‘The International Protection of Refugees and Asylum Seekers: Between Principle and Pragmatism?’
Text of a Presentation to the 2014 Kaldor Conference, ‘Between Principle and Pragmatism:
Australia and Refugee Law, 60 Years On’, University of New South Wales, Sydney
3 November 2014
Guy S. Goodwin-Gill
Emeritus Fellow, All Souls College, Oxford
Emeritus Professor of International Refugee Law, University of Oxford
Where to begin? There is a question mark in the title, which may not have found its way into the programme. When it comes to the international protection of refugees and asylum seekers, are we between principle and pragmatism? The question is artificial, of course, and there may well be no answer, just as there is no answer to the problem of migration, because it’s a phenomenon, not a problem.
But the title and the context – my being back in Australia where I was UNHCR’s legal adviser from 1978-1983 – clearly invite me, as an international lawyer concerned with the protection of refugees, to ask questions about current policies and practices, such as the mandatory detention of asylum seekers, the detention of children, off-shore processing, the arbitrary treatment of human beings as if they were merely units of displacement, discriminatory disregard of individual cases, as well as interdiction, interception, and possible refoulement.
The ‘principles’ of the title, I will suggest, are clear enough. ‘Pragmatism’, as I see it, is about understanding facts and events in terms of causes and effects. I don’t find much principle in the many facets of Australia’s refugee policy at the present time, or much understanding of cause and effect.
Mandatory detention, for example, has been tried as a deterrence measure in many jurisdictions. The evidence shows it just does not work, and for a couple of good reasons in particular; first, desperation drives people to take risks, not only with regard to their lives en route, but also with regard to what may await them; secondly, human optimism intrudes – people may hear of detention, but are convinced that in their case, once their story is heard, surely it will not apply to them.
The evidence of ineffectiveness is clear, so mandatory detention must be driven by something else – vindictiveness, perhaps, or sheer viciousness. When former UK Home Secretary David Blunkett was proposing (unsuccessfully) to house asylum seekers out of sight and contact with local communities, he frankly admitted that the aim was to prevent connections with British citizens which might lead to asylum seekers being seen as ordinary human beings, much like themselves. And it was Blunkett as well, of course, who, when told that his other policy of enforced destitution might lead to asylum seekers sleeping and dying on the street, is reported to have said, ‘So be it...’
Pragmatism is not the same as ‘short-termism’. The honest pragmatist will want to see practical programmes, adapted to existing circumstances, rather than conforming to prejudice or ideology. He or she will want policies and practices to be evaluated in the light of their impact and effects, but also against standards of governance intrinsic to democratic representative government, such as transparency and accountability. Unlike transparency, secrecy is like a cancer, corrupting and destroying the fabric of society from within. Secrecy in government is not just undemocratic; it is profoundly anti-democratic because it would deny to the people the opportunity to ensure the accountability of officials and elected representatives to constitutional principle.
Is current policy governed by principles or pragmatism? The principles I’ll come to. For now, what might the pragmatist ask about ‘Stop the Boats’?
How about: Is the need for protection now less? Are other States now better able to deal with issues arising from forced displacement and irregular migration? Have solutions been found for more individuals at risk, and for those not in need of protection? Have smugglers and traffickers been successfully prosecuted, and if so, how many and where?
Admittedly, another pragmatist might argue that an issue of balance is involved, and that Australia’s continuing performance as a provider of solutions for refugees through resettlement justifies Australian exceptionalism, and an entitlement to act differently from other States party to the 1951 Convention when people seeking asylum arrive directly, unannounced and uninvited.
Australian exceptionalism is by no means a new phenomenon. Back in the day, the Australian representative to the 1951 Geneva Conference, Mr Shaw, sought to emphasize that, as a country of immigration, Australia’s approach to the refugee problem differed from that of other States. It was thus essential that its directed employment policies, then in vogue, should be recognized as compatible with the Convention. Later, however, he admitted that dividing States into countries of resettlement and countries of asylum was an ‘unduly facile simplification’. Just like other States, Australia too had received many thousands of refugees during the Second World War, many of whom had landed ‘illegally’ on its territory.
