The United Nations 1951 Convention Relating to the Status of Refugees is not fit for purpose.
The 60-year-old convention was designed for an era we no longer live in; an era where the causes and trajectories of global migration were quite different to today.
Yet the convention still dominates our understanding of migration, with its archaic and artificial distinction between legitimate and illegitimate irregular migrants.
The problems go deeper than historical quirks of drafting. The convention deeply distorts our understanding of 21st-century immigration. It makes humanitarian approaches to refugees harder, not easier. Australia should withdraw from it.
The refugee convention was developed in response to the World War II refugee crisis. Between 20 to 30 million people were displaced in Europe alone -- ''one of the greatest population movements of history'' as one US State Department report described it at the end of the war.
But that was in 1945. Six years later, the idea of coordinated global action on those refugees was already anachronistic. Half a billion (mostly American) dollars had been spent resettling the majority of those who had been displaced, save a problematic ''hard core'' of 400,000. The United States did not want sole responsibility for all refugees in the future, so the convention placed the burden on countries which the refugees themselves approached.
And by this time, refugee questions had already been subsumed into Cold War politics. The new wave of European migrants was mostly comprised of those fleeing communism. The Soviet Bloc did not help draft the refugee convention. It did not want to help ''traitors who are refusing to return home to serve their country''.
As a consequence, the convention defined a ''refugee'' as someone who had a ''well-founded fear of being persecuted''. This is the formula our Immigration Department and Refugee Review Tribunal apply to contemporary asylum cases in 2011. But it's clearly a formula specifically designed for the Cold War. Communist states actively persecuted returning citizens. The consequences of sending such refugees back across the Iron Curtain was unambiguous.
While convention was designed to handle those who could not return home for political reasons, our contemporary requirements are vastly different. The bulk of today's refugees are displaced not because of politics, but because of economic hardship or conflict. They do not flee totalitarianism but poverty and insecurity.
By any layperson's definition, virtually all those who reside in 21st-century refugee camps would be considered ''refugees'' but it has been estimated the bulk would not fit the convention's ''well-founded fear of being persecuted'' standard.
The decisions of Australia's Refugee Review Tribunal record the often farcical attempts by migration lawyers and judges to shoehorn the complex reasons someone may migrate into this frame.
The convention did not even work as intended during the Cold War. Gil Loescher's The UNHCR And World Politics documents how the USA sidelined the United Nations High Commission on Refugees and built a parallel system to attract refugees from the Soviet bloc.
Of the 233,436 refugees admitted into the United States between 1956 and 1968, only 925 were from non-communist countries. They were accepted into the West not because of the dictates of international law but as part of the great geopolitical game. Contrast America's embrace of Cuban refugees with its relatively cold shoulder to those from Haiti.
The end of the Cold War undermined the political foundations of the refugee framework. We have now almost no genuinely totalitarian dictatorships persecuting their citizens, but we also have more refugees than at any time in the last half century. The distinction the Refugee Convention makes between political refugees and the rest no longer makes any sense.
In fact, it's worse than that. Today even people fleeing totalitarianism typically believe they are doing so for economic reasons, not political ones.
North Korea is the most politically repressive state in the modern world. Yet according to a survey of refugees in the recent book Witness To Transformation: Refugee Insights Into North Korea, fully 95 per cent of North Koreans said they left the Hermit Kingdom because of poverty. Only 2 per cent cited political persecution. Absolutely, if a Korean refugee turned up in Australia, they'd change their views after five minutes with a refugee lawyer. But their initial beliefs are indicative.
The convention's archaic distinction badly distorts the popular understanding of refugee issues.
The denigration of ''economic refugees'' -- so widespread in the Australian press -- is particularly absurd. Few realise the concept of legitimate refugee they rely on was formulated primarily to embarrass Joseph Stalin.
Our views on what is a moral approach to refugees also diverge sharply from those implied by the convention.
As Michael Pearce pointed out in The Age in September, Australians feel obligation to those in the far away refugee camp ''queue'' more than those who arrive in our country. The Malaysia Solution pivoted on this feeling. But that is an almost exact reversal of the convention's approach, which is silent on the queue, and concerns only those who land on our doorstep.
One argument for the convention is that it acts to restrain the political response to asylum seekers -- keeping things at least reasonably humane. Yet it's not clear it does. Other signatory countries are no more rigorous than Australia at complying with the convention. Non-signatory countries host the majority of refugees. Here, as around the world, domestic policy is set by domestic politics, not international law.
Yet the biggest problem is not merely how it defines ''refugee'', but how the refugee convention distorts our understanding of the entire immigration issue.
Rather than viewing refugees as a subset of general global migration, the convention requires us to see them as a separate thing entirely.
It's a false dichotomy. Migration is not either forced or unforced. There are many degrees of voluntariness in modern migration. But it's a dichotomy on which our political parties rely. The Greens support asylum seekers but wish to limit skilled migrants. The Coalition and now Labor want to stop the boats yet invite more foreign workers.
Immigration is shaping up to be the big issue of the 21st-century, in the way that trade was the big issue of the 20th. There's nothing wrong with trying to migrate to find work and a better life. We should, indeed, encourage that. However, we will not be able to come to terms with the age of migration if our policymakers cling to the obsolete refugee convention.
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