AustHumanRightsNews Digest Number 594

AustHumanRightsNews Digest Number 594

1. Amnesty Report Condemns UK Pacific Solution Like Plan for EU From: "James Thomson" mailto:jthomson@ncca.org.au

Message: 1 Date: Wed, 18 Jun 2003 13:32:10 +1000 From: "James Thomson" Subject: Amnesty Report Condemns UK Pacific Solution Like Plan for EU

Amnesty International Launches Major Study on Asylum Transit Camps/Regional Protection Centres ( 18/6/2003 )

AMNESTY LAUCHES 40-PAGE ANALYSIS IN LEAD-UP TO EU SUMMIT

ALSO RELEASED: OPEN LETTER TO EU HEADS OF STATE AND GOVERNMENT ON THE COMMON ASYLUM POLICY

With this week's Thessaloniki EU summit set to discuss UK/European Commission proposals on extra-territorial processing of asylum claims, Amnesty International today launches a 40-page study of the major legal and political issues involved: (UK/EU/UNHCR: Unlawful and Unworkable: Amnesty International's view on proposals for extra-territorial processing of asylum claims*).

With the EU summit preparing to decide future priorities for the Common European Asylum System, Amnesty International also publishes an Open Letter to Europe's leaders criticizing the EU's lack of vision, their short-term thinking and their overwhelming emphasis on control and repression in regard to asylum seekers. (Losing Direction: The EU's Common Asylum Policy. Open Letter from Amnesty International to EU Heads of State and Government*).

Amnesty International's critical study of UK/Commission/UNHCR proposals for extra-territorial processing of asylum claims focuses on a number of key legal deficiencies that the organisation has identified in each, including:

* the legality of transfer * extra-territorial responsibility * whether extra-territorial "protection"could be effective * concerns regarding detention * the punitive approach to countries over readmission agreements.

The study questions whether the proposals constitute genuine and principled visions for burden and responsibility sharing and whether in fact they amount to promotion of "illegal" migration rather than limiting it.

The Amnesty study states: "Perhaps most striking of all about each of the recent proposals that have been put forward is the fact that they have failed to analyse their lawfulness not only under the 1951 Refugee Convention itself, but also in relation to the range of applicable international human rights standards".

"Amnesty's analysis shows that it is now high time for EU leaders at this week's summit to make a fundamental reassessment of what they are doing in the area of asylum," said Dick Oosting, Director of Amnesty International's EU Office.

"Instead of a managed response to current issues surrounding the flow of asylum seekers to Europe, politicians are grabbing at ad hoc, short-term solutions which are being rushed through without sufficient regard for international refugee and human rights standards," he said.

"So far, developments in the EU's common asylum policy show a lack of strategic thinking, an absence of long-term perspective, and an overriding emphasis on keeping people out, rather than protecting the most vulnerable and helping to find safe and durable solutions for refugees. Not only is the emphasis wrong, but this defensive, control-driven approach simply isn't working," said Dick Oosting.

"We hope that this summit will produce a more mature vision for the EU's common asylum policy than what we have seen so far. Instead of exploring ways of shifting the burden away from Europe and onto poorer and more vulnerable countries, the EU must accept its responsibility as a key player in the international refugee protection regime."

AMNESTY INTERNATIONAL RECOMMENDATIONS TO EU SUMMIT:

Amnesty International calls on the EU Heads of State and Government to give clear and unambiguous direction to the development of protection strategies rather than allowing the preoccupation with the EU's and Member States' perceived self-interest to determine their responses to the movement of people to Europe.

Amnesty International calls on the EU Heads of State and Government to develop a coherent approach to ensure adequate protection of refugees and support for their humanitarian needs rather than exploring ways of shifting responsibility to vulnerable states.

Specifically, Amnesty International calls on the EU Heads of State and Government to refrain from any financial commitments enabling the implementation of the controversial proposals to set up transit processing centres.

Please click on this page to go to the Media Release and Dowload Page: http://www.amnesty-eu.org/eneanews/news_article.asp?id=180&l=2&cat=1&y=&m=&tag=1&af=

For further comment/background and interviews: Amnesty International EU Office (Brussels): Tel: 32-2-5021499 Fax: 32-2-5025686 Email: mailto:amnesty-eu@aieu.be

Note from James: for those of you unfamilliar with the UK & the Pacific Solution, I've cut and paste a few brief background notes below:

The UK government's 'new vision' of refugee protection: Transit Processing Centres and Refugee Processing Zones

Since early 2003, the UK Government's Cabinet Office and Home Office have been developing proposals for a 'new vision' of global refugee protection. Although little detail has been provided, the proposal bears stricking similarity to Australia's system of linked onshore and offshore humanitarian programs and the Pacific Solution. On 28 March 2003, the proposals were presented at an informal meeting of the EU Justice and Home Affairs Council where it was agreed that the UK and its partners would provide a more detailed set of proposals for the 20 - 21 June European Council, when heads of government have agreed to take this forward.

