Global Responses to the Forcibly Displaced

Sir Geoffrey Nice KC: The Social Context of the Law series aims to deal with contemporary and sometimes controversial issues by drawing on the skills available to us to discuss these issues. I dare say for many of us, for much of our lives, ‘refugee’ when it turned up in conversation or in a newspaper or on the television was a subject that had to do with other people in faraway places. But no longer. In our country and in many other countries, refugees are a constant recurring issue. And indeed, in our country we know that because the interaction of refugees and unlawful immigrants who crossed the channel is actually going to be a hot topic on at least one of the manifestos of the two, at present, major parties in our country, and the issues are by no means simple. Is one refugee the same as any other kind of refugee, or are they all of different categories? Why are they refugees at all?

Our two speakers are Dr Gillian Triggs, an Assistant Secretary General of the United Nations and an Assistant High Commissioner for Refugees, and The Hon Alexander Downer AC, a politician and diplomat who now has a senior position at King’s College.

Dr Gillian Triggs: I’m pleased to have the opportunity to say how much we value in the UN Refugee Agency the work of the legal profession. They provide pro bono work, they provide advice, they support us, and they support individual refugees seeking international protection. And we’re deeply appreciative of it because ultimately, we do need to go back to those fundamental principles of international law.

I’d like to take us right back to the Universal Declaration of Human Rights in 1948. Article 14 talks about everyone having the right to seek and to enjoy asylum from persecution. Well, that was picked up in 1951 with the Refugee Convention itself. And that’s at a time when it was recognised there were about two million people forcibly displaced in Europe, and that something needed to be done. Two fundamental principles were adopted, with historical foundations. One, that people should have a right to seek asylum from persecution. Secondly, and a non-derogable principle of international customary law, that no person may ever be returned to a place of conflict and danger.

The High Commissioner has reported this last year 103 million people forcibly displaced globally within the mandate of the UN Refugee Agency, about 32 million of them refugees, probably many more now. What has been the response by states? What is the UNHCR doing to respond to these enormous challenges? What are the drivers for displacement? Unfortunately, those root causes are the same all over the world: poverty, inequality, discrimination, persecution, increasingly the impact of climate change, but overwhelmingly, conflicts.

We have seen that the Ukraine war, almost an old-fashioned war, has led to eight million people displaced into the border areas, with six million displaced within Ukraine itself. But let’s put that into context. Because we also have protracted conflicts: Syria, the 12th year; Afghanistan, more than 40 years; the Sahel; six million internally displaced in the Democratic Republic of the Congo; Ethiopia, the poster child for peace, erupts in yet another civil war; continued displacement from South Sudan. And 850,000 people have fled Myanmar, Rohingya, finding protection in Bangladesh. And most recently, Haiti again erupting in civil war, leading to further onward movement up through north Central America and into the United States and Canada.

But another relevant fact is that 80 per cent of refugees, people who’ve crossed borders to seek protection, are in fact hosted and protected by some of the poorest and low-income developing countries in the world. And that is really what has created the impetus, globally, to find a solution. In 2018, it was felt that the Refugee Convention itself was not enough. We had to think more broadly, we had to take a whole of society approach. And that led to the Global Compact on Refugees (GCR), its twin being the Global Compact on Migration. The Compact on Refugees adopted a new approach, almost a revolutionary one – that the burdens and responsibilities for refugees should be shared equitably across the globe. It’s not a legal document, it’s not a treaty, it doesn’t bring legal obligations, although 181 states voted for it in the General Assembly, but what it does do is to create a sense of consensus around the principle that we can no longer continue on the path that we’ve taken, with the numbers of people displaced and refugees having doubled in the last 10 years, and it’s highly probable that those numbers will double again in five years.

This voluntary compact involves the banks, the World Bank, the Regional Development Banks, the private sector. It was to involve the voices of refugees themselves, to involve religious groups, and national civil society and international civil organisations. During these last few years, and in that environment of an aspirational attempt at global compact, we’ve had very real changes in the approach to dealing with people leaving their country irregularly. I’ve never seen such a rejection of the normative principles of refugee law.

