 parties to the Convention, and 146 to the Protocol. [1][5][6] Most recently,
the President of Nauru, Marcus Stephen, signed both the Convention and the Protocol on 17 June 2011 [7]
[8]
and acceded on 28 June 2011. Madagascar and Saint Kitts and Nevis are parties only to the
Convention, while Cape Verde, the United States of America and Venezuela are parties only to the
Protocol.

Definition of refugee

Article 1 of the Convention, as amended by the 1967 Protocol, defines a refugee as this:
"A person who owing to a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is outside the country of
his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of
that country; or who, not having a nationality and being outside the country of his former habitual
residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.." [9]

Several groups have built upon the 1951 Convention to create a more objective definition. While their
terms differ from those of the 1951 Convention, the Convention has significantly shaped the new, more
objective definitions. They include the 1969 Convention Governing the Specific Aspects of Refugee
Problems in Africa by the Organisation of African Unity (now African Union) and the 1984 Cartagena
Declaration, while nonbinding, also sets out regional standards for refugees in Central America, Mexico
and Panama.

Responsibilities of parties to the Refugee Convention

In the general principle of international law, treaties in force are binding upon the parties to it and must be
performed in good faith. Countries that have ratified the Refugee Convention are obliged to protect
refugees that are on their territory, in accordance with its terms. [10]

There are a number of provisions that States parties to the Refugee Convention and 1967 Protocol must
adhere to. Among them are:

Cooperation with the UNHCR: Under Article 35 of the Refugee Convention and Article II of the
1967 Protocol, states agree to cooperate with United Nations High Commissioner for Refugees
(UNHCR) in the exercise of its functions and to help UNHCR supervise the implementation of the
provisions in the Convention.[10]

Information on national legislation: parties to the Convention agree to inform the United
Nations Secretary-General about the laws and regulations they may adopt to ensure the
application of the Convention.[10]

Exemption from reciprocity: The notion of reciprocity- where, according to a country's law, the
granting of a right to an alien is subject to the granting of similar treatment by the alien's country
of nationality- does not apply to refugees. This notion does not apply to refugees because
refugees do not enjoy the protection of their home state. [10]
 This section is empty. You can help by adding to it. (October 2015)

The principle of non-refoulement

Main article: Non-refoulement

A refugee's right to be protected against forcible return, or refoulement, is set out in the 1951 Convention
relating to the Status of Refugees:

"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers
of territories where his life or freedom would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion" (Article 33(1)). [10]

It is widely accepted that the prohibition of forcible return is part of customary international law. This
means that even States that are not party to the 1951 Refugee Convention must respect the principle of
non-refoulement.[10] Therefore, States are obligated under the Convention and under customary
international law to respect the principle of non-refoulement. If and when this principle is threatened,
UNHCR can respond by intervening with relevant authorities, and if it deems necessary, will inform the
public.[10]

Today
The rights promulgated by the Convention generally still stand today. Some have argued that the complex
nature of 21st century refugee relationships calls for a new treaty that recognizes the evolving nature of
the nation-state, population displacement, and modern warfare. [11] [12] Nevertheless, ideas like the principle
of non-refoulement are still applied today, with the 1951 Convention being the hallmark of such rights.

References
"Chapter V Refugees and Stateless Persons". United Nations Treaty Series. 22 July 2013. Archived
from the original on 14 November 2012. Retrieved 22 July 2013.
Convention relating to the Status of Refugees, Article 5.
"Treaty Series - Treaties and international agreements registered or filed and recorded with the
Secretariat of the United Nations" (PDF). 606 (8791). United Nations. 1970: 268. Retrieved 2013-10-19.
UNHCR: 1951 to Today
"Chapter V Refugees and Stateless Persons". United Nations Treaty Series. 22 July 2013.
Archived from the original on 1 April 2012. Retrieved 22 July 2013.
UNHCR: States Parties to the Convention and Protocol, retrieved 15 July 2010
"Nauru signs UN refugee convention". Radio New Zealand International. 17 June 2011. Retrieved
26 September 2011.
"Nauru's UN move on refugee convention adds to pressure on Labor", The Australian, 17 June
2011
United Nations High Commission for Refugees. (2012). Text of Convention. Retrieved 5 May 2012.
Archived 7 June 2012 at the Wayback Machine.
UNHCR: Refugee protection: A Guide to International Refugee Law, 2001, ISBN 92-9142-101-4,
retrieved 19 August 2015
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2768162
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2617336

Should the 1951 Convention be revised?

 The UN Convention relating to the Status of Refugees is the key international legal document relating to
refugee protection. It defines who is a refugee and outlines the rights of refugees and the legal obligations
of states towards refugees. It also underpins the work of UNHCR. There are currently 144 States Parties
to the 1951 Convention and 145 to its 1967 Protocol, with 142 States Parties to both the Convention and
Protocol.[1]

Some commentators argue that the Convention is so dated as to no longer apply to the current realities of
those in need of international protection. One point concerns the Conventions definition of a refugee as a
person who:

Owing to (a) well-founded fear of being persecuted for reasons of race, religion, nationality, membership
of a particular social group, or political opinion, is outside the country of his nationality and is unable or,
owing to such fear, is unwilling to avail himself of the protection of that country.[2]

This definition reflects that the Convention was drafted specifically to find solutions for those who had
been displaced across Europe by Nazism and the Second World War. Hence, as originally drafted, it
covered only those who were refugees as a result of events occurring before 1 January 1951 and
focused on events in Europe. These geographical and time constraints of the 1951 Convention were
lifted by its 1967 Protocol, thus broadening its applicability. The definition of a refugee was further
expanded in two regional complements to the 1951 Convention, the 1969 OAU Convention and the 1984
Cartagena Declaration, to cover particular circumstances in Africa and Central America respectively.

Nevertheless, significant gaps remain in the definition as it applies to contemporary circumstances. [3] In
particular, there is a growing consensus that over the next decade or so, the effects of environmental
change are likely to compound other drivers of displacement, increasing migration pressures globally
including in Australia.[4] It is clear that the definition of a refugee provided in the 1951 Convention does
not refer to environmental causes for flight; but that at least some people forced from their homes
principally by the effects of environmental change will cross borders and require protection and
assistance in refugee-like situations.[5]

The 1951 Convention specifies three durable solutions for refugees: to return to their own country
voluntarily (voluntary repatriation); to integrate in the country where they find themselves (local
integration); or to resettle in another country (third country resettlement). Its focus on solutions is
among the Conventions strengths, but also reflects the situation of the refugees for whom it was
established people who had already been forced from their homes. Another critique is that neither the
Convention nor UNHCR were originally envisaged to deal with new refugees after solutions had been
found for those displaced across Europe after the Second World War.

In particular, the 1951 Convention does not refer to asylum seekers although it promotes the right to
asylum and this is one of the main reasons why the Convention has proved so hard to implement in
contemporary circumstances. In contrast to the already displaced individuals that the Convention was
established to cater for, an asylum seeker is someone who has left their country in search of international
protection, but is yet to be recognised as a refugee. According to Article 14 of the Universal Declaration of
Human Rights everyone has the right to seek and to enjoy in other countries asylum from
persecution.[6]

In other ways, though, the 1951 Convention is valid and applicable to current circumstances. First, it
enumerates a set of rights for refugees, albeit relatively narrowly defined. In recognition of the fact that
they have fled their home countries and no longer enjoy the legal protection afforded to citizens of a state,
the Convention provides access to national courts for refugees, the right to employment and education,
and a series of other social, economic, and civil rights on a par with nationals of the host country. The
1951 Convention also stipulates rights specific to refugees, including protection from penalties for illegal
entry. As a signatory to the 1951 Convention Australia is not permitted to treat refugees arriving illegally
differently from those arriving legally.

Second, the Convention is underpinned by a number of fundamental principles, most notably non-
discrimination, non-penalisation, and non-refoulement. The last is perhaps the most significant: it refers
to the right of refugees not to be returned to a country where they risk persecution. Non-refoulement
remains the fundamental provision of international refugee protection, and is now considered a provision
of customary international law, binding even on states not party to the 1951 Convention.[7] Third, the
Convention lays down basic minimum standards for the treatment of refugees, without prejudice to states
granting more favourable treatment.

To be sure, there has been a gradual decline in the authority of the 1951 Convention. National and
regional jurisdiction has been applied to overcome some of the stipulations of the Convention in law; and
where these cannot easily be overcome legally, Australia has not been alone in flouting the Convention to
try to reshape it to contemporary settings. This decline means that standards are no longer applied
consistently.

Nevertheless, there is a strong argument that revising the Convention may jeopardise the rights,
principles, and standards that it enshrines. In the current political climate, states would be inclined to
negotiate a more restrictive Convention, rather than expanding the current refugee definition or reinforcing
access to asylum systems for those arriving without authorisation. Opening up the Convention may also
have implications for other treaties where the rights of refugees have their origins, for example the
Universal Declaration of Human Rights. More prosaically, one of the great strengths of the 1951
Convention is its widespread ratification: it would likely take another half century to ratify a new
Convention so completely.

The time is not right to revise the 1951 Convention, although that time must come one day. For now, it
should remain the cornerstone of refugee protection, and renewed efforts are required to defend its rights,
principles, and standards. Where reform is urgently required, however, is in its implementation, which is
failing both states and refugees.

Failing states

One of the main concerns about the 1951 Convention from the point of view of states is the obligation it
places on them to consider any application for asylum made on their territory, however ill-founded the
application may be and even if the applicants enter without authorisation. In 2013, there were 1.2 million
new asylum applications worldwide. Recent UNHCR estimates are for as many as 700 000 asylum claims
in industrialised countries alone during 2014, a 24 per cent increase on the previous years total across
these countries, and the highest in at least two decades.[8] According to UNHCR statistics, in Australia
asylum applications have also increased significantly over the last decade; although they have decreased
over the last year. In the first six months of 2014, Australia received 4589 asylum applications; a 20 per
cent decrease on the numbers over the same period in 2013.[9] Of particular concern in the Australian
context is the obligation to consider applications from people entering in an irregular manner at the
peak in 2013, there were between 3000 and 4000 illegal maritime arrivals each month in Australia.
The scale of asylum seeking worldwide is compounded by the reality that a significant majority of those
seeking asylum are found not to be legitimate refugees. Data on refugee status determination is hard to
access and hard to interpret as in most countries there is a significant backlog between applying for
asylum and receiving a final decision. But as an indicator, UNHCR reported that worldwide decisions were
made on close to 700 000 asylum applications in 2012, of which 210 900 (about 30 per cent) were
recognised as refugees and a further 51 000 given complementary forms of protection. Historically,
Australia has granted refugee status to a higher proportion of asylum seekers than most other
industrialised countries (although the proportion recognised as refugees varies considerably across
nationalities). Furthermore, both Australia and European states have largely failed to deal with rejected
asylum seekers. Returning them has significant financial, logistical, and political costs, and all too often
rejected asylum seekers simply stay on to become irregular migrants.

The main reason so many asylum seekers do not receive refugee status is that their claims are
unfounded, at least as assessed against the 1951 Convention definition. They are not facing persecution
in the countries from which they arrive and, by and large, could safely be returned. The contemporary
reality is that an increasing number of people are on the move for an increasing range of reasons, and the
asylum channel provides one of the only legally-guaranteed channels to access the industrialised
countries that are the target destinations for many migrants today. What is more, these mixed migration
flows, that see people moving for broadly different motivations, have in many of the parts of the world
come to be facilitated by people smugglers, who know full well that it is unlikely that asylum seekers will
be returned, whatever the outcome of their asylum request.

Another striking feature of statistics on refugee status determination is that outcomes vary significantly
between countries, even for asylum seekers from the same origin country. This is because the 1951
Convention is often interpreted and applied differently even by signatory states. In migration as well as
other fields, national legislation is increasingly at odds with international law. Australias current Migration
and Maritime Powers Legislation Amendment Bill 2014 is a good case in point. Its explanatory
memorandum ensures

that the exercise of a range of powers cannot be invalidated because a court considers there has been
a failure tocomply with Australias international obligations or the international obligations or domestic
law of any other country.[10]

The lack of any provisions or mechanism for burden-sharing increasing asylum numbers between
signatories is an additional concern for many of them. This means that more prosperous states, or those
perceived as most generous, are generally the most targeted. It also means that it is asylum seekers (and
the people smugglers they often pay), rather than destination countries, that determine where the asylum
burden falls. In the European Union (EU), the Dublin Convention was designed to reduce this
phenomenon of asylum shopping by stipulating that asylum claims have to be processed in the first EU
country where asylum seekers arrive; but people smugglers have found ways around this rule.