But let’s think now about the principles that govern the conduct of States in their relations with each other and with individuals in search of protection. I am thinking in particular of sovereignty, State responsibility, individual liability, and the rule of law.
As a concept or principle, sovereignty is useful shorthand for describing the independence and equality of States, and of their prima facie exclusive competence over territory and people. It is a legal concept, however, not a prescription for anarchy.
When States interact with each other, the sovereignty of one is confronted with the equally sovereign status of others and, as we shall see, ‘responsibility’ is what mediates any conflict and ensures the rights of each.
These ‘sovereign rights’ may be engaged whenever a State seeks to ‘manage’ matters having an international legal dimension, such as trade, navigation, investment, co-operation, or the movement of people. These issues all have an international legal dimension, and how States respond has international legal consequences.
For this area engages the responsibility of States acting within an international community subject to the rule of law, where every State is bound to implement its obligations in good faith, and where no State is ultimately competent alone to determine the legality of its conduct. The State does not enjoy complete or absolute freedom, for example, with regard to how it treats those within its territory, or subject to its jurisdiction, authority or control. Nor, of course, does it enjoy complete freedom when it seeks to project power beyond its territory, either onto the high seas, which are free to all, or into the area of other States’ rights and interests.
At this point, where other States’ interests are involved, responsibility may be triggered, and the extent of each State’s rights and obligations comes into question. When Australia seeks to control the movement of individuals from Indonesia, it is dealing with a group for which neither State is formally responsible through the link of citizenship. Does Australia consider that Indonesia, or any other State, is somehow legally ‘responsible’ for this group, for those who pass through its territory when seeking to access Australia? Evidently not; no such argument has been raised and it would be wise to be wary of such an argument, boomerangs being what they are.
The absence of any such claim is relevant nonetheless, for there is correspondingly no legal basis which might permit Australia to justify re-directing boats onto Indonesian shores as some sort of ‘countermeasure’, designed to off-set prior illegality. Its actions retain the quality of unilateral measures and, insofar as they impinge on the interests of the other State, without manifest justification in international law.
Even if countermeasures were justified, established principles of international law demand that fundamental human rights continue to be protected, and that measures be proportionate. In the words of one tribunal, a lawful countermeasure must be ‘limited by the requirements of humanity and the rules of good faith applicable in relations between States’, to which the International Law Commission today would add, as well as those human rights which may not be the subject of derogation even in time of war or public emergency.
Australia’s policy and practice with regard to the interception of boats and the treatment of passengers thus involve a unilateral projection of power into areas affecting the lawful interests of other sovereign States, but in which those other States have no say. Indonesia’s sovereignty, as we know, has been violated by agents acting on behalf of Australia. Internationally wrongful acts have occurred, by reason of conduct attributable to Australia, which breaches one or more international obligations binding on Australia. The wrong is admitted, and apologies have been made, but these intrusions are not just accidents of navigation; on the contrary, they are the foreseeable consequences of an aggressive unilateralist policy towards refugees and asylum seekers which is manifestly intended to have an effect on other States.
Even if international law does not appear expressly to regulate all aspects of interception and re-direction, the principle of sovereignty nevertheless sets the parameters which govern State conduct having effects on the rights and interests of other sovereign States. In recent months, these parameters have been exceeded, both overtly, in naval incursions, and less directly, as a consequence of the practice of interception and re-direction. ‘Damage’ as such is not required, the function of international law, as Alain Pellet has expressed it, being now also to organize co-existence and inter-dependence in and among the community of nations.
The principle, or principles, of State responsibility serve to mediate the conflict between sovereign States.
Whether the conduct of State officials breaches an international obligation binding on the State is in turn to be determined by the content of that obligation. As a matter of general international law, it is undisputed that the State is responsible for the conduct of its organs and agents wherever they occur. Even when it exceeds its authority or acts contrary to instructions, the organ or agent exercising elements of governmental authority acts for the State.