Countries now will explicitly push back boats, they will deny rescue at sea, they will refuse disembarkation, and they will do so contrary to not only the principles of refugee law, but the ancient law of the sea or maritime law. And we have increased rejection, closing borders, the misuse of health borders – health measures to close borders – and we have a strong resistance now at a popular level, a public level. There are some good practices, and we at the UNHCR really try to focus on those. We’ve seen very positive practices of countries keeping their borders open, allowing numbers to come through. But we’ve also seen some significant digression in support for those fundamental principles.

So, the question I’d like to finish with is what is the UNHCR doing about it? We are trying to use the idea of principled pragmatism, we cannot ignore the concerns that countries have about protecting their borders and about the sheer numbers, about the concerns of citizens. We have to understand that, and we have to find a way of responding. We know some countries say the asylum systems are broken. I don’t think that’s true. But nonetheless, they are undeniably being abused. And they lead to overly complex legal systems, clogging up the courts, sometimes for years. In brief, what we’re trying to do is to talk to governments about strengthening regular pathways in order to preserve the asylum space for those cases where most reasonable people accept the obligation to provide protection to people genuinely in need of asylum. We’re also looking at labour mobility, trying to encourage governments to improve access to labour. One of the ironies is that many of the European and North American countries are ageing, and they need labour, they need people to assist with health care, but also to work in other industries: the hospitality industry, in construction, in agriculture. The other work that we’re doing is working with the development banks, because the international legal system, the international environment, through the UN, is increasingly saying: “We can’t keep doing what we’ve been doing.”

We’ve got to find some solutions that deal with root causes, and that means development, it means private investment, it means stabilising populations where they are, maybe looking at regional approaches to giving people the relevant information to make sure they go down the right channels, whether it’s access to labour, education, family reunion, or whether it’s that they need protection from persecution, from conflict, from crime, and the impact of crime leading to displacement. I conclude by saying how important the legal profession is to understanding the complexity of this environment, to ensuring clear messages, and to supporting innovations, new ideas. We need fresh ideas if we are really going to cope with what are likely to be increased movements of peoples as they seek, sometimes, a better life, but very often simply protection from persecution and from conflict.

Two fundamental principles were adopted, with historical foundations. One, that people should have a right to seek asylum from persecution. Secondly, and a non-derogable principle of international customary law, that no person may ever be returned to a place of conflict and danger.

The Hon Alexander Downer AC: This issue of immigration is a ‘wicked problem’. The fact is that, particularly in liberal democracies of a Western nature, there is huge demand to migrate to those countries. And that is very much the case with this country, which has a large number of migrants. It is certainly the case in the United States and Canada, and it’s very definitely the case with Australia as well. These liberal democratic governments are all elected by the people of their country, and so this is one of the many issues that they have to manage.

Should a country take the view that anybody who wants to come to that country to live, to migrate, should be allowed to? And that is a really fundamental question that you need to answer. I mean, some of you will think that anybody who wants to come to the UK should be able to, that the UK should have open borders, that borders are an anachronism. And some people in Australia and in the United States, and so on, might think that. The fact is that the vast majority of people in all of our countries don’t think that. Don’t draw the wrong conclusion from that: I think on the whole they are persuaded that migration is a good thing. I would say, in Australia, the concept of accepting migrants is reasonably popular. And most of them, with the exception of about three per cent of the population, are the descendants of migrants or are migrants. And in this country, I think public opinion is likely to be rather similar, that people are on the whole happy enough with the concept of migration, but they’re not happy with the idea that you would have no limit to the number of migrants you took, that in other words, you would just have an open border.

