EXTENDING A COLLECTIVE HUMAN RIGHT TO ADDRESS A GLOBAL CHALLENGE: SELF-DETERMINATION FOR REFUGEES, ASYLUM SEEKERS AND STATELESS PERSONS.

• Author: Maguire, Amy

I INTRODUCTION

In 2016, ten individuals gained brief global prominence as a 'quasi-nation' representing the worldwide population of refugees at the Rio Olympic Games. (1) They were but ten of the approximately 21.3 million refugees then in desperate and uncertain situations, having been forced to flee their homelands due to persecution. (2) For these refugees, their capacity to exercise the right to self-determination as part of a national community was forfeited upon fleeing their country of origin. (3)

The sharp rise in the number of displaced persons and the lengthy nature of current conflicts has left millions in limbo with no way to contribute to the development of humane societies or seek justice as rights claimants. Refugees and people seeking asylum make up approximately 28.5 million of the world's displaced population. (4) At international law, a refugee is someone who is 'unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.' (5) Asylum seekers have left their country of origin but have not had their claims for refugee status resolved. (6) Once these individuals cross the border, they are no longer part of a national community and effectively relinquish self-determination. As self-determination forms a foundation for the exercise of other human rights, refugees and asylum seekers are especially vulnerable to continuing human rights violations.

There are also 10 million stateless persons throughout the world. (7) A stateless person is someone who is 'not considered as a national by any state under the operation of its law.' (8) Statelessness occurs most often where a child is restricted from inheriting parents' nationalities, or where the citizenship of a person is denied or revoked by their country of residence. (9) Statelessness and displacement are closely linked. One in three stateless people are also forcibly displaced. (10) According to the UNHCR, 'the world's... live a marginalized, invisible existence. Their lives have been disrupted or destroyed with incalculable social, economic or political consequences.' (11) The Rohingya people in Rakhine, Myanmar, as an example, have a long history in that region but are denied citizenship rights on the basis of their ethnicity, leaving them vulnerable to human rights violations by the Myanmar Government. (12) It is contended that the absence of self-determination for refugees, asylum seekers and stateless persons denies them a political voice in both the national and international community and subsequently places them at greater risk of rights violations.

As the global refugee crisis grows in scale, States are increasingly drawn towards policies that prioritise national security and border protection over human rights-based approaches to those displaced. Indeed, there has been a global shift towards punitive treatment of asylum seekers and deterrence agendas, as exemplified through the use of physical barriers to entry and mandatory detention of people seeking asylum. (13) In such an environment, displaced persons lack political representation or avenues to voice rights concerns. (14) For some, such as those asylum seekers and refugees mandatorily and indefinitely detained by Australia on Manus Island, this has led to a sense of hopelessness, resulting in high rates of self-harm and suicide. (15)

The aim of this article is to question whether the collective human right of self-determination could make a productive contribution to international law and governance responses to the plight of refugees, asylum seekers and stateless persons. Section II begins by briefly canvassing the nature of human rights protections for refugees, asylum seekers and stateless persons. Section III defines self-determination and identifies the right's scope and application in its anti-colonial sense. Section IV explores literature that has canvassed links between refugee law and human rights law, including the few to-date explorations of self-determination for refugees, asylum seekers and stateless persons. Finally, section V proposes the extrapolation of self-determination from its anti-colonial context into the context of displaced persons, and considers some contributions that the right could make to the humane and appropriate treatment of refugees.

II HUMAN RIGHTS PROTECTIONS FOR REFUGEES, ASYLUM SEEKERS AND STATELESS PERSONS

The scope of human rights protections in international refugee and statelessness law is extremely limited. Refugee law primarily upholds the sovereignty of States and is not centred upon the recognition of the individual or collective rights of refugees. The Convention Relating to the Status of Refugees ('Refugee Convention') (16) was created in the post-Second World War context, initially establishing refugee status and focussing on the rights and obligations of State parties. Temporal and geographic limits were removed in 1967. (17) However, the generally applicable law was still focused upon State rights and responsibilities as opposed to individual rights. Sixty years on, refugee law remains a framework for States to respond to those fleeing persecution rather than providing for individual human rights protections for refugees. Some rights can be drawn out of State-based obligations such as the right not to be penalised for illegal entry, (18) the right of non-refoulement, (19) freedom of movement subject to any regulations generally applicable to aliens, (20) equal treatment (21) and non-discrimination on the basis of race, religion or country of origin. (22) However, refugee law undoubtedly privileges the sovereignty of States above the individual rights of refugees.

Stateless persons have been afforded some rights at international law based on their unique circumstances. The 1954 Convention Relating to the Status of Stateless Persons establishes the right to equal treatment to that of other aliens in terms of employment, housing and elementary education, as well as the right to be issued identity papers and travel documents. (23) The 1961 Convention on the Reduction of Statelessness requires State parties to grant certain stateless persons a nationality, such as children born within those territories who would otherwise be stateless. (24) However, most of these obligations only apply to people 'lawfully within the territory' of a particular country and State-centric notions of national security and public order take precedence over granting nationality to a stateless person. (25) Therefore, these rights are extremely limited. These limitations are highlighted in Australia's present treatment of stateless persons. A stateless person who is not a refugee is classed as illegal and is unable to enter the community or apply for permanent residence or citizenship on humanitarian grounds. Due to the fact that a stateless person has no country to which he or she can be returned, stateless persons in Australia are subject to prolonged and potentially indefinite immigration detention. (26)

The vast majority of rights afforded to refugees and stateless persons are embedded within other international human rights treaties such as the International Covenant on Civil and Political Rights ('ICCPR') (27) and the International Covenant on Economic, Social and Cultural Rights ('ICESCR'). (28) Some political rights are granted to refugees in accordance with the ICCPR including, to a limited extent, the right to participate in political organisations with a peaceful agenda, free expression, free association and freedom of movement. (29) However, rights of refugees, asylum seekers and stateless persons as 'aliens' in the host country are far more limited than citizens' rights. For example, the ICCPR only provides citizens with the right to vote in the electoral process. (30) As a result, voting rights are not guaranteed for displaced persons in hosting countries with very few States allowing those without permanent residence to take part in the electoral process. (31) Displaced persons therefore have limited means to participate in domestic political processes to champion their own interests and human rights.

State responses to the recognition of the human rights of refugees, asylum seekers and stateless persons vary considerably. (32) Displaced persons residing in countries that have not ratified the relevant international conventions or that are without the resources to implement protection strategies have little or no access to their rights. (33) Thailand, for example, is not party to the Refugee Convention. Consequently it does not provide legal status or access to justice for refugees and it has forcibly returned refugees to sites of persecution. (34) Even countries that are party to the Refugee Convention, the ICCPR and the statelessness conventions may not incorporate these protections into domestic law. Australia, for instance, enforces mandatory detention, offshore processing and boat 'turn back policies, all of which are recognised by the Australian Human Rights Commission as negatively impacting the human rights of refugees, asylum seekers and stateless persons. (35) The United Nations has voiced human rights concerns in relation to Australia's treatment of people seeking asylum by boat on multiple occasions. (36) However, successful claims to the Human Rights Committee have not resulted in a change in domestic law or policy. (37) The United Nations has also renewed attention for reducing statelessness. (38) However, the statelessness conventions provide limited protection and have been largely disregarded, with few countries determining statelessness separate to refugee claims, recognising statelessness as a humanitarian ground for a visa or granting nationality to reduce statelessness. (39) Australia has no statelessness determination procedures at present. (40)

III MEANING AND...