US-Australian refugee swap comes under fire

A controversial bilateral deal between Australia and the United States to swap refugees has triggered a storm of protests from human rights activists and legal experts. According to the New York-based Human Rights Watch (HRW), some 90 Sri Lankan and Burmese refugees now held at an Australian-run detention center on the Pacific island nation of Nauru would be sent to live in the United States. Australia, in turn, would reciprocate by taking up to 200 Cuban and Haitian refugees held at the US Navy base at Guantánamo Bay, Cuba. The deal, announced on Apr. 18, "is a real low point in the protection of fundamental human rights," says Michael Ratner, president of the Center for Constitutional Rights. "Refugees are human beings; they are not commodities and items of trade. This is absolutely outrageous," he added. "It appears that officials from these counties have lost all their humanity," Ratner said in an interview. Bill Frelick, HRW's refugee policy director, said the two countries have signed a deal that bargains with lives and flouts international law. He pointed out that the only conceivable reason for this refugee swap is to deter future asylum seekers from trying to reach the United States or Australia by boat. "Yet, international refugee protection principles hold that detention and similar measures should never be used solely as a deterrent to other would-be refugees," he added. By housing refugees on Nauru and at Guantánamo Bay, both Australia and the United States are trying to avoid their legal obligations under the 1951 Refugee Convention, HRW said in a statement released on Apr. 19. "The trade deal violates the spirit of the legal obligation not to expel a refugee, except for national security reasons and only after a decision in accordance with due process standards," it added. Neither government cited any national security rationales for the exchange in refugees, HRW noted. Ratner, whose Center for Constitutional Rights is challenging the legality of unlawfully detaining terror suspects in Guantánamo Bay, said: "There is no place in a just world for Guantánamos or Naurus–and certainly no place for trading human beings, as was done in the days of the slave trader." Asked if Australia and the United States may be trying to avoid their legal obligations under the 1951 Refugee Convention, professor Tai-Heng Cheng, associate director at the Center for International Law at the New York Law School, said in an interview that the two countries may not be technically violating either the Refugee Convention or international law. Article 32 of the Convention prohibits states from expelling refugees lawfully in their territory, but Guantánamo and Nauru are not part of the United States and Australia's sovereign territories, respectively, he argued. Cheng said the arrangement may not necessarily be contrary to the spirit of the Convention. Its preamble recognizes the humanitarian nature of the problem of refugees, but also that the grant of asylum may place unduly heavy burdens on certain countries, and mandates international cooperation to obtain a satisfactory solution. He pointed out that refugee law in 1951 responded to the horrors of "hot" conflicts in the Second World War, when mass migration of humans was not as easy as today. Today, he said, many refugees from Cuba, Haiti, Sri Lanka and Burma (Myanmar) flee political systems rather than hot conflicts, and may do so en masse, with or without the involvement of human traffickers. This latest arrangement shows the tremendous pressure that the international system has now come under to balance the pressing needs of refugees with the genuine sovereign interests of states, Cheng added. "The global community needs to seriously reconsider how we might coordinate our efforts to protect refugees without unduly burdening states." Norman Solomon, executive director of the Washington-based Institute for Public Accuracy, says treating human beings as commodities is "unfortunately" in keeping with the policies of President Bush and Australian Prime Minister John Howard. "Apparently the sanctity of the family, so apt to be invoked in their rhetoric, is a highly selective concern for the leaders of the US and Australian governments." The concept of human rights for refugees, Solomon said in an interview, "seems to be foreign to the very leaders who have been eager to cite human rights as a purported justification for the invasion and occupation of Iraq." Perhaps this is an extension of the Bush-Howard vision of globalization, he noted. "Trade becomes debased into the exercise of elite conveniences at the expense of unfortunate human beings." In material terms, he argued, Bush and Howard can hardly be called unfortunate. "But their willingness to move refugees across the Earth, in a geopolitical chess game, speaks to a depravity in their leadership that makes a mockery of their rhetoric about democracy, compassion and freedom," said Solomon, author of War Made Easy: How Presidents and Pundits Keep Spinning Us to Death. Monique Beadle, refugee project director at the World Organization for Human Rights USA, said the latest move by the US government to flout its obligations under the Refugee Convention and other international human rights treaties comes as no surprise. "The government has routinely and consistently asserted that its obligations under human rights treaties do not apply in Guantánamo despite clear guidance from the Supreme Court to the contrary," Beadle said in an interview. She said it is well established that refugees have a right to seek protection in the Western country they are able to reach, and that family unity should be a key consideration in evaluating refugee claims. "Nothing in the Refugee Convention permits Western countries to detain refugees arbitrarily, or to transfer them to far flung continents at whim," she added. Asked if there was any action the United Nations can take to prevent similar deals in the future, Cheng said that as an immediate first step, UN Secretary-General Ban Ki-moon might approach the United States and Australia for their consent to dispatch small monitoring teams to ensure that the new arrangement is consistent with international law. "It is in the interests of both states to demonstrate to the world that refugees under the arrangement are no worse off than they would have been prior to this arrangement." He also said that an advisory opinion from the International Court of Justice in The Hague might be sought to clarify the rights and obligations of states under the Refugee Convention and international law, and specifically whether states are permitted to enter into arrangements such as the present one. In the medium term, the 192-member UN General Assembly might consider how states can better coordinate their efforts to find acceptable solutions to all parties to address the pressing human rights concerns of genuine refugees, with a view to issuing a resolution on this issue. Eventually, he said, the General Assembly might convene a conference to revise the Refugee Convention to better account for the needs of receiving states in exchange for more effective enforcement mechanisms.