Among others, non-refoulement is precisely the sort of obligation which is engaged by extraterritorial action, for it prohibits a particular result – return to persecution or risk of torture – by whatever means, direct or indirect, and wherever the relevant action takes place. A State which intercepts a boat carrying refugees on the high sees and which returns them directly to their country of origin violates the principle. Equally, an intercepting State which disembarks refugees and asylum seekers in a country which it knows or reasonably expects will refoule them, or otherwise violate their fundamental human rights, becomes party to that act. It aids or assists in the commission of the prohibited conduct. It is responsible, jointly with the State which actually does the deed, for no State can avoid responsibility by outsourcing or contracting out its obligations.
No one in the world out there is fooled for one minute by claims that Australia has no responsibility for what happens on Nauru to those whom it has consigned to this ‘quasi-State’. The extent of Australia’s engagement with its agent, at financial, personnel, law
enforcement and policy levels, is well documented, even if the full extent of Australia’s budgetary commitments has repeatedly been suppressed. This dependency in fact, and the role which Nauru is required to fulfil in implementing Australia’s off-shore policy, are significant and relevant to Australia’s legal responsibility for what happens next, after the boats are intercepted.
The fact of interception – the taking of control and custody – establishes the necessary juridical link between the State and the consequence. For borders do not mark the limit of the law. On the high seas, in the contiguous zone, in the territorial seas of other States, at notional and virtual borders continuously reconstituted on the basis of national interest, international law is there. It looks not just to place, but to actions and consequences.
The basic principles of State responsibility thus govern the situation where a State takes custody and control of refugees and asylum seekers, whether outside territory, such as on the high seas, or on State territory, after arrival. Equally, and absent agreement consistent with international law generally and with such specific guarantees of protection as may be relevant, those basic principles apply to the ‘service’ or agent State, that is, the State where offshore processing is to be carried out and into the territory and jurisdiction of which the refugees and asylum seekers are delivered.
The measures which a State takes, whether in implementation or avoidance of its international obligations, engage not only its own responsibility, but potentially also the liability of individuals. Recent events, including trials and arrests in various States and
discussion of universal jurisdiction in the UN and elsewhere, have helped to bring this dimension to life.
Universal jurisdiction is about ending impunity; its purpose includes enhancing the rule of law and bringing justice to victims. It is largely and often about international crimes, such as war crimes, crimes against humanity, and genocide, but it is also about torture and its cognate offences, as Australia and other countries indicated in their comments to a recent UN initiative on the scope and application of the principle.
State officials have no impunity if they commit crimes against international law, even if they acted, not for individual ends, but in the interest or perceived interest of the State. This basic principle also resonates at the domestic level.
As Jagot J. noted in Habib v Commonwealth of Australia in 2012, the Court had ‘both the power and a constitutional obligation to determine...’ a claim of aiding, abetting and counselling torture by officers of the Commonwealth in breach of Australian law, even where the relevant acts took place abroad. The common law act of state doctrine was no obstacle to justiciability, and it could hardly be argued that the alleged violations of international law were in the public interest. Black C.J. agreed, adding that torture offends, ‘the ideal of a common humanity...’
In a judgment handed down on Thursday of last week (30 October 2014), the UK Court of Appeal referred to Jagot J.’s opinion in Habib as ‘compelling’. The case under review, Belhaj v Straw & Others, involved the extraordinary rendition of Abdul-Hakim Belhaj and his pregnant wife, Fatima Boudchar, to Gaddhafi-controlled Libya, allegedly with the connivance and complicity of the then Foreign Secretary, Sir Jack Straw, and of British officials, including Sir Mark Allen, allegedly the Director of Counter-Terrorism of the Secret Intelligence Service at the relevant time; I say ‘allegedly’, because as the Court itself noted, his status has neither been confirmed nor denied...The Court of Appeal had no doubt whatsoever that international law had evolved to include the regulation of human rights, and that the prohibition of torture is recognized both in treaty and in customary international law, as a principle of jus cogens permitting no derogation. The Court recalled the House of Lords judgment in the case of A in 2006, and what public policy has to say about torture. To this, it added:
‘So far as unlawful rendition is concerned, this too must occupy a position high in the scale of grave violations of human rights and international law, involving as it does arbitrary deprivation of liberty and enforced disappearance.’
