Refugees - we’d like to help, but …

Until 1951 Australia had been something of a bystander in earlier international negotiations on refugees. That year, however, Australia moved to participate more fully in the Conference of Plenipotentiaries which met in Geneva in July to finalise the Convention on the Status of Refugees and Stateless Persons.

As a country of immigration, distant from the major sources of refugee displacement of the time, Australia’s interventions reflect a particular perspective. Its continuing relevance may be questionable, but these interventions should not be discarded as merely quaint or time- and situation-specific.

On the contrary, they can provide insight into contemporary attitudes, explain persistent perceptions of the refugee condition, and perhaps even provide guidance on future choices.

The background to these interventions goes back 84 years when the President of the International Committee of the Red Cross wrote to the Council of the League of Nations, calling attention to the plight of some 800,000 Russian refugees still adrift in post-first world war Europe.

The League moved promptly, appointing the Norwegian polar explorer and humanitarian, Fridtjof Nansen, as the first High Commissioner for Refugees.

Nansen was charged with defining the legal status of refugees; organising their repatriation or “allocation” to potential resettlement countries; and, together with private organisations, providing legal and political protection to Russian refugees no longer enjoying the protection of their own or former government.

Within a year Nansen had proposed and secured agreement on an arrangement to issue identify certificates to Russian refugees. Nansen certificates were increasingly accepted de facto as “passports” to work, self-sufficiency, and integration in countries of first refuge - and then literally as passports and travel documents accepted for onward movement to other states in need of migrant labour.

These initiatives were the beginning of a system of international protection, marking the first formal recognition by states of the need to co-operate in the face of flight. They also marked the recognition of the fact that refugee movements are inescapably international in character.

Nansen’s appointment also marked the first step in a process which was to lead to what is often referred to today as the “international regime of refugee protection”. This system now engages governments and civil society itself, and is oriented in principle towards the goal of durable “solutions” for refugees, whether voluntary return to countries of origin, integration and self-sufficiency in the country of asylum, or resettlement.

Not that the process is, or ever was, one of smooth, unobstructed evolution to the higher goal. The history of state actions and initiatives on refugee protection and solutions is not one of humanitarianism or altruism in another guise, but rather a mixture of self-interest, opportunism, politics, recalcitrance, obstruction, unilateralism, reluctance and resentment.

But it is also leavened from time to time by immense generosity, often from civil society directly, rather than governments; by commitment, perhaps pragmatic, to international institutions; and by the binding force of principle as it slowly emerged into a body of legal rules and standards.

It is also a history of balancing state concerns - the unavoidable necessity of taking decisions in manifestly humanitarian cases and the traditional desire of nation states to preserve their sovereign interests.

All of this has been against a political background and events which the states were simply unable to change or even influence, or which other political interests led them to maintain or encourage.

It is certainly not the case, however, that state practice reveals a common golden thread of humanitarian commitment which time duly translated from conduct into rule. On the contrary, bouts of negative self-interest and dissembling, and persistent unwillingness to sign on to legal obligation, frequently interrupted such legal development.

Through the 1920s Nansen’s mandate expanded to include other groups in addition to the Russians. Although each of these later groups was seen to share certain common characteristics, states preferred an ad hoc, group by group approach, seeking to limit their commitments to known categories and staying away from any general description of unknown quantity.

Following Nansen’s death in 1930, no new High Commissioner was appointed at the time but the functions and responsibilities were transferred to a new office named in Nansen’s honour.

In October 1933, as the Nansen Office was on the point of winding up and on the eve of a decade or so of devastating displacements, a diplomatic conference was convened in Geneva to draft a convention on the legal status of the refugee, and to promote the principle of equal treatment with nationals.

At once the question arose, whether the new treaty should go beyond the specific categories already recognised in the 1920s, and include anyone who no longer enjoyed the protection of their country of origin.

League officials were concerned with what appear today to be legal niceties. They worried that the former countries of origin - the “refugee-producing countries” - might protest, even as they also affirmed that the international community of the time, being based on principles of law and justice, could hardly allow a substantial number of individuals to live without a clear legal status.

Like the drafters who followed them 20 or so years later, they were cautious, anxious not to appear to be doing anything innovative, and claimed merely to be consolidating earlier practice.

But there were indeed innovations and hints of problems yet to come. Non-refoulement - the now familiar principle that no state should return a refugee in any manner whatsoever to where he or she may face persecution - was mentioned for the first time in an international agreement.

Limitations on the power of expulsion were also mooted, for example, where the only reason was destitution, and where destitution in turn was consequential on the state itself having prohibited employment.

The interlinkage of responses and consequences began to be seen and understood: access to education was readily identified as an essential condition of equality but also a resource of potential benefit to the asylum state, should the refugees it trained ever be able to return home.

That debate revealed and further confirmed the central elements: recognition and acceptance of the international character of the refugee problem, at institutional and practical levels; the continuing relevance of national interests; and the convergence in fact of national practices, reflecting in various degrees the acceptance of common principles.

