Leiden Law Blog

Pacific Paradise or Nightmare?

Pacific Paradise or Nightmare?

Offshore asylum policies are by no means new: as Koh (1994) points outs, the USA already implemented such a policy back in 1981. It was implemented at a time when 15.000 Haitians had unlawfully crossed the USA border within a year, which prompted politicians to take action. To quote President Reagan’s Proclamation, immigration had become “a serious national problem detrimental to the interests of the USA” and a threat to “welfare and safety”. The offshore asylum policy was thus seen as a necessary response.

In essence, the policy amounted to the interception of Haitian refugees on the high seas. Screening facilities were established at the USA Naval Base in Guantanamo (Cuba) to assess asylum claims. Koh (1994) describes this as “a conscious “buffer zone” strategy”, keeping asylum seekers out of USA territory.

Transferring Policy to the Pacific

In 2001, 433 asylum seekers were rescued by a Norwegian ship in the Pacific. However Australia did not allow the ship to enter its territorial waters, and instead agreed that New Zealand and Nauru would process the asylum seekers. The so-called ‘Pacific Solution’ was born.

Since 2001, the ‘Pacific Solution’ has been formalised in various Memoranda of Understanding in which Nauru agrees to receive up to 1,500 asylum seekers while Australia agrees to cover the costs and to donate millions of Australian dollars as an ‘aid package’ for health, water generation and education. The last Memorandum was signed in August 2013.

According to Afeef (2006), there were two dominant reasons for Australia to implement an offshore asylum policy similar to the USA’s policy: the existing domestic asylum policies were ineffective and non-deterrent, and promoting such policies resulted in political gain. Prime Minister Howard had low appreciation rates and tried to regain public confidence by presenting a strict response to immigrants, labelling them as a “threat” to Australia. The motives for the policy were thus similar to those of the USA.

After the UNHCR (2001) asserted that Australia was breaching its international obligations by not screening intercepted asylum seekers, Australia decided to send asylum officers to Nauru in order to review the requests. In this way, they complied with their obligations without having to admit refugees to their country.

Assessing the Policy

Looking at the most recent Memorandum of Understanding, two official objectives of the policy can be distinguished: combating human trafficking in the Asia-Pacific region, while protecting the rights of asylum seekers.

However, the policy does not combat human trafficking in the Asia-Pacific region. The Australian government did not consult other regional key institutions and the policy addresses only Australian issues. For example, the thousands of Indonesian asylum seekers in Papua New Guinea are not mentioned. Human trafficking is not combated but rather redirected to other countries. UN data also imply redirection: 99,5% of the detected human trafficking victims in the Asia-Pacific region in 2007-2010 were trafficked within the own region.

The policy does not protect the rights of refugees either. The conditions in the detention centres are very poor: Hyndman & Mountz (2008) describe water shortage, poor hygienic circumstances and no access to lawyers. Amnesty International reported on the “harsh and repressive physical conditions”: extremely high temperatures, floods and a lack of health services. Also, refugee claims are processed slowly by the government. Tomlinson (2005) even compares the detention camps in Nauru to “concentration camps”.

It should be noted though, that although the official goals are not achieved, the unofficial purposes are very much satisfied: Australian politicians gain electoral benefits while the Nauruan government secures financial aid.

The Policy Transfer Problem

The reason why the policy is not satisfying its official goals is that it is implemented in a context where it is doomed to fail. Specific political, social and criminal justice features of the Nauruan society do not allow for this policy to work properly.

Firstly, the political structure of Nauru is very instable: between 1989-2003, 17 changes of government occurred. Moreover, the government has been characterised by economic mismanagement and the country was “virtually bankrupt” in 2001. Therefore, the Nauruan government had no other option than to agree with the Pacific Solution. As Taylor (2005) states, the Government of Nauru “did not factor in the social and political costs …. They did not, because they could not. [They] were too desperate for money and too dependent on Australia’s continued patronage to bargain with the Australian government on equal terms.”

Secondly, the social dynamics of Nauru do not provide a suitable platform. Self-evidently, implementing such a policy in a small nation with under 10.000 citizens has its effect on society as a whole. Since the detention centre opened, rents have soared, food prices have gone up and water supply has become limited. Furthermore, while the estimated unemployment rate in Nauru is 90%, the detention centre mostly employs Australian nationals. Thus, even though the Nauruan government secured some financial aid, the policy might nevertheless be devastating for the country and its people on the long run: it makes life more expensive but creates hardly any jobs.

Thirdly, the criminal justice apparatus of Nauru is detrimental for the success of this policy. Nauru has a small police force (80 police officers in 2012) and insufficient capacity to process asylum requests. Asylum seekers are detained for a long time in poor conditions. In July 2013, this led to massive riots in Nauru. Many asylum seekers broke out and destroyed 80% of Nauru’s buildings, with an estimated damage of 60 million Australian dollars. The police was not able to maintain order. This violent episode shows not only that the criminal justice system is not effective in processing asylum seekers, but also that it is not capable of protecting its own citizens.

Concluding Remarks

The offshore asylum policy relieves Australia of its alleged asylum problems and gives politicians electoral benefits. As Taylor (2005) puts it, Australia uses “its economic power to dump its problems on its extremely poor, politically unstable and socially vulnerable neighbours, without any thought for the damage that it might cause.” Nauru has no other option than agreeing to the policy for economic reasons, but it cannot be successfully implemented and forms a danger to refugees’ rights and to Nauruan society.

The question is not whether it will go wrong again– but when it will.

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