South Asia is home to more than 2.6 million refugees. The Kaldor Centre’s Guy Goodwin-Gill, Ashraful Azad and Brian Barbour last week joined a Roundtable of Legal Practitioners, organised by the Asia Pacific Refugee Rights Network, to confront the issues raised by the magnitude of this situation, the inadequate international support, lack of available solutions, and increasing xenophobia and nationalism – challenges to South Asia that are likely to have consequences for the rest of Asia and the international community.
Already vulnerable refugees are made increasingly insecure by being branded a threat to internal security, political stability, or majority communities. Widespread negative media attention, misinformation and fear-mongering have created an increasingly hostile climate for refugees, as political actors have also appropriated refugee issues for electoral gains. And as refugees are sometimes constructed as a political issue rather than a humanitarian issue, they are increasingly made vulnerable to targeted religious, ethnic, or refugee status-based discrimination from a variety of actors. South Asia is witnessing a humanitarian crisis of unprecedented scale.
In light of these sub-regional developments, there is an urgent need to devise legal strategies and coordinate interventions at a local, national, regional, and international level. Legal work goes far beyond litigation, to more ground-level advice on issues of access, insecurity, protection against forced return, and protection against various forms of sexual and gender-based violence – such as domestic violence, child and forced marriage. Legal work includes, importantly, basic consultation and referral services, accompaniment and interventions with the police and in detention centres and prisons, and broad coordinated support in accessing justice and pursuing remedies for rights violations. Each of these interventions has the potential to affect individual claims, but mobilising the legal community locally, and linking it to joint and cross-border efforts, could have a tremendous impact for all refugees and for the benefit of the surrounding communities. Ultimately, these efforts can contribute to better law, policy, and practice.
So the Roundtable brought together concerned senior lawyers, jurists, legal practitioners and legal service NGOs, academics, international lawyers, representatives of international institutions, and other key actors to discuss strategy. Barbour was the Roundtable's main facilitator, Azad spoke to ‘alternative protection spaces and autonomy of asylum’, and Professor Goodwin-Gill spoke to the role of national courts and national lawyers in the protection of refugees, emphasising the value and potential of grass-roots legal activism.
Increasingly, courts engage in dialogue across jurisdictions and legal systems, as they face the common challenges raised by forced displacement, he noted. Even in States which have not ratified the basic refugee treaties, customary international law and general principles of law can often be called in aid to support and protect refugees, and national courts, in their turn, can contribute to clarifying and developing the rules and principles of international law.
In the absence of a competent international tribunal, national courts fill the gap and, as organs of the State, they become part of the law creation process. International law does not provide solutions to present problems, of course, but it provides a framework that can be useful at the national level, laying down markers by which to judge government actions, even to the point of demonstrating the fundamental incompatibility of particular measures.
Still, litigation carries risks; a bad judgment can set back the protection agenda, sometimes for years, while a challenge to the implementation of an unjust law may only entrench discriminatory processes. Strategic thinking is therefore called for, even as the interests of the refugee and the asylum seeker must always be a primary consideration.
But litigation does not need to limit itself to the big questions, such as non-refoulement (though that must always be defended); it can also focus on the smaller issues that impact so heavily on the displaced, but which may resonate in local jurisdictions – the right of the child to be registered at birth, for example, or access to education, or the exploitation of labour, or non-payment of wages, or unsafe working conditions, or anti-trafficking, or access to justice, or the immediate responsibility of individuals and corporations for wrongs done.
These are challenging times, but information-sharing among lawyers and partnerships with international law firms, among others, can help bridge resource gaps and overcome obstacles to justiciability, while also raising awareness and leveraging influence.
At the end of the day, however, what commonly counts most is what comes from below, from civil society and from the efforts of community-based lawyers and activists for whom refugee protection is simply a reflection of commitment to social justice and equality.