Academic journal article Boston College International and Comparative Law Review

Human Rights and the National Interest: The Case Study of Asylum, Migration, and National Border Protection

Academic journal article Boston College International and Comparative Law Review

Human Rights and the National Interest: The Case Study of Asylum, Migration, and National Border Protection

Article excerpt

INTRODUCTION

On my way to Boston, I spent a week in August 2014 on the U.S.-Mexico border visiting the Kino Border Initiative at Nogales (KBI). I visited the spot at the border fence where Cardinal Seán Patrick O'Malley, the Archbishop of Boston, celebrated mass, reaching through the steel girders to give communion to persons on the other side of the border. I heard some of the stories about the desperate attempts of border crossers, many of whom were children fleeing impossibly lawless situations back home heading for the safety of their dreams with relatives already resident in the United States. Fr. Sean Carroll S.J., Director of KBI, told me that the number of people coming to the border has tapered off, in part because of Mexico's southern border plan with Mexican state officials running stricter checkpoints and police activities in origin countries, like Honduras, that make it more difficult for children to escape. The Mexican southern border plan could not be implemented without U.S. funding. The cumulative effect is "the externalization of the U.S. border."1

As an Australian, this experience made me consider my own country's history of externalizing its border.2 Australia, an island-nation continent, is a nation state first founded on Aboriginal dispossession that has become a very multi-cultural society.3 Since World War II, it is a nation re-founded on migration from every country on earth.4 Australia has a generous, ordered, and wellpoliced immigration policy.5 Australia has been particularly generous receiving refugees fleeing conflicts across the globe.6 Refugees come to Australia on business or tourist visas and then claim asylum upon arrival in Australia.7 Some refugees arrive by boat, uninvited and unscreened.8 Australian governments of both political persuasions (the conservative Liberal Party and the social democratic Labor Party) have expressed a strong preference for the maintenance of an orderly migration program of all types of refugees, including the reception of an annual quota of refugees chosen from abroad, usually in consultation with the United Nations High Commissioner for Refugees (UNHCR).9 At the same time, ever since the first boatloads of Vietnamese asylum seekers arrived in Darwin in 1976, the Australian government, regardless of political party, has had a strong commitment to stopping illegal entry of refugees into the country while maintaining programs for the resettlement of proven refugees.10 Furthermore, the Australian public tends to reward political par ties that can deliver on the election pledge to stop refugees entering the country illegally.11

When last at Boston College ten years ago, I worked on the second edition of my book Tampering with Asylum.12 That book and my advocacy made a modest contribution, along with the efforts of many others, to convince the newly elected Labor government under Prime Minister Kevin Rudd to wind back the so-called "Pacific Solution" instituted by the Howard Government in 2001, as boatloads of asylum seekers started arriving in Australian territorial waters from Indonesia.13 This time these refugees did not originate in Southeast Asia but came mainly from faraway Afghanistan, Iraq, and Iran.14 They had not fled Indonesia fearing persecution but had continued their global journey towards Australia seeking protection, recognition as refugees, and a new life.15 In 2008, the reforms instituted by the Rudd government resulted in refugees arriving by boat in numbers not previously experienced.16 These results proved that commentators like myself were wrong. In Tampering with Asylum, I provided a checklist of legal and policy reforms-most of which were enacted by the Rudd government.17 I wrote: "There is no reason to think that our onshore caseload will increase exponentially given the improved regional arrangements, the virtual offshore border and the tighter controls within Australian territory."18 During seven years of the Rudd and Gillard Labor governments, over 50,000 asylum seekers arrived by boat. …

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