Washington International Law Journal


[G]overnments throughout the world have tried to avoid dealing with the difficult questions raised by refugee and related movements. One method is to seek to redefine the problem as one not involving obligation or responsibility. Some governments also use the law in an attempt to limit the scope of their obligations. Another technique . . . is to engage in an exercise of extra-territorial jurisdiction . . . and to seek to justify that practice on the ground that somehow obligations towards refugees need not be observed. States have also tried detention, discriminatory treatment, and denial of other human rights in their attempts to dissuade the refugee and asylum seekers . . . . In Australia, where there is no constitutional protection or Bill of Rights, the Government has continued to expand its field of executive, arbitrary power which began with the introduction of mandatory non-reviewable detention in 1991. In the case of the Tampa, Norway's position, based on Article 98 of [the United Nations Convention on the Law of the Sea], customary international law and generally accepted humanitarian standards, was that Australia was obliged to allow those rescued into the nearest port: this, in Norway's view, was Christmas Island. However, "next port of call" is not a self-defining or self-applying concept, and in many instances it may be relative to the particular circumstances of rescue . . . . [T]he premises of the international protection regime (which draws on the specifics of international refugee law, on human rights law, and on more generally applicable rules), does provide a normative and institutional framework within which States ought to seek solutions. The U.N. Committee on Human Rights found that [Australia's] policy and practice of mandatory and non-reviewable detention was arbitrary and a breach of Article 9 of the International Covenant on Civil and Political Rights, and a similar conclusion was reached by the Australian Human Rights and Equal Opportunity Commission in 1998. The question effectively arising in the Tampa case was whether the State primarily engaged had the courage to respond internationally, or whether it would look no further than its own narrow and short-term self-interest. The Tampa incident is a reminder that the refugee regime is not a seamless web, even if certain core and often competing principles retain their normative power.

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