Refugees, Regionalism and Responsibility ELGAR STUDIES in HUMAN RIGHTS
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Refugees, Regionalism and Responsibility ELGAR STUDIES IN HUMAN RIGHTS Editorial Board: M. Cherif Bassiouni, DePaul University, USA, Thomas Buergenthal, The George Washington University, USA, Stephanie Farrior, Vermont Law School, USA, David Kinley, University of Sydney, Australia, Sarah Joseph, Monash University, Australia, Balakrishnan Rajagopal, Massachusetts Institute of Technology, USA, Margot E. Salomon, London School of Economics, UK, Penelope Simons, University of Ottawa, Canada, David Weissbrodt, University of Minnesota, USA and Tom Zwart, Utrecht University, the Netherlands Discourse on human rights has grown ever more visible and essential, with human rights principles at issue on both the international and national stage. This series brings together high-quality works of scholarship in law, particularly those with a critical or analytical edge, or those taking innovative and interdisciplinary approaches. Books in the series also address concerns at the intersection of human rights and other fields such as trade, the environment, international investment and religion, thus contributing to the depth and breadth of scholarship so vital to understanding the complicated matters at stake. Refugees, Regionalism and Responsibility Penelope Mathew Professor and Dean of Law, Griffith Law School, Australia Tristan Harley Solicitor of the Supreme Court of New South Wales,Australia ELGAR STUDIES IN HUMAN RIGHTS Cheltenham, UK + Northampton, MA, USA © Penelope Mathew and Tristan Harley 2016 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2016935780 This book is available electronically in the Law subject collection DOI 10.4337/9781782547297 ISBN 978 1 78254 728 0 (cased) ISBN 978 1 78254 729 7 (eBook) Typeset by Columns Design XML Ltd, Reading This book is dedicated to the asylum seekers whose lives have been affected by the failure of governments to rally together and come to their aid. We hope that better, cleverer and more humane policies will be developed in the future. Contents Acknowledgments viii Introduction 1 PART I REGIONALISM, RESPONSIBILITYAND RESPONSIBILITY-SHARING 1 Regionalism and refugee protection 23 2 The responsibility of states to protect refugees 67 3 Sharing responsibility among states 94 PART II PASTAND PRESENT REGIONALARRANGEMENTS FOR REFUGEES 4 The Comprehensive Plan ofAction for Indochinese Refugees 143 5 The International Conferences onAssistance to Refugees inAfrica 162 6 The International Conference on CentralAmerican Refugees 175 7 The Common EuropeanAsylum System 189 8 The Mexico Declaration and Plan ofAction and Cartagena+ 217 9 Lessons learned 234 Bibliography 251 Index 281 vii Acknowledgments There are many people and organizations without whose support this book could not have been written. The research was funded by the Australian Research Council (project number DP 120102224). The opinions expressed in the book – which is the result of an equal contribution by both authors – are of course our own, as are any errors. The book is generally up to date with developments until early November 2015, and could not deal with matters such as the agreement reached between the EU and Turkey to stem the flow of migrants into the EU. We would like to thank the following people for research assistance during the project: Kate Worrall, Sherwood Du, Samantha Nean, Emi Christensen and Shirin Vloeberghs. We are also grateful to the participants at the colloquium held at the Australian National University, from whom we learnt so much. Thank you to Atem Atem, Brian Barbour, Andrew Bartlett, Nabila Buhari, Rafendi Djamin, Tamara Domicelj, Elizabeth Ferris, Marianne van Galen Dickie, Ellen Hansen, Susan Harris-Rimmer, Carina Hoang, Khanh Hoang, Stephen Howes, Peter Hughes, Kim Huynh, Fiona Jenkins, James Jupp, Satvinder Juss, Rezaur Rahman Lenin, Arja Keski-Nummi, Victoria Mason, Malvino Aprialdy Mazni, John Menadue, Kerry Murphy, Hitoshi Nasu, Akiko Okudaira, Paul Power, Yasunobu Sato, Supriyanto Suwito, Savitri Taylor, James Thomson, Richard Towle, Sarah Wardell and Matthew Zagor. We would also like to thank all those who participated in interviews with us during field work in Latin America and Southeast Asia, including those who could not go on record or who are not quoted in the book. Each of you added valuable insights to the project. Colleagues at UNHCR were particularly helpful in providing contacts for this field