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ANU UN SOCIETY MINI MUN I THE QUESTION OF DISCRIMINATION IN REFUGEE AND MIGRANT INTAKE


Introduction

Definitions

Due to changes in technology which have given rise to the greatest level of global mobility, the growing complexity of migratory patterns and the many impacts migration has (e.g. on countries, migrants, families, and communities) international migration has become a priority for the international community.

A refugee is defined under the Refugee Convention as any person who:

Article 13 of the Universal Declaration of Human Rights recognises that everyone has the right to leave any country and the freedom of movement and residence within the borders of each state. However, due to the increase of nationalism, xenophobia and anti-discriminatory practices, there has been an increase in anti-migrant and anti-refugee sentiments. Down-turns in the global economy, the Syrian-refugee crisis and the increased amount of terrorist activity has aggravated these trends. These sentiments are often reinforced by legislation, regulations, and policies which aim to restrict migratory flows. And these restrictions are often based on discriminatory practices, which target a specific group or demographic, including Muslims, people living with HIV (PLHIV) and people of certain races. The United Nations has criticised such action as contravening international human rights and international refugee law. However, this has not stopped countries from maintaining such discriminatory practices.

Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

There is no single accepted definition of what a migrant is under international law, with each country using their own definition of migration, meaning it is difficult to objectively state what a migrant is. Broadly, however, the term migrant can be understood as “any person who lives temporarily or permanently in a country where he or she was not born, and has acquired some significant social ties to said country”. Migration can be broadly defined as the crossing of the boundary of a political or administrative unit for a certain minimum period of time. It includes the movement of refugees, displaced persons, uprooted people as well as economic migrants. The dominant forms of migration can be distinguished according to the motives or legal status of those concerned. Common categories of international migration include: • Temporary labour migrants (guest workers/ overseas contract workers) who take up employment and send money home • Highly skilled and business migrants • Irregular migrants (undocumented/illegal migrants) and people who enter a country without the necessary documents and/or permits • Forced migration (includes not only refugees and asylum seekers but also people forced to move due to external factors, such as environmental catastrophes or development projects – similar characteristics to displacement) • Family members joining those who have already migrated to another country under one of the above mentioned categories • People who return to their countries of origin after a period in another country


Racial and ethnic discrimination

Religious discrimination

Many countries have a hostile view towards accepting refugees and migrants from differing cultures and races, seeing the resulting multiculturalism as a threat to their cultural homogeneity. And many countries limit refugee and migrant intake in an attempt to preserve such racial, ethnic and cultural homogeneity.

Growing Islamophobia and xenophobia in the developed world has fuelled religious discrimination in migrant and refugee intake. The United Nations has repeated condemned such actions as violating international law.

One such example is Japan, which has one of the lowest intake of refugees and migrants in the world. In 2016, Japan had 10,901 asylum applications, but only approved 28 of them. This is due to a limited history of immigration in Japan, which has resulted in ethnic and cultural diversity being viewed with hostility in Japan. Indeed, there is an historic fear among the Japanese people that foreigners will cause social unrest and erode national identity. Israel has had similar issues with its treatment of African refugees. Foreign Ministry spokesperson Emmanuel Nahshon says that migrants threaten the identity of the Jewish state, stating that migration “could become also a challenger to our identity here in Israel.”

Babar Baloch, Central Europe spokesman for the UN High Commissioner for Refugees said in 2015: “We encourage governments to take an inclusive approach while considering refugees for resettlement and should not base their selection on discrimination.” Despite this, however, many countries still show preference for certain refugees and migrants on the basis of their religion. During the height of the refugee crisis in Europe in 2015, Slovakia stated that it would only take Christian refugees, as it feared that Muslim refugees would not be able to integrate into Slovakian society, despite this being in contravention of EU law (which bans any EU states from any form of discrimination.) In 2017, Donald Trump signed an executive order shutting out refugees and halting visas from seven Muslim-majority countries (Iran, Iraq, Somalia, Syria, Sudan, Libya and Yemen) for 90 days. In also suspended all refugee admissions for 120 days (with case-by-case exceptions, with religious minorities and Christians given preference) and suspended entry of Syrian refugees indefinitely. While the White House denied that the executive order was not religiously motivated, many inside and outside the United States saw it as such, dubbing in the “Muslim Ban.” Indeed, the states of Washington and Minnesota raised serious allegations that ban was religious motivated against Muslims. However, it should be noted that the 9th Circuit Court Judges, when refusing to stay the halt of the executive order, challenged those states’ argument that the executive order targeted Muslims.


