The Refugees Convention 50 Years On: Globalisation and International Law (review)

The fiftieth anniversary of the United Nations High Commission for Refugees and the Convention Relating to the Status of Refugees spawned a flurry of activity and evaluations of the legal and organizational frameworks which define how refugees are treated. This collection of essays comes out of this process, and in particular a workshop set up as part of the Global Consultations on International Protection began by UNHCR to review the Convention.

Most of the essays are by lawyers who specialize in refugee and immigration law, as well as one by a political scientist. There is also an essay by an Australian government official and one by a Legal Officer from UNHCR. The stated twin goals of this book, as indicated in the subtitle, are to examine the state of refugee protection in light of globalization and other human rights protections. In fact, the primary focus of most of the articles is to examine different aspects of refugee protection in the Australian context, with some comparisons with the Western European and North American contexts. Although it was not intended at the time of the workshop (and in fact could not have been since the event did not happen until two months later), one event in Australia in 2001 sets the tone for most of the chapters and provides a common thread throughout the volume. This is the so-called Tampa case, where a Norwegian ship, the MV Tampa, attempted to go to Australia with 422 asylum seekers who had been rescued at sea. It was prevented from entering Australian waters. Instead, the Howard government set up the so-called Pacific Solution, whereby the Australian government paid small Pacific islands to host asylum seekers. The Tampa case raises a couple of issues carried through the book: first, that governments do not see the Refugee Convention as an instrument of human rights; and second, that states have taken a variety of measures which seek to reinterpret elements of the Convention and act toward refugees in ways which seem to undermine conventional readings (and in particular UNHCR interpretations) of refugee protections. Most of the book entails a series of analyses of how Australia has reinterpreted and undermined core protections in the Convention. It should be pointed out here that the overwhelming focus is on Australia. There is an article specifically on Canadian practice, as well as some comparative components in the other chapters, but the focus is Australia. Given the focus in much of the literature on Europe and North America, this is a welcome addition. The authors do a good job of deconstructing the fine detail of recent Australian practice vis-à-vis refugees and asylum seekers. The clear picture that emerges is that, as with the North American and European contexts, there has been a reassertion of Australian territorial sovereignty which has resulted in less protection for asylum seekers. The Tampa case illustrates this, as well as clear connections to other states' practices. Australian policy has evolved to a point where it appears that the only appropriate asylum seekers are those who have applied for asylum outside of Australia and have acquired the appropriate visa to enter Australia legally. Australia has taken a two-fold approach to dealing with "illegal" asylum seekers. First, it employs a strategy of deflection, as typified in the Tampa case. By preventing asylum seekers from actually making it to its territory, it ensures that it will not have to give them all of the protections and due process to which asylum seekers are entitled. It has also redefined some of its territorial islands to be not "legally" part of Australia for purposes of seeking asylum (i.e. not within the "migration zone"), so that if a refugee makes it to one of the outlying islands, Australia can maintain the fiction that they have not actually made it to Australian territory and thus can remove them, without being in violation of the provisions of the Convention. This rather absurd idea illustrates the fictional nature of the...