By: Amy Flick
Our program on Wednesday, August 3 included a program on “International Refugee Law: Where it Comes From, and Where It’s Going.” This was a timely topic this year, and our speaker was an expert on the subject. Guy Goodwin-Gill practices as a barrister from Blackstone Chambers in London and has served as Legal Adviser in the Office of the United Nations High Commissioner for Refugees, as an advisor to United Kingdom Parliament Committees on asylum and immigration control, as Professor of asylum law at the University of Amsterdam, as Professor of international refugee law at All Souls’ College of Oxford University, and as founding editor and Editor-in-Chief of the International Journal of Refugee Law.
Goodwin-Gill noted that refugee law developed along with international organizations, so he began with historical background as important to understanding refugee law. The first High Commissioner for Refugees, Fridtjof Nansen, was appointed when the International Committee of the Red Cross wrote to the League of Nations in 1921 about Russian refugees needing attention in the displacements that followed World War I and the Russian Revolution. Nansen identified identification documents as a primary need to allow refugees to travel and find work, so he persuaded states to issue “Nansen passports.” Rather than returning refugees to dangerous environments, he concentrated on allowing states to allow resettlement and employment. The earliest refugee law focused on Russian refugees, but there were three million refugees in need of resettlement after World War I. Aid was provided in a piecemeal fashion as individual groups in need were identified.
In 1933, the League appointed James Grover McDonald as High Commissioner for Refugees to work with the growing number of Jewish refugees from Germany. He found that governments were unwilling to deal with the causes of the refugee crisis and resigned in 1935, with a famous letter of resignation, noting that “conditions in Germany which create refugees have developed so catastrophically that a reconsideration by the League of Nations of the entire situation is essential.” Goodwin-Gill asserted that the challenges of earlier decades in refugee law are still those of today, where governments need to lead the way and do not.
In 1946, at the first session of the United Nations General Assembly (at the Central Hall Westminster in London), the refugee problem was the second most debated issue, after peace and security. Refugee law “took off” in 1948 with the Universal Declaration of Human Rights and its recognition of the right of persons to seek asylum. Politics are always involved in refugee law, and early refugee law was informed by Cold War politics, with United States policy important in setting the direction of the law. The 1951 Convention on the Status of Refugees was adopted by a United Nations conference and was signed in July 1951. Goodwin-Gill pointed out that the convention is on the status of refugees, concentrating on how refugees are treated, not on the bigger picture of the conditions creating refugees. States sought to limit their obligations, and definitions of who is a refugee were limited to those outside their own country, with a well-founded fear of persecution.
Goodwin-Gill began work with High Commissioner Sadruddin Aga Khan in 1976, and he recommends Aga Khan’s lectures on refugee law at the Hague Academy of International Law as reading for law students. Under Sadruddin Aga Khan, the UNHCR expanded its jurisdiction beyond Europe, encouraged self-sufficiency, and encouraged repatriation and aid to refugees who do return. States were still reluctant to recognize the reasons for refugees to remain, and Aga Khan encouraged mediation of international disputes and recognized that underdevelopment is as much of an issue as conflict. As co-chairman of the Independent Commission on International Humanitarian Issues in 1986, Aga Khan pushed for a new international humanitarian order, with a report on international cooperation to avert new flows of refugees that Goodwin-Gill recommends.
Before the 1980s, there was little writing on “aliens” and the movement between states, but in the 1980s there was an explosion in the literature on refugee law, including Goodwin-Gill’s own book, a fourth edition of which is in the works now. There was also an explosion of jurisprudence on refugee law that hadn’t existed before, but states wanted procedures for determining refugee status.
In current refugee law, Goodwin-Gill finds that there has been an over-judicialization of refugee law, approached on a case-by-case basis. Human rights jurisprudence has contributed to more progressive thinking on refugees, with human rights law, international humanitarian law, and refugee law all cross-referenced.
The challenges of 2016 include the inability of the European Union states to develop a coherent response to the crisis, which is smaller than earlier crises like that of the 1930s. EU states have been reluctant to provide practical help, wanting someone else to be responsible. Goodwin-Gill argues that there is need to focus on the practice of states. There should be collective action of the European Union, which has principles of cooperation in its treaties. Its failure to respond has left people in limbo and has been a major political failure. The European Union has promised migration agreements to developing countries but has failed to deliver. Forty years after his work with the UNHCR, the world is facing the same challenges. How Europe, and the world, work through the current issues will influence the future of refugee law.