The asylum freeze and international law

Abstract

It’s likely that last week’s decision is based on an overly optimistic assessment of conditions in source countries, writes Savitri Taylor in Inside Story ON 9 APRIL the immigration minister, Chris Evans, and his colleagues Stephen Smith and Brendan O’Connor issued a joint media release announcing “Changes to Australia’s Immigration Processing System.” The takeaway message came in the very first sentence: “Effective immediately, the Australian government has today introduced a suspension of the processing of new asylum applications from Sri Lanka and Afghanistan.” Following this statement came 2144 words (yes, I counted) of elaboration and justification, and since the announcement thousands more words have been written by way of commentary. Many lawyers have questioned whether the suspension is consistent with domestic law as it stands and have raised the possibility of a legal challenge. But Julian Burnside cut to the heart of the matter when he pointed out that, in the domestic sphere, the passage of legislation is all that is required to provide a sound legal basis for implementation of the new policy. There is no doubt that any necessary validating legislation would get the support of the Coalition in the Senate and would therefore pass. The question I wish to consider here is whether the government’s new policy is internationally lawful. This is quite distinct from the question of domestic lawfulness because it is a principle of customary international law that a state cannot defend a claim that it has breached its international legal obligations by saying that its conduct was permitted or even mandated under its domestic law. And in order to assess international lawfulness we need to drill down into the details of the policy and its justification... Read the full articl