While the 1951 Convention is widely ratified (and this is a powerful argument not to amend it), it is not
universally ratified. India, for example, is a non-signatory. The obligations of the 1951 Convention that
apply to signatories do not apply to non-signatories, the customary law provisions relating to non-
refoulement notwithstanding. This serves only to exacerbate the burden on signatories. It has been a
particular challenge for Australia in recent years. Its standing as one of the few rich states that is also a
signatory to the 1951 Convention in the Asia-Pacific region has helped make it a target for asylum
seekers.
For states there is one more glaring gap in the implementation of the 1951 Convention, which is its exilic
bias. That is, it places obligations on destination states that are increasingly onerous to fulfil; but none on
the states that refugees are fleeing. Consider that Syria faces no legal censure for the displacement of
millions of its citizens; but Turkey does if it fails to uphold the rights of just one. In this sense, the 1951
Convention is a reactive rather than proactive instrument: it provides protection after flight but does not
address the initial causes for flight. The Convention does refer to durable solutions for refugees, one of
which is voluntary repatriation, and, indeed, seeking solutions is part of the core mandate of UNHCR. But
there are no obligations on countries of origin concerning the rights of returnees. By definition once they
cross the border back home they are no longer refugees. Yet it is very clear that, for many, return opens
up a new set of challenges, from compensation and restitution, through reclaiming property and land, to
finding employment; and the failure to resolve these challenges may lead to new exoduses and even the
renewal of conflict.[11]

and failing refugees

From a state perspective, then, implementing the 1951 Convention today presents significant challenges.
But these also translate into failures for refugees too, some of which have already been alluded to. There
are no obligations on states to address the conditions that cause refugees to flee their homes in the first
place, and no obligations on their treatment after return other than to readmit them. The increasing
prevalence of national legislation to reinterpret the 1951 Convention risks triggering a race to the bottom,
where the winner is the country that can interpret the Convention most restrictively, reducing its appeal
for asylum seekers. As a result, asylum seekers are increasingly moving to signatory countries that do not
have the capacity to assist and protect them; or to non-signatory countries, which are not formally obliged
to assist them. In the EU context, asylum advocates have argued that the Dublin Convention has placed
an unreasonable burden on poorer countries in the south and east of the EU, which are ill-equipped to
cope, as illustrated by several recent reports on the rights and conditions of asylum seekers in Greece, for
example.[12]

Another important outcome of the current asylum regime is the uneven allocation of resources. Like data
on refugee status determination, expenditures on asylum are also hard to access. It has been estimated
that, in 1990, the European OECD states plus Canada were spending $US5 billion annually on the
processing of refugee applications: ten times the UNHCR budget in that year. In 2000, it was reported that
the United Kingdom spent more on asylum seekers ($US2.2 billion) than the total UNHCR budget of
$US1.7 billion. Similarly in 2000, Australia spent as much on the Refugee Review Tribunal alone as it
donated to UNHCR.[13] These figures are dated, and in some cases the number of asylum seekers has
dropped, but it is clear that industrialised states now spend far more money on their asylum systems, in
many cases on people with unfounded claims to refugee status, than UNHCR spends to support the
vastly more numerous and needy refugees in camps and cities in poorer countries around the world.
While there were 1.2 million asylum seekers in 2013, there were 16.7 million refugees, and in total
UNHCR reported over 50 million people of direct concern, including stateless people and internally
displaced persons (IDPs).[14]

Indeed the scale of contemporary displacement has already outgrown the provisions and assumptions of
the 1951 Convention. Guaranteeing refugee rights to such a large number of people, especially in poor
countries, is becoming impossible. It has been argued that UNHCR has moved away from its primary task
of protection to focus more on assistance.[15] But even here it is failing. In a growing number of
situations, UNHCR can do no more than provide shelter and basic support to refugees warehoused for
increasing periods of time in refugee camps.

Another unintended consequence is the growth in people smuggling, which exposes migrants, asylum
seekers, and refugees, to risk and vulnerability.[16] In just one week in February this year, over 300
migrants are reported to have drowned in the Mediterranean, and a further 3800 were saved in just five
days between 13 and 17 February.[17] In 2013, it was estimated by the International Organization for
Migration (IOM) that 3072 migrants drowned while trying to cross the Mediterranean, out of a total of 4077
who lost their lives during fatal journeys worldwide.[18] These are crisis figures, and one of the main
reasons for the crisis is that the international protection system is under increasing pressure and parts of
it are failing.

The 1951 Convention no longer provides protection for a sizeable proportion of those in need. Instead, it
is increasingly a matter of who can pay, and one of its greatest beneficiaries is the people smuggling
industry. Along the Mediterranean Sea route alone, some analysts estimate that smugglers extracted up
to $US1 billion from migrants during the record high year of 2014.[19]

Time for a more sustainable approach

It should not be surprising that a Convention drafted over 60 years ago, against a particular historical and
geographical background, is no longer fully relevant. Both advocates and critics recognise the challenges
associated with implementing the Convention today. Where they differ is in how to respond.

UNHCR, the guardian of the 1951 Convention, has recognised the changing realities of displacement, as
well as of state interests, and has continually adapted. While insisting that the 1951 Convention remains
the cornerstone for refugee protection, largely because of concerns that its core principles may be
renegotiated, it has, at the same time, demonstrated flexibility in filling some of the gaps. It has continually
broadened its remit; for example, with a consistent focus on the rights of women (there is still a debate
about whether the 1951 Convention definition covers gender-based violence) and children. In 2014, it put
a particular emphasis on protection at sea.

Outside its direct mandate and beyond the 1951 Convention, it has also supported innovative responses.
It has worked to provide protection in the region, for example, via safe havens, to reduce the need for
refugees to travel long distances. It has acknowledged the value of supplementary forms of protection for
people who do not satisfy the 1951 Convention criteria but still would likely be at risk were they to return
home. It is operational in non-signatory countries and among populations of concern who may not
directly fall within its mandate. It has contributed to the development of standards and principles on
internal displacement, mixed migration, and environmental migration.[20] It supports other parts of the UN
system, as well as agencies outside the system, to try to provide more comprehensive responses. And it
continues to cooperate with countries like Australia that have departed from the 1951 Convention, albeit
not uncritically.

To some commentators, UNHCR deserves credit for its adaptability. While the asylum and refugee
regimes may be buckling under the current pressure of numbers, UNHCR continues to function, and, by
and large, the rights of refugees continue to be respected and upheld. For others UNHCR risks betraying
its core principles. Some of its compromises for example, concerning protection in the region and
supplementary forms of protection have been criticised as reducing access for refugees to their rights.
While new standards and principles have been effective in particular the Guiding Principles on Internal
Displacement they still do not provide legal protection or predictable assistance to vulnerable groups
such as IDPs or those displaced by the effects of natural disasters or environmental change. The 1951
Convention is no longer applied equally or consistently, and, for refugees, access to protection risks
becoming a lottery.

What is needed is an overhaul of the international protection system, to reduce its unpredictable and ad
hoc nature, so it genuinely serves the interests of refugees and states. Australia, perhaps surprisingly, is
well-placed to launch this process.

Why Australia?

That Australia might lead on the reform of the international protection system that its signature brought
into force 60 years ago (as the requisite sixth state to ratify it) bears a certain symbolic importance. But
such a proposal will also generate disdain among some advocates given the Australian Governments
current policies on asylum. Why acknowledge, and even reward, deviancy? The answer is that Australia
is not alone in addressing the shortcomings of the system with unilateral and tough responses, as
witnessed, for example, by an increasingly hard line on boat arrivals in Europe. [21] And there are sound
arguments not only for Australia to take the lead, but also for the international community to let it.

The most powerful reason for Australia to initiate reform is that it will, ultimately, result in a more effective
asylum policy. Measured exclusively by the recent decline in boat arrivals, Australias current approach
has been a success. But even those closely involved in the policy are not confident that this outcome is
sustainable. Fewer but still some boats continue to launch for Australia. At the moment, they are
being intercepted. However, as in the Mediterranean, there has traditionally been a seasonal pattern to
boat arrivals in Australia, and the boat season is nearing. How long will the Governments tactics manage
to outwit those of the people smugglers? A fast boat that cannot be easily intercepted, a deliberate
capsizing, or a mass launching that would stretch the current naval safety net, are genuine possibilities.
As ghost ships and armed responses in the Mediterranean in recent weeks demonstrate, people
smugglers are both resourceful and determined.

By most other measures the current approach can hardly be considered a success. It consumes
significant resources and will continue to do so. It has strained relations between the executive and
judiciary. It has similarly poisoned bilateral and regional alliances. And it has sullied Australias standing in
the global community. Just as the political significance of asylum outweighs its numerical significance in
Australian domestic politics, so too does Australias response risk having a disproportionate effect on its
international reputation. However gung-ho some of Australias politicians may be, international
opprobrium is bound to undermine Australias claims and ambitions to regional and international
relevance and leadership.

How long Canberra can bear these costs is an open question. A reform debate led by Australia should
systematically address the current weaknesses in the asylum regime that have made Australia feel
obliged to react with such force on asylum; and potentially remove the need for such extreme measures.
If the discussion falters or reform fails, Australia can always revert to the current approach. Australia has
little to lose and much to gain from advocating for reform.
A second incentive for Australia to promote reform relates to the particularities of Australias asylum
hinterland. Probably no other country is impacted more directly by the consequences of the stumbling
international protection system. The often cited statement that there are no signatory countries lying
between some of the main origin countries for asylum seekers in Australia (Afghanistan, Iran, Sri Lanka)
and Australia itself is not quite true (Cambodia, China, Papua New Guinea, and the Philippines are all
signatories to the 1951 Convention, as are some of the Pacific islands). However, it is true that none of
the major transit countries for these asylum seekers India, Indonesia, Pakistan, Thailand are
signatories. Most analysts agree that being one of the few signatories in the region, combined of course
with its wealth and living standards, is an important reason why asylum seekers come to Australia.[22] But
this should not be a reason for Australia to lower its standards to those of its neighbours. Rather it is a
reason to shape a system that these neighbours would be willing and able to endorse and implement, and
to exercise regional leadership in achieving this goal and raising standards across the region.

So much for Australias interest in reform: there may also be compelling reasons for the international
community to accede to Australian leadership.

One is Australias track record internationally and domestically. Australia has been at the forefront of
the debate on the Responsibility to Protect justifying intervention to prevent the threat of mass
atrocities. Australia has also pushed the idea of regional processing enlisting other countries in the
region to share the burden of asylum. Some of its asylum policies notwithstanding, Australia remains a
champion of refugee resettlement, having recently upped its annual quota to 20 000, second only to the
United States. Protecting people at home so they do not need to flee; promoting protection close to home
so that they do not need to pay people smugglers to reach safety; and unlocking durable solutions for
refugees are all key components of a better international protection system.

In contrast to most European countries, there are also good grounds to believe that the Australian
Government would receive strong domestic support for leading a reform agenda. In recent years, the
leaders of both main political parties, as well as the Greens, have proposed reforms to the 1951
Convention. They may differ in their focus and their proposals, but there seems to be political consensus
that reform is in Australias interests. The 1951 Convention is often described as a European Convention,
and neither political nor public support for a serious overhaul of its implementation is likely in Europe,
despite growing asylum pressures there.

A commitment to change

What should a review of the international protection system look like?

Any review should be outcome-oriented. This is a necessary prerequisite not just because the
international protection system is no longer working; but also because many states would probably not
participate in another global process that offers little prospect of achieving what cannot already be
achieved through national legislation and policy.

What is not needed therefore is a replay of UNHCRs global consultations through 2001 and 2002 to
mark the 50th anniversary of the 1951 Convention, which unanimously reaffirmed the commitment of the
international community to the Convention and culminated with an Agenda for Protection adopted by the
General Assembly in 2002.[23] What is needed is a commitment to change that confronts the
weaknesses of the international protection system, including the 1951 Convention, that reinforces the
benefits that can accrue from reform; and that highlights the likely consequences of continued failure. Few
states today would disagree with Australia that the system no longer serves their national interests; many
would prefer not to abrogate international responsibilities in order to protect them.

The preceding discussion has already highlighted some of the outcomes that a review should aim for.
Paramount should be the rights of refugees reinforcing the timeless values of the 1951 Convention.
Ultimately, states are the guarantors of these rights, and so a review should need to respond to the
growing concerns of states, in particular around the burden and inequities of the asylum system.

First, an international protection system fit for purpose in the twenty-first century should strive for
accountability and impose sanctions on states that cause displacement.[24] The Responsibility to Protect
paradigm paves the way, although its application is uneven. Equally, it should pay more serious attention
to addressing other factors that compound refugee flight, from a lack of development through to climate
change. International attention this year on financing for development, the Sustainable Development
Goals, and moving forward climate change negotiations are all opportunities in this direction: in each case
displacement can be mainstreamed.