The parallels with non-refoulement are inescapable. National officials do not enjoy immunity in the UK, and the Court found a ‘compelling public interest’ in its investigating the claims, notwithstanding the involvement of other States, notwithstanding potential embarrassment in inter-State relations, notwithstanding the alleged involvement of the security services.
The Court emphasized that, unless it were able to exercise jurisdiction, ‘very grave allegations against the executive will never be subjected to judicial investigation’. And if some desperate apologist would like to dismiss this as yet another extreme application of the European Convention, he or should might care to note, first, that the relevant legal analysis (121 of 161 paragraphs in the judgment) was framed, ‘by reference to the common law...’; secondly, to recall Jagot J.’s reference to ‘constitutional obligation...’; and thirdly, to note further that even the International Court of Justice has not hesitated to invoke, in support of its analysis of State obligations, ‘... elementary considerations of humanity’, ‘the principles and rules concerning the basic rights of the human person’, ‘intransgressible principles of international customary law’, and the necessity to avoid ‘irreparable’ prejudice.
So it is that rules and obligations govern the State internally and externally – it may no more torture a person at home, than abroad. Torture is a crime prohibited by international law, as is any attempt to torture, and complicity or participation in torture. And while States are required to take the necessary steps to prohibit torture, to investigate allegations of torture, to criminalize torture, and to take enforcement measures against those suspected of torture, any State may prosecute anyone suspected of these offences, who comes within its territory.
This is what Mr Pinochet discovered. The law may move slowly, but its arm is patient and it is long. This is why information is already being collected, not just about policies and policymakers, but about the details of State action at the implementation or enforcement level.
Increasingly, as States bend the rules or hunt for the ‘gaps’, attention has to focus on those who are behind the policies and practices that impact on the security and well-being of others. It is not just a question of responsibility at the inter-State level, for example, for devastating military operations. It is also about that liability which attaches to individual agents of the State, to officials, to military commanders, to the members and crews of particular units or vessels.
In my experience, military personnel, being trained in the laws of war, tend to have a far better understanding of legality, of the notion of an unlawful order, than many a politician or bureaucrat. Even so, they might like to consider the implication of satellite tracking, which has already been used by human rights organizations to assist in identifying (NATO) vessels in the Mediterranean responsible for ignoring a vessel in distress, with resulting loss of life.
Current work on the immunity of State officials in the International Law Commission sees the relevant principles today as limited, not only to the period of office, but also to just three levels of government – President, Prime Minister, and Minister for Foreign Affairs. Ministers for Immigration might like to think twice about travelling abroad, as certain officials in the Bush Government responsible for the ‘torture memos’ now do, and as might the foot soldiers, the crew members, and the private security contractors whose actions, locally ‘lawful’ and required though they may be, yet are the cause of human rights violations, of crimes in international law, such as return to torture.
The Rule of Law
All of which leads me conveniently to the rule of law, a phrase with which lawyers are all too familiar from their first days of study, and a phrase now very much in vogue in international discourse.
No one, I feel, seems particularly confident about what the ‘rule of law’ might mean when transposed to the international level. The ‘Outcome Document’ of the UN’s 2005 World Summit contains a clear endorsement of the principle, though Rosalyn Higgins, former Judge and President of the International Court of Justice, has sensibly suggested that the concept of an ‘international rule of law’ is very much a work in progress, its meaning dependent on context, its content on the particular objective sought to be achieved.
We all have a basic idea of what the rule of law requires domestically: freedom from arbitrary power, equality before the law, review of executive action, and so forth. How might these principles, which are central to democratic, representative government, say something meaningful, either about the relations of States one to another, or about the relations of States with individuals. I have given one example already, namely, Australian policy and practice vis-à-vis Indonesia.
