In turn, some Southern states are concerned that investment in refugee protection will simply act as a ‘pull factor’ and exacerbate, rather than eliminate, the problem. Thus, they too engage in deterrence measures of their own. Frequently, while the North invests in preventing asylum seekers and migrants from arriving at the border, the South declines to provide assistance in the hope that asylum seekers and migrants will return home.203
by UNHCR when measuring states’ contributions to refugee protec- tion,205the best indicator of capacity? Other interesting questions arise as to a) whether an ‘internalist’206 explanation of the causes of refugee flows, which defines the states from which refugees come as the most responsible, is always the most accurate and appropriate; b) whether viewing such states as responsible when non-state actors are involved is helpful; and c) whether involving such states necessarily leads to resolution of the root causes of refugee crises.
Before attempting to answer all these questions concerning regionalism and inter-regional cooperation, it is necessary to unpack another key concept – that of responsibility, for responsibility-sharing presumes agreement that refugees are people for whom responsibility should be taken by the international community. Responsibility can only be shared if all are agreed on the need for protection of refugees, wherever they may be. In Chapter 2 we look beyond the consensus reflected in treaties and customary international law and explore the deeper ethical concerns underpinning refugee protection.
205 See the tables attached to UNHCR’s annualGlobal Trendspublication – for example, UNHCR,Global Trends 2013, above n 121.
206 Chimni, above n 108.
refugees
The cardinal obligation imposed by modern international refugee law is that ofnon-refoulement– the obligation not to return a refugee to a place where their life or freedom would be threatened.1 When the Refugee Convention was drafted,2the framers made little reference to the reasons why states should protect refugees fromrefoulement. In many ways, the reasons must have seemed self-evident and required little explanation. At that time, in the aftermath of the Second World War, states were acutely aware of the importance of protecting persons who had been displaced due to threats of persecution.3It is clear from the following statement by the framers of the Convention that they did not want to be complicit in the harm from which refugees fled: ‘The turning back of a refugee to the frontiers of a country where his life or freedom would be threatened
… would be tantamount to delivering him into the hands of his persecutors’.4
Over the past 25 years, however, the international refugee regime has been under threat as states have sought to implement restrictive policies.
Many states party to the Refugee Convention do not comply with its obligations in practice.5 In two regions of the world – the Asia-Pacific region and the Middle East – the majority of states have not undertaken express, binding and written commitments to refugees. Further, although
1 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) (‘Refugee Convention’) Art 33.
2 Most of the drafting took place between 1950 and 1951.
3 Peter Showler,Refugee Sandwich: Stories of Exile and Asylum (McGill- Queen’s University Press, 2006) 212.
4 Report of the Ad Hoc Committee on Statelessness and Related Problems (Lake Success, New York, 16 January–16 February 1950) (UN Economic and Social Council, 17 February 1950) UN Doc E/1618; UN Doc E/AC.32/5
<http://www.refworld.org/docid/40aa15374.html>.
5 For examples of state practice that is not in compliance with Article 33 of the Refugee Convention, see James C Hathaway,The Rights of Refugees under International Law(Cambridge University Press, 2005) 279–300.
67
the states parties to the Convention endorsed the continuing relevance of the Convention in 2001,6 it is sometimes suggested that the Convention should be ‘denounced’ – that is, that particular countries should withdraw from the Convention.
Frequently, arguments in favour of denouncing the Convention rest on an assertion that the Convention is somehow irrelevant or out of date or impractical.7 It is also argued that when other countries in a region are not party to the Convention, it is against the national interest of one particular state to either join or remain a party to the Convention. On the other side, those in favour of protecting refugees often take for granted the moral, ethical and theological reasons for granting shelter to refugees.
Consequently, this chapter examines the moral, philosophical and prac- tical reasons for granting refugees protection, with a view to firmly establishing that refugee protection is an enduring imperative. The chapter goes beyond merely reciting the legal obligations to which states have voluntarily agreed, seeking instead to show why states should shelter refugees.
Of course, none of this suggests that the Convention provides all the answers to refugee protection problems. It does not. One of the key arguments in this book is that the Convention has a significant lacuna concerning responsibility-sharing with respect to refugees. However, before one can establish that responsibility should be shared and the ways and means for doing so, it is important to establish that respons- ibility should be accepted in the first place. ‘Passing the buck’ will be particularly pronounced if the very rationale for protecting refugees is unclear or not accepted.
We acknowledge that underlying many overt arguments against pro- tecting refugees there are other objections to granting shelter to refugees which are not always articulated in diplomatic discourse. These include racism and economic worries reflected in the potentially contradictory
6 Declaration of States Parties to the 1951 Convention and or its 1967 Protocol Relating to the Status of Refugees(adopted at the Ministerial Meeting of States Parties in Geneva Switzerland on 13 December 2001) UN Doc HCR/MMSP/2001/09 (16 January 2002).
7 On the supposed impracticality of the Convention, see Anthony Bergin,
‘Law Changes Could Stop the Boats’The Australian Financial Review(Sydney), 13 June 2013; Greg Sheridan, ‘UN Decree “Fueling” Asylum Disaster’ The Australian(Sydney), 13 June 2013. For an account of similar arguments in other countries, see Gary Troeller, ‘Asylum Trends in Industrialized Countries and their Impact on Protracted Refugee Situations’ in Gil Loescher et al (eds), Protracted Refugee Situations: Political, Human Rights and Security Impli- cations(United Nations University Press, 2008) 43, 46.
arguments that refugees are on the one hand a burden on society and on the other a source of competition for jobs. It is, therefore, very important to consider the values that underpin the obligation of non-refoulement – values such as human dignity and equality, which compete with racist ideas – and to ascertain the facts concerning whether refugees are a burden or a benefit and whether they are competition for citizen workers or complementary to the existing workforce.
The chapter considers four important rationales for refugee protection.
One rationale concerns the sanctity of life and human dignity and the need for states to provide a home or surrogate citizenship8 for those whose life and human dignity are threatened. This rationale finds its source in many traditions, some closely related, including human rights, philosophical concepts and religious beliefs. It is probably the primary impetus for international refugee law, although commentators have also noted other possible motivations behind the law, such as the need to respond to the reality of forced migration (albeit in a humane way) and the possibility of using refugee protection as a negative commentary on opposing political systems (for example, Communism vs capitalism) in the context of the Cold War.9
In addition to grounding refugee protection in human dignity, which we regard as the primary and best reason for refugee protection, there are other rationales for refugee protection that may work to build popular support for refugee protection. Moral culpability for causing or contrib- uting to refugee flows is sometimes given as a second reason for sheltering refugees. A third rationale is consequentialist and concerns the impacts on state order when refugees are not protected. A fourth is utilitarian and focuses on the contributions that refugees make to their host societies, which contrasts with the more usual portrayal of refugees as a burden on host societies. We turn first to consider the moral and philosophical underpinnings of the protection of refugees, before looking at culpability and consequentialist and utilitarian reasons for protecting refugees.
8 James C Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2nd ed, 2014) 288.
9 See discussion in Terje Einarsen, ‘Drafting History of the 1951 Conven- tion and the 1967 Protocol’ in Andreas Zimmermann (ed),The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary(Oxford University Press, 2011) 37.