Second, it should seek to reduce the need for long-distance asylum seeking. At the moment too many
asylum seekers including genuine refugees are taking too many risks to travel long distances to
reach asylum. It is these journeys that generate business for people smugglers, who arrange
transportation, help overcome immigration rules and procedures, and often also insert people in the
countries where they go all illegally, and all heightening the vulnerability of asylum seekers. A more
systematic response to protecting and assisting people displaced within their own countries would be one
way to anchor them close to their places of origin. This would entail strengthening adherence to the
Guiding Principles on Internal Displacement, but also extending existing policies such as safe havens
that have already been tested in countries such as Iraq. Better regional protection mechanisms, as
currently being promoted by the Australian Government, should also reduce the incentive to travel
distantly. Again, this is not a new proposal. Development assistance should also target neighbouring
asylum countries, to reduce the growing trend of secondary migration, whereby people leave refugee
camps for onward journeys. All of these proposals are achievable and Australia already has a strong track
record on them. What is more they should strengthen the current global policy emphasis on combatting
people smuggling and trafficking.

Third, a renewed international protection system should also reduce the asylum burden on destination
countries; for example by conceiving a form of burden sharing, streamlining criteria for refugee status
determination, and implementing robust offshore and transit processing. Moving through the refugee
cycle (indeed, getting the refugee cycle moving again), the return of rejected asylum seekers would need
to be facilitated, for example, by imposing obligations on countries of origin. Undoubtedly these are
challenging policy goals. On what basis should burden sharing take place (national population size and
characteristics and national income are often suggested)? Addressing root causes is a long-term
challenge and states have short-term goals in this arena. Applying the Responsibility to Protect, protecting
IDPs, and returning rejected asylum seekers all intersect with the principles of national sovereignty. But
many such proposals have already been considered in detail by experts. The conceptual and legal
groundwork is in place.[25]

To be taken seriously, any review should also consider funding and institutional responsibilities. In
particular the mandate of UNHCR should be part of a review. A sensible balance would need to be struck
in designing the scope of the review: sufficient to achieve concrete outcomes, but targeted enough not to
engage in mission creep or become unwieldy. Certainly there are wider issues that might be considered;
for example, the relationship between UNHCR and other UN agencies and the International Organization
for Migration (IOM) in responding to mixed migration and people smuggling. Another is the intersection
between UNHCR and other institutions dealing with issues that impact the causes of displacement such
as trade, investment, development cooperation, security, and international politics.[26] In some
circumstances, for example, environmental migration, it has been suggested that UNHCR may be best
placed to mobilise action at the international level rather than assume direct responsibility.[27] In others, it
may be required to extend or limit its mandate.

This, is in, turn leads to discussion regarding another key parameter for any review process, which is
ownership. In particular, there is a strong argument that the review should not become the responsibility
of UNHCR. The agencys vested interests against change are probably too significant to overcome.
Instead, this should be a state-led process, including, where possible, non-signatories to the Convention.
The requirement for consultation is clear, and certainly should include the UN agencies and NGOs and
asylum and refugee representatives. The private sector should be an important addition, as it has become
a much more significant actor both in the international protection system and in global governance more
widely.[28]

Australia and the 1951 Convention

This Analysis has argued that the international protection system is failing. Much more controversially, it
has suggested that Australia may be well-placed to lead a review of the system.

This is not to excuse or apologise for Australias current asylum policy. To be clear: Australia has reneged
on its international commitments. The practice of undertaking cursory interviews of asylum seekers on
board ships does not meet the international standard that requires asylum seekers to have access to
legal advice and representation.[29] Australia has not extended its human rights guarantees to asylum
seekers transferred to other countries as is required by the 1951 Convention to which it is a signatory.[30]
And according to the United Nations Human Rights Council, in 2013, Australia violated the International
Convention on Civil and Political Rights (ICCPR) by detaining asylum seekers arbitrarily, failing to provide
an effective judicial remedy, and subjecting detainees to conditions of detention that are cumulatively
inflicting serious psychological harm upon them.[31]

A final reason for Australia to propose reform of the international protection system is that soon it will lose
the credibility to do so. The instigator of a debate usually gets to set the agenda and the terms for the
debate. Australias current policies may drive either UNHCR or other signatory states to review the
international protection system themselves, in which scenario rather than having its finger on the trigger of
reform, Australia would be in its crosshairs.

Acknowledgements

The author would like to thank Dr Michael Fullilove, Anthony Bubalo, Dr Philippa Brant, two anonymous
reviewers, and members of the audience at the authors Lowy Institute lecture on 27 November 2014 for
their helpful comments and feedback.

Notes

[1] United Nations High Commissioner for Refugees, States Parties to the 1951 Convention relating to the
Status of Refugees and the 1967 Protocol, http://www.unhcr.org/3b73b0d63.html.
[2] 1951 Convention Relating to the Status of Refugees, Article 1.

[3] Khalid Koser, Environmental Change and Migration: Implications for Australia, Lowy Institute Analysis
(Sydney: Lowy Institute for International Policy, 2012).

[4] Ibid.

[5] Khalid Koser, "The Smuggling of Refugees," in Global Human Smuggling: Comparative Perspectives,
eds. David Kyle and Rey Koslowski (Baltimore: Johns Hopkins University Press, 2011), 256-72.

[6] Amnesty International, People on the Move refugee fact sheet, http://www.amnesty.org/en/refugees-
and-migrants/rights-of-refugees-and-m....

[7] Alexander Betts, Gil Loescher, James Milner, UNHCR: The Politics and Practice of Refugee
Protection, 2nd ed. (London and New York: Routledge, 2012).

[8] UNHCR, Asylum Trends, First Half 2014 (Geneva: UNHCR, 2014).

[9] Ibid.

[10] Parliament of Australia, Migration and Maritime Powers Legislation Amendment (Resolving the
Asylum Legacy Caseload) Bill 2014, Bill homepage,
http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%....

[11] Richard Black and Khalid Koser, The End of the Refugee Cycle (London: Berghahn, 1999).

[12] Appalling Detention Conditons for Foreigners in Greece Says Rights, Human Rights Watch, 20
December 2000, http://www.hrw.org/news/2000/12/19/appalling-detention-conditions-foreig....

[13] Parliament of Australia, The Problem with the 1951 Refugee Convention, Research Paper 5
(Canberra: Parliament of Australia, 2000).

[14] UNHCR, Global Trends 2013 (Geneva: UNHCR, 2014)

[15] Gil Loescher, The UNHCR and World Politics: A Perilous Path (New York: Oxford University Press,
2001).

[16] Khalid Koser and Marie McAuliffe, "Unintended Consequences: How Migrant Smugglers Are
Exploiting the International Protection System," Asia & the Pacific Policy Society, February 2015,
http://www.policyforum.net/unintended-consequences/.

[17] International Organization for Migration (IOM), At Least 3800 Migrants Rescued from Mediterranean
since Friday: IOM, media release, 17 February 2015, http://www.iom.int/cms/en/sites/iom/home/news-
and-views/press-briefing-n....

[18] IOM, Fatal Journeys: Tracking Lives Lost during Migration (Geneva: IOM, 2014).

[19] Khalid Koser and Marie McAuliffe, Unintended Consequences.

[20] Gil Loescher and James Milner, "UNHCR and the Global Governance of Refugees," in Global
Migration Governance, ed. Alexander Betts (Oxford: Oxford University Press, 2011), 189-209.
[21] Melissa Fleming, The Situation in Syria Is Only Going to Get Worse ... And Here's Why, The
Guardian, 16 February 2016, http://www.theguardian.com/global-development-professionals-
network/2015....

[22] Khalid Koser, Responding to Boat Arrivals in Australia: Time for a Reality Check, Lowy Institute
Analysis (Sydney: Lowy Institute for International Policy, 2010).

[23] United Nations General Assembly, Agenda for Protection Addendum, A/AC.96/965/Add.1, 26 June
2002, http://www.unhcr.org/3d3e61b84.html.

[24] Parliament of Australia, The Problem with the 1951 Refugee Convention.

[25] For example: Ahilan Arulanantham, "Restructured Safe Havens: A Proposal for Reform of the
Refugee Protection System," Human Rights Quarterly, 22:1 (2000); Eve Burton, "Leasing Rights: A New
International Instrument for Protecting Refugees and Compensating Host Countries," Columbia Human
Rights Law Review, 19:2 (1988); Paul Freedman, "International Intervention to Combat the Explosion of
Refugees and Internally Displaced Persons," Georgetown Immigration Law Journal, 9: 565 (1995); James
Hathaway, "A Reconsideration of the Underlying Premise of Refugee Law," Harvard International Law
Journal, 31:3 (1997); Peter Schuck, "Refugee Burden-Sharing: A Modest Proposal," Yale Journal of
International Law, 22: 243 (1997).

[26] Stephen Castles and Nicholas Van Hear, Root Causes, in Global Migration Governance, 287-306.

[27] Jane McAdam, Environmental Migration, in Global Migration Governance, 153-88.

[28] Innovation and Refugees, Forced Migration Review special supplement, September 2014,
http://www.fmreview.org/innovation.

[29] Jane McAdam, "Australia Tears up UN Treaty with Treatment of Asylum Seekers," The Sydney
Morning Herald, 8 July 2014, http://www.smh.com.au/comment/australia-tears-up-un-treaty-with-
treatmen....

[30] Hugh Tuckfield, "Australia's Troubling Asylum Seeker Policy," The Diplomat, 18 February 2014,
http://thediplomat.com/2014/02/australias-troubling-asylum-seeker-policy....

[31] Australias Detention of 46 Refugees Cruel and Degrading, UN Rights Experts Find, United
Nations Office of the High Commissioner for Human Rights (UNOHCHR), media release, 22 August 2013,
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?LangID=E&NewsI....

The Problem with the 1951 Refugee Convention

Research Paper 5 2000-01

Adrienne Millbank
Social Policy Group
5 September 2000

Contents
Major Issues
Introduction
The Refugee Convention

The UN Convention and the refugee 'burden'

The United Nations High Commissioner for Refugees

EXCOM

Australia's refugee response

The on-shore refugee determination system

The problems

The definition
Inconsistencies of interpretation and application
The migration channel

Non-departure

The exile basis

Government concerns and government hypocrisy
Inequities
Public reaction
Economic refugees
In summary

Options

Refugee advocates and NGOs

The UNHCR
A new international refugee regime

Models

Conclusion: Implications for Australia

Withdraw
Reform

Endnotes
Table 1: Refugees and Others of Concern to UNHCR, 1999 Statistical Overview
Table 2: UN Member States: Signatories and Nonsignatories to the UN Convention and Protocol Relating
to the Status of Refugees
References

Glossary

Asylum seeker A person who enters or remains in a country either legally, as a visitor or
tourist or student, or illegally, with no or with fraudulent documentation, and
then claims refugee status under the terms of the 1951 United Nations
Convention Relating to the Status of Refugees. (Description at page 3).

Convention refugees People who have been found to engage protection obligations, and are
accorded refugee status, and thus the right to remain within a signatory
country, under the terms of the 1951 Refugee Convention.

Country of first asylum The first, usually neighbouring country to which a refugee flees. The world's
refugee camps are in countries of first asylum.

Humanitarian migration Part of Australia's immigration program. Comprises people authorised to

program enter Australia for humanitarian reasons under an annual numerical planning
level.

Illegal immigrant A person who enters or remains in a country without a valid visa or travel
authority, that is with no or with fraudulent documentation. According to
Australian migration law, such people are 'unlawfully' or 'illegally' in Australia.

Immigrant A person who moves to another country, having met work or business or
family reunion criteria, and having been issued with a visa or residence
permit which entitles them to reside in that country.

Off-shore visas Where visas authorising entry into a country are issued to people in other
countries, they are described as being issued 'off-shore'.

On-shore visas Where visas authorising stay in Australia are issued to people after they
have already arrived, legally or illegally, in Australia, they are described as
being issued 'on-shore'.

Refugees The Macquarie dictionary definition of a refugee is 'one who flees for refuge
or safety, especially to a foreign country, as in time of political upheaval, war
etc'. According to the United Nations High Commissioner for Refugees in its
1999 Statistical Overview, refugees are persons recognised under the 1951
Refugee Convention; persons recognised under the 1969 Organisation for
 African Unity Convention on Refugee Problems in Africa (see endnote 17);
persons granted humanitarian or comparable status; and persons granted
temporary protection.

Third country Where refugees move from their countries of first asylum to another country,
such as Australia, that country is described as a third country (the first being
the home country, and the second being the country of first asylum).

Major Issues

The 1951 United Nations Convention Relating to the Status of Refugees has created a system for
providing protection to people at risk of persecution in their own countries. There are few countries willing
to risk turning such people away. However it is unlikely than many governments would sign up to the
Convention today. This paper aims to explain why. It argues that the problem with the Convention is that it
was developed in and for a different era. Its focus is the resulting problems that have been identified since
the late 1980s with the operation of the Convention in Western countries.

The recent wave of boat people has demonstrated how options for dealing with 'illegal' arrivals are
constrained by Australia's obligations under the Convention. They have focussed attention on the nature
of these obligations, and on how on-shore or 'Convention' refugees operate under a different system,
legally and obligation-wise, from refugees selected from overseas under the off-shore humanitarian
program, or from people provided temporary protection under safe haven or extended visa arrangements.
The use by the boat people of people smugglers to circumvent visa and border controls has prompted
Australia to join other countries in openly questioning the operation and continuing viability of the
Convention itself.

