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LAW FOUNDATION ASSIGNMENT Overview Weight: 40% of the final mark Due by 5pm Friday of Week 11 (October 14) You must make and keep a photocopy of this essay Word length: 2,000 words Please hand in with cover-sheet See Learning Guide for further Example

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Malaysian Solution Labor and Socialist school of thought 12

Research paper

Order code: 386335

Unless Gillard government respects rule of law and international principles, they are in breach of international law. The deportation of asylum seeker back to Malaysia is contrary to UN convention relating to the status of refugees and all other international human rights instruments. There is no convincing clause whatsoever in the formal agreement that makes the Malaysian solution a useful solution. Asylum seekers are refugees who enjoy equal rights in Australia which they ought to enjoy had there been no persecution in their home states. It is brutal and inhuman to deport them to Malaysia without their consent where they will be subjected to further persecution and mistreatment.

Part one: Introduction

Part two: Critical discussion analysis

  1. Refoulment:

I. Direct Refoulment

II. Subsequent Refoulment

III. Refoulment at the sea

Part II: COnclusion

Part one: Introduction

This was a legal mechanism established by the Australian government to deal with people seeking asylum in Australia. These refugees totaling to 800 were arriving in Australia by boat. The Gillard government sought a solution of taking all asylum seekers in Australia to Malaysia in exchange for 400 refugees from “United Nations High Commission for Refugees.” However, legal analysts believe that this move would place the Australian government at a stake of violating International law and human rights of asylum seekers. The UN convention relating to the status of refugees, International covenant on civil and political rights and other international law instruments on protection of human rights, together with case law is the legal basis of this research supports the thesis statement above. The researcher is therefore, analyzing the pros and cons of this Malaysian solution and its impact on the refugees in light of the labor and socialist schools of thought.

Part two: Critical Discussion Analysis

The Australia’s efforts to excision of certain areas from its migration zone does not purport to relinguish sovereignty over those areas. These areas have remained Australia’s sovereign territories from which the refugees may not be refouled. The question that has to be eashablihed is whether the sending of these refugees to Maylaysia amounts to refoulement of itself and secondly whether this solution places Australia in breach of its international obligation. However, if these questions are not answered in the affirmative, then, the Gillard governemnt will not be in breach international law .

To start with, under article 35 of the UN Convention relating to the status of Refugees shows that Australia is charged with the duty of protecting asylum seekers from any form of persecution and should respect their nationality (1951).This protection includes freedom from being forced to return to their states of residence where they are facing various modes of social, political, scientific and economic persecutions as well as human rights violations like arbitrary imprisonment and punishment, torture, degrading and inhuman treatment or punishment, and cruelty among others. This means that refugees are to be treated as lawful citizens of the hosting country until the contrary is proved or disproved. Besides, State parties are obliged to confer similar benefits and rights like employment and medical to these refugees which they ought to enjoy if they were in their resident country as stated under article II additional protocol (1967) and part III of the convention, (1951). Furthermore, to respect their innocence for having illegally entered into their country. This means that they should not be subjected to any legal consequences for illegal entry into Australia which is governed by the international“principle of refoulement. ” Therefore, the Gillard government would be in breach of the above provision by illegally trading refugees with Malaysia without their consent as observed by Will Morrow (2011). I concur with Morrow that the solution needs careful tending and should be handled on a case by case basis but should not be taken as blanket belief that Malaysia would be a good place for these refugees. The clause in the formal document providing that “no transferee should be given any preferential treatment in the order of processing their claims in Malaysia” amounts to persecution and would be contrary to the above provision.

Australia domesticated the convention by ratifying it and allowing it to be operationalized within her legal system (UNHCR 2011). They are also a signatory to the UN Covenant on civil and political Rights that calls for respect for human Rights and self determination (UN convenant on civil and political rights 1997). This means that the Gillard government is at a risk of breaching international law if the Malaysian solution is there by implemented. It is believed that Australia receives only 2% of asylum seekers, a least percentage when compared with other industrialized states (Will Morrow 2011). Therefore, there is no risk of high influx of asylum seekers that would place Australia at a danger thus making the Malaysian solution to appear as mere a fallacy. For this reason, what is intended to be a solution may turn out to be a legal predicament to Australia under in light of the UN Convention on the status of refugees (1951) and the additional protocol made there under (1967). Morrow further notes that 90.000 refugees living in Malaysia are squaloring. This presents another fallacy that they asylum seekers will receive a dignified and respectful treatment in Malaysia Therefore, the Malaysian question does not comply with the demands of international law (Will Morrow 2011).