But as is often the case with international meetings, the conference was also a time for self-congratulation. One after another, the participants recited their own state’s contribution to solving the Russian refugee problem, and why, more often than not, they could not be expected to do much more.

As the Conference wound down to its conclusion, most States indicated, with little obvious enthusiasm, that the matter of signature and ratification would have to be referred to capitals. Promises to continue to receive refugees were made, but the reluctance to accept specific obligations re-emerged.

Only three States signed on the day. The President of the Conference was confident a substantial number of ratifications would follow; but only eight States ratified, and three of them with substantial reservations and declarations.

The years that followed, of course, were dominated by refugee movements - from fascism, Nazism, and the Spanish civil war. As the reality of Nazi militarism began to penetrate political circles, President Roosevelt convened a conference at Evian in 1938. Notwithstanding the times, humanitarian responses were not in the air.

On the contrary, refugees were the potential threats - to the economy, social cohesion, and the process of “appeasement”. Accommodation on exodus with the Nazi regime was contemplated, a new intergovernmental committee on refugees was set up, but practical action (let alone agreement on standards of treatment) was not forthcoming. The war would change all that, though in unexpected ways.

When states finally came together again in the new United Nations, refugees were suddenly high on the agenda. In its first London session in February 1946, the General Assembly identified three key principles: 

1. that the refugee problem was international in character;
2. that there should be no forced return of those with valid objections to going back to their country; and
3. that, subject to the above, repatriation should be promoted and facilitated.

The following year, with a short-term specialised agency - the International Refugee Organisation - now established in principle, the General Assembly called on states to accept a “fair share” of so-called unrepatriable refugees.

Yet the IRO had only ever been seen as a temporary agency, charged with providing protection and solutions for a temporary problem. Even with the continuing exodus from Eastern Europe, western states generally were keen to find an alternative.

The model they chose was an initially non-operational United Nations agency - the UN High Commissioner for Refugees - and a complementary international agreement by way of which states would commit themselves to specific obligations on behalf of refugees: the 1951 Convention.

Australia’s background contribution after World War II to the resettlement of refugees and displaced persons under the auspices of the IRO was, in effect, a response to the General Assembly’s 1947 call on states to take a fair share of non-repatriable refugees.

By then some 160,000 refugee migrants had been admitted to Australia under an agreement with the IRO. Every resettled refugee was required to sign an undertaking, agreeing to remain for two years in the employment found for them and not to change employment without permission.

Australia’s high refugee intake was sustainable because it secured the labour essential for the development of the nation’s resources, basic industries and services, and reduced the pressure that would otherwise have affected metropolitan areas.

The refugee migrant, in turn, also benefited. The government undertook to find work, ensured paid labour from day one, prevented exploitation, and provided an opportunity for familiarisation and assimilation.

Many of Australia’s concerns at the 1951 Conference of Plenipotentiaries, and many of its 10 or so formally proposed amendments, reflected its concern that these programs, including directed labour schemes, might fall foul of the Convention’s non-discrimination provisions.

From the start of the Conference, Australia emphasised that, as a country of immigration, its approach to the refugee problem differed from that of other states.

Though it might not be of direct interest to Australia - since it did not confer any benefits on refugee migrants that were not already provided by Australian legislation - the government nevertheless supported the idea of a convention designed to secure clear rights for refugees and a proper definition of their status in the new country.

It was essential, however, that Australia’s policy and practice on resettlement and directed employment should be recognised, lest they be considered incompatible with the Convention.

Just as in 1933, it was not long before someone mentioned how different and difficult it was for those countries which had no choice but to admit refugees without prior examination.

Even Canada, which operated a similar scheme to Australia’s, did not want the particular concerns of an immigration country to water down the Convention. Others pointed out that discrimination in favour of refugees was precisely what the Convention was about.

The fact is the other participating states were singularly unconcerned with the issue of principle, and none of Australia’s proposed amendments were accepted, notwithstanding dire warnings of non-ratification.

As the Conference wound its way to a close, Australia’s representative recalled that the purpose of the Convention was not so much to prescribe mutual obligations between states as to accord certain rights to refugees.

Hence, the goal should be to ensure that as many states as possible were able to implement its provisions; and indeed, it was with Australia’s ratification in April 1954 that the 1951 Convention relating to the Status of Refugees entered into force.

These two moments in history are revealing, for they show a common understanding of just who the refugee is, and of the inherently international character of the refugee phenomenon.

They reveal recognition of the constancy of refugee movements, rather than their temporariness. They disclose acceptance of the need for refugees to be protected, and eventual acceptance of the necessity for international obligations - most readily in regard to standards of treatment, but also in the matter of basic principles, such as non-return.

Above all, these two moments confirm the continuous impact of “sovereign self-interest” in international negotiations, but also how it may and must be moderated in the mutual relations of states - by their recognition of the need to cooperate in facing up to forced displacement and related humanitarian problems.