The Convention defines as a refugee a person:

(who) owing to (a) well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country of his nationality and is
unable or, owing to such fear, is unwilling to avail himself of the protection of that country.

Obligations come into effect after an asylum seeker has entered a signatory country, and fall squarely on
that country. The core obligation is that of 'non-refoulement', not sending someone back into a situation of
possible persecution. Another important obligation is not to penalise asylum seekers for entering a
country 'illegally'.

The problem with the Convention is that it was designed in and for a different era. A number of resultant
specific problems in its implementation in today's very different world have been identified by academics
and researchers:

the Convention definition of refugee is outdated, as is its notion of exile as a solution to refugee
problems


it confers no right of assistance on refugees unless and until they reach a signatory country, it
imposes no obligation on countries not to persecute or expel their citizens, and it imposes no
requirement for burden sharing between states

the asylum channel is providing an avenue for irregular migration and is linked with people
smuggling and criminality

the Convention takes no account of the impact (political, financial, social) of large numbers of
asylum seekers on receiving countries

there is inequity of outcomes between 'camp' and 'Convention' refugees. Priority is given to those
present, on the basis of their mobility, rather than to those with the greatest need

there is a gross disparity between what Western countries spend on processing and supporting
asylum seekers, and what they contribute to the United Nations High Commissioner for Refugees
(UNHCR) for the world refugee effort

asylum seekers do not elicit public sympathy in the way that 'obvious' (as seen on television)
refugees do

the Convention has fostered simplistic and unfortunate characterisations of asylum seekers as
either political and thus 'genuine' and deserving, or economic and thus 'abusive' and undeserving.

While the Convention-based asylum system may have operated well enough until the end of the Cold
War, it was not designed with today's mass refugee outflows or migratory movements in mind. At a time of
intense migration pressure and limited opportunities, asylum systems in Western countries have come
under increasing strain through their use as a migration channel. An estimated one million migrants were
transported, worldwide, in illegal operations worth up to USD20 billion in 1999. Since 1985 the number of
asylum seekers in Europe has outnumbered all legally admitted foreign workers.

Over the last decade, Australia's average intake under its humanitarian migration program has averaged
about 12 000; the highest per capita off-shore intake of refugees in the world. The potential impact of
'Convention' refugees on this program became apparent in February 2000, when processing of off-shore
humanitarian visas was suspended, following indications that up to half the program allocation could be
taken up by successful on-shore asylum seekers.
The implementation of Convention obligations in Western countries is distorting the international refugee
effort. By 1990 the European OECD states plus Canada were spending USD5 billion annually on the
processing of refugee applications: ten times the UNHCR budget in that year. This year one country, the
UK, is spending more on asylum seekers (BRP1.5 billion, equivalent to USD2.2 billion) than the UNHCR
budget of USD1.7 billion, which is supposed to protect the world's 22 million refugees. Australia spends
as much each year ($14 million) on the Refugee Review Tribunal (one level of the determination process)
as it donates to the world refugee effort through the UNHCR.

Asylum seekers are drawn to particular countries by a range of obvious factors-proximity, family and
ethnic community networks, employment opportunities and wage levels, generosity of welfare systems,
levels of tolerance within existing societies, and the accessibility of determination systems. In Europe last
year 70 per cent of asylum seekers sought protection in just four countries-Germany, Britain, Switzerland
and the Netherlands. Acceptance rates are more revealing of a country's political priorities, or its attitude
to migration, or the weight of numbers it has had to deal with, or its diplomatic relations with 'sending'
countries, than the genuineness of refugee claims.

Australia is perhaps unique amongst Western countries in its capacity and willingness to remove failed
asylum seekers; in other countries most failed asylum seekers simply remain. Australia has however
joined other countries in attempting to discourage new applicants. The most minimal welfare payment,
special benefit, is provided to illegally arrived asylum seekers even after they have been determined to be
Convention refugees; they are provided with temporary visas with no family reunion entitlements; and
they are denied access to settlement services tailored for and provided free to off-shore refugees.

The UNHCR and other asylum seeker supporters, while acknowledging that there are problems with the
operation of the Convention, are concerned that opening it up to review could lead to restriction, rather
than expansion, of refugee rights. They argue that avenues for legal migration should be opened up to
insulate the Convention from migration pressures, and that governments should work with the UNHCR to
supplement, not supplant the Convention, in response to the changed refugee context. Other
commentators argue that proposing expanded obligations for governments on top of a Convention-based
asylum system that is already if not 'broke' then loudly creaking, is fruitless as such proposals are
politically impossible.

No country has a visa entry (and exit) control and management system comparable to Australia's and no
country (Canada perhaps excepted) has invested as much in its managed migration and resettlement
programs. Australia has been built on migration and there is concern amongst political leaders that illegal
entry of asylum seekers could undermine public support for immigration and recent immigrants. It is likely
that governments will take whatever measures are necessary to maintain control over who enters,
including challenging the UNHCR and rethinking obligations under the Refugee Convention.

Reforming the on-shore asylum system to bring more transparency, equity and consistency into our
refugee responses is likely to win the support of at least the general Australian public. If linked with a
redirection of resources to assist countries of first asylum, and support for reform in international forums, it
is likely also to win approval from the international community.

Introduction
The 1951 United Nations Convention Relating to the Status of Refugees has created a system for
providing protection to people at risk of persecution in their own countries. There are few countries willing
to risk turning such people away. However it is unlikely than many governments would sign up to the
Convention today. This paper aims to explain why. It argues that the problem with the Convention is that it
was developed in and for a different era. Its focus is the resulting problems that have been identified since
the late 1980s with the operation of the Convention in Western countries.

The recent wave of boat people has provided a very public demonstration of how options for dealing with
'illegal' arrivals are constrained by our obligations under the Convention. More than 3700 boat people
arrived in 1999, up from 200 the year before. Last financial year nearly 4200 arrived. Source countries
have shifted from China and countries in our region to Middle Eastern countries. The boat people are
coming, often via neighbouring countries of first asylum, in boats via Indonesia. Over 90 per cent of those
from the war torn countries of Iraq and Afghanistan have been granted refugee status. The latest wave of
arrivals has thus focussed attention on Australia's obligations under the Refugee Convention, and on how
the Convention fits in with our humanitarian migration program.

The potential impact of 'Convention' refugees on the humanitarian program became apparent in February
2000, when the Immigration Minister indicated that processing of off-shore humanitarian visas would be
suspended, following indications that up to half of the 12 000 overall program allocation could be taken up
by on-shore asylum seekers. Deterrent measures (temporary visas with no family reunion rights in the
first instance, minimal welfare assistance and no access to job network or language programs) have been
controversial and are concerning, in that they represent a departure from established practice and ethos.
Australia has hitherto portrayed itself as one of the world's most generous refugee-receiving countries,
with highly developed settlement assistance programs aimed at getting people to participate in
mainstream life as soon as possible.

There would be few parliamentarians unaware of the strength of public feeling directed against the recent
boat arrivals, or of the extent to which opinions are polarised on the issue. The recent asylum seekers are
either undeserving users of the system, who would not qualify for places under our immigration or refugee
program criteria, or desperate refugees exercising their right under international law to seek asylum.
Refugee advocates and commentators have blamed the Government, and the media, for the outpouring
of public hostility, citing choice of 'demonising' labels such as 'queue jumpers' and 'illegals'.
Parliamentarians have in turn suggested that refugee advocates and non-government organisations
(NGOs) are out of touch with mainstream public opinion. (1)

Some commentators have argued that the recent increase in boat people numbers heralds our entry into,
and thus provides an opportunity to display our generosity and maturity within, the global club of (mainly
European Union) seasoned asylum seeker receiving countries, which have been coping with greater
numbers for longer.(2) It is however a club that Australian governments and most of the voting public might
prefer not to join. Asylum seekers, along with those who enter via family reunion, have comprised the bulk
of the sizeable immigrant intakes into Western European countries in recent years. Asylum-driven
immigration ranks high among voter concerns, anti-foreigner sentiment is widespread, and right-wing anti-
immigration parties are getting up to 30 per cent of voter support. (3)

Refugee advocates have also argued that the Government should 'educate' the public about our
obligations as signatories to the Convention, and about the human rights situations in Iraq and
Afghanistan. Educating people might make them more familiar with Australia's obligations under
international law. However it is possible that the more people learn about the Convention-based asylum
system, the more likely they are to conclude that it is neither a particularly effective or rational basis for
guiding Australia's refugee priorities, nor for alleviating the plight of people displaced by conflict within Iraq
or Afghanistan.

Nearly 50 years after its adoption, the Refugee Convention remains the only international instrument for
the protection of refugees, and the United Nations High Commissioner for Refugees (UNHCR) is still
exhorting Western governments to respect and uphold it as the 'cornerstone' and 'foundation' of the
international refugee system. Doubt is increasingly being expressed however as to its adequacy to meet
that role. The crux of criticism is that the Convention is obsolete and inappropriate to deal with
contemporary challenges. As at end-1999 the UNHCR had identified 22.3 million people 'of concern',
including 11.7 million 'refugees', and 4 million 'internally displaced' (people who are refugees in their own
countries). (A statistical overview showing how the UNHCR currently categorises refugees is provided at
Table 1 on page 27.) According to the United States Committee for Refugees (USCR), by the end of 1999
there were 14 million refugees ('people displaced by persecution and conflict across an international
border'), and 21 million 'internally displaced' people. (4) Nearly all of these refugees and displaced people
are in poor countries, compared with the 1.2 million asylum seekers (as at end-1999) who were seeking
refugee status in wealthy countries.

The disparity between the costs and abuse of developed asylum systems, and the level of attention paid
to refugee situations in poorer countries, has become increasingly apparent. Also apparent is that many
hundreds of people desperate to enter Western countries are dying each year in the attempt to
circumvent increasingly tough border controls. The traffic in illegal immigrants was graphically illustrated
in June 2000 when 58 young Chinese people suffocated to death in the back of a tomato truck after
travelling to the southern British port of Dover from Belgium.

While the international asylum system has been under obvious pressure for the last 10 years, neither
governments nor refugee advocates have been willing to call for review. NGOs have feared governments
would seize the opportunity to downsize their obligations, and governments have been reluctant to invite
censure, and fearful of incurring even greater obligations. As well, most countries have invested heavily in
their refugee determination systems. Sizeable sections of public service departments, entire organisations
and careers at the national and international level have been devoted to implementing and promoting the
Convention.

A resurgence in asylum seeker numbers in the late 1990s, after a mid-decade lull, linked with the rapid
emergence of people smuggling as a global industry, would appear to be tipping a number of
governments, or at least parliamentarians, over the edge. In 1998 the Austrian Presidency of the EU
suggested replacing the Convention with an EU asylum law 'which meets today's requirements rather
than those of a geopolitically outdated situation'. (5) In the same year the General Secretary of Germany's
Liberal Party called in effect for default from the Convention on the grounds that it was 'an invitation to
abuse and to unrestricted and unregulated migration'. (6) In April this year the UK Home Secretary, Jack
Straw, criticised the Convention as 'too broad for conditions in the 21 st Century', and as 'no longer an
adequate guide to policy in the age of mass air travel and economic migration'. (7) Conservative Party
leader William Hague described the asylum system as 'near collapse in today's utterly different world'. (8) In
March this year the Australian Immigration Minister Philip Ruddock described the international asylum
system as open to exploitation and manipulation by non-refugees, saying it should be toughened 'either
administratively or by reviewing the actual treaty document itself'. (9) And in August he announced that the
Government was reviewing the interpretation and implementation of the Refugee Convention in Australia.
(10)
Tensions between governments of receiving countries and the UNHCR and other asylum-seeker
advocacy groups are intensifying. UK writer Jeremy Harding, in his evocative description of people
smuggling, has observed that 'for a growing list of governments the best interpretation of the Convention
Relating to the Status of Refugees can only be to run it through the shredder'. (11) A recent UNHCR-
commissioned analysis of responses of European governments to people smuggling describes people
smugglers as 'the last resort of genuine refugees', and concludes that current policy risks 'ending the right
of asylum in Europe', and that the 'current status quo is practically and ethically bankrupt from all
positions'.(12)

As the 1951 Refugee Convention approaches its 50 th anniversary, debate as to whether it has reached its
use-by date will intensify. This Research Paper describes the problems with the operation of the
Convention that have been identified by researchers and commentators over the last 10 years. It also
looks briefly at options for reforming the international refugee regime, and suggests why Australia might
take a lead in rethinking its obligations under the Refugee Convention.

The Refugee Convention

The United Nations ('Geneva') Convention Relating to the Status of Refugees was adopted in December
1951, following a resolution of the UN General Assembly in 1950, and entered into effect in April 1954.

It defines as a refugee a person:

(who) owing to (a) well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country of his nationality and is
unable or, owing to such fear, is unwilling to avail himself of the protection of that country.

