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Refugee swap: Legality is secondary

 | May 27, 2011

Observers say the main concern should be how Malaysia would treat the boat people.

PETALING JAYA: Malaysia and Australia can afford to ignore a United Nations warning against their refugee deal because international law is fluid and too open to interpretation, a law scholar said today.

The worst that the two countries would suffer would be embarrassment, said Associate Professor Azmi Sharom of Universiti Malaya.

He was commenting on a statement by UN High Commissioner for Human Rights Navi Pillay that the swap would be illegal because Malaysia had not signed UN conventions to protect refugees.

“International law is very loose,” Azmi said. “The laws and treaties can be open to interpretation.

“Even if the deal is illegal, what is the United Nations willing to do? I presume they could pass a resolution against Malaysia and Australia but that would not disturb us much other than the fact that it may bring about some embarrassment.

“The weakest element in international law is enforcement. Also, in order for the UN to take action on a country, that country would have to be a signatory of a treaty first.”

Canberra has brushed aside the UN concern, saying that it was on firm legal ground.

The Australian government announced this month that it planned to transfer 800 asylum seekers to Malaysia for processing. In return, Australia would accept and resettle, over four years, 4,000 registered refugees currently living in Malaysia. The deal has not been finalised.

Human rights groups have criticised the move because of Malaysia’s poor track record in observing refugee and asylum seekers’ rights.

However, Home Minister Hishammuddin Hussein has hailed the deal as “pioneering and courageous”. He also said Malaysia went into the deal after consulting with the UN High Commissioner for Refugees and the International Organisation for Migration.

He also criticised those who have been raising concern over the exchange, reminding them that the deal has yet to be finalised.

Secondary issue

Azmi said the question of the deal’s legality was secondary to issue of the asylum seekers’ welfare.

“If you ask me, the welfare of the 800 people is the main issue here,” he said.

“Even if you are a signatory of the treaties, the enforcement procedure is difficult and takes time. In the meantime, these 800 people may suffer.”

According to another observer, Malaysia has some legal responsibility to protect refugees because it has signed the UN Convention on the Elimination of All Forms of Discrimination against Women and the UN Convention on the Rights of the Child.

“Both agreements contain protections for women and children, traditionally vulnerable groups, particularly in the context of asylum seekers and refugees,” said Dr Kevin McGahan, a professor at the National University of Singapore who studies the politics of global migration.

However, he added that this might not be sufficient, considering widespread criticism of the  Malaysian government for its treatment of refugees and migrant workers..

He also said the exchange was unlikely to address the broader problems of governing the flow of refugees and migrants in the region.

“Australia’s past and current policies of locating detention or processing centres for asylum seekers in other countries, whether in Papua New Guinea, Nauru, or even Timor-Leste, are plagued with political and human rights concerns,” he said.


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