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Should Australia withdraw from the Refugee Convention?

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Australian Prime Minister Tony Abbott’s recent hypothecation that Australia may withdraw from the Refugee Convention raises three very interesting issues.

Firstly, is the Refugee Convention an agreement that is broken? Would withdrawal harm or enhance Australia’s image? Is there an alternative and a better policy solution?

You may think that as an ex-UN official and former human rights lawyer my answers may be no, yes and no.

Perhaps surprisingly I will put an alternative view.

Firstly, is the UN Refugee Convention ‘broken’?

The UN refugee Convention was written specifically to deal with the massive population movements in Europe post World War 2.

The Convention originally had a geographic limitation (Europe) and a time limitation. Fairly quickly member states removed both the geographic and time limitations but without amending the substance.

In other words, the Convention itself was not written with today’s current circumstances in mind and hence it is not set up to deal with current circumstances in an optimal way.

That said, no Convention is perfect and international agreements are always a case of not letting the ‘perfect being the enemy of the good’.

The Convention is flawed, but not fully broken.

So, should Australia withdraw from the imperfect Convention?

While the weight of opinion favours maintaining a flawed Convention over no convention at all, the view is not universally accepted. It can be argued both ways.

But for those who are against boat arrivals, a withdrawal from Convention wouldn’t slow boats.

A proportion of Indonesian arrivals would still try to get to Australia by boat regardless of the convention status.

By withdrawing from the Convention any hint of a legitimate ‘queue’ in Indonesia would vanish and indeed may encourage more, not less, boat arrivals as there would be no alternative to boats.

Hence it would be a poor strategy to withdraw from the Convention if in doing so the objective was to slow or stop boats.

What would be the ramifications of withdrawal if Australia did so nevertheless?

Some have said Australia is drifting towards pariah status.

For others this is an absurd proposition based on the belief that Australia is a good country.

Remember though, many South African Boers didn’t see the problem with apartheid and didn’t accept that their country was an outsider.

A withdrawal from the Refugee Convention would without doubt be viewed extremely negatively by many other nation states.

A withdrawal would undoubtedly drift Australia closer to becoming a pariah state, it is just not sure how much of a drift that would be.

There very well may be either travel, sporting or economic consequences or there may be few.

But is it worth the risk?

This is a tough policy area.

There is an international convention that is flawed, not entirely fit for purpose but ‘better than nothing’ in many people’s minds.

There is a huge political risk associated with the international perception of Australia should Australia withdraw from that flawed convention.

So is there another solution?

The African Union negotiated a regional treaty to amend the Refugee Convention as it applied to certain African states to deal with local circumstances.

I believe our region should do the same.

Wouldn’t it be better to have a regional amendment including Indonesia, Malaysia, Nauru, New Zealand, PNG and others to deal with asylum seekers on a regional basis?

Couldn’t we say that asylum seekers arriving in any country by whatever means should be declared as ‘arrived in region’ and processed in country of first arrival?

Couldn’t countries cost-share the processing cost, repatriation cost for failed claims and share the burden of the resettlement of successful applicants?

Just say a negotiation yielded a 15% proportion to Australia, 15% to Indonesia, 5% to New Zealand and so on.

If an asylum seeker arrived in Indonesia then that asylum seeker would be processed in Indonesia with the cost shared by proportion.

If that asylum seeker were successful then he or she would be sent to whichever regional country is underweight on refugee resettlement.

Critically the asylum seeker would not get to choose. If Nauru were underweight on recipients, then they would go there. If Indonesia were underweight then the asylum seeker would stay there. If it was Australia’s turn, then the asylum seeker would go there. In a sense the regional agreement would create a replacement ‘queue’ for the one that doesn’t currently work.

Is it harsh to remove choice from the asylum seeker? I argue, no. The Refugee Convention is there to offer protection from a well-founded fear of persecution. It is not a back door to migration. If one flees Afghanistan because of the Taliban, and is offered Nauru, they must accept it. There is no Taliban in Nauru.

If an asylum seeker were to still ignore this system and jump on a boat, there would be every right for member states to play hardball and send asylum seekers back to the rear of the now existing queue.

Such an agreement would remove Indonesia’s objections around the Convention, it would create a new regional partnership, would create a sense of fairness between nations and for asylum seekers.

It would also provide a mechanism for better border protection and processing on a regional basis.

Surely we should sit with our regional neighbors and work on a partnership? Rather than withdraw from the Convention, ask yourself, would Australia not be better served it were a partner rather than a pariah?

Andrew MacLeod is a former senior official of both the United Nations and the International Committee of the Red Cross. He is the author of ‘A Life Half Lived’ by New Holland Press and can be followed on Twitter @andrewmmacleod