The 'well-founded fear of persecution' had to arise from events associated with the Second World War, in
Europe, until the 1967 Protocol extended coverage to refugees throughout the world.

Obligations under the Convention fall squarely onto the receiving state, and come into effect after the
asylum seeker has entered its territory and made a claim for refugee status. The most basic principle, or
core obligation, of signatory states is that of 'non-refoulement', i.e. not sending someone back to a
situation where there they might face persecution. (13) Another important obligation (and source of
increasing tension with the rise of people smuggling) is not to penalise asylum seekers for entering a
signatory country 'illegally'.(14)

While not spelled out as a requirement in the Convention, Western signatory states have, under the
guidance of the UNHCR, established refugee determination processes. While administrative and legal
systems vary, the central features are the same. Claims are assessed, on an individual basis, according
to whether there is a 'real' possibility the claimant would face persecution, on a Convention ground, if
returned. Decisions are made on a credibility of story basis, assisted by 'country information' gleaned from
such sources as foreign affairs officials, Amnesty International and the US Department of State. For
obvious reasons, low burdens of proof are required in refugee decisions; attempts are not made to check
stories with allegedly persecutory governments. Also for obvious reasons-the possibly life threatening
consequences of getting it wrong-decisions are made on a benefit of the doubt basis. While granting
permanent resident status is not required under the Convention, this has become standard practice.

The UN Convention and the refugee 'burden'

Efforts of the UNHCR, to which Australia has contributed, have expanded the number of signatory states
in recent years. Two thirds of all states, including all Western states, are party to the Convention and/or
Protocol. (Signatory and non-signatory states are listed at Table 2 on page 28.) While many poor and
developing countries have become signatories, the flow of asylum seekers has remained to wealthy
Western countries, and in its operation the Refugee Convention has developed, in the words of the
Immigration Minister, as 'essentially a standard that is being imposed on developed countries'. (15) In fact, it
is a standard 'imposed' on Western countries. Japan in 1999 received 260 asylum applications, of which it
approved 13. South Korea acceded to the Convention in 1992. Since then it has received a total of 50
asylum applications, of which it has approved none. (16) Singapore is not a signatory to the Convention or
the Protocol.

While a number of African countries (including Angola, Mozambique, Liberia, Zambia) are signatories, it
has always been obvious that the Convention is of limited use for dealing with the refugee situation in
Africa. In 1969 the Organisation for African Unity (OAU) adopted a Convention on Refugee Problems in
Africa which encompasses a broader refugee concept. It includes people displaced from their countries
by external aggression or occupation or 'events seriously disturbing public order'. (17) In 1984 Latin
American countries adopted the 'Cartagena Declaration' which incorporates a similarly broad refugee
definition. For countries like China or Cambodia being a signatory state amounts to permitting asylum
applicants to remain in their countries while determinations regarding resettlement needs are made by the
UNHCR.

Regardless of their Convention status, or whether the Convention even registers in their scheme of
priorities, it is the poorer countries of the Middle East, Asia, Africa, and Eastern Europe that are carrying
the bulk of the world's refugee burden. At the end of 1999, Iran was hosting 1.8 million refugees (including
1.3 Afghans and 500 000 Iraqis). There were 1.5 million refugees in Jordan, 1.2 million in Pakistan, and
over 300 000 in India. There were 900 000 'internally displaced' people in Iraq, and a further 129 000
refugees. Closer to our region, at the end of 1999 there were 160 000 (mainly Burmese) refugees in
Thailand, and 45 000 (Filipino Muslims) in Malaysia. (18) Sizeable displacements have and are occurring
this year within and around Indonesia. None of these countries is a party to the Convention.

Likewise, Convention status, and the extent to which the Convention is utilised or is operational within a
country, bears little relation to its financial contribution to the international refugee effort. The USA, which
is not a signatory (although it acceded to the Protocol in 1968 which entails essentially the same
obligations), and has largely pursued its own refugee agenda, was the top donor to the UNHCR in 1999
with USD283 million. The second largest donor was Japan, with USD119 million. South Korea donated
USD900 000.(19)

The United Nations High Commissioner for Refugees

The office of the UNHCR, the UN refugee agency mandated to 'lead and coordinate international action
for the worldwide protection of refugees' was established in 1950, following a UN General Assembly
Resolution in 1949. It was originally established for two years, on the assumption that the post-War
refugee situation would be quickly resolved. It is currently on a five year mandate.

The UNHCR's founding mandate defines refugees in terms virtually identical to the Convention as
expanded by the Protocol. It describes its most important function as 'international protection-trying to
ensure that no refugee is returned involuntarily to a country where he or she has reason to fear
persecution'. It describes as 'other' its more recently developed functions:
Help during major emergencies involving the movement of large numbers of refugees; regular programs
in such fields as education, health and shelter; assistance to promote self-sufficiency of refugees and
their integration in host countries; voluntary repatriation; and resettlement in third countries for refugees
who cannot return to their homes and who face protection problems in the country where they first sought
asylum.(20)

The UNHCR has been concerned to preserve a link between the term 'refugee' and the Convention
definition, thus reinforcing the notion of state obligations. The result has been some confusing official
categorisations like 'people of concern', and 'people in refugee-like situations'. It now also, along with the
rest of the world, uses the term 'refugee' in its broader and more commonly understood and obvious (as
seen on television and defined in the dictionary) sense of being displaced, usually but not necessarily
across a border. Thus the figure of 22 million is widely used to describe the number of refugees in the
world.

While much of its rhetoric is directed at Western countries in the form of exhortations to honour their
Convention obligations, the bulk of UNHCR activity, resources and material assistance is in fact directed
to assisting with situations of mass refugee outflows. Its activities in recent years have increasingly
involved groups for whom it actually has no mandate, the 'internally displaced', for example the Kurds or
the Timorese. The solutions that have come to be accepted by the UNHCR and the international
community to deal with mass displacements are: repatriation as soon as possible in conditions of safety
and dignity; longer term settlement in the (usually neighbouring) country of first asylum; and resettlement
where these are not possible in a third country. It is from this latter group, on the advice of the UNHCR,
that Australia draws refugees for resettlement under its off-shore humanitarian migration program.
Relatively small (compared to the world refugee population) numbers of refugees are identified by the
UNHCR as in need of resettlement in third countries: in the mid-1990s, fewer than 60 000.

EXCOM

The UNHCR is guided in its activities by an executive committee, currently comprising 57 countries.
EXCOM countries are elected by the UN General Assembly's Economic and Social Committee on the
basis of their involvement in refugee situations; they are not necessarily signatories of the Refugee
Convention. India for example, an outspoken critic of the operation of the Convention because it does not
address situations of mass outflows, is a member. EXCOM produces its conclusions and decisions as
'notes on international protection'. These provide a description of the current state of international
protection of refugees. While they are non-binding on states, they are also intended to provide a
developing body of guidance to receiving states on the operation of the Convention. (21)

Australia's refugee response

Australia's major contribution to the system of international protection has been the resettlement of
refugees (people identified by the UNHCR as in need of resettlement in a third country) from refugee
camps. Over the last 50 years, Australia has resettled about 600 000 refugees. Over the last decade, the
annual intake has averaged about 12 000; the highest per capita off-shore intake in the world. Besides
refugees selected under the advice of the UNHCR, the humanitarian program includes components for
people in need who have connections in Australia. Australia's core contribution to the international
refugee effort, on which its international reputation is based, thus has little to do with the operation of the
Refugee Convention.
The on-shore refugee determination system

Australia acceded to the Convention in 1954, and to the 1967 Protocol in 1973. The Convention has been
incorporated but not interpreted in domestic legislation; section 36 of the Migration Act defines as a
criterion for a protection visa that 'the applicant is a non-citizen in Australia to whom Australia has
protection obligations under the Refugees Convention as amended by the Refugees Protocol'. The on-
shore refugee determination system only began to be developed in Australia after the arrival of Indo-
Chinese boat people from the late 1970s. (The 'defection' of the few people who sought asylum from
communist countries in the 1950s and 1960s was arranged through foreign affairs, rather than
immigration officials.) It was not until the numbers of asylum seekers grew rapidly in the 1990s that a
comprehensive refugee determination system was developed within the immigration portfolio. This
comprises initial decision-making by Department of Immigration officials, access to merits review by an
independent Refugee Review Tribunal (RRT), and access on matters of law to the Federal Court. (22)

The problems

The essence of criticism of the 1951 UN refugee Convention is that it is anachronistic. The treaty was
developed in and for a different era. While Western countries' asylum systems might have coped well
enough until the end of the Cold War, they were not designed with today's mass refugee outflows and
migratory movements in mind. This section summarises the resulting problems with the operation of the
Convention that have been identified by researchers and commentators over the last 10 years. (23)
Statistics, unless otherwise indicated, are from the UNHCR or the USCR.

The definition

The 1951 Refugee Convention is a product of the Cold War environment, and it reflects both European
experience of Nazi war-time persecutions and Western political interests as these were perceived at the
time.(24) Immediate post-war European displacements had been dealt with on an ad hoc and group basis.
Exit restrictions in communist countries meant numbers were low. The Convention criteria could be
applied on a case-by-case basis, and ideological kudos gained by providing sanctuary to 'defectors' to the
'free world'. Most asylum seekers are now from the poorer countries of the Middle East, Asia, Africa, and
Eastern Europe, rather than Western Europe. They are less welcome. There is no longer a need for
unskilled labour in developed countries, and no longer any ideological or strategic advantage attached to
conferring asylum. With rapidly increasing numbers of asylum seekers since the late 1980s, governments
have therefore not been inclined towards expansion of the outdated Convention grounds and criteria.

The Convention definition of refugee has made less sense as the nature of refugee flows has changed
and as numbers have risen. Since 1980, refugee movements have been more likely to be the result of
civil wars, ethnic and communal conflicts and generalised violence, or natural disasters or famine-usually
in combinations-than individually targeted persecution by an oppressive regime. The world refugee and
internally displaced population has risen dramatically following the end of the Cold War: from 10 million in
1985, to 35 million now according to USCR estimates, and 22 million according to the UNHCR. The plight
and need of these people is obvious. However only a minority could demonstrate a personal 'well-
founded fear of persecution' on a Convention ground. Case-by-case assessments would in any event be
pointless: humanitarian and group-directed assistance is obviously what is needed.

While the Convention's criteria are limited and outdated, as to be expected with an international treaty, its
wording is vague. A common pattern in Western countries has been for 'creative interpretation and
expansion' of Convention grounds by the judiciary, attempting to include modern day people and
situations under its protection, alternating with governments (alarmed at potential expansion of numbers)
legislating to enforce more restricted definitions. People unable to return home for serious but not
Convention reasons are deemed not to be refugees and are reliant on government discretion to confer
(usually inferior and temporary) humanitarian status. International refugee law has rapidly become both
highly developed and highly contentious. However as a result of the changed refugee context,
international refugee law does not mirror the responsibilities of the UNHCR and is arguably not based on
refugee realities.

Inconsistencies of interpretation and application

The Convention was not designed to be a burden-sharing mechanism. Asylum seekers are drawn to
particular countries by a range of obvious factors-proximity, family and ethnic community networks,
employment opportunities and wage levels, generosity of welfare systems, levels of tolerance within
existing societies, and the accessibility of determination systems. In Europe last year 70 per cent of
asylum seekers sought protection in just four countries-Germany, Britain, Switzerland and the
Netherlands.

Western governments have invested heavily in their determination systems, and defend their processes
as fair and just. However interpretation of the Convention's vaguely worded grounds and criteria varies
widely. Governments are required to be agents or complicit in persecution in Germany and France, but
not in the UK. People 'persecuted' under China's one child policy are taken to form a 'particular social
group' for the purposes of the Convention in the USA and Canada, but not in Australia.

Acceptance rates are more revealing of a country's political priorities, or its attitude to migration, or the
weight of numbers it has had to deal with, or its diplomatic relations with 'sending' countries, than the
'genuineness' of refugee claims. In the mid-1990s Canada accepted 70 per cent of on-shore asylum
claims, compared with Finland's 0.2 per cent. In 1996 Canada accepted 81 per cent of Somalis and 82
per cent of Sri Lankans as refugees; the UK accepted 0.4 per cent of Somalis and 0.2 per cent of claims
from Sri Lankans. Overall acceptance rates in EU countries in the 1990s have been in the order of 10-15
per cent, compared with Australia's 30 per cent. The rate of acceptance of Afghani asylum seekers in
August 2000 was about 90 per cent in Australia, and 30 per cent in the UK. (25)

Acceptance rates have in any event become largely irrelevant to outcomes in a number of countries.
While most asylum seekers are deemed not to meet Convention criteria, the humanitarian needs of many
are obvious, and increasing numbers have been given alternative, usually temporary, resident status. The
number of asylum claims in Europe resulting in Convention status has actually been overtaken since
1992 by the number given some sort of resident status on a discretionary basis, e.g. in the UK
'exceptional leave to remain', or in Germany 'tolerated' status.

