The UN Refugee Convention: To Sign or Not to Sign

September 24, 2011

The UN Refugee Convention: To Sign or Not to Sign

On 9 August 2011, I wrote about refugees and healthcare ethics, mainly focusing on obvious illegality by international law on the part of both Australia and Malaysia.

Today I write on developments that have occurred after the decision of the High Court of Australia, and the eventual deadlock on what is lovingly referred to as ‘The Malaysia Solution’. Fact is, the Malaysia solution is no solution.

First of all, many Malaysians responded with: ‘sign the UN Refugee Convention!’ which is indicative of the lack of knowledge on just how outdated this Convention is. It may well be that many Malaysians do not understand the issues surrounding refugees and how the UN Convention works.

The UN Refugee Convention quite simply does not guarantee protection for refugees because of their restrictive definitions of what constitutes a refugee. In fact, if you follow this link, you’ll read about one Mr Hussain who was returned to Afghanistan by Australia because he did not fall within the definitions of a refugee within Australian law and International Law (meaning the aforementioned ratified Convention). Mr Hussain was then post-return tortured and decapitated. All of this would directly contravene the principle of non-refoulement (non-return). But what is a nation to do when refugee issues are highly political and they are a signatory to a gappy little Convention with national laws that are no better?

Recently, Australia tabled a bill on Complementary Protection that will increase protection for refugees. At present, refugees are defined as persons who have a well-founded fear of persecution as a result of the individual’s race, religion, nationality, political opinion, or membership of a particular social group. The Complementary Protection Bill would widen the definition of refugee to include persons who face a real risk of torture or cruel, inhuman or degrading treatment or punishment if returned home, or would be exposed to the death penalty or other arbitrary deprivation of life.[1]

We would need both definitions, and additional definitions for dependents of persons coming under these definitions. For a read on the 2011 Australian Migration Amendment (Complementary Protection) Bill 2011, click here. It should be noted that these amendments were drafted to be consistent with the International Covenant on Civil and Political Rights and the Convention against Torture[2], both of which Malaysia has not signed.

The UN Refugee Convention does not guarantee protection of the rights of refugees, but it may well be a good start. Optimal protection, however, shall not exist with the ratification of the Refugee Convention alone. In addition to the Convention, we would need a well drafted national law and most importantly, political will.

For once, I'd also like to share a picture I took when volunteering with Somali refugees here: