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12 Pac. Rim L. & Pol'y J. 23 (2003)
Refugees and Responsibility in the Twenty-First Century: More Lessons Learned from the South Pacific

handle is hein.journals/pacrimlp12 and id is 35 raw text is: Copyright 0 2003 Pacific Rim Law & Policy Journal Association

Guy S. Goodwin-Gillt
Abstract:       [G]ovenments throughout the world have tried to avoid dealing
with the difficult questions raised by refugee and related movements. One method is to seek
to redefine the problem as one not involving obligation or responsibility. Some governments
also use the law in an attempt to limit the scope of their obligations. Another technique... is
to engage in an exercise of extra-territorial jurisdiction ... and to seek to justify that practice
on the ground that somehow obligations towards refugees need not be observed. States have
also tried detention, discriminatory treatment, and denial of other human rights in their
attempts to dissuade the refugee and asylum seekers .... In Australia, where there is no
constitutional protection or Bill of Rights, the Government has continued to expand its field of
executive, arbitrary power which began with the introduction of mandatory non-reviewable
detention in 1991.
In the case of the Tampa, Norway's position, based on Article 98 of [the United
Nations Convention on the Law of the Sea], customary international law and generally
accepted humanitarian standards, was that Australia was obliged to allow those rescued into
the nearest port: this, in Norway's view, was Christmas Island. However, next port of call
is not a self-defining or self-applying concept, and in many instances it may be relative to the
particular circumstances of rescue .... [T]he premises of the international protection regime
(which draws on the specifics of international refugee law, on human rights law, and on more
generally applicable rules), does provide a normative and institutional framework within
which States ought to seek solutions. The U.N. Committee on Human Rights found that
[Australia's] policy and practice of mandatory and non-reviewable detention was arbitrary and
a breach of Article 9 of the International Covenant on Civil and Political Rights, and a similar
conclusion was reached by the Australian Human Rights and Equal Opportunity Commission
in 1998. The question effectively arising in the Tampa case was whether the State primarily
engaged had the courage to respond internationally, or whether it would look no further than
its own narrow and short-term self-interest. The Tampa incident is a reminder that the refugee
regime is not a seamless web, even if certain core and often competing principles retain their
normative power.
The 1951 Convention relating to the Status of Refugees (Refugee
Convention), with just one amending and updating Protocol adopted in 1967,
remains, with 144 States party, the central feature in today's international
regime of refugee protection.1 It did not spring unbidden from the ground but,
t Guy S. Goodwin-Gill is Professor of International Refugee Law, Rubin Director of Research, Institute
of European Studies, and Fellow of All Souls College, University of Oxford. From 1994-2000, he was also
Professor of Asylum Law, University of Amsterdam. He served in the Office of the United Nations High
Commissioner for Refugees (UNHCR), principally as a Legal Advisor, in various countries from 1976-1988.
He is the Founding Editor of the International Journal of Refugee Law (Oxford University Press) and was
Editor-in-Chief from 1989-2001.
1  1951 Convention relating to the Status of Refugees opened for signature July 28, 1951 (19 U.S.T.
6259; 189 U.N.T.S. 150) [hereinafter Refugee Convention]; 1967 Protocol to the Convention relating to the
Status of Refugees opened for signature Jan. 31, 1967 (19 U.S.T. 6223, 6224(E), 6230(F); 606 U.N.T.S. 267)

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