The migration channel

Since the late 1980s, asylum systems in Western (and particularly Western European) countries have
come under increasing-perhaps terminal-strain through their use as a migration channel. Migration
pressures are acute at a time when opportunities, except for the highly skilled, business investors, or
close family members, even in traditional immigration countries like Australia, are virtually non-existent.
The UN has estimated that 125 million people are, at any given time, outside their homeland in search of
a more secure political environment or better economic future. (26) Increasing disparities in wealth and life
opportunities (income differentials between the richest and poorest countries are currently in the order of
70:1(27)) provide compelling motivation to migrate; the spread of information, information technology, the
accessibility of air travel and the services of people smugglers provide the means. And asylum channels
provide an avenue. Since 1985 the number of asylum seekers in Europe has outnumbered all legally
admitted foreign workers.(28)

The Convention gives people the right to arrive by whatever means and request refugee status. Even
where claims are clearly 'abusive', receiving states are required to go through determination of status
procedures.(29) Consideration of requests takes time. Telling refugees and migrants apart is difficult: both
use people smugglers, have fraudulent or no documents, and have similar stories. And even though only
a small minority of asylum seekers gain recognition in Western European countries (the rate of
recognition in EU countries in the 1990s was in the order of 10-15 per cent), only a minority of failed
asylum seekers ever actually leave.

The UNHCR has acknowledged the need for restrictive measures and speeded up determination
processes, while simultaneously criticising governments for blocking access to possibly genuine refugees.
The UK Government in a White Paper tabled in 1998 promised 'fairer, faster, and firmer' determination of
refugee status.(30) The backlog of asylum seekers in the UK in July 2000 was over 100 000, and the
system was being described in the British press as in crisis. Supporters of the asylum system in Australia
have advocated putting more resources into refugee determination, especially the Refugee Review
Tribunal, in order to enhance capacity to detect increasingly sophisticated fraudulent claims. (31) Australia
already spends as much each year on the RRT ($14 million) as it donates to the international refugee
effort through the UNHCR. Solving the problem of irregular migration may be incompatible with upholding
Convention obligations as they currently stand.

An Austrian EU Presidency paper on immigration and asylum in 1998 bluntly acknowledged that decade-
long objectives of 'tightening up' and 'speeding up' procedures sufficiently to prevent asylum systems
being a draw for migrants have never been managed anywhere in Europe. It concluded that a revision of
the Convention was in order.(32)

An estimated one million migrants were transported, worldwide, in illegal operations worth up to USD20
billion in 1999.(33)

Non-departure

The length of stay involved in the refugee determination process makes removal of people at the end of it
difficult. (The average processing time within the UK's 'fairer, faster, firmer' system in July 2000 was 13
months.(34)) During this time asylum seekers establish themselves in the country.

Australia is perhaps unique amongst Western countries in its capacity and willingness to remove failed
asylum seekers (although they comprise a growing proportion of our illegal visa 'overstayer' population).
Mandatory detention of illegal arrivals has made routine, if sometimes difficult and controversial, the
removal of boat people (the most high profile asylum seekers) refused refugee status. In other countries,
only a minority of failed asylum seekers actually ever leave, voluntarily or otherwise. The UK Home Office
has acknowledged that up to two-thirds of those refused asylum simply 'vanish'. In 1999 the UK received
71 160 applications; in 1999 fewer than 8000 failed applicants were either deported or known to have left
voluntarily.(35) Large-scale removals may simply not be possible under liberal democracies. (36) Without the
possibility of such deportations, however, the entire process of asylum determination is, while costly,
somewhat pointless.

The exile basis

It is the principle of non-refoulement rather than a general obligation to refugees, wherever they are, that
is at the core of the Refugee Convention. Rather than asserting the right of individuals to stay home or to
return home and enjoy basic human rights, the Convention has thus institutionalised the notion of exile as
a solution to refugee problems. Exile is an inappropriate solution to modern refugee problems and in an
age of globalisation and regionalisation. The UNHCR advocates resettlement in third countries such as
Australia only in those cases where people cannot be repatriated, or cannot be settled in their (usually
neighbouring) country of first asylum.

The fact that the only solution envisaged for refugees under the Convention is exile is attributed to its
judgemental and polemic Cold War origins, and the notion of irredeemably oppressive regimes. The
perspective of the international community today is very different. It is more interested in restoring the
preparedness and capacity of countries of origin to protect their citizens, and in stabilising these countries
politically, than scoring ideological points. The depiction under the Convention of governments as
persecutors, or as complicit bystanders in the persecution of their citizens, can make the return of
refugees difficult, even when conditions have changed. The fact that refugees are a source of political
embarrassment, and its exile basis, are reasons why Asian countries, whether or not they are signatories,
have kept their distance from the operation of the Convention.

Rapid return of rejected asylum seekers is the most-perhaps only-effective counter to people smuggling.
China has openly criticised Canada and the USA for granting refugee status to Chinese boat people it
describes as 'economic migrants', and has been unwilling to accept incomplete batches of returnees. It
claims that it is their granting of permanent residence status, as comparatively wealthy countries, rather
than its persecution of its citizens, that is encouraging irregular migration and people smuggling. (37)

Government concerns and government hypocrisy

The core 'non-refoulement' obligation of the Convention takes no account of potential impact (financial,
social, political) on receiving countries. Full legal responsibility is assigned to whatever state asylum
seekers are able to reach, and no cap or limit can be set on the number of people who can apply or who
must be accepted. Refugee settlement is expensive. (38) (In the case of Australia's off-shore humanitarian
program, the costs of refugees are offset by revenue-generating skilled and business migration intakes.)

Setting a price on refugees is anathema to asylum seeker advocates and NGOs, as is treating asylum
seekers as numbers in an annual migration control regime. They view the Convention's empowerment of
individual asylum seekers over states as its chief strength. According to other commentators the failure of
the Convention to take account of state needs is a serious problem: what a state can do is shaped,
ultimately, by the possibilities afforded by its domestic political environment, not by international treaties.

If countries believed in the Convention, they would assist, or at least not impede people most likely to
need its protection from reaching their determination systems. Rather, Western governments have been
squeezed, between the pressures of a largely hostile public on the one hand, and their Convention
obligations on the other, into awkward positions. Lip service is paid to honouring Convention obligations
and the right to seek asylum, while increasingly large amounts of money are spent on keeping asylum
seekers out. In response to increased boat arrivals in Australia last year, virtually all of whom have been
given Convention refugee status, the Government allocated an extra $124 million to border protection.

The best example of what has been described as government hypocrisy in this area is provided by
Canada.(39) Canada has maintained the highest 'Convention' refugee recognition rate in the world
(currently in the order of 40-50 per cent,(40) down from 70 per cent in the mid-1990s and 85 per cent in the
early 1990s). In a reverse of the situation that has pertained in Australia, Canada's humanitarian program
has for some years comprised three times as many on-shore refugees as refugees from UNHCR camps.
'Maintaining our refugee determination system' is at the top of Canada's refugee strategy, compared with
Australia's working with the UNHCR. Canada, along with Australia and other Western countries has also:

placed visa controls on refugee producing countries

pressured sending countries to impose exit controls

enacted safe third country legislation

imposed hefty sanctions on airlines carrying unauthorised passengers

posted immigration officers at high risk airports overseas to detect fraudulent documents

extended its use of detention for illegally arrived asylum seekers.

Considerable resources have also been spent by Western governments-especially in the EU in recent
years-on promoting the economic and social integration of their growing ethnic communities. At the same
time, anxious not to appear more attractive than each other, welfare for asylum seekers has been
reduced. Germany and the UK now provide support to destitute asylum seekers in the form of food
vouchers, rather than cash. The temporary humanitarian status increasingly provided instead of
Convention status excludes family reunion provisions. Australia provides the most minimal welfare
payment, special benefit, to illegally arrived asylum seekers even after they have been determined to be
Convention refugees, and they are denied access to settlement services (English tuition and initial
accommodation) tailored for and provided free to off-shore refugees.

Considerable resources are also being spent on countering people smuggling, including through
information campaigns warning potential 'victims' against using 'criminal' organisers. Such campaigns
might be effective in discouraging movements such as those from China to Australia, where people can
be informed that if they survive the boat trip in all likelihood they will be quickly sent home. In the case of
recent boat arrivals from the Middle East, few are able to be returned, the large majority are being granted
refugee status, and the people smugglers are providing a demonstrably effective service. Information
campaigns based on the 'harsh' conditions asylum seekers from the Middle East (most of whom have
been living for years in refugee camps in countries like Iran or Jordan) may have to endure before they
get resident status in Australia, are more likely to be counterproductive than effective. Such initiatives
have been described as political posturing on the part of liberal democratic governments unwilling to
challenge the Convention regime, unable to adopt the (perhaps impossibly) harsh measures required to
stop asylum seeker inflows, but needing to placate public anxiety and expectations. (41)

Inequities

The discrepancy between what Western countries spend on their asylum systems, and what is spent on
refugees in camps, has reached the point where it is raising fundamental questions about the West's
responsibilities. What is spent on the world's 1.2 million asylum seekers is clearly many times the UNHCR
budget, which is supposed to meet the needs of its identified (as at end-1999) 22.3 million people of
concern. By 1990 the European OECD states plus Canada were spending USD5 billion annually on the
processing of refugee applications: ten times the UNHCR budget in that year. (42) The budget of the
UNHCR this year is USD1.7 billion, including extra funding for Kosovo. This year the UK alone is
spending BRP1.5 billion (following an injection of a further BRP600 million in July to process its backlog)
on processing and providing social support to asylum seekers. The UK's contribution to the UNHCR is
BRP15 million. Canada currently spends CAD500 million on asylum seekers, and donates CAD14 million
to the UNHCR. In 1999-2000 the cost of illegal arrivals alone in Australia was in the order of $200 million.
(43)
A rough estimate of the cost of processing and supporting asylum seekers puts this at about $370
million.(44) Australia's core contribution to the UNHCR was $14 million.

In principle, refugees should receive equal protection, wherever they are, from the international
community. The reality is that there are very different expectations and outcomes for 'camp' and
'Convention' refugees. Australia's Iraqi and Afghani asylum seekers, if they had not taken matters into
their own hands, would have had a greater chance of being returned home than being resettled in another
country. The focus of the UNHCR in refugee camps in neighbouring countries is on repatriation; less than
30 per cent of people are assessed as requiring resettlement in a third country. The acceptance rate for
Iraqis and Afghanis in Australia has been over 90 per cent. According to the Department of Immigration,
this is because Australia is too far from the Middle East for risks to the individuals involved to be reliably
assessed. Any returns following individuals' claims for political asylum would unavoidably be more 'high
profile' than the UNHCR's group returns, and would bring the returned person to the attention of
supposedly persecutory (and further incensed) authorities. (45) Besides which Australia has yet to establish
return agreements with current sending or transit countries.

The Convention-based system, as it currently operates, gives priority to those present, on the basis of
their mobility (and capacity to pay), not to those with the greatest need. Women and children predominate
in refugee camp populations, suffer most human rights abuses, and are most vulnerable in refugee
situations. Men, mostly young, predominated amongst asylum seekers (75-80 per cent of Australia's
current boat people are male). This is partly the result of husbands leaving their families to follow later, in
safety. It is also the result of the datedness of the Convention, couched in terms that still fit the male
experience (as individual political activists) in many refugee-producing countries. As well, women,
especially those caring for children, are less mobile and less able to organise international travel in many
refugee producing countries. Once in a signatory country, Convention-based asylum systems give priority
to people who are able to access legal assistance. In the USA, 80 per cent of applicants assisted by
lawyers are successful, compared with only about 20 per cent who are not assisted by lawyers. (46)

James Hathaway has advocated replacing the Convention with a more equitable model of international
refugee law, which:

... would allow more good to be done for more refugees than is possible under the present regime. The
small minority of refugees who presently find solid protection in developed states may see a reduction of
its relative privileges under such a system, but a reduction in the Cadillacs of the few could, I believe,
provide bicycles for the many.(47)

Public reaction

The majority of refugees are fleeing to equally poor countries and the media is full of images of people
who have obviously been driven from their homes and who are clearly in need of assistance. When
asylum seekers journey to Western countries, people become suspicious of their motives. In Australia,
asylum seekers with resources to pay smugglers have not elicited public sympathy in the way that more
obvious refugees, for example the Kosovars who were accorded temporary protection, have done. (48)
When, as in Europe, acceptance rates are low (11 per cent of refugee applications were recognised in EU
countries last year), the public concludes that most people seeking asylum are doing so for economic and
social reasons. Even where acceptance rates are high, as in Canada or in the case of recent boat arrivals
in Australia, use of the Convention would appear to elicit as much cynicism as public support.