Australia does take about 160,000 migrants a year – the bigger percentage of those, around 60 per cent of them, are skilled migrants. So, they’re migrants who come to fill vacancies. At the moment, Australia is desperately recruiting doctors and nurses from the UK, as the UK desperately tries to hang on to these people. The second category is family reunion. There are different sub-categories of family reunion, but the most significant is when people marry in Australia. And thirdly, there are refugees. Australia has a refugee resettlement programme – it takes around 20,000 refugees that it resettles, mainly through the UNHCR. They are vetted, these people, particularly from a security point of view. But the Australian government takes the view that it has to carry some of the burden of looking after these people. Because looking after them doesn’t necessarily mean they have to become migrants. But Australia says: “Well, we’ll allow 20,000 a year of these people, it is of course a very small percentage of them all, to resettle in Australia, not just to resettle temporarily but to come as migrants.”

In addition to that, Australia did have a system of Temporary Protection Visas where people can come to Australia if they need protection, temporarily until the need for protection is no longer necessary, in which case they could return home. That was very effectively used by Australia for the Albanian Kosovars at the time of the Kosovo War. Australia took 15,000 or so Albanian Kosovars; when the war was over, they were sent back again. Australia, though, takes the view that there are only so many people the country can take. That if we took more, that would put public services under substantial strain. It would generate community controversy, and if the immigration programme broke down and became uncontrolled, and incomprehensible to the public, then public support for immigration would decline, and we would lose the support that we’ve had for a very long time for immigration. And that is an incredibly important point to consider: the politics of immigration, including the politics of looking after refugees.

So, this brings me back to what we can do to help displaced people over and above giving some of them Temporary Protection Visas, over and above allowing some of them to migrate to our countries. What else can we do? And a very big percentage of them, about 80 per cent of externally displaced people, are in the surrounding countries. And actually, there are very few countries which host most of these people and they are largely poor countries. That isn’t because people are flocking to poor countries, that’s because they happen to be the neighbouring countries of the places where these conflicts are taking place. So, the challenge is to look after those people – as best we possibly can – without destroying our own immigration programmes at home. And that is a question really of foreign aid, of working through the UNHCR and other organisations working with the host governments.

People are happy enough […] with the concept of migration, but they’re not happy with the idea that you would have no limit to the number of migrants you took, that in other words, you would just have an open border.

So, I just wanted to get you to think about how you would manage an immigration programme, what you do if large numbers of people turn up, if you like, uninvited, as happened in Germany? Well, they were invited, I guess, by Angela Merkel. But a large number of people just turned up. What happens, as happened in the case of Germany back in 2016, was huge public resistance to seemingly uncontrolled migration into Germany. And in a liberal democracy you have to take into consideration public opinion, and how you manage public opinion. Because Angela Merkel had to reverse a policy because of the public reaction, and the huge flood of votes that went to the more extremist political parties, in particular Alternative für Deutschland, became something of a concern for not just Germany but more broadly for the European Union and the family of European countries. That, I think, is a lesson as to how carefully these issues have to be managed.

And I shall end on one note about the UK and immigration – I think it’s very hard to understand the British government’s immigration policy. I don’t want to make what could be interpreted as a party political point here, at the expense of the government, but they have been in power for over 12 years, and not once in those 12 years have I ever thought they had a very coherent approach to immigration. Yes, there’s the small boats issue. They want to stop the small boats, that’s entirely understandable. They’re not coming from Afghanistan or Syria, these boats are being launched in France. Now, obviously, it’s a racket going on with people smugglers – you can see that from the large number of Albanians that have come. But the British government has found it very hard to deal with that issue, and at the same time has found it very hard to come up with a coherent strategy for people being able as refugees to resettle in the UK.

For the full video recording: innertemple.org.uk/globalresponses

Dr Gillian Triggs

Assistant Secretary General for the United Nations

Assistant High Commissioner for Protection

(UN HC for Refugees Filippo Grandi)

The Hon Alexander Downer AC

International School of Government King’s College

Academic Master of the Bench

Sir Geoffrey Nice KC

Chair of the China Tribunal and the Uyghur Tribunal

Master of the Bench