work. Many colleagues, too numerous to mention, at Griffith Law School and the Australian National University have lifted flagging spirits and cele- brated milestones with us. Pene would like to give a special thanks to Hilary Charlesworth, who has given her time and counsel so generously so many times over the last 27 years. Tristan and Pene would also like to viii Acknowledgments ix specially thank Renata Grossi for her kind support and generous feed- back. We would also like to thank Jim Hathaway, Erika Feller and Madeline Garlick for invaluable conversations at critical moments. Library staff at the ANU and Griffith University have been very helpful with all our requests for research materials. In times when universities are experiencing extraordinary fiscal retraction, it is remarkable that library staff continue to meet the needs of their research and teaching colleagues so well. We are also indebted to Rachel Salmond for her superb proof-reading services. Pene would like to thank Sue Powe for her superlative skill in organizing the diary and creating space for research and writing. Finally, we would like to thank our families for their constant support, love and encouragement. Tristan would like to thank his fiancé Rutty, his parents Jenny and Peter, his grandmother Ngaira, as well as Luke, Karen, Mitch, Gabriela and little Julian. Pene would like to thank Don Anton, Tom Anton, and their small dog, Chase, who is the most loyal of writing companions and never offers gratuitous criticism. Penelope Mathew, Brisbane, November 2015 Tristan Harley, Sydney, November 2015 Introduction Regional cooperation frameworks for refugee protection and solutions are sometimes seen as the answer to refugee movements. Examples of these include the agreement on principles for a regional cooperation framework within the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime,1 the Common European Asylum System2 and arrangements in Latin America associated with the Cartagena Declar- ation on Refugees.3 This book critically analyses the extent to which particular regional arrangements have resulted in protection and durable solutions for refugees. It also examines how responsibility for refugees has been shared at the regional level. The book explores ideas about sharing responsibility with respect to refugees, asking who should be responsible, and why and how they should be responsible.4 It questions whether regional arrangements do provide answers by fairly sharing responsibility for refugees. 1 The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime <http://www.baliprocess.net>. 2 See generally Commissioner for Home Affairs, A Common European Asylum System (European Commission, 2013). This arrangement is discussed in detail in Chapter 7 of this book. 3 Cartagena Declaration on Refugees (adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, 22 November 1984) in ‘Annual Report of the Inter-American Commission on Human Rights’ (1984–85) OAS Doc OEA/Ser.L/V/II.66/doc.10, rev 1, 190–3. These arrangements are discussed in Chapter 8 of this book. 4 This book is concerned with responsibility-sharing in a proactive, prospective sense: the book concerns efforts to share more equitably the physical and financial effort involved in protecting refugees. Lawyers will be more familiar with the term responsibility in the sense of ‘state responsibility’ – a retrospective reckoning concerning breaches of international obligations or injuries sustained, which may also be ‘shared’ among several states. On the latter, see Andre Nollkaemper and Dov Jacobs, ‘Shared Responsibility in International Law: a Conceptual Framework’ (2013) 34 Michigan Journal of International Law 359. 1 2 Refugees, regionalism and responsibility By way of introduction, we sketch here two manifestations of regional approaches that do not equitably share responsibility for refugee protec- tion. They are the international response to the Syrian refugee crisis and the move by Australia to use its regional neighbours for processing and resettlement of unauthorized boat arrivals. These scenarios represent two extremes in responses to refugees. On the one hand, countries neighbour- ing Syria bear the brunt of the Syrian refugee crisis. On the other hand, Australia has done all it can to avoid granting asylum to those arriving without a visa on boats organized by people smugglers. These two extremes informed some of our initial thinking about regionalism and responsibility and set the scene for the analysis that follows. THE SYRIAN