And here, there is also something for national courts to think about, as international law increasingly has an impact on the national domain, and the effects of globalization are felt across so many fields. Apprehensions about these developments can find courts seeking to protect domestic interests and guard against ‘foreign’ influence. By contrast, as Eyal Benvenisti suggested in an important article in the American Journal of International Law in 2008, for courts to allow governments free rein in matters international,
‘... actually impoverishes the domestic democratic and judicial processes and reduces the opportunity of most citizens to use those processes to shape outcomes...’
In Jeremy Waldron’s words,
‘... a national sovereign sells its dignity short when it conceives of its sovereignty (or tries to get others to conceive of it) as just brute unregulated freedom of action, considered apart from the legal constraints and the general idea of law that make it,
constitutively, what it is...’
As he also remarks, ‘... concern for the regularity and law-bound character of state action is undiminished...’ when we move from domestic to international law, and the ‘reasons for wanting nation-states to remain bound by law do not evaporate’, because States are operating internationally.
The requirement that every State implement its international obligations in good faith is surely a constituent element of the international rule of law, and good faith compliance with the letter and spirit of international law is equally a critical factor in legitimacy. James Crawford, in his 2003 address to the Adelaide Law School, made the further point that the rule of law if of such fundamental value, that it ‘must be instituted globally if we are to have a secure future...’ Not for nothing does the Security Council demand from States that the measures it requires them to take to deal with issues of international concern, such as terrorism, be consistent with their international obligations at large.
The notion of the rule of law – solid at the core, mutable perhaps at the periphery – may well have different senses when applied to the ‘internationalized’ relations of the State to individuals, or to the affairs of States between themselves. Still, certain central features retain their authority – the opposition to arbitrary power, the emphasis on legality, compliance and accountability. It is here that national courts can make a concrete contribution.
The international rule of law is linked to, if not contingent on, a national rule of law and on the now widely accepted proposition that truly democratic governance is itself necessarily the product in part of checks and balances, so that no one branch of government, and no one government is, in principle, able unilaterally and arbitrarily to legislate, to act, to judge, and to determine outcomes in matters of international concern.
It is the courts which can make the connection between the international and national dimensions of the rule of law, interpreting and applying law consistently with international obligations, identifying those general principles of law acknowledged in the Statute of the International Court of Justice, and giving to the rule of law that dynamic character which brings together foundational principles common to national and international legal systems.
As James Crawford has also observed, there is an urgent need for the effective ‘domestication’ of international obligations. National courts, especially in dualist systems, have an important role to play in the implementation of international law – the contribution of
Australia’s courts to the jurisprudence of international refugee law is renowned – but effective contributions to strengthening the law and steering its evolution to face the social and political realities of the day means, first, that international obligations must be transposed in good faith, not rewritten in an emasculated, self-interested form; and secondly, at times of challenge or crisis, that the courts must dig out those constitutional or common law principles which are the very foundations of law and legal system, and which are not to be disregarded in the business of national and international governance.
It is arrant nonsense to suggest that the courts are somehow disqualified to review legislative or executive action because they are not ‘elected’. Courts are an integral part of what we call democratic representative government and which we accept, on the back of bitter experience, must be a matter of checks and balances if law and society are to remain founded in principle.
Not for nothing does the third paragraph of the preamble to the 1948 Universal Declaration of Human Rights note that, ‘It is essential, if man is not to be compelled, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.’
So what’s to be done?
In the late 1970s and early 1980s, Australia was in the vanguard of refugee protection and refugee resettlement. Today, that has changed, and many of today’s lessons are far less positive. One might have a measure of sympathy for those politicians and officials who have to live in a 24/7 world of news, ever fearful of the next tweet, let alone the election just around the corner. Many are clearly not up to it, however, and those pressures and the perceived need for vote-gathering tabloid headlines, put a premium on short-term thinking.
Many who should be developing policies for the future clearly cannot see beyond the end of their nose, and though the Pinochio principle might suggest their vision improves by the day, experience tells us it just doesn’t work like that.
