“Turkey: Hundreds of Refugees Deported to Syria”
“Taliban raise concerns over 'problems' faced by Afghan refugees in Iran”
“Revealed: Shocking accounts of migrants handcuffed and self-harming in UK’s chaotic asylum system”
“How Australia wrote the 'stop the boats' playbook”
All of these headlines have been taken from news headlines over the last few months on refugee and asylum seeker issues. They all discuss some modern-day issues regarding the human rights of refugees, and the responses by various state and non-state actors. However, none of these headlines get at one of the fundamental critiques of the debate between refugees and state sovereignty. There are a variety of different schools of thought within this debate, with some believing that the ideas of state sovereignty and the human rights of refugees and asylum seekers are fundamentally at odds, and others believing that the two concepts are not mutually exclusive. This article will discuss some different schools of thought on the matter, which should be prioritized in today’s globalized world, critical viewpoints, and finally evaluate the different perspectives to come to a conclusion.
Defining the Discussion:
Before discussing the different viewpoints, it is best to start with defining some of the key terms that are being explored in this article.
Sovereignty:
There are varying definitions of state sovereignty in today’s world. Globalization, the increased presence of Intergovernmental Organizations, and the diffusion of economic and sociocultural barriers between countries have “muddied the waters” of what sovereignty actually is. However, one definition is that state sovereignty is “a state which is the supreme political authority, with a permanent population, defined territory, effective government, and the capacity to enter relations with other states.”
Other definitions of sovereignty focus more on the ability of a state to have control over its population, while others lean into the ideas of internal and external sovereignty. One particular critical definition of sovereignty focuses on the idea that a sovereign state will be able to control who comes in and out of the state. This is alluded to in the above definition, as the state is the “supreme political authority” with a “defined territory” but not stated explicitly. That said, the particular aspect of sovereignty about control regarding who comes in and out of the state has been used by a number of states as a justification for the exclusion of refugees and asylum seekers in their countries.
Refugee:
According to the 1951 Convention Relating to the Status of the Refugee, a refugee is someone who is outside his or her country of nationality or habitual residence who is unable or unwilling to return due to a well-founded fear of persecution based on their race, religion, nationality, political opinion, or membership in a particular social group.
This definition shows that a refugee is someone who is in need of protection by another state, as their country of nationality has not provided adequate protection for their human rights. According to the same 1951 Convention, and followed up in the 1967 Geneva Protocol Relating to the Status of the Refugee, all states have an obligation to protect the rights of refugees by taking in refugees and providing them with basic human rights standards.
Asylum Seekers:
An asylum seeker is different from a refugee. An asylum seeker is a person who is outside their home country and is seeking status as a refugee, but has not yet been granted the status of a refugee by the destination country. In essence, an asylum seeker is waiting for their application to be a refugee to finish being processed by the destination country. Applications for asylum can often take a very long time, and asylum seekers can be held in detention facilities while their applications are being processed. This had led to what many argue are legitimate human rights concerns about the detention facilities, and how the rights of the asylum seeker are being infringed upon by the state.
All of these definitions are up for debate, and have been debated by a number of scholars and in different pieces of literature in international relations. However, the above definitions are generally considered to be the most agreed upon definitions to be used in discussion of international relations today.
State Sovereignty and the “Right to Exclude”
In recent years, many states have defined state sovereignty as inclusive of the “right to exclude” certain individuals. This is certainly how states such as Australia have interpreted the definition of sovereignty, and is actually consistent with many interpretations of sovereignty. In particular, pluralist English School accounts of sovereignty often define it this way. This interpretation of sovereignty does imply that states have the “right to exclude” certain people, as a sovereign state is one with control of its borders.
Critiques of the Sovereignty Concept:
A variety of critiques of the “sovereignty” concept include this idea. For instance, Hedley Bull, a scholar of international relations at Australian National University, stated that state sovereignty and human rights are mutually exclusive. This is because there is a tension between “the order provided by the system and society of states, and the various aspirations for justice that arise in world politics.” This shows that Bull believes that there is an inherent conflict between the aspirations for true and pure state sovereignty and the ideals of human rights for all.
