What does the Malaysian solution mean for those being sent back to Malaysia and for international law in general? Although human rights concerns have been high since the deal was first proposed, the issue has become urgent in light of recent allegations that Malaysia has returned refugees registered with the UNHCR to China. I would like to suggest that what is now at stake is Australia's commitment to international law more generally. To clarify this claim, a little background is in order.
International law does not promise refugees 'asylum'. What it does promise is non-refoulement. A state will not send back a refugee to the borders of a country where their 'life or freedom would be threatened' on one of the grounds in the Refugee Convention (race, religion, nationality, social group or political opinion).
This is the core principle of modern refugee law which emerged from the horrors of World War 2. States saw the atrocities of the Nazi death camps and were determined to ensure at least a minimum level of protection (albeit at second hand) for the victims of persecution. The non-refoulement principle is now enshrined in Art. 33 of the Refugee Convention (to which no reservations are permitted).
Whether one is a refugee in international law is a question of fact. Asylum seekers must therefore be presumed refugees for the purposes of Art. 33 unless and until their claims are finally rejected on their merits.
A refugee may be removed from the country in very limited circumstances only. These are where refugees have been 'convicted in a final judgment' of serious offences committed in the receiving state or where there are 'reasonable grounds' for regarding them as a danger to the security of that state. Since those to be deported to Malaysia will never leave detention while they are on Australian soil, these grounds are clearly not applicable.
If reports alleging that UNHCR-registered Uighurs are being returned to China are true, then the possibility of threats to life or freedom of refugees sent to Malaysia is very real.
Because non-refoulement enjoys almost universal support and admits of no exception, there is a large and growing body of authority that it is a peremptory norm. That is, a rule which is agreed on by the international community