Short-termism is no new phenomenon, even in the face of knowledge, or imminent need, and one would like to think that the right lessons are learned over time. We had a very good idea twenty-five years ago just how many jobs would be needed in the developing world, if those about to enter the work force were to find employment. But we did little or nothing, and sat back to let demographic factors, conflict and persecution do their worst.
So what’s to be done?
Apart from trying to educate them, I have little time for those who preach from the pulpit of ignorance or for international law amateurs who do not see or understand the content, depth and meaning of those principles which underpin the conduct of States in an international community of nations.
Nor, speaking as an international lawyer, would you expect me to have much time for the apologists for power and force, for those who see rule and obligation as quaint and so to be disregarded on the road, not to the light, but to the dark which is Guantanamo, Abu Ghraib, torture, extraordinary rendition, mandatory detention...
Those of us schooled in the rule of law know that there are alternatives, that there are choices to be made. If there are gaps in the system of international refugee protection – and of course there are – then the goal ought to be to fill them in a principled way, through international agreement and cooperation. This is what States members of the United Nations have agreed to do – to co-operate internationally in solving international problems of a humanitarian character.
First, we must understand that the movement of people between States today is not a crisis, in the sense that we lack the resources to respond and to manage effectively. Second, there is no practical or pragmatic reason why those responses cannot be constructed within a framework of principle, some of which I have attempted to describe. Third, there is no practical justification for unilateralism in this area of international concern; on the contrary, it demands and requires collaborative and co-operative action, with due regard to the interests of others.
The benefits of co-operation are not just theoretical, and South East Asia provides both model and example, not only by way of the Comprehensive Plan of Action, but also with the international record of resettlement in the years after 1975. The dangers of unilateralism are equally self-evident: Co-operative action leads to solutions and to a fair or fairer allocation of responsibilities among nation States; unilateral measures lead to isolation and a greater
unwillingness to help.
Knee-jerk reactions may satisfy short-term electoral or political goals, but they divert energy and resources from truly international approaches. By sending out a message of unilateral disregard for the principles of international co-operation, they inevitably lead to a disinclination on the part of others to contribute to solutions.
The Tampa incident and its aftermath, for example, came to be seen very much as a problem of Australia’s own making. This was a pity, because it raised a host of truly international issues, not confined to the Pacific region, which were then and are still, ripe for a truly cooperative approach. It is the nature of the international protection regime, however, that it is conditioned on States not acting unilaterally; on States not insisting on the paramountcy of their own self-styled sovereign interest in any particular case.
Ironically, in the late 1970s, Australia had perceived just such a gap in the system with regard to the reception and treatment of refugees and asylum seekers in situations of mass influx, and to arrangements for solutions. With substantial input from Gervase Coles, then an official with the Department of Foreign Affairs, Australia took the initiative in the UNHCR Executive Committee in promoting a conclusion on temporary refuge, overcoming entrenched positions both among other States and within the High Commissioner’s Office.
Parts I and II of what became Executive Committee Conclusion No. 22 (XXXII) of 1981 tend still to get the most attention because of their critical importance to developing the law on issues of admission, non-refoulement and non-discriminatory treatment. But it is Part IV which reflects international and institutional goals which Australia, given its geo-political situation, saw as no less important.
One of Australia’s concerns was that the rest of the world might leave it to cope alone with a large-scale influx of asylum seekers. But the UNHCR Executive Committee was ready then to recognize expressly that satisfactory solutions depend on international cooperation and, for that reason, it said, using the imperative, that ‘States shall...’ take all necessary measures to assist, at their request, States which have admitted asylum seekers in such situations. Bilateral, multilateral, regional, universal action – nothing was ruled out in pursuit of assistance and solutions. Existing mechanisms could be strengthened, and new arrangements set up, if possible on a permanent basis.
This, then, was Australia’s vision in 1980-1981. What has happened since? Has it all now been shuffled into the ‘too-hard’ basket, with short-term, self-interested goals and headlines replacing long-term solutions? Its recent essays in unilateralism and its steps outside the rule of law have certainly made it harder for other States to think of Australia as a trustworthy partner in refugee protection and solutions. And this too is a pity, because Australia does continue to play a critically important role on resettlement and solutions.
