As Australia and Malaysia continue negotiating the terms of an exchange of refugees for asylum seekers, the two countries have found themselves embroiled in controversy. This controversy stems from the ethical and legal nature of this agreement and begs the question: At what point are refugees and asylum seekers going to be seen as human beings with corresponding rights? This issue isn’t just about legal terms and binding agreements, but hits at issues central to international human rights and risks setting a dangerous precedent around the world.
The agreement is simple; Australia will send 800 asylum seekers to Malaysia in exchange for approximately 4,000 refugees currently living in Malaysia. The asylum seekers are then supposed to undergo refugee status determination (RSD) in Malaysia to determine if they in fact qualify as refugees.
Malaysia is not a signatory to the International Convention on the Rights of the Refugee. Conversely, Australia is a signatory and is therefore bound by its accord. Asylum seekers in Malaysia are notoriously left unprotected as a result of the government's not being a signatory to this convention.
An Amnesty International (AI) brief summarizes the fears. By not being a signatory to the United Nations Refugee Convention, the Malaysian government is under no legal obligation to protect the asylum seekers. Even the refugees that live in Malaysia are denied protection due to a lack of legal status. Caning is also a common punishment for immigration offenses in the country, which results in about 6,000 canings a year, according to the AI brief. The detention centers where they would be bound to live until their status could be determined (which can be dragged out indefinitely since they are under no obligation to any other power, and which would benefit them more by keeping them detained) are so infected with disease and rat urine that they result in death. Women and girls are routinely subject to sexual harassment and sexual violence.
The rationale behind the decision is startling. It is Australia’s hope that sending asylum seekers to Malaysia for their RSD will help to reduce the number of asylum seekers entering the country. Australia tries to justify this by calling it an attempt to reduce “people smuggling.” The faulty logic to this has been well discussed by the Asia Foundation.
The questions that arise, however, cannot be answered with facts and figures. They do not depend on binding legal status and conventions. People who board a boat or a plane and leave everything behind to flee oppression or a fate unimaginable to most deserve more than being sent to a country where their fate will probably be as uncertain as the country that they leave. The irony is not unnoticed. Ethical applications of law need to be implemented and enforced in all situations. Doing the right thing and fulfilling legal obligations cannot be passed over due to fears that the asylum seekers and refugees are a drain on society. They are people who deserved to be treated as such.
While condemnation of the agreement has been widespread by human rights organizations, international political outcry has been rather moot. “Life, liberty and the pursuit of happiness” is trumpeted when we are promoting democracy around the world, but not when we are talking about human lives.
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