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You can find the current article at its original source at http://www.theguardian.com/commentisfree/2014/jul/29/on-asylum-seekers-international-law-cant-hold-back-this-government

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On asylum seekers, international law can't hold back this government On asylum seekers, international law can't hold back this government
(about 1 hour later)
In Australia's immigration detention debate, each cruel new invention in the politics of deterrence is inevitably described as a new low, a lurch or shift to the right, or as government policy having hit rock bottom. We've crossed both lines and rubicons, jumped chasms, and gone morally bankrupt.In Australia's immigration detention debate, each cruel new invention in the politics of deterrence is inevitably described as a new low, a lurch or shift to the right, or as government policy having hit rock bottom. We've crossed both lines and rubicons, jumped chasms, and gone morally bankrupt.
This idea, of a linear process of worse and worse breaches of international law, and more egregious failures of compliance, is a feature of how we talk about immigration and asylum seekers. But the idea of a "race to the bottom", when it comes to compliance with our international obligations, downplays the systemic violence that this government, and governments before it have inflicted on asylum seekers up until now.This idea, of a linear process of worse and worse breaches of international law, and more egregious failures of compliance, is a feature of how we talk about immigration and asylum seekers. But the idea of a "race to the bottom", when it comes to compliance with our international obligations, downplays the systemic violence that this government, and governments before it have inflicted on asylum seekers up until now.
Existing refugee policies are not collectively more or less rightwing or more illegal than former ones. Each and every reform reflects a new manifestation of the same bipartisan logic: the systematic persecution a minority of racialised others, in order to maintain power, or in the case of private contractors and their investors, to generate profit. Existing refugee policies are not collectively more or less rightwing or more illegal than former ones. Each and every reform reflects a new manifestation of the same bipartisan logic: the systematic persecution of a minority of racialised others, in order to maintain power, or in the case of private contractors and their investors, to generate profit.
The imbroglio over 157 asylum seekers, allegedly Sri Lankan Tamils, is without precedent in Australia. It represents this government’s contempt for both domestic and international laws that get in the way of the dubious claim that "not one boat" has arrived since the election. But is it enough to declare that this episode is a new low? Isn’t this policy really a small extrapolation of the 3,529 "enhanced screening interviews", primarily targeting Sri Lankans, already held between October 2012 and November 2013?The imbroglio over 157 asylum seekers, allegedly Sri Lankan Tamils, is without precedent in Australia. It represents this government’s contempt for both domestic and international laws that get in the way of the dubious claim that "not one boat" has arrived since the election. But is it enough to declare that this episode is a new low? Isn’t this policy really a small extrapolation of the 3,529 "enhanced screening interviews", primarily targeting Sri Lankans, already held between October 2012 and November 2013?
As of yesterday, an urgent high court hearing to decide the fate of the the of the 157 asylum seekers will no longer go ahead, and instead a claim for compensation will be made. The case is still before the courts, with Hugh de Kretser, of the Human Rights Law Centre, saying: As of yesterday, an urgent high court hearing to decide the fate of the 157 asylum seekers will no longer go ahead, and instead a claim for compensation will be made. The case is still before the courts, with Hugh de Kretser, of the Human Rights Law Centre, saying:
"The case remains over two things: was it legal or not to take these asylum seekers away from Australia and detain them at sea for a month, and if it wasn’t, should the asylum seekers be entitled to compensation?""The case remains over two things: was it legal or not to take these asylum seekers away from Australia and detain them at sea for a month, and if it wasn’t, should the asylum seekers be entitled to compensation?"
But the reality is that immigration minister Scott Morrison can countenance breaching the most fundamental protection under the refugee convention – refoulement, or the return of refugees to their home state – and still claim the government has upheld its international obligations.But the reality is that immigration minister Scott Morrison can countenance breaching the most fundamental protection under the refugee convention – refoulement, or the return of refugees to their home state – and still claim the government has upheld its international obligations.
This contest over compliance takes place because international law purports to offer a final, external source of moral and political rightness. Once we’ve established the illegality of an action, such as the treatment of those asylum seekers held in windowless rooms on the high seas, there is some hope the government will have to fall into line, and perhaps the "public" will also see sense.This contest over compliance takes place because international law purports to offer a final, external source of moral and political rightness. Once we’ve established the illegality of an action, such as the treatment of those asylum seekers held in windowless rooms on the high seas, there is some hope the government will have to fall into line, and perhaps the "public" will also see sense.