Australia and the “Right to Exclude”:
The idea of the “right to exclude” as a part of sovereignty has been a part of many government’s reasons for exclusion of refugees. Australia can be seen as one particular example of this. The “right to exclude” goes all the way back to the “White Australia Policy”, which was a policy that effectively did not allow non-white immigrants to enter the country. The “White Australia Policy” was introduced in 1901 and was not officially removed until 1973 under the Whitlam government. That said, the removal of the “White Australia Policy” did not abstain Australia’s stain on refugee policy. The “Pacific Solution” was implemented by the Howard government in 2001. was heightened in Australia in 2001, under the Howard Government with their “Pacific Solution” to refugee and asylum seeker policy. This “Pacific Solution” involved dumping asylum seekers in offshore detention on the pacific islands of Nauru and Manus Island. The justification for this policy under the Howard Government was given by the Prime Minister, John Howard himself. He stated that Australia’s refugee policy would be defined by the state “deciding who comes to this country and the circumstances in which they come.” This can be shown to be the state using their sovereignty as a right to exclude certain individuals under the “Pacific Solution.”
Realist Critique:
This concept is especially backed up in a Realist interpretation of international relations. Realist thinking argues that all states are attempting to gain power, as it is in their own state's interest to gain more power in International Affairs. It also argues that states do not, and should not, intervene in the affairs of other states unless it is in their own self-interest. Realist thinking would argue that state sovereignty and pure human rights are explicitly at odds, as the state is self-interested and does not necessarily have the best interests of its citizens at heart. Therefore, the state has the ability to abuse the universal “sovereignty” it is given over its land, and therefore endanger the human rights of its citizens.
Human Rights in the Country of Origin of Asylum Seekers
Many argue that the very idea that we have asylum seekers and refugees in today’s world shows that human rights are being violated in the country of origin.
Syria
For instance, in Syria, one of the highest country of origin locations for refugees, there have been documented human rights abuses by the state government. These abuses include killings, arbitrary arrests, especially of key opposition figures, seizure of lands, and a non-functional state which leads to instability, leading to assassinations and bombings. Furthermore, there have been documented instances of the Syrian government conducting gas attacks on its own people. One report found a total of 161 chemical attacks in the country. A UN report found that there seems to be a systematic and deliberate “targeting of hospitals and medical facilities during the reporting period.” All of this shows that the reason for having asylum seekers in the first place is due to gross violations of one’s human rights in their country of origin. The very idea of a “refugee” being someone who has fled their country of origin because of persecution shows that there has been a violation of one’s human rights in their home country, as it is a human right to be free from persecution.
North Korea
North Korea is a fascinating case study into refugees, because in comparison to Syria, there are very few refugees originating from North Korea. However, this is because North Korean citizens are actually forbidden by law to leave their country. This is an explicit violation of Article 13 of the United Nations Universal Declaration of Human Rights, which states that “Everyone has the right to leave any country, including his own, and to return to his country.”
The human rights abuses in North Korea are incredibly disturbing, and the number of reports of abuses of human rights in the country are seemingly never-ending. Key violations include the lack of food, the abuse, and torture in prison camps, arbitrary detention, and the lack of freedom of movement. There are also reports of sex slavery occurring in prison camps in the country, a clear violation of human rights.
Protection to Asylum Seekers
Many in international relations discussions use these examples, among others, as an argument against granting protection to asylum seekers, as “other countries are worse than us.”
Many would counter this argument by stating that while other countries may have worse human rights abuses, this is by no means an argument to not give protection to refugees coming from particular countries. If anything, the human rights abuses occurring in certain countries is an even better reason for countries that can take in refugees to do so. It is not enough for developed countries with the capacity to bring in refugees to just say “others are worse” when other countries should not be the benchmark for addressing human rights in a moral and equitable way.
Violations of the Human Rights of Asylum Seekers
One other important and fascinating subject in refugee law is the violations of human rights when refugees are still seeking asylum.
Essentially, countless human rights abuses against asylum seekers have been documented, as asylum seekers do not yet have the protection of a ‘refugee’ in a country. Therefore, many argue that countries around the world take advantage of the ‘asylum seeker’ status rather than the ‘refugee’ status.
This is because while there are strict criteria and rules in global governance institutions, such as the UN and their Convention relating to the Status of Refugees, there is much less protection granted to asylum seekers. Therefore, many countries around the world take advantage of this inconsistency in the legal system, and deny basic human rights to asylum seekers. Many of these rights go against those granted to all human beings, unconditionally, under the United Nations Universal Declaration of Human Rights and its two main covenants, the International Covenant of Civil and Political Rights and the International Covenant of Economic, Social, and Cultural Rights. These rights abuses include offshore detention, indefinite detention, and torture at detention centres themselves.
Offshore Detention
Offshore Detention is a practice commonly used among many countries, including Australia, Denmark, and Israel. Offshore detention practices involve transferring asylum seekers outside the country to an offshore processing facility while their refugee claims are being decided upon. This system has been considered to be an abuse of the human rights of the asylum seekers by many countries.
