Plight of the Boat People: How to Determine State Obligations to Asylum Seekers

INTRODUCTION Scared, shivering, and disheveled, thousands of people float across the Indian Ocean from Asia to reach Australia (1) in search of freedom from the persecution that they face in their homes. (2) After these "boat people" land on Australian shores, they are housed in camps, waiting for a better life. However, the same hopeful sentiment is not reflected by the receiving country. For example, between 2009 and 2010 there was a thirty-one percent increase in asylum seekers in Australia. (3) As a result, Australian politics have been in turmoil, trying to create a comprehensive policy to address the thousands of asylum seekers that land on its shores. (4) At the end of 2009, there were 43.3 million forcibly displaced people worldwide. (5) Of these, 15.2 million were refugees and, of that number, 983,000 were asylum seekers. (6) More than 922,000 individual claims for asylum or refugee status were registered in 2009, with South Africa receiving the world's largest number of individual applications, followed by the United States and France. (7) These refugees have escaped political and cultural persecution for their political views, sexual preference, or gender. However, when they arrive at their destination country, they face confusion and uncertainty. Asylum seekers encounter several challenges in the current refugee system. They endure protracted refugee situations, (8) secondary refugee flows, (9) the extra-territorialization of migration controls, (10) new forms of displacement and asylum, (11) wide discrepancies in the recognition of asylum status, contraction of asylum policies and practices by states, (12) and inconsistencies in refugee status determination (RSD) mechanisms. (13) The main issue underlying all of these challenges is the problem of, and confusion surrounding, the determination of state obligations to asylum seekers. Human rights are indivisible and inalienable, (14) but states have discretion in granting and providing some of these rights to asylum seekers because no international covenant obligates them to do so. There is no uniform system to determine the obligations that states have to asylum seekers other than the base requirements outlined in the 1951 Convention Relating to the Status of Refugees, the main international document on refugees. In fact, states, international organizations, and publicists (15) differ on the methodology that should be used to determine these obligations. A consensus-based approach is the appropriate method of determining and expanding state obligations within the 1951 Convention. But recent attempts to expand the rights of asylum seekers through the new method of evolutionary interpretation of treaties could result in an unpredictable and unwanted application of the 1951 Convention, leaving asylum seekers unsure of their rights and options. The application of the classical tenets of customary international law to these obligations offers a better chance of creating stability in the asylum system for both asylum seekers and states. While such an approach appears to provide less immediate relief to asylum seekers, the consistency and stability that results from customary international law yields benefits that outweigh the loss in immediate relief. This Note examines how states and asylum advocates should determine state obligations to asylum seekers, asserting that states should expand their obligations to asylum seekers based on new norms of customary international law. In doing so, Part I introduces some basic refugee law concepts and discusses in detail the aforementioned challenges for states and asylum seekers. Part II outlines three different modalities that the international community may use to determine these obligations and asserts that applying the theory of evolutionary interpretation of treaties to the 1951 Convention Relating to Refugees is an unpredictable method of expanding state obligations to asylum seekers that fails to adequately address the problem. …