Recovering the political will to protect: Guy S Goodwin-Gill

Immigration detention centres are commonly located in remote areas, precisely in order to make legal representation and public knowledge of reception conditions and treatment that much harder to get.

Australia, as many of you know, transports refugees and asylum seekers arriving by boat to remote off-shore locations, and it has legislated also to cover its activities and those of its sub-contractors in a cloud of secrecy. With cutbacks or the denial of legal assistance now also all too common, law firms’ pro bono work is all the more important, all the more welcome. Indeed, it is essential if asylum claims are to be properly heard, if no refugee is to be returned or sent to wherever he or she may be at risk, and if those injured or harmed through the direct or indirect impact of government policy and practice are to find a remedy.

Australia has already paid out $70 million in compensation to some 1,900 of those on the receiving end of its ill-conceived responses, and more cases are in the pipeline. In many instances, however, the damage may be irreparable, as in the loss of life, the loss of childhood, and the lingering impact of trauma.

Whether in the United States, Australia or Europe, refugees and migrants are too often the intended targets of ill-thought out and often deliberately vicious policies, with immense damage done because of governmental inadequacy, incompetence and resistance to accountability according to law. Far too often, governments fail to think through the issues to solutions, which need to be based, above all, on protection – protection against harm, protection of rights – all of which can be accommodated in line with national interests and international law.

Protection can be an end in itself – the beating stops, the family is reunited – but it is not the end unless it is translated into one or other durable solution. And that generally demands a deeper understanding of circumstances beyond and behind immediate protection needs. Knowledge of that background is relevant, not only to the big picture search for durable solutions, but also to the immediate task of putting individuals and groups into context, and pinpointing the judicially relevant facts which call for their protection through refuge, asylum, and treatment according to law.

Why do the Rohingya flee Myanmar? The violence and ethnic cleansing unleashed in August 2017 are one clear reason; sadly, however, that was not without precedent and behind those events were centuries of experience – Cox’s Bazar was set up in 1798, as a refugee town already...

Why do people flee the Northern Triangle? We know they are seeking to escape the violence of the gangs and the violence in civil society, for which there seems to be little if any remedy. But behind that, there is also the failure of CIREFCA, the 1989 ‘settlement’ intended to bring peace after the civil wars, and to deal with ‘root causes’ through land distribution and the delivery of social justice.

Earlier today [28 March 2019], Secretary Kirstjen Nielsen announced an ‘historic compact’, a Memorandum of Cooperation with the Governments of El Salvador, Guatemala and Honduras which, she said, would deal with the ‘root causes’ of displacement. But no, it’s not about the ‘drivers’ of displacement, about remedying violence, or promoting social justice, or dealing with the underlying causes at all; rather, it is just another knee-jerk package of border enforcement and control measures aimed at curbing freedom of movement and obstructing the human right to seek asylum. It will do nothing to deter or discourage, any more than curtailing aid will – the push factors are just too strong.

If gaps in the international refugee regime are among the challenges facing States today, they are gaps that States themselves have resolutely refused to fill, choosing not to put in place meaningful mechanisms for international cooperation that would face up to causes and ensure prompt and effective solutions for those displaced. Numbers and complex emergencies can indeed lead to a misguided sense of inevitability, which in turn adds to the abandonment of responsibility, even also of the worth and the value of effort itself.

When it comes to longer-term thinking, however, it is particularly welcome to see the involvement of the World Bank which, through its IDA-18 and related initiatives, is now playing an important role in providing support to host countries and communities, upon whose capacity to receive and to protect the very structure of the international refugee regime depends so heavily. In the late 1920s, the London Financial Market was the source of funds to help the resettlement of refugees in Greece and Bulgaria, and so we come round again...

Experience shows that we can succeed, however; but as with so much, recovering the necessary political will falls once again to civil society, to the grass roots...

These remarks were first delivered at the American Society of International Law’s Annual Meeting in Washington D.C. for the International Refugee Law Interest Group, on 28 March 2019, by co-chair Guy S. Goodwin-Gill, in discussion with co-chair Kate Jastram and Luis R. Campos, Attorney at Haynes and Boone (Dallas).