Australia has perhaps the most infamous example of offshore detention. Asylum seekers are sent to one of three pacific islands, each of which has been used at various stages over the past two decades. Nauru has been open more consistently than Manus Island and Christmas Island, which have both been opened and closed at various points. For their abuses of human rights, all three facilities have faced criticism.
Figure 1 - Australia’s Offshore Detention Facilities
The origins of these three locations for offshore processing started in 2001 with Prime Minister John Howard. He said in his election victory speech, “We will decide who comes to this country and the circumstances in which they come.” This reinforced his message on opening up (at this point in time) Nauru and Manus Island, and the so-called “Pacific Solution.” Later, the Christmas Island center was set up, mostly to treat refugees who required medical support (a decision heavily criticized in domestic politics, as many wanted refugees who required medical support to be treated on-shore.)
When Kevin Rudd became Prime Minister in 2007, the refugee policy changed, and the so-called “Pacific Solution” was dismantled. There was a focus on a “firm but fair” and “compassionate” approach to refugees. However, this approach did not last very long. In 2012, now with Prime Minister Julia Gillard in power, there were publicized plans to use East Timor as a location for offshore processing. Unfortunately for the government, these plans were rejected by the East Timorese government itself after months of negotiations. Other plans to conduct a ‘refugee swap’ with Malaysia were thwarted by the High Court of Australia, as they were seen to be unlawful and not complying with the 1958 Migration Act.
In the end, the government revived a version of the original “Pacific Solution” and continued to use Nauru, Manus Island, and Christmas Island for offshore processing of asylum seekers.
Unfortunately, human rights abuses in offshore detention facilities are plentiful. The United Nations High Commissioner for Refugees found that in Nauru, facilities did not comply with international standards for human rights and the dignity of asylum seekers.
They found that:
Nauru constitutes arbitrary and mandatory detention under international law
Nauru does not provide a fair, efficient, and expeditious system for assessing legal claims
Nauru does not provide safe and humane conditions of treatment in detention
Nauru does not provide for adequate and timely solutions for refugees
Nauru holds children in “harsh and unsuitable” environments without “adequate educational and recreational facilities”
Nauru has inadequate medical facilities, in particular the lack of a gynaecologist for women and a lack of access to medication
In terms of Manus Island and Papua New Guinea, the human rights abuses are similar to that in Nauru. The United Nations High Commissioner for Refugees found that facilities did not comply with international standards for human rights and the dignity of asylum seekers.
They found that:
Manus Island constitutes arbitrary and mandatory detention under international law
Nauru does not provide a fair, efficient, and expeditious system for assessing legal claims
Nauru does not provide safe and humane conditions of treatment in detention
Nauru does not provide for adequate and timely solutions for refugees
One particular concern is the sheer heat of Manus Island, and the lack of shade or indoor spaces for asylum seekers, leading to major health issues.
While there are some medical facilities on Manus Island, there is a major concern that the main prescription being given is for water and paracetamol, which is considered inadequate by the UNHCR for the fair treatment of asylum seekers and the right to adequate medical care.
One primary criticism of offshore processing is that wealthy countries, including Australia, are using poorer countries, with less developed governments and civil societies, as a so-called “dumping ground” for their asylum seekers. Aside from this being a morally repulsive act, it does not live up to international standards for the protection of human rights by all nations.
Indefinite Detention
Indefinite detention is also seen to be an abuse of human rights. Article 9 of the United Nations Universal Declaration of Human Rights states that “no one shall be subjected to arbitrary arrest, detention, or exile.” Clearly, indefinite detention is directly contradictory to this, under the assumption that indefinite detention is arbitrary detention and therefore violates the United Nations Universal Declaration of Human Rights. Many would argue that indefinite detention is arbitrary as it groups all asylum seekers into the same boat, with no real option for the asylum seeker to challenge the indefinite detention.
Excessive Force at Detention Centres
Excessive Force at detention centers has been widespread in offshore detention, a clear, and present abuse of the human rights of the asylum seeker. For instance, The Commonwealth Ombudsman’s report in 2022 highlighted situations where detention personnel “did not de-escalate situations, but rather resorted to excessive force.” There was also an overreliance on pat searches and solitary confinement strategies.
This all goes to show the excessive force used at detention centers. These measures have often been considered to be a violation of The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a treaty which Australia ratified but is clearly not following.
However, despite all three allegations outlined in this section of the article, no country has taken Australia to the International Criminal Court despite many calls to do so.