Main Aspects of the Proposal:

1. In the short-term, the plan is to create transit processing centres (TPCs) along major transit routes into the EU, but outside EU borders. Asylum seekers arriving without visas in the UK or other EU member states would be removed to a TPC where their asylum claims would be processed. 2. Long-term proposals focus on improving protection in regions of origin. This includes establishing 'regional protection areas' (RPAs) in refugee-producing regions, and developing managed resettlement routes from source regions to Europe. Preventative Measures have also been proposed to prevent outflows in countries of origin. These range from aid to military intervention. 3. Managed resettlement schemes are central to the proposals. Under the proposals, EU member states would accept a quota of recognised refugees for resettlement. Those refugees accepted for resettlement would be brought from an RPA or TPC into an EU member state, and provided with support to rebuild their lives and integrate into the local community.

* No clear decision has been made as to whether asylum seekers intercepted en route to the EU would also be sent to the TPCs for their claims to be processed or whether interception measures would be increased. * The paper suggests that the IOM could manage TPCs, with a screening system approved by UNHCR. * Unsuccessful applicants would be returned to their country, or an RPZ, if their country of origin remains unsafe. Successful applicants would be eligible for resettlement within the EU on a 'burdensharing' basis. * Turkey, Iran, Iraqi Kurdistan, northern Somalia and Morocco have all been mooted as possible RPAs.

Although the UK has insisted that this proposal is a 'non-paper' (designed for discussion only), we should not be complacent about its impact. It is very detailed and has significant potential to influence the debate on global asylum, not least because of the political weight of its sponsors. The proposal has received a cautious welcome from EU Justice Ministers. Italy, for example, was very enthusiastic, while Portugal thought it raised more questions than it answered. Justice and Home Affairs Ministers invited the EU Commission (in close cooperation with UNHCR) to further explore the ideas contained in the proposal, and to report to the European Council meeting in Thessaloniki in June 2003. All players who have an interest in asylum will now have to engage with the plan.

Core concerns:

Goes Against the Spirit of the 1951 Refugee Convention

The UK's New Vision proposal, like the Pacific Solution, is not the international solution that the 134 signatories States to the 1951 Refugee Convention sought to achieve. The proposal aims to shift, rather than share, the UK and Europe's share of the responsibility to protect refugees and thus undermines the concept of Responsibility-Sharing and international solidarity that underpins the 1951 Refugee Convention and the International Protection Regime. Intercepting and deterring refugees simply pushes them on to other countries or back into the hands of people smugglers. It also encourages other states to shirk their responsibilities.

Legal Responsibility

Whether or not a country has a generous offshore refugee program, its primary responsibility under the 1951 Refugee Convention is to protect refugees arriving onshore. Australia has clearly sought to legitimise its Pacific Solution through its offshore program and the implication is that the UK and EU states would simillarly try to legitimise TPCs & RPZs by creating and expanding their overseas programs. Under international law, it is clear that any domestic law redefining migration zones cannot override the obligations a country has entered into under the 1951 Refugee Convention. Article 27 of the Vienna Convention on the Law of Treaties plainly states that "a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty". Removing an asylum seeker prior to refugee status determination would also appear to lack consideration of the commitments the UK and Australia made when signing the International Covenant on Civil and Political Rights "to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant." (Article 2).

Sets a Poor Precedent for Other Countries

In signalling a further withdrawal from the Refugee Convention, it also encourages other developed and less developed nations - such as Iran and Pakistan, which have been host to over 4 million Afghan and Iraqi refugees - to abrogate their responsibilities. When closing its borders to Afghan refugees in 2001, Pakisatan for example cited Australia's response to the Tampa as justification.

Encourages Arbitrary Detention

It is highly unlikely that people in RPAs or TPCs will be free to come and go, if the centres are to function as envisaged by the British Government. Its desire to create a deterrent, the risk of people absconding to avoid being removed and pressure from countries hosting the centres all indicate the likelihood that the TPCs would be 'closed' detention centres. Detaining asylum seekers in this manner may violate international human rights law and the European Convention on Human Rights (ECHR). It would also ignore UNHCR guidelines on detention which state that '[as] a general principle asylum seekers should not be detained'. Here we should remember that in its haste to secure a deal with Nauru and PNG, Australia more or less imposed its own model of arbitrary detention on these nations. Left to their own devices, PNG and Nauru may have chosen a detention system more in keeping with their own constitutions, which both prohibit arbitrary detention, and international law, which Australia's detention system is accused of breaching. This also leads to indefinite detention when resettlement places cannot be found for successful applicants and unsuccessful applicants that cannot be returned home.

Financially Unsustainable

The Pacific Solution comes at a heavy price. Not only does it penalise the victims rather than the people smugglers, but sheer cost of the Pacific solution is totally unsustainable. Official Government figures originally estimated the cost of setting up and running the Pacific detention centres at $96 million in 2001-02. Later, however, the Cabinet was reportedly told it would cost up to $500 million. In the 2001 - 2002 budget, the Government allocated 2.8 billion over four years for 'border protection' in addition to this 500 million. All this for around 4,000 arrivals per year.

