The Transfer of Asylum Seekers in Australia to Third Countries: A Case Study of Sovereignty versus International Law

Hugh S Tuckfield

doi:10.46985/jms.v3ispecial.1005

Abstract

Asylum is an issue equally central to refugee law and human rights. Generally, they are protected under the 1951 Refugee Convention, but asylum cases are largely state regulated affair, subject to state legislations, policies and guidelines, which certainly do not preclude the applicability of international obligations directing the conduct of state towards the asylum seekers, which emanate from the recognized international human rights principles such as right to seek asylum and right against refoulement and right not to be arbitrarily detained. Contracting parties to international conventions such as the 1951 Refugee Convention, ICCPR, ISESCR, CAT, CRC, CEDAW and CERD among others acquire the responsibility to respect, protect and fulfill the obligations adducible in treatment of asylum seekers. In this regard, Australia was one of the earliest state parties to the 1951 Refugee Convention and is also a party to the relevant human rights treaties. However, it is determined to adhere to its conventional understanding of sovereignty and nationalism, at the cost of comprising the minimum protection of the rights of those who seek asylum in it.

Highlights

This essay sets out to examine the human rights norms, standards and mechanisms that apply to asylum seekers that arrive in Australia territory by maritime vessels and are liable to or the subject of transfer to a third country for their claims to be processed.[2]
The UNHCR has condemned the ‘no advantage’ test insofar that it relies upon the ‘average period for resettlement’ as the metric to determine no advantage is derived by asylum seekers arriving in Australia by boat vis-à-vis those that have applied for asylum outside of Australia
This essay has examined the human rights norms, standards and mechanisms available to protect the human rights of asylum seekers arriving in Australia by maritime vessels

Summary

Kathmandu School of Law Review

The Transfer of Asylum Seekers in Australia to Third Countries: A Case Study of Sovereignty versus International Law. Asylum is an issue central to refugee law and human rights. Contracting parties to international conventions such as the 1951 Refugee Convention, ICCPR, ISESCR, CAT, CRC, CEDAW and CERD among others acquire the responsibility to respect, protect and fulfill the obligations adducible in treatment of asylum seekers. In this regard, Australia was one of the earliest state parties to the 1951 Refugee Convention and is a party to the relevant human rights treaties. It is determined to adhere to its conventional understanding of sovereignty and nationalism, at the cost of comprising the minimum protection of the rights of those who seek asylum in it

Introduction

Findings

Conclusion