Fundamental Conflict Between State Sovereignty and Human Rights
There seems to be a fundamental conflict, however, between the principle of ‘state sovereignty’ and that of equal ‘human rights.’ State sovereignty and human rights are both principles that have been held up in international law as the gold standard, and as incredibly important to uphold at all times. However, in this case, there seems to be a fundamental conflict between the two ideals. As will be explored, it is not possible to have full human rights with a full level of state sovereignty.
Many in state sovereignty theory would argue that the sovereignty of the state does allow the state to determine who comes in and out of the state. This is because, following from the principle of the state having a “defined territory” and “effective government”, an effective government would be able to control its borders. Furthermore, a state with strong internal sovereignty would be able to control who is in the country. In comparison, human rights of refugees would argue that refugees have a right to claim asylum. It also argues that countries are bound by international law to provide basic services to refugees. Therefore, many in human rights theory would argue that the basic human right of the refugee to receive basic services is more important than the sovereignty of the state to deny those services to the refugees. In essence, the argument is that the human rights of the refugee, being inalienable, is valued higher in international law than that of the sovereign state. In any case, there does seem to be an irreconcilable difference and conflict between the two ideals.
However, while this can be the case, a counterclaim to this argument from many is that states have willingly given up their sovereignty when they signed up to the United Nations High Commissioner for Refugees. Therefore, the human rights provided by the United Nations High Commissioner for Refugees, and the requirement for states to protect those human rights, is not a requirement at odds with the sovereignty of the state. This is because of the state has willingly ceded sovereignty in this case, and therefore cannot be considered a real challenge to sovereignty.
In contrast to both of these ideas, the original Westphalian concept of sovereignty would argue that state sovereignty is indeed supreme over the human rights of refugees. At the time of the Westphalian conference in 1648, there was not really a major conception of the idea of “human rights of the refugee.” The first main iteration of human rights, The Magna Carta, was published in 1215, and only outlined very basic ‘negative rights’ and does not even mention the idea of a refugee. Therefore, it can be argued that the original Westphalian concept of sovereignty placed state sovereignty over the human rights of refugees, since there was no real conception of the right of a refugee at that stage in history. This goes to show that the concept of Westphalian state sovereignty has changed, as we have had new iterations of human rights come about since then.
Other Human Rights and Their Potential Conflict with State Sovereignty
In addition to the human rights of refugees in particular, the idea of the conflict between human rights and state sovereignty applies to a variety of other areas as well.
Indigenous Rights
This includes the idea of the human rights of Indigenous peoples being at odds with state sovereignty. Much of the current literature and thinking surrounding Indigenous rights argues that Indigenous peoples have a more holistic and collective sense of human rights. Indigenous rights focus more on 3rd generation rights, including the rights of the collective group of people to land and to be free from the impacts of colonization, among other rights.
One key pillar of Indigenous rights themselves is the idea of being ‘caretakers’ of the land, rather than ‘owning’ the land. This directly contradicts with the idea of state sovereignty, as the very idea of a sovereign state is that the state is the supreme political authority in that particular area. Therefore, the idea of Indigenous land rights is a challenge to that state sovereignty, as Indigenous people do not generally see themselves as ‘owning’ the land, but rather just ‘caretaking’ the land. They see the land itself as being the highest authority, and that a state or government should not be deemed of higher importance than the land and the role of caretaking of that land.
This shows how there is an irreconcilable difference between Indigenous rights and state sovereignty.
Cultural Relativist Arguments
The argument from cultural relativism is that universal human rights are inherently problematic, as they are a universal perspective on ideas that are relative to each individual culture. Human rights should be considered individual to each particular culture, and a universal approach is inherently biased and often western centric, and potentially even a form of cultural imperialism.
This can be seen to be a challenge to the very notion of universal human rights, as those countries perceived to be in violation of human rights can simply argue that their ‘human rights’ are different to that of other countries. This argument has been commonly used in countries like Iran to argue against the human rights of women in the country.
Overall, this also shows how cultural relativist arguments are a challenge to the idea of universal human rights.
Conclusion
Overall, this article has highlighted a number of challenges to the idea of universal human rights, including those from state sovereignty and from differing interpretations of human rights. It has highlighted the idea that there does seem to be an irreconcilable difference between the obligations of states to protect human rights of refugees, and the supreme authority of the state granted under the Westphalian conception of state sovereignty. At a time of further global conflict, it will be fascinating to see how these dynamics play out in the years ahead.
Sources & Further Reading
Book - Refugees - Why Seeking Asylum Is Legal And Australia’s Policies Are Not
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