Is It Legal To Ban Refugees?

He’s been in office for less than two weeks, but US president Donald Trump has already been making waves with a radical executive order which includes banning some refugees from entering the country. But what about international refugee treaties, which both the US and Australia have ratified, that lays out obligations of signatory countries to accept and protect refugees?

What happens if the Australian Government, which has indicated it will work closely with president Trump on refugee issues, decides to follow the same route? Will both countries be breaking any international laws? It’s a complex topic that we’ll be delving into today.

The Refugee Situation In The US And How It Can Affect Australia

US president Trump has signed an executive order that not only suspends the US Refugee Admissions Programme for 120 days, but places a ban on Syrian refugees and a 90-day suspension on anyone from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The ban encompasses legitimate travellers from the aforementioned countries and even those with dual citizenship. All of these countries have a majority Muslim population.

The US’ cap on accepting refugees has also been slashed, down from 110,000 to 50,000 refugees. You can read up on the full details of the executive order here.

Given that the current Australian Government has reiterated its commitment to work with president Trump to put in place “strong border policies” and our country’s sordid history of dealing with refugees, its not far-fetched to think that our government may follow suit.

As reported by The Guardian, Australian foreign affairs minister Julie Bishop had this to say: “We share a common view on many issues so we will continue to work very closely with the Trump administration… The very best days of the Australia-US relationship lie ahead.”

International Law Concerning How Countries Should Handle Refugees

The 1951 United Nations Convention Relating to the Status of Refugees along with the 1967 Protocol, as the names suggest, are treaties that were created decades ago and are still being used today to provide protection to people that are at risk of persecution in their home countries. It is managed by the United Nations (UN) and 148 countries have signed up to adhere to both the treaties; Australia is one of those countries.

The US is only a signatory of the 1967 Protocol, which expanded on the existing Refugee Convention.

Either way, both countries have agreed to adhere to the treaties which not only defines what a refugee is but also spells out the provisions of signatory countries. Here are some of the key rights refugees have under the treaties:

  • A refugee should not be returned to a country where he or she faces serious threats to his or her life or freedom (also known as refoulement)
  • A refugee has the right not to be expelled, except under certain, strictly defined conditions.
  • A refugee has the right not to be punished for illegal entry into the territory of a country that has signed the treaties.
  • A refugee has the right to work
  • The right to housing
  • The right to education
  • The right to freedom of religion
  • The right to be issued identity and travel documents

In turn, “[r]efugees are required to abide by the laws and regulations of their country of asylum and respect measures taken for the maintenance of public order.”

The terms sound pretty clear cut but when international law interact with domestic policies, that’s when things can get muddled.

Problems With The Treaties

Some countries have claimed the refugee convention is outdated and problematic. For example, in 2000, the Australian Federal Government Social Policy Group released a research paper that criticised the Convention for not factoring in the financial burden refugees may have on their host countries. There’s also the matter of “asylum seekers”, a term given to those who are seeking recognition of their refugee status. Asylum seekers are not covered off in the Refugee Convention and many of them can be stuck in limbo for years as they wait for their host countries to assess them.

In the years after the terror attacks on September 11 2001, there has been growing animosity towards the Muslim populace of certain countries, especially in the US. President Trump has utilised this ill-feeling towards Muslims as part of his election campaign and it’s not a total surprise that he has issued the ban. The ban is based on the assumption that restricting the entry of Muslims to the US will lower the chance of terror attacks.

Then there are disputes about fairness, since asylum seekers often end up on the shores of wealthier Western signatory countries. There are problems with people seeking refugee status as a way to skip lengthy and legal migration procedures for different countries as well.

Nonetheless, the Refugee Convention exists to tackle the global refugee problem and the UN wants to ensure that “the protection provided to refugees is more universal in scope and the burdens and responsibilities of governments are more equitably distributed and consistently applied”.

So, Is It Legal To Ban Refugees?

President Trump’s temporary ban on refugees has incited condemnation from numerous world leaders. German Chancellor Angela Merkel even called him up to explain that the US has an obligation to honour the Refugee Convention on humanitarian grounds, according to The Guardian.

But if the Trump administration doesn’t give a flying toss about maintaining relations with other countries or what world leaders think of its actions, there’s really no real ramifications for violating the Refugee Convention.

If the US wants to withdraw from the 1967 Protocol that it’s signed to, which essentially covers the same obligations of the Refugee Convention, it can do so without much obstacle.

Australia can withdraw from the Refugee Convention with one year’s notice, but whether we’re willing to throw our international reputation in the bin by doing so… Well, it’s the post-Brexit, Pro-Trump era… so anything can happen, right?

Signatory countries of the Refugee Convention are also allowed to choose how they process asylum seekers before they are granted refugee status so long as it’s “fair and efficient”. This means the definition of what qualifies as a refugee in various countries may differ from what is recognised under the Convention.

Australia, for example, has some comparatively strict criteria when assessing asylum seekers. The way Australia has historically treated asylum seekers has been criticised for violating human rights. Lifehacker’s morning sub-editor Amanda Yeo, wrote a piece about this topic, which you can find here.

In short, countries are free to set their own national policies regarding refugees that go against the refugee treaties, regardless of how extreme they are. But existing local laws should be considered. In the US there are questions as to whether the immigration ban can be deemed unconstitutional.

But from an international laws perspective, whether it’s right or wrong, countries can ban refugees without facing any real penalties except for worldwide condemnation. Having said that, diplomacy is necessary in politics and the US’ move to ban certain refugees and place harsh restrictions on travellers from Muslim countries may impact the US economy as it damages trade relationships with other nations.

More importantly, the ban itself will impact innocent people who are genuinely fleeing their home countries to escape persecution. Not only that, there are also wider implications on individuals from the banned countries that are on US visas as they are prevented from re-entering the country. A number of tech companies, including Microsoft, have spoken out against the immigration ban as it affects their own workers.

You can read up on all the previous instalments of Is It Legal? here.

Did you just catch yourself wondering if something was legal or not? Let us know and we may be able to answer it in our next Is It Legal? feature.

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