But as Morrison's claim shows, international law does not act as a moral arbiter for the government and does not, on its own, significantly constrain executive power.But as Morrison's claim shows, international law does not act as a moral arbiter for the government and does not, on its own, significantly constrain executive power.
We should undoubtedly condemn the federal government's actions as direct and bald-faced breaches of international law and the Refugee Convention in particular, as lawyers, academics and advocates have done in recent weeks. International legal standards provide a critical language and framework to communicate our opposition to government policy.We should undoubtedly condemn the federal government's actions as direct and bald-faced breaches of international law and the Refugee Convention in particular, as lawyers, academics and advocates have done in recent weeks. International legal standards provide a critical language and framework to communicate our opposition to government policy.
International legal standards do not enforce themselves. Without economic or political sanctions in place, or the political power to enforce them, international law’s compliance mechanisms are notoriously limited. Such mechanisms include damage to Australia’s international reputation (too late for that, one assumes) and if a complaint is made, the non-binding rulings of UN human rights committees.International legal standards do not enforce themselves. Without economic or political sanctions in place, or the political power to enforce them, international law’s compliance mechanisms are notoriously limited. Such mechanisms include damage to Australia’s international reputation (too late for that, one assumes) and if a complaint is made, the non-binding rulings of UN human rights committees.
As well, international standards often provide a fairly limited account of government behaviour. Legal academic Ben Saul provided a more accurate description of the treatment of the Sri Lankans, noting it involves extremely grave abuses of government power; was not authorised under the Migration Act; and is being conducted without public scrutiny and "under the sweeping, unwritten executive power of the government".As well, international standards often provide a fairly limited account of government behaviour. Legal academic Ben Saul provided a more accurate description of the treatment of the Sri Lankans, noting it involves extremely grave abuses of government power; was not authorised under the Migration Act; and is being conducted without public scrutiny and "under the sweeping, unwritten executive power of the government".
At least one part of the problem is that the government wilfully breaches international and domestic law, and has enough money in its coffers to throw at its best-paid legal minds to defend any challenges that might get in their way.At least one part of the problem is that the government wilfully breaches international and domestic law, and has enough money in its coffers to throw at its best-paid legal minds to defend any challenges that might get in their way.
Waleed Aly was right to remind us that while there may be important wins, challenges and losses in the courts, refugee policy writ large has neither been reset nor altered. While the current high court challenge may be classed as this government’s "Tampa moment", the biggest similarity may be that like the Howard government, the Abbott government will not suffer any significant losses for their disregard of the law, international or otherwise.Waleed Aly was right to remind us that while there may be important wins, challenges and losses in the courts, refugee policy writ large has neither been reset nor altered. While the current high court challenge may be classed as this government’s "Tampa moment", the biggest similarity may be that like the Howard government, the Abbott government will not suffer any significant losses for their disregard of the law, international or otherwise.
Win or lose in the courts, these actions of this government should offend regardless of whether they are done to "genuine" refugees covered by the Refugee Convention or whether or not they breach the text of international law.Win or lose in the courts, these actions of this government should offend regardless of whether they are done to "genuine" refugees covered by the Refugee Convention or whether or not they breach the text of international law.
Yes, successive Australian governments have breached international law. But they have also made bi-partisan executive decisions to re-establish offshore processing, which contributed to the murder of Reza Barati on Manus Island. In over 20 years of mandatory detention, more than 27 people have died in privatised Australian detention centres. The same policy has led to countless incidents of self-harm and induced long-term mental and physical illnesses.Yes, successive Australian governments have breached international law. But they have also made bi-partisan executive decisions to re-establish offshore processing, which contributed to the murder of Reza Barati on Manus Island. In over 20 years of mandatory detention, more than 27 people have died in privatised Australian detention centres. The same policy has led to countless incidents of self-harm and induced long-term mental and physical illnesses.
Narratives of refugee policy present Australia’s treatment of onshore asylum seekers as unendingly going from bad to worse, punctuated by landmarks and watersheds. But we need to see the reality: the current policy is more of the same. We are living witnesses to a major era in Australian history, defined by the brutal maltreatment of asylum seekers, and border panic. And under the current government, it is almost certain that we’re yet to reach rock bottom, wherever that might be.Narratives of refugee policy present Australia’s treatment of onshore asylum seekers as unendingly going from bad to worse, punctuated by landmarks and watersheds. But we need to see the reality: the current policy is more of the same. We are living witnesses to a major era in Australian history, defined by the brutal maltreatment of asylum seekers, and border panic. And under the current government, it is almost certain that we’re yet to reach rock bottom, wherever that might be.