The fact that countries deal with asylum seekers as an issue of migration control, and of domestic politics,
is anathema to many people who sympathise with their situations. That racism and xenophobia are now
commonly described as 'rampant' in European countries supporters of asylum seekers attribute to
unreasonably high rejection rates, and 'human deterrence' measures of detention, and reduced welfare
and other measures of social exclusion. Other commentators focus on the fact that public hostility to
asylum driven migration has weakened the capacity of Western European governments to develop
managed migration programs at a time when these are needed to fill skills shortages. This is particularly a
problem in 'heroically overextended' Germany, which now needs to attract information technology workers
from overseas. German Interior Minister Otto Schily has said recently that abuse of asylum rules is
'limiting the scope for an active immigration policy'. (49) Polls in EU countries consistently reveal a majority
opinion in favour of curtailing asylum seeker rights and against further immigration. (50)

Economic refugees

The Convention-based asylum regime has fostered characterisations of asylum seekers as either political
and thus 'genuine' and 'legitimate' and 'deserving', or economic and thus 'abusive' and 'illegitimate' and
'undeserving'. Public debates on asylum seekers are often based on the assumption that such clear-cut
distinctions actually exist. Most asylum seekers however come from countries where economic failure and
political instability and persecution and poverty are inextricably mixed. And despite the either/or nature of
determinations, distinctions between individual asylum seekers can rarely be established with any degree
of certainty. There is rarely documentary evidence of persecution. It is well established in the literature
that, with the advent of people smuggling, credible stories are purchased along with the journey.

Public debates are also often based on the assumption that such distinctions are right and proper.
Commentators have however begun to question the morality of distinguishing between people impelled to
flee from persecution, and people impelled to flee from poverty and lack of opportunity. In the words of
Jeremy Harding 'the order of difficulty that prevails in some parts of the world is akin to persecution. It is
the political predicament of those migrating away from misery and grinding attrition, not their opinions,
that puts them in danger'. The fact that asylum seekers are generally not the poorest but the younger and
more enterprising from their home countries does not necessarily negate this perspective. In 1989 the
International Monetary Fund estimated that USD65 billion was transferred out of host countries by
migrants in remittances; this figure exceeded by about USD20 billion all official donor assistance. Harding
thus describes 'economic refugees' in Western countries as the 'ferrymen' of development for their
countries, and their use of asylum systems to access much higher earnings as rational and intelligent as
well as predictable. (51)

Defenders of the Convention are arguing that migration restrictions in Western countries must be lifted in
order to ease the pressure on and thus maintain the 'integrity' of the asylum system. The EU has
concluded that asylum-driven migration can only be controlled through development, and through forging
agreements with governments of sending countries on aid and trade and training and temporary (and
controlled) migration opportunities. While Australia is targeting some of its aid to preventing refugee
movements, its immigration programs have been developed with domestic (if arguably sometimes
sectoral) interests firmly in mind. The notion of immigration (as distinct from our humanitarian intake)
being linked with our regional aid and other objectives, or linked in with the relations we are building with
refugee sending or transit countries, has not been considered in recent decades.

In summary

The problem with the 1951 'Geneva' refugee Convention, the basic instrument of refugee protection, is
that it offers neither a comprehensive nor a flexible response to the diversity and complexity of forced
population movements that are occurring today. It is distorting the responses, and diverting the resources
of Western countries from developing coherent and ethical responses to these movements.

The problem with the Convention can also be summarised in simpler terms, of what it doesn't include. It
doesn't confer any right of assistance on refugees unless and until they reach a signatory country. It
confers no right of assistance on the 'internally displaced' at all. It imposes no obligation on governments
not to persecute their citizens, or to guarantee their safe return. It imposes no mechanism for preventing
mass outflows, for burden sharing between states, for ensuring speedy assistance for those most in need,
or for maximising the effectiveness of international resources. And it takes no account of the capacity of
receiving states.

The problem with reforming the international refugee regime is in what the Convention does provide: a
system for providing protection to people at risk of persecution in their own countries. No matter how lost
they may become amongst mass claims and backlogs, there are few countries willing to risk turning such
people away.

Options

Refugee advocates and NGOs

The UK Commissioner for Racial Equality recently declared, perhaps somewhat surprisingly given
acceptance rates and press reports to the contrary, that 'the vast majority' of asylum seekers in the UK
are genuine.(52) As have church and other support groups in Australia, he describes as 'unfortunate' the
way that asylum seekers have been publicly vilified as 'spongers', bogus or even criminal, and used in the
domestic political arena. The Convention and the asylum system are as relevant today as ever. The
weaknesses and problems evident with the system are political, the fault of governments, not conceptual.
Standards for determining refugee status should be set by international law, not by a reactive public or
parliament. Courts need to be 'bold' in upholding human rights. (53) Pressure must be applied on
governments to respond with generosity and compassion.(54)

Other NGOs and refugee advocates acknowledge that there are problems arising from the datedness of
the Convention, notably its inadequacy from a protection perspective. Most, however, are under no
illusion that, in the current climate, governments would not seize the opportunity afforded by wholesale
review to restrict rather than expand their obligations, or to exchange an obligatory for a discretionary
regime.(55) The Convention provides the sole legal basis for the protection of refugees worldwide. It
codifies as a fundamental human right the right to seek asylum from persecution. Nothing, certainly not
irregular migration, or processing or settlement costs, is more important that the lives of people fleeing
persecution. Reforms put forward by advocates are therefore based on preserving while broadening the
Convention grounds and criteria, to include modern day types of persecution, and on insulating the
Convention from migration pressures by requiring governments to provide opportunities for legal
migration.

In the case of Australia, refugee determination should be removed from the Department of Immigration
with its 'control mentality' to Foreign Affairs, or Attorney-General's. The fact that no cap or limit can be
placed on Convention refugees is no excuse for capping humanitarian program entrants; the two streams
operate under different systems and the integrity of each must be maintained. Illegal arrivals and people
smuggling should be addressed by posting more migration officers to process more people overseas,
including from refugee camps in the Middle East, so that refugees can enter legally under the
(presumably much expanded) off-shore humanitarian program. (56)

Other academics and commentators argue that proposing expanded obligations for governments on top
of a Convention-based asylum system that is already creaking, is fruitless. Such proposals are unrealistic
in the current climate because they are politically impossible. To refuse to balance the claims of refugees
with those of receiving states is simply to invite continuation of an already degraded system, whereby
access is blocked to an increasing number of people, and asylum seekers are treated with increasing
harshness.

The UNHCR

The UNHCR's position that the 1951 Refugee Convention remains as relevant as ever as the foundation
and cornerstone of refugee protection has become increasingly strained as criticism of the asylum system
and pressure for review have mounted. At the European Commission 'Lisbon' conference 15-16 June
2000 the UNHCR declared that the Convention provides 'a truly universal framework within which States
can cooperate and share the burden resulting from forced displacement'. It is 'ethical' in that 'it is a unique
declaration by the 139 States Parties of their commitment to uphold and protect the rights of some of the
world's most vulnerable and disadvantaged'. It is 'the one truly universal instrument setting out the
baseline principles on which the international protection of refugees has to be built'. Elsewhere the
UNHCR acknowledges that the Convention does not cover contemporary refugee situations:
The main international instrument of refugee law is a 45-year-old treaty whose only protocol came into
force nearly three decades ago. During that time, the causes of many refugee movements have shifted; in
recent years, the primary causes have been civil wars and ethnic, tribal and religious violence. (57)

The UNHCR acknowledges the pressure that Western governments are under through the use of the
asylum channel for migration, while simultaneously berating them for blaming the Convention for their
'inability' to manage their migration inflows and for adopting restrictive measures such as safe third
country provisions and carrier sanctions. It exhorts governments to be generous and flexible in its
interpretation of the Convention and in granting refugee status and family reunion rights, while the focus
of its own activities in refugee camps is on repatriation. (58)

Obviously at the forefront of UNHCR perspective is that the 1951 Refugee Convention is the only
universal refugee instrument. It places responsibility for protecting refugees squarely on host states.
However obvious their problems and however loudly creaking the asylum system, like other supporters
the UNHCR sees challenging the Convention as a threat to the international protection framework that it
has built up over the last 50 years. 'Governments should work, together with the UNHCR, to supplement-
and not supplant-the Convention so that the protection of refugees and asylum seekers can be
strengthened on the basis of already existing and widely recognised Convention principles'. (59)

It is perhaps politically nave to think that money not required for asylum seeker processing and support
would be redirected to help the world's refugees. Australian politicians for example might have other
priorities for the estimated $370 million that might (theoretically) be freed up by redefining or disengaging
from Convention obligations.

Pressures on the UNHCR would however appear to be increasing, with governments openly critical of it
for taking on an advocacy cum prosecuting judge role, rather than assisting states to cope with the
changed refugee context. Some countries are looking for a change in UNHCR leadership. (60) The
developing countries that are protecting the bulk of the world's refugees remain apparently uninterested
in, or, in the case of India, openly dismissive of, the Convention. (61) Those supporting large refugee
populations, like Iran, have however become increasingly critical and vocal over the lack of progress
through the UNHCR on burden sharing. Academics and commentators are arguing that it is time for a
new international refugee organisation, or at least time for a new mandate for the UNHCR.

A new international refugee regime

It is unlikely that many governments would sign up to the 1951 Refugee Convention today. It is also fairly
obvious what a refugee regime designed for the 21 st century would comprise. It would redefine the notion
of refugee to encompass contemporary displacements. It would formalise commitment to and strengthen
the world response (which has far exceeded the non-refoulement obligations of the Convention) that has
developed over the last 20 years to refugee situations, namely emergency assistance in safe havens,
temporary protection, repatriation, local integration and resettlement. It would focus on groups, not
individuals, and on the provision of humanitarian assistance rather than on definition of the quality of
persecution. It would hold countries responsible and accountable for displacements and impose sanctions
as well as provide support for reconstruction and reintegration. It would guarantee rights for displaced
persons and direct resources to where they are most needed. It would oblige states to contribute and
particularly to assist countries of first asylum, while allowing for flexibility of approach to different
situations and from different countries. (Canada and Australia might resettle refugees while Japan might
contribute more in direct funds.)
Models

A number of models (listed at page 32) have been developed in recent years with a common set of
objectives. Firstly, to exchange Convention obligations with a new set of obligations that populations will
accept and governments will be able and willing to implement in a more principled manner, thereby
freeing up resources. Secondly, to direct resources to improve the quality of protection especially in
countries and regions of first asylum. Thirdly, to untie the refugee regime from migration, thus allowing
states to insulate their refugee protection policies from migration pressures, and to ease public concern
over asylum-driven migration and people smuggling. These models are based on notions of safe havens,
temporary protection, international, regional and bilateral cooperation in accordance with established
principles, and burden sharing. They are based also on the notion that the needs of people and the facts
of their cases can best be determined close to where they live.

The UNHCR and other supporters of the existing system claim that disengagement from the Convention
would undermine the international framework for protecting and assisting refugees worldwide. The
producers of alternative models argue that disengagement from the Convention is a necessary part of
developing a better international refugee framework. They see the issue as not whether asylum provides
an adequate response to modern day refugee situations-it clearly does not-but whether the political will
exists to move outside the scope of the Convention.

People smuggling represents a particularly challenging affront to notions of state sovereignty, and may be
providing the extra pressure that pushes governments towards reform of the Convention-based system.
UK Home Secretary Jack Straw has proposed strengthening protection in the refugee producing region
and the lodging of asylum applications from abroad to stop asylum seekers from purchasing organised
illegal entry into European countries. He has also proposed the notion of quotas of refugees from high-
risk regions, in order to share the burden more equitably, and to enable planned intakes and settlement.
(62)
Australian Immigration Minister Philip Ruddock has suggested that receiving countries have a
collective interest in lightening the burden of care in countries such as Iran, and in making it easier for
refugees to stay in those countries pending resolution of their situations. (63)

Conclusion: Implications for Australia

Australia's on-shore refugee determination system is operating within a totally different world from the one
in which the UN Refugee Convention was designed in 1951.

Those opposed to review (leading to possible restriction) of the Convention system have described
Australia's asylum seeker problem as 'trivial' compared with numbers that have been received over a
sustained period in countries like Germany. However per capita comparisons suggest otherwise. In
calendar year 1999 Australia received 9525 claims; on a per capita basis fewer than Germany or the UK
or Canada, but roughly as many as France and Italy, and over three times as many as the USA. (64) In
1999-2000 Australia received 12 713 asylum claims. In any event, as a Sydney Morning Herald editorial
has argued, the fact that pressure may be less than on some destinations does not disentitle Australia
from acting to maintain the 'integrity' of its migration programs. (65) Indeed, the scale of the problem in other
countries provides an impetus.

No country has a visa entry (and exit) control and management system comparable to Australia's, and no
country (Canada perhaps excepted) has invested as much in its managed migration and resettlement
programs. The off-shore refugee (humanitarian) migration program has always received widespread
public support. On-shore asylum seekers have not. While opinion on the boat people is polarised, the
weight of public opinion would appear to remain unconvinced that different laws and entitlements should
apply for people who arrive illegally, and unconvinced that they should be given the benefit of the doubt.
There would also appear to be a high level of public expectation that the Government should and will
control illegal entry.