The asylum seekers in this situation are categorically under the protection of the above treaties recognized by the internatiolal community. The refugees in particular have guaranteed protection under the Refugue Convention and it is also clear that they have a well founded fear of persecution should they be forced to return home. Therefore, the asylum seekers who are actually deemed to be genuine refugees must be afforded the protection under the convention such as protection from harsh labour (Hathaway 2005). They are not supposed to be subjected to harsh condition as proposed in the formal agreement that
“no transferee should be given any preferential treatment in the order of processing their claims in Malaysia” (Will Morrow 2011). It is notable though that Malaysia is a different jurisdiction and thus, Australia cannot determine the mode of treatment in another jurisdiction. This proposal itself is form of slavery contrary to international law.

Critical analysis of Refoulment

Another vital aspect of law is the principle of refoulement touching the attributes of illegal entry, and arbitrary detention as stated under article 31 of the “UN convention relating to the staus of refuges” (1994) and the additional protocals (1967). It is divided into direct refoulment, subsequent refoulment and refoulment at the sea. Each of them shall be examined in light of the Malaysian question herein. Refugees enjoys the right non refoulment in any manner fear of further persecution on the different grounds which may include, race, religion, nationlity, or membership of aparticular social grouping as observed in the case of MIMA v Thiyagarajah (1998). The International Convenant on Civil and political rights under article 12 prohibits any form of degrading punishment by providing that refugees the “ liberty of movement” and the right to choose where to seek asylum. The same has been also interpreted by the international Human Rights Committee to prohibit the refoulement of refugees at the states frontier. However, there is an acception to this general rule that the state may refouler a refugee where that person threatens the security of that state as a refugee (1994). I dissent from Lauterpacht and Bethlehem that the above rules creates a lacuna in law by allowing state to refoul refugees any how. This is not true because the protection of refuges is well defined in the above provisions. However, I would concur with them that there is a chasm on the enforcebility mechanisms of international law. If a state refuses to follow the law, it is often difficult to force it to abide by the law because international law does not have a uniform police force but depends on nember states in implementation of these principles. It’s sometimes diffficult to have a collective force.(E. L. Bethlehem 2003).

For the above reasons, it is very clear that the Gillard government is in breach of international law through forced depportation of asylum seekers to Malaysia. There is no record of assessment of these asylum seekers to show that they are a threat to the national security of Australia. I concur with Will Morrow that the Gillard government has created ambigeous fallacy by purporting that they will respect “ principles of non refoulment” yet they have expressly stated that there “may be forced returns” if the refugees are rejected in Malaysia and don’t voluntarily wish to return to their home country. Therefore, Australia will be in breach of her obligations as a hosting state and will be in breach of the UN convention on the status of refugees and other international law instruments, to which she is a signatory (Goodwill- Gill 2007).

Direct refoulement

This is the undeviating returrning of refugee to their home country from a place they initially sought refuge with the intention of blatantly shutting down the influx of persons in that given territory. However, this is not restricted because it can also be based on the guinine intention of the country to reduce on the influx of illegal migrants into the country. However, the general atmosphere of the country to which these asylum seekers are being transferred has to be assessed in light of the dangers refugees may have on the territory (Feller 2003). According to the published works of Will Morrow (2011) and Tonny Abbort (Abbort 2011) Malaysia can be classified as territories in which the refugues are at a risk of persecution. Therefore, their refoulment amounts to breach of international law.This argument is based on the unpleasant conditions to which the refugees are left to languish in, such as lack of protection and psychological harm caused by the uncertainity of the situation in Malaysia which Abbort has desribed as “far more brutal” to the refugees. This is in conformity with article 7 of the International convenant on Civil and political Rights (1994) that prohibits threat of the cruel, inhuman or degrading treatment, especially where a refugee is subjected to scientific experiment without consent . It also suffices to note that harsh conditions in detention facilities may amount to inhuman treatment. The acts of the Gillard government shows that Australia is in breach of this convenant and the non refoulment clause (Mansted, Rachel 2011).