HIV discrimination

Other forms

In response to the HIV epidemic, many countries have adopted a wide range of laws and policies in an attempt to stem the spread of HIV. Indeed, 66 out of 186 countries (of which there is data) have some form of restrictions. These laws and policies have been adopted specifically targeting migrants because of perceptions that they have high rates of infection. Many countries impose restrictions on entry, stay and residence solely based upon HIV status.

Article 26 of the New York Declaration for Refugees and Migrants highlighted the commitment of the international community to not discrimination against refugees and migrants on the basis of their means of transportation. However, many countries routinely discriminate against refugees and migrants on the basis of their method of transportation.

These restrictions take two general forms: 1. Absolute ban on entry for PLHIV (e.g. Brunei, UAE, Jordan, Russia) 2. Restrictions on longer term residence • Restrictions for stays less than 90 days (e.g. Iran, Suriname, Tunisia, Taiwan) • Restrictions for stays more than 90 days (e.g. Australia, Dominican Republic, Honduras, Hungary) While international human rights law allows for discrimination in the face of public health considerations, such discrimination must be the least intrusive measure to effectively address the public health concern. National restrictions on entry, stay and residence for PLHIV violate international human rights law provisions banning discrimination. The UN Human Rights Council has interpreted the International Covenant on Civil and Political Rights provisions guaranteeing all persons the right to equal protection of the law without discrimination based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status as applying to those with HIV. Also, Article 30 of Draft Resolution A/71/L.1 (the New York Declaration for Refugees and Migrants) has called on countries to “review policies related to restrictions on entry based on HIV status, with a view to eliminating such restrictions”. Further, rather than assisting in protecting public health, many HIV restrictions are detrimental to both society and the individual. On the societal level, the resulting stigma and discrimination towards those PLHIV that results from such migratory-discrimination impacts testing, prevention and treatment opportunities.

A prominent example is Australia, which has policies of mandatory and off-shore immigration detention. These policies have been significantly condemned by the United Nations, with many arguing that Australia is breaching the prohibition on arbitrary detention in Article 9(1) of the International Covenant on Civil and Political Rights. The UN Special Rapporteur on the Human Rights of Migrants, Francois Crepeau, criticised Australia’s refugee policy, claiming that Australia has adopted a punitive approach towards migrants who arrive by boat which has served to erode their human rights.


United Nations action Of the most important aims of the United Nations’ migration and refugee policy is to reduce the persistent anti-migrant and antirefugee sentiments which permeate many countries across the world. The United Nations has highlighted the importance of combating the rising xenophobia, racism and Islamophobia which give rise to anti-migrant and anti-refugee sentiment.

Further, while the UN has recognised that each country has the right to determine whom to admit to its territory, it must do so in accordance with international law. Article 33 of the New York Declaration for Refugees and Migrants contained a commitment from member states to considering reviewing their policies that criminalise cross-border movements and called upon states to pursue alternatives to detention.

United Nations General Assembly Resolution A/RES/68/4 (the Declaration of the Highlevel Dialogue on International Migration and Development) highlighted the importance the United Nations and its member states place on stemming the growth of anti-migrant and antirefugee sentiments.

The United Nations has also highlighted the importance of international cooperation in dealing with increased migration and refugee movements across the world. The United Nations has called for increased cooperation between countries of origin, transit and destination in order to better formulate policy in responding to migration.

Article 16 of the Resolution strongly condemned “the acts, manifestations and expressions of racism, racial discrimination, xenophobia and related intolerance against migrants and the stereotypes often applied to them, including on the basis of religion or belief”. Further, it urged states to “apply and, where needed, reinforce the existing laws when xenophobic or intolerant acts, manifestations or expressions against migrants occur, in order to eradicate impunity for those who commit those acts”. This was further echoed in article 39 of the New York Declaration for Refugees and Migrants, in which the international community committed to combating xenophobia, racism and discrimination in our societies against refugees and migrants. While many states have cited border strength and internal security as reasons for stemming migration from certain states and from certain demographics, the United Nations has often criticised such practices as going beyond what international law and international human rights law allows. While the UN has recognised the rights and responsibilities of states to manage and control their borders, it has also highlighted than each country must do so with respect to international law and international human rights and refugee law, and that discriminatory practices are in direct contravention of such human rights and refugee laws.

