Khalid Koser's excellent speech to the Lowy Institute on 27 November made the point that the global asylum system is failing both governments and refugees.

Asylum seekers are often forced to flee vast distances from their countries of origin to get protection, they are frequently forced to rely on smugglers, are exploited or killed in the process, and are caught up in mixed flows with people who are not refugees. Governments, on the other hand, expend disproportionate resources on exhaustive case-by-case decision-making systems involving tens of thousands of individual decisions, which might be better used to fund refugee protection elsewhere.

Khoser believes that, with asylum pressures growing in Europe and North America, there is an appetite for change on the part of governments in those regions. Similarly, the actions of Australian governments in modifying the traditional asylum regime to manage maritime asylum seekers reflect a strong desire for change.

He further makes the point that the 1951 Refugee Convention is not the problem, but rather how it is implemented in relation to current challenges. He advocates a review of the implementation of the asylum regime and, somewhat provocatively, suggests Australia might take the lead.

Koser is absolutely right that governments should steer clear of trying to revise the Refugee Convention as the basis for dealing with asylum problems. Anyone who has worked with the Convention knows that it is a short and succinct document which contains a few core requirements. It has stood the test of time. From my own experience, the problems that concern governments have less to do with the text of the Convention than its interpretation and implementation, including the development of an extensive body of hard and soft law around it.

Many governments might well think that the commitments they are now required to accept, particularly in relation to asylum seekers, are beyond those they envisaged when becoming parties to the Convention. They might also feel that the body of standard practices that has built up is not flexible enough to deal with emerging challenges around the world, such as the growth in smuggled maritime asylum seekers. And they might feel that the processes flowing from the Convention work effectively in providing a filter as to who needs protection, but do not help them to manage the return home of those who do not need it.

Seeking to renegotiate the Convention to achieve specific objectives in these areas would be far less predictable than playing roulette.

Apart from the daunting technical problems inherent in transitioning to a new Convention, the governments renegotiating it would have wildly differing objectives. Governments of those countries which people are actually fleeing, governments of first-asylum countries hosting millions of people, and governments of countries like Australia (exposed to significant but still relatively small numbers of asylum seekers) could not be expected to agree on an updated Convention. The result could well be a Convention text which completely erodes existing core principles, or just an endless negotiating stalemate that achieves nothing at all.

A related issue for Australia is that we are situated in a region where many governments have not found the Refugee Convention relevant to their circumstances and have chosen not to become parties; this applies to Indonesia, Malaysia, Singapore, Thailand and a group of countries stretching through India to Iraq.

There is no reason to believe that tinkering with the Refugee Convention is going to engage their interest any more than the existing Convention does.

For these reasons, Koser is right that, if governments want to do something about asylum, they need to get together with a limited focus on specific aspects of the Convention's implementation in the current environment. The issues to be looked at would include how protection for refugees can be managed closer to the country of origin, use of processing centres, orderly departure programs from source countries, resettlement and greater burden sharing.

This would also be a chance to involve countries that are not parties to the Refugee Convention in a dialogue about the best ways to manage refugee flows and provide some encouragement for them to adopt some practical approaches that are at least consistent with the Convention.

Whether or not Australia could take the lead in developing such a dialogue, as Koser suggests, depends on many factors, including whether the Australian Government is willing to do so. At the very least, Australia would need a carefully chosen set of influential partners to credibly lead any discussion process.

The idea of kicking off an international process to enable governments to consider reform of practical aspects of implementation of the Refugee Convention is at least worth trying. Equally, as with any attempt to renegotiate the Convention, it is not without risk.

There is no easy consensus among governments around the world on asylum issues. The UN High Commissioner for Refugees has found it increasingly difficult over the past decade to get consensus on relatively uncontroversial soft law and practice issues, because, whatever the issue, some states will have a domestic reason to hold out against agreement.

A carefully thought out process of dialogue is required which balances the interests of asylum seekers, first-asylum, transit and destination countries. It should be non-binding and provide for regional approaches if global agreement cannot be reached.

The process might come to nothing. However, if such a dialogue is not pursued, it is likely that the issues will be resolved unilaterally by progressively harsher state practice.

Photo by Flickr user United Nations Photo.