Disproportionate Response

The UK proposal states that part of the reason for introducing RPZs and TPCs is that the support provided to asylum seekers in Europe and refugees in a refugee camp is inequitable.

As a response to around 4,000 boat-people each year and as a measure to combat people smuggling and secondary movement the Pacific Solution lacks all proportion relative to its support for countries of first asylum like Pakistan and Iran.

* Last year, for example, Australia's total allocation to the countries surrounding Afghanistan was just $21.3 million.

* We can also compare this expenditure to Iran, which received less than $60 million per year from the international community for over 2½ million refugees.

* UNHCR's entire annual budget is around 900 million for over 20 million people.

* RCOA has determined that the decision to process asylum seekers "offshore" will result in each application costing in the order of $250,000 to process compared to $50,000 if the claim was assessed in Australia.

Harms Australia's International Reputation

Far from creating the impression that developed countries are trying, in a cooperative manner, to find an international solution to alleviate the factors that drive people to flight, the UK proposal creates the impression that it is seeking to shift rather than share its responsibility. Australia's Pacific Solution created the impression it was trying to dump its 'problems' on small less-developed and aid-dependent nations.

The comments of Hilda Lini, Director of the Pacific Concerns Resource Centre, sum up this feeling: "The Pacific has always been a dumping ground for everything industrialised countries reject, whether its weapons, whether its military bases, (nuclear) testing, or in this case dumping of human beings from other regions".

At best, it made Australia look like an unwelcoming country instead of a tolerant, compassionate, multicultural society. At worst, it made Australia look like a neo-colonial entity. Since the Tampa standoff, the impression expressed in the Pacific and internationally is one of Australia lacking compassion and violating international law. This perception undermines Australia's efforts to promote human rights, good governance and the rule of law abroad. The general feeling among Pacific NGOs is that Australia is increasingly acting out of narrow self-interest and in a neo-colonial manner that impinges on Pacific Island sovereignty.

Distorts Australia's Pacific Development Priorities

Nauru, for instance, has been promised $30 million in aid (on top of $72 million for detention centres) for 2001-02, but the Government has only budgeted for $20 million, leading to fears that the other $10 million will be cut from bilateral or regional programs. Given the outlay is more than Nauru received from 1993 to 2001 and takes up 18% of AusAID's entire budget for the Pacific, there is legitimate concern that AusAID's priorities may now shift away from poverty alleviation and good governance.

Distorts Pacific Politics

The NCCA is also concerned over the impact that large offers of conditional development aid have on the domestic politics of PNG and Nauru. According to the Age, the Governments of PNG and Nauru have been quick to stifle debate over the deal.

* In Nauru, Dr. Kieran Keke, one of two doctors at Nauru's main hospital, and David Adeang, Presidential Counsel, were suspended without pay on orders of President Rene Harris after they took a stand against the Pacific Solution.

* In PNG, Prime Minister Mekera Morauta sacked Foreign Minister John Pundari for his opposition to Australia's plans. One provincial Governor also lost his position.

* It also appears that the Government's decision to lift sanctions against Fiji just 5 hours before Australia's Federal Election was announced on 5 October 2001, was premature, and clearly designed to facilitate negotiations for Fiji to become another Pacific camp for Afghan and Iraqi asylum seekers.

* Australia has long encouraged Pacific Island states to assume financial responsibility, this deal offers a way for Nauru to avoid balancing its books.

The British Refugee Council thinks that the proposals are:

* unprincipled as they attempt to circumvent the UK's international obligations by shifting responsibility for some of the world's most vulnerable people onto already over stretched developing countries. This sends out a dangerous signal to other countries and threatens to unravel the global safety net provided by the 1951 Refugee Convention. Improving protection in the regions of origin must be additional to, and not in place of existing legal obligations to those who arrive spontaneously.

* legally problematic as they will lead to a raft of expensive and lengthy judicial challenges in the UK and elsewhere. The proposed RPAs and TPCs are unlikely to be able to provide the conditions and levels of protection required in the EU, and the asylum process may not be subject to the same scrutiny and safeguards as in the UK.

* unworkable as they will create 'super-Sangattes' which host countries are unlikely to accept on their territory. Experience shows that large-scale refugee camps, wherever they are located, simply do not work and, more often than not, lead to instability in the surrounding area. In addition to this, people seeking protection will be discouraged from claiming asylum, knowing that they will be deported from the UK to an overseas processing zone. They may remain 'underground', hindering their integration into society, fuelling social exclusion, depriving the Treasury of tax revenues and damaging community relations.

* expensive as the cost of establishing TPCs, improving protection in regions of origin, and deporting tens of thousands of people to overseas processing centres and then back to Europe or their country of origin will be prohibitively high.

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