Due to the differing capacity of countries to respond to migration, it is important the international community deals with migration in a holistic and cooperative manner, rather than shutting certain refugees and migrants through discriminatory practices and criminalising irregular migration.


A/RES/2904 (2017)

United Nations

General Assembly

Distr.: General 17 February 2017

Grand Finals Seen Resolutions Resolution #1: The Small Arms

Resolution 2904 (2016): The Question of Discrimination in Refugee and Migrant Intake The General Assembly, Recognising the prevalence and importance of international migration, Understanding the complexities of the global migrant crisis and the need for increased transparency in migration policy, Taking note of the current political turbulence and vulnerability of the United States, Understanding the importance of the refugee convention and a piece of key human rights framework, Affirming the right of every state to exercise border controls, Applauding the increased freedom of movement created by the EU, Shengen and the African Union, Concerned by the link between populism and discriminatory policy, Condemning discrimination based on ethnicity, race, gender and sexual orientation and belief as a violation of international law, Reaffirming dedication to the refugee convention that guarantees the right to protection for refugees, Deploring the treatment of legally entitled refugees and migrants by Australia and the United States, Supporting multiculturalism and pluralism as the best method to prevent terrorism, Acting under the UN Charter, 1.

Calls upon all nations to approve the New York Declaration for Refugees and Migrants;


S/RES/1836 (2017)

2.

Calls upon the United States to ensure the correct enforcement of its own constitution, and to respect its judiciary in regards to the issue of migration, and condemns the discriminatory actions of the United States in regard to the ‘muslim ban’ as a violation of international law equivalent to a crime against humanity;

3.

Indicates the need for investigation of sanctions against violators of international migration and refugee law by states - including, but not limited to, Australia, Kuwait and the United States;

4.

Criticises the current climate of immigration debate as contrary to the principles of the United Nations and against national interests;

5.

Endorses domestic resistance to policy in violation of both constitutions and international law;

6.

Condemns all countries who implement HIV restrictions on migration and calls upon all nations to remove any and all HIV restrictions on migration and refugee intake;

7.

Promotes the implementation of “refugee until proven otherwise” policies in order to guarantee the safety of prosecuted individuals by: a. allowing them to enter states with fewer restrictions, b. increasing access to processing and other facilities key to the support of migrants, and, c. promoting greater diversity and multiculturalism in host states;

8.

Implores all countries to enact and enforce policy that eliminates discriminatory practice by: a. eliminating mention of religion, race, and sexuality from eligibility assessment, b. instituting policy punishing the discriminatory acts by individuals and organizations involved in migration assessment and protection, and, c. banning all of all organisations which promote discrimination is migration and refugee intake;

9.

Urges the complete adherence to all existing resolutions pertaining to the treatment and definition of legitimate refugee by; a. creating a taskforce to investigate unlawful practice and policy by offending member states as directed by the general assembly, b. protecting the rights of refugees to admission into member states, c. investigating ways to better handle the increasing volume of refugee applications, d. increasing funding and support for agencies that aid the resettlement of refugees in territories deemed safe, and, e. banning all of all organisations which promote discrimination is migration and refugee intake;

10. Calls upon all states to uphold their pledges to increase refugee intake and to settle numbers in accordance to their domestic laws and urges states to increase the speed of refugee processing to a process of below one year;

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S/RES/1836 (2017)

11. Realises populist influences on migration policy as a threat to national and international security; 12. Strongly condemns the unlawful detainment and refoulment of migrants or refugees no matter their status; 13. Affirms that refugees do not pose a terror risk; 14. Promotes the expansion of customs and migration zones; a. calling for the expansion of ‘continental passports’ such as those being implemented by the African Union and EU establishing continental zones of free movement, and, b. improving the capacity of these zones with increased funding; 15. Decides to remain actively seized of the matter.

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MiniMUN I Briefing Paper