It is perhaps politically unrealistic to argue that refugee numbers should be increased simply because
more people are able to reach Australia and make a claim for refugee status. There is concern in both
major political parties that asylum seekers could undermine support for migration programs. Australian
political leadership has always been sensitive to the potential for anti-immigration and anti-immigrant
movements. More than any country in the world (Israel perhaps excluded) Australia has been built on
immigration. Twenty three per cent of the population were born overseas, and 42 per cent were either
born overseas or have at least one parent born overseas. It seems likely that Australian governments will
take whatever measures are necessary to curtail illegal entry and rising numbers of asylum seekers,
including challenging the UNHCR and rethinking our obligations under the Refugee Convention.

Withdraw

There are no practical obstacles to withdrawing from the Convention. Article 44 (2) states that any
contracting state can denounce or withdraw, with one year's notice. Such a move would be
unprecedented-no state has ever withdrawn. The threat of instant international pariah status is however
less compelling at a time when the asylum system is widely seen as 'broke'. Australia's credentials on
refugees and managed migration are unsurpassed, and it has played above its demographic weight in
international forums on migration and refugee issues. Australia could stay within EXCOM. In theory,
withdrawal from the Convention would free up a considerable amount of money which could be redirected
to countries of first asylum. It would also enable Australia to recommit to a sizeable offshore refugee
resettlement program. While Australia is obviously not a large enough player to lead the world, it could
thus provide an impetus for reform.

Withdrawal might not however provide an immediate practical solution. Asylum from political persecution
and the principle of non-refoulement have become part of international customary law; the government
and the judiciary would still have to process and deal with claims. As well, Australia is party to other
treaties which prevent people being sent back into situations of danger, or gross violation of their civil
rights, namely the International Covenant on Civil and Political Rights (ICCPR) and the Convention
Against Torture and Other Degrading and Inhuman Treatment (CAT).

Withdrawal from the Refugee Convention would however enable Australia to develop and regularise, on
its own terms, more transparent and understandable criteria and provisions for dealing with on-shore
asylum seekers.

Reform

Withdrawal from the Convention could be portrayed as Australia rejecting international standards, and as
inconsiderately directing the asylum seeker burden elsewhere. Staying in the system could arguably
make it easier for Australia to retain its influence in international forums and to play a role in reshaping the
international protection framework.
A logical first step towards reform would be to interpret the Convention in legislation for Australia's
purposes. Importantly, permanent residence and subsequent family reunion are not required under the
Convention: Article 1(c) provides that refugee status can cease where circumstances in connection with
refugee status have ceased to exist.

At present, people seeking asylum under the terms of the Convention are treated as a different group
legally and obligation wise from people provided protection in Australia under 'safe haven' legislation, and
people granted temporary extensions of stay because it is dangerous to return home. Reforming the on-
shore asylum system to bring more transparency, equity and consistency into our refugee responses is
likely to win the support of at least the general Australian public. If linked with a redirection of resources to
assist countries of first asylum, and support for reform in international forums, it is likely also to win
approval from the international community.

Endnotes

1.

2. See discussion in Joint Committee on Treaties, Reference: Convention on the Status of

Refugees, Debates, Hearing Monday 10 April 2000, pp. 22-23.

3. For example Mary Crock in Immigration and Refugee Law in Australia, Federation Press, Sydney,
1998.

4. Political parties in France, Switzerland, Belgium and Austria in particular have mobilised the anti-
immigration vote.

5. USCR, 7 million people forced to flee last year; refugee total rises for first time in 7 years,
http://www.refugees.org/news/press_releases/2000/061300a.htm.

6. EU Presidency, Strategy paper on immigration and asylum, Brussels, 1 July 1998.

www.proasyl.de/texte/europe/eu-a-o.htm.

7. Quoted in Jeremy Harding, 'The Uninvited', London Review of Books, 3 February 2000.

8. Quoted in 'UN Convention on asylum seekers is weak, says Straw', The Telegraph (UK), 12
March 2000.

9. William Hague, 'Common Sense on Asylum Seekers', Guardian Unlimited (UK), 18 April 2000.

10. 'Toughen UN Convention: Ruddock', Sydney Morning Herald, 22 March 2000.

11. Hon. Philip Ruddock MP, MPS 088/2000, 29 August 2000.

12. Jeremy Harding, op. cit, and in book form The Uninvited: Refugees at the Rich Man's Gate,
Profile Books, London, 2000.

13. John Morrison, The trafficking and smuggling of refugees: the end game in European asylum
policy? UNHCR, Geneva, July 2000, http://www.unhcr.ch/evaluate/reports/traffick.pdf.
14. Article 33 states that 'No Contracting State shall expel or return a refugee in any manner
whatsoever to the frontiers of territories where this life or freedom would be threatened on
account of his race, nationality, political opinion or membership of a particular social group'.

15. Article 31 states that 'The Contracting State shall not impose penalties, on account of their illegal
entry or presence, on refugees...provided they present themselves without delay to the
authorities'.

16. Quoted in Shaun Anthony, 'Plan to alter refugee law', The West Australian Online, 15 June 2000.

17. USCR figures, South Korea

http://www.refugees.org/world/countryrpt/easia_pacific/south_korea.htm and Japan
http://www.refugees.org/world/countryrpt/easia_pacific/japan.htm.

18. The OAU defines as a refugee 'every person who, owing to external aggression, occupation,
foreign domination or events seriously disturbing public order in either part or the whole of his
country of origin or nationality, is compelled to leave his place of habitual residence in order to
seek refuge in another place outside his country of origin or nationality'.
See http://www.unhcr.ch/refworld/refworld/legal/instrume/asylum/ref_afre.htm.

19. Statistics from USCR web-site.

Country Report: Iran http://www.refugees.org/world/countryrpt/mideast/iran.htm;
Country Report: Jordan http://www.refugees.org/world/countryrpt/mideast/jordan.htm;
Country Report: Pakistan http://www.refugees.org/world/countryrpt/scasia/pakistan.htm;
Country Report: India http://www.refugees.org/world/countryrpt/scasia/india.htm;
Country Report: Iraq http://www.refugees.org/world/countryrpt/mideast/iraq.htm;
Country Report: Thailand http://www.refugees.org/world/countryrpt/easia_pacific/thailand.htm;
Country Report: Malaysia http://www.refugees.org/world/countryrpt/easia_pacific/malaysia.htm;
Country Report: Indonesia http://www.refugees.org/world/countryrpt/easia_pacific/indonesia.htm.

20. UNHCR web-site, http://www.unhcr.ch.

21. UNHCR, UNHCR by numbers, http://www.unhcr.ch/un&ref/numbers/table2.htm.

22. EXCOM Notes on international protection are on the UNHCR web-site at

http://www.unhcr.ch/refworld/refworld/unhcr/excom/menu.htm.

23. Australia's on-shore refugee determination processes are critically examined in the report of the
Senate Legal and Constitutional References Committee, A Sanctuary under Review, June 2000.

24. It has drawn particularly from the work of James Hathaway, Osgood Law School and Centre for
Refugee Studies, York University, Toronto; Matthew Gibney, Refugees Studies Program, Oxford;
Sarah Collinson, Royal Institute of International Affairs, UK; Jeremy Harding, UK author; Jonas
Widgren, International Centre for Migration Policy Development, Vienna; and Mary Crock, School
of Law, Sydney University. It is also drawn from meetings and discussions on migration and
asylum issues with government officials and with international organisations including the Inter
Governmental Consultations on Asylum, Refugee and Migration Policies in Europe, North
America and Australia (IGC), the International Organisation for Migration (IOM), and the UNHCR,
in the UK, Europe and North America May-August 1999.

25. A good description of the background to the Convention and its early years of operation is in
Sarah Collinson, Beyond Borders: West European Migration Policy Towards the 21 st Century,
Royal Institute of International Affairs, London, 1993.
26. BBC World News, National Radio PNN, 27 July 2000.

27. Marion Jimenez, National Post, 31 March 2000.

28. Christopher DeMuth, speaking at CIS conference 18 May 2000,

http://www.cis.org.au/main%20pages/DeMuth%20EDIT.htm.

29. Gil Loescher, The Asylum Dilemma in the West, Pennsylvania State University Press,
Pennsylvania, 1992.

30. Enactment of safe third country legislation has speeded up applications in and from some
countries but has been criticised by the UNHCR.

31. The UK Government's Fairer, Faster and Firmer White Paper was tabled in the House of
Commons 27 July 1998.

32. Discussion with Dr Gary Klintworth, former RRT Member, July 2000.

33. EU Presidency, 1998, op. cit.

34. UN report cited by Nick Hopkins in The Guardian (UK), 6 July 2000.

35. Alan Travis, '600 million to end asylum backlog', The Guardian (UK), 24 July 2000.

36. Staff and agencies, 'More asylum seekers to be deported', Guardian Unlimited (UK), 7 June
2000.

37. Professor Georges Tapinos, Institut d'etudes politiques de Paris, & OECD consultant, in OECD,
Trends in International Migration OECD, Paris, 1999.

38. 'Criminals win if repatriation of illegal Chinese isn't hastened', CISNEWS, 26 April 2000.

39. See costings given by the Hon. Philip Ruddock, House of Representatives, Debates, 7 March
2000. See also Longitudinal Survey of Immigrants to Australia (LSIA) data.

40. Margaret Young, Canada's refugee status determination system, Library of Parliament, Research
Branch, Canada, 1997.

41. Depending on whether drop-outs are counted.

42. Jeremy Harding, op.cit.

43. Jonas Widgren, 'International migration and regional stability, International Affairs, vol. 66, no. 4,
October 1990.

44. Andrew Metcalf, DIMA, in hearing of Joint Committee on Treaties, Hansard, op. cit., p. 48.

45. According to the Immigration Department, the average cost of a non-detained asylum seeker, up
until they are either granted refugee status or removed from the country, is $20 000. The ANAO
has estimated the average cost of a boat person who enters the refugee system to be $50 000.

46. Advice provided by Refugee and Humanitarian Division, DIMA, June 2000.
47. Molly McDonough, 'A Web Site for Asylum Seekers', CISNEWS, March 2000.

48. James Hathaway, Can international Refugee Law Be Made Relevant Again? USCR article,
http://www.refugees.org/world/articles/intl_law_wrs96.htm.

49. The External Reference Group set up in Australia last year to advise on boat people measures
advised that asylum seekers with resources to pay smugglers do not elicit public sympathy in the
way that refugees, for example the Kosovars who were accorded temporary protection, do.

50. Ralph Atkins, 'Panel launched to plan overhaul of German immigration and asylum rules',
Financial Times (London), 13 July 2000.

51. In a Forsa poll published July 2000 the majority of Germans indicated that they wanted rights to
asylum limited, and that they considered there were 'too many foreigners' in the country. In a
Eurobarometer survey commissioned by the EU several years ago one third of respondents
openly described themselves as 'racist', and only a minority considered immigration would bring
their country any real benefits. Described in Jeffrey Smith, 'Europe Bids Immigrants Unwelcome',
Washington Post Foreign Service, 23 July 2000.

52. Jeremy Harding, op. cit.

53. Gurbux Singh, quoted in Philip Webster, 'Most refugees are genuine, says race watchdog', The
Times (UK), 11 May 2000.

54. Catholic Commission for Justice and Peace, Hordes or human beings?, The Commission,
Melbourne, 2000.

55. Erica Feller, UNHCR, Asylum and protection: The Convention under scrutiny, presentation to
European Conference on Asylum, 15-16 June 2000, Lisbon.
http://www.unhcr.ch/issues/asylum/lisbon.htm.

56. Des Hogan, Amnesty International, at hearing of Joint Committee on Treaties, 10 April 2000.

57. William Maley, Associate Professor Politics, ADFA, speaking at a Racial Respect forum on Boat
People, Smuggled People, Queue Jumpers or Refugees?, Canberra, 16 March 2000.

58. UNHCR, Who is a refugee?, http://www.unhcr.ch/un&ref/who/whois.htm.

59. UNHCR EXCOM Note on International Protection, 7 July 1999,

http://www.unhcr.ch/refworld/unhcr/excom/reports/914e.htm.

60. UNHCR, The 1951 Convention: Lasting Cornerstone of Refugee Protection,

http://www.unhcr.ch/issues/asylum/qa000615.htm.

61. Immigration Minister the Hon. Philip Ruddock, at Paris conference on people smuggling, July
2000.

62. USCR, Country Report: India, http://www.refugees.org/world/countryrpt/scasia/india.htm. See

also Nirupama Subramanian, 'An Insightful Study', Frontline, September 1, 2000.

63. Jack Straw, UK Home Secretary, Towards a common asylum procedure, Speech to European
Conference on Asylum, Lisbon, 16 June 2000.
 64. The Hon. Philip Ruddock, An international approach to combating people smuggling and the
illegal movement of people, Speech delivered at Paris conference on people smuggling, 20 July
2000.

65. USCR statistics.

66. 22 November 1999.

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