Subsequent refoulement.

With reference to the published works of Bethlehem (2003) subsequent refoulment means taking refugees to another state ( mostly a third world territory like the proposed deportation of refugees to “Papua New Guinea’s Manus Island” if Malaysia refused to accommodate them. it’s important to note that the transportation of these refugees to third states is not prohibited anywhere in the Convention and this is also arguably acceptable under customary international law but there should be bilateral cooperation between states before deportation. However, the government’s proposal to send them to papua Guinea has not been legally agreed upon which would place the asylum seekers to further persecution. The majority view on this issue is whether the third states are in fact safe for refugees without breach of international law (Home Secretary 1966). The third state must be regarded as safe in the event that the refugees are not living under the threat of refoulement. If there is a likely hood subsequent refoulment, then, Australia will be in violation of article 33 of the Refugee Convention (T.I v United Kingdom). As a matter of practicality, there may be a greater risk persecution because Malaysia is not a signatory to any of the above conventions. In this vein, its probable that the refugees will be subjected to compulsory labour because according to Will Morrow, refugees will be provided with one months accomodations and there after expected to be self reliant. There is no proof of better employment since earlier evidence shows that the employment cards issued do not allow refugees to better employment opportunities thus leaving them at the risk of forced labour and extortion in search for a living. This would place the most vulnerable children and pregnant women to a high risk of inhumane treatment contrary to international law (Will morrow 2011).

Refoulement at sea.

The refoulement at the sea will always happen where there is an eminent danger of interception of refugees at the sea by Australia governemt. This is nomally occurs where the refugees are either transferred to the declared state for processing, or they may be returned to the high seas or seas of another state. For this reason, there is an implied admission that the Malaysian question will tantamount into breach of non-refoulement obligation as to the protection of the asylum seekers according to Magner (53). Accordingly, where states cooperate in resettleing refugees, Australian government would be required to convince the Malaysian authorities to interdict the refugees vessels and redirect them to any state or Malaysia. This requires a bilateral or mulltilateral cooperation but not a decreed solution. Without this cooperation, Australia would be in breach of her international obligantions according to Magner (71) thus creating social, political and economic harships to sylum seekers.

It is also impotant to note that Australia is under the duty to detain children only as the last resort, by cosidering the primary best interests of the children in the circumstances. The Malaysian Question primafacie contravenes these provisions, as children are treated as adults and they are placed in the same offshore processing facilities with adults. It should however be noted that if the parent of the child is legally detained then it is in the best interest of the child that a minor remains in the custody of their parents. Therefore, the Malaysian question on this point of view has paid no attention to these vulnerable groups and is in breach of international obligation imposed by the convetions and international treaties to which Australia is a signatory (Geneva Convention 1989).

Part three: Conclusion.

The deportation of the 800 asylum seekers to Malaysia in the circumstances is considered as a politically, economically, socially, and scientifically illegal. The obligations of Australia under the international Refugee law is very clear and should be respected. The only legal problem is that the available international law lacks proper enforcement mechanisms and there is still the risk of consistency in its application among member states. Strictly speaking international legal principles which woul check Australia are in conflict in themselves in the light of the interpretation of the treaty obligations and the aspirational adherence to the Convetion. However, it is still a question of jurispriudence that the implimentation of the Malaysian question is in itself a violation of international law. The primary concern is the detention of the refugees for longer periods under harsh conditions and without access to basic needs and judicial review which need to be checked . Therefore, I still maintain that unless Gillard government respects rule of law and international principles, they are in breach of international law. The deportation of asylum seeker back to Malaysia is contrary to UN convention relating to the status of refugees and all other international human rights instruments. There is no convincing clause whatsoever in the formal agreement that makes the Malaysian solution a useful solution. Asylum seekers are refugees who enjoy equal rights in Australia which they ought to enjoy had there been no persecution in their home states. It is brutal and inhuman to deport them to Malaysia forcefully without their consent, something that necessitates the intervention of the international community especially in an attempt to save the most vulnerable children and pregnant women from the wrath of persecution.

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