Let us make no mistake. Other countries are not following Australia’s example. Yes, some politicians and officials may think that a similar approach to arrivals is the answer – Tony Blair thought Africa might be Europe’s Nauru – and there is much that is still wrong with individual country practices and procedures, and with the Common European Asylum System.
The UK’s decision to cut support for rescue operations in the Mediterranean – on the spurious and contested ground that it encourages people to risk their lives (contested by the Italian Admiral in charge of operation Mare Nostrum, no less) – could be a version of the false machismo which characterises ‘Stop the Boats’, but uncooperativeness and obstructionism have long been a feature of Home Office policies and practices. In fact, I am rather surprised that a department just identified as responsible for 29,000 asylum applicants still waiting for a decision after more than seven years even has the time to think about rescue at sea – such a level of institutional incompetence hardly suggests confidence in anything they might say...
But enough of that. What is more significant, for a community premised on the rule of law, is what has happened in the region since the European Court of Human Rights handed down its unanimous decision in the case of Hirsi Jamaa v Italy in February 2012.
Although there was then some discussion of renegotiating the agreements with Libya so as to come within the law, events took over. The Italian Government turned from interception to rescue, and in October 2013 it established the operation which is estimated to have saved some 150,000 lives. The Italian Government rightly insisted that this could only be a temporary expedient until the European Union assumed responsibility, and on Saturday last, 1 November, Operation Triton, under Frontex, the EU border management agency, took over.
Yes, there are concerns about the adequacy of the response, just as there always have been concerns about the accountability of Frontex. But another consequence of the judgment in Hirsi Jamaa was the April and May 2014 adoption by the European Parliament and the European Council of new rules for Frontex search, rescue and interception operations at sea. Again, it is not a perfect framework, but it is one which recognizes the applicability of the EU’s Charter of Fundamental Rights, relevant international law, non-discrimination, and nonrefoulement.
In these important senses, then, EU operations in the Mediterranean approach the sort of model required by the international rule of law, particularly when one factors in also the independent monitoring jurisdiction of the European Ombudsman. If they are to be ultimately effective, however, then here too a wider vision will be needed – one that engages constructively and on the basis of principle, with North African transit and origin States, among others. This process has begun, although its long-term impact will likely depend, both on a keener foundation in the principles of protection, and on a greater recognition of the interests and needs of its potential partner States.
The Way Ahead
The international community of independent ‘sovereign’ States will continue into the foreseeable future, and people in turn will still likely leave their countries in search of refuge from persecution and other human rights-related harm. States will go on trying to find solutions to what they see as a problem, and self-interest will remain a factor in policy formulation and in relations with other States. Possibly, some will be willing to revisit those aspects of ‘sovereignty’ which stand in the way of alternative responses, such as the illusion that it’s all just a matter of each State’s discretionary competence.
If Australia is seriously interested in a workable and long-lasting response to the challenges of refugee and forced migration, then, in my view, it will need to abandon unilateralism in favour of collaboration; to recognize the equal sovereign status of those partners in the region which have also to deal with those challenges; to recognize that exceptionalism where direct arrivals are concerned cannot be justified in law or on principle; to make protection and solutions the cornerstone of its asylum and resettlement policies; and to implement its international obligations in good faith, including its duty to ensure and to protect the human rights of everyone within its territory or subject to its jurisdiction, authority or control.
Above all, if it is to become serious about co-operation, then Australia will need to show its commitment to international law, to the principles which I have laid out, and to others too, such as transparency and accountability.
I suggested in opening that there might not be an answer to the question, ‘Are we between principles and pragmatism?’ Perhaps there is, but I am afraid it’s, ‘No. We’re just stuck in the middle of nowhere.’ Unfortunately, the consequence is that lives are being wasted, wrongs are being done, and resources dissipated. It’s time for action, for a return to principle.
Given the falsity of the picture painted in recent years, of the corruption of language, the seduction of sections of the media, and the abuse of law, I fear it will take more courage and statesmanship to get out of the box than you will find in the politics of today.