Swapping Refugees: The Implications of the ‘Atlantic Solution’

University of Technology, Sydney Law Review (UTSLRev), Vol. 9, p. 93, 2008

Monash University Faculty of Law Legal Studies Research Paper

13 Pages Posted: 6 Apr 2013

See all articles by Azadeh Dastyari

Azadeh Dastyari

Western Sydney University, School of Law

Date Written: May 1, 2007

Abstract

In a media release on 17 April 2007, Minister for Immigration, Kevin Andrews announced that Australia had signed a Memorandum of Understanding (MOU) with the United States that would enable the two countries to swap refugees. Under the arrangement the United States will resettle up to 200 refugees who arrive in excised offshore places in Australia and are transported to Nauru by Australia for further processing. In exchange, Australia will consider the resettlement of refugees intercepted by the United States and currently detained at Guantanamo Bay in Cuba. The actual processing of asylum seekers to determine refugee status will remain the responsibility of the country where the asylum seeker initially sought protection.

This paper outlines the history of interception and offshore processing by the United States and Australia. The United State’s processing of asylum seekers in Guantanamo Bay inspired Australia’s own offshore processing in Nauru and Papua New Guinea (PNG). The recently announced refugee swap is a reminder of the parallels between US and Australian practices towards refugees and asylum seekers.

The Minister for Immigration has suggested that the refugee swap sends a strong deterrence message to people smugglers. He has also claimed that the “arrangement [with the United States] will ensure the integrity of the international system of protection”. This paper contends that the refugee swap is unlikely to deter people smuggling as has been suggested by the Minister for Immigration. There is evidence that there has been an increase in the number of people engaging people smugglers to enter the United States following the signing of the MOU. The paper will also argue that rather than strengthening the integrity of the international protection system, as has been suggested by the Minister, the refugee swap will further undermine the international protection regime by facilitating breachs of the Convention Relating to the Status of Refugees (Refugee Convention) and Protocol Relating to the Status of Refugees (Protocol).

Keywords: refugee swap, resettlement, resettle, asylum seekers, offshore processing, Guantanamo Bay, deterrence, people smugglers, international protection, Refugee Convention, Refugee Protocol

Suggested Citation

Dastyari, Azadeh, Swapping Refugees: The Implications of the ‘Atlantic Solution’ (May 1, 2007). University of Technology, Sydney Law Review (UTSLRev), Vol. 9, p. 93, 2008, Monash University Faculty of Law Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=2245417

Azadeh Dastyari (Contact Author)

Western Sydney University, School of Law ( email )

Locked Bag 1797
Penrith, NSW 2751
Australia

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