Positive non-refoulement

A High Court ruling on the detainment of 157 asylum seekers at sea brought Australia's tough border protection laws into the spotlight once again last week. Lawyers for the asylum seekers claimed that the detention aboard the Customs ship under the Maritime Powers Act was illegal and ignored international law.
 
The attempted return of the asylum seekers to India has become a divisive issue. While the Government maintained that they were economic migrants, the lawyers representing the group said some have been shown to be genuine refugees.
 
The case highlights the complexity of international law, and that the court ruled narrowly in favour of the Government by 4:3 further demonstrates this.
 
Part of the controversy is the issue of non-refoulement, an international legal framework forbidding the return of refugees to a place where they may be subjected to persecution.
 
Grounded in the absence of a safe haven for many Europeans fleeing the Nazis in WW2, the law raises important ethical questions – particularly in light of the recent surge in egression of those under Islamist control in the Middle East, and the devastating civil war in Syria.
 
First is the issue of obligation. Fundamentally the law requires that states are obliged to offer safe haven for those threatened by persecution. When that persecution is a consequence of another state's actions however (in this case the collective actions of the West), the required level of assistance should be greater than the status quo.
 
The obligation should therefore be linked with accountability and turning the existing passive protection into active assistance. That is, physically support the removal of those at risk of persecution with safe passage, as we saw the Kurdish forces provide for the Yazidis on Sinjar mountain in Iraq.
 
A compelling case can be made that the rise of Islamic State is at least partly attributed to the remaining power vacuum after military intervention from the West in Iraq, and coupled with consequent Western foreign policy, more is owed than is currently given.
 
IS have swept across swathes of Syria and Iraq, and as a consequence the UN estimate that up to 6.5 million have been displaced in Syria alone.
 
Does the West therefore have a legal (and moral) obligation to offer a safe haven?
 
While 3 million have fled to the contiguous states of Lebanon, Turkey, Jordan and Iraq, around 150,000 displaced persons have been granted asylum in the EU. Australia reserved 500 permanent resettlement places under the Refugee program last year, although provisions for more to enter under the Special Humanitarian Program (SHP) did exist.  Even so, the 2,200 SHP places came with stipulations; the refugees had to prove they already had connections to Australia.
 
Western intervention in the Middle East over the last decade has long been justified by appeal to humanitarian principles. But humanitarian intervention transcends borders and demands closer and more proactive emphasis on securing the safety of those seeking asylum elsewhere.

Alex Russell is an intern at The Centre for Independent Studies.