I have been here in the USA for the last month. I am presently spending the week down on the Mexican border at the Kino Border Initiative, which is a Jesuit sponsored cross border project at Nogales. The Jesuit community members sleep on the Arizona side of the border and walk across the border to Sonora each day for work.
At the comedor (soup kitchen), new deportees from the USA and those coming through Mexico trying to run the gauntlet back into the USA can come for two meals a day. Kino workers document human rights violations. Other NGOs such as the Samaritans and No Mas Muertes (no more deaths) come and provide practical assistance, including a telephone service so those on the run can check in with family and friends back home or across the border.
The Samaritans include many Arizona residents well used to encountering migrants without visas making their way across the desert on foot. The Samaritans provide food and water, and even Vaseline for the feet of the weary. Their T shirts proclaim 'Humanitarian assistance is not a crime'. Many of them are heading to DC at the end of the month for civil disobedience outside the White House protesting US immigration policies.
Each day at Kino, Mexican nuns provide spiritual consolation, inviting world weary people in flight to play the sorts of games we all played in primary school, doing contortions with our hands and designs with pieces of paper.
On Sunday, Fr Sean Carroll SJ, the executive director of Kino, celebrates mass (pictured). Those on the run freely share their heart rending stories. The whole ethos of the place is to provide a humanitarian space for people in desperate circumstances. No matter what walls are built, no matter what draconian push back policies are adopted, there is no way the USA can seal this border. The Congress is deadlocked. Obama has been labelled the 'Deporter in Chief'. Still the people come.
We Australians confront none of the complexities of sharing a land border with a poor neighbour many of whose family members are citizens of our country. Most Americans, I find, think that Australia has little to worry about when it comes to securing borders. There are three recent Australian developments which Americans generally seem to find morally repulsive and just stupid. They either cannot believe or understand that we routinely lock up children in immigration detention facilities; that we recently held 157 people including over 30 children in detention on a ship in the Indian Ocean for almost a month; and that we are now going to send up to 1000 asylum seekers to Cambodia.
The Americans have had to deal with unaccompanied minors turning up in numbers we could never imagine. In the nine months to 30 June 2014, more than 43,000 unaccompanied minors from lawless Honduras, Guatemala and El Salvador made their way through Mexico and across the US border. Under US law, they are to be screened by US Customs and Border Protection within 72 hours and then handed over to the Department of Health and Human Services where the Office of Refugee Resettlement arranges for the children to be placed in the community with a family member or some other sponsor while their asylum claim is determined. Whatever of any so called magnet effect, the Americans consider that locking up kids without their parents or guardians is just one step too far. Something has dulled the Australian moral conscience on this issue. Americans think it is just not decent. It is unAmerican.
As for keeping people forcibly on a ship for a month on the high seas, and then contemplating sending asylum seekers, most of whom will be proven refugees, to Cambodia, the American litmus test is clear: very indecent indeed. The American reaction has me thinking that we Australians have become too legalistic and morally dulled on these issues.
The latest US State Department country report on Cambodia's human rights record states: 'Corruption remained pervasive, governmental human rights bodies reportedly were ineffective, and trafficking in men, women, and children persisted. Domestic violence and child abuse occurred, and children’s education was inadequate. The government prosecuted some officials who committed abuses, but impunity for corruption and most abuses persisted.'
Admittedly Cambodia is a signatory to the UN Refugee Convention. But so what? Cambodia signed every UN human rights instrument as a precondition for independence when the UN administration withdrew after the civil war. The signatures count for little.
Our government's constant refrain is that we are complying with the Refugee Convention whether we are sending people to Cambodia or keeping them incarcerated on a ship in the Indian Ocean. Perhaps the Refugee Convention is something of a straw man. Key countries in the region are not signatories. Unlike most UN rights conventions, the Refugee Convention does not require signatory governments to make regular reports. There is no complaints mechanism. There is no authoritative international court to interpret the Convention. The Convention to some extent means whatever people want it to mean. Those debating refugee policy go off on one of two tracks. The legal purists think the Convention provides both a comprehensive code for refugee protection and a benchmark for judgment of the political pragmatists who do indecent things. The political pragmatists think it provides a convenient cover for indecent arrangements like holding people for a month at sea or sending them to Cambodia. The Convention provides no adequate legal safety net. We are in the realm of morality and politics, not law. The international law is not helping. It is just providing the warring parties with their own rationale for their intractability, avoiding the need for moral and political engagement. The question is not, 'Is it legal?'. The question is 'What's decent?'
When censuring Julia Gillard in Parliament on 14 June 2011 for her Malaysia solution, Tony Abbott asked, 'Why would the Prime Minister send illegal arrivals to Malaysia' 'where they would be detained and tagged','when she can't guarantee the standard and accessibility of medical care’. and 'when she can't guarantee the access to school for the children'?
He told Parliament, 'The one thing that is absolutely certain about this deal is that this Prime Minister, this minister and this government cannot be sure that boat people sent to Malaysia will be treated humanely. They cannot give that guarantee'. There is no way that Tony Abbott and Scott Morrison can give that guarantee for anyone sent to Cambodia. Given a choice, many of those being sent to Cambodia would prefer Malaysia which has over 120,000 asylum seekers.
The mystifying thing about this new Australian legalism is that it arises from our politicians responding to the High Court decision which struck down the Malaysia solution. In that case four of the majority judges were careful to point out: 'Nothing in these reasons should be understood as expressing any view about whether Malaysia in fact 'meets relevant human rights standards', let alone whether asylum seekers in that country are treated “fairly” or “appropriately”.'
Both sides of the Australian parliament then agreed to legislate to take away the High Court's capacity to review a ministerial declaration that a resettlement country passed muster for adequate human rights protection. It is now a matter exclusively for the government of the day with no review by parliament or the courts. We are constantly told that the proposed solutions comply with the Refugee Convention, with Scott Morrison claiming on Tuesday: 'Those criticising the (Cambodia) arrangement seem to believe that resettlement should be confined to first-world economies — an economic upgrade program rather than a safe-haven program'.
No, it is not a matter of seeking an economic upgrade. And it is not just a matter of the letter of the law. It is a matter of whether any proposal is decent and humane. Keeping lone kids locked up, locking up people on a boat on the high seas for a month, and sending refugees to Cambodia do not pass the smell test of decency. I never thought I would find fresh air down on the US-Mexico border to reflect on my own country's indecency. But in the humane, decent air of the Kino soup kitchen, I carried the stench of these recent Australian initiatives. They do stink.
Frank Brennan SJ AO, professor of law at the Australian Catholic University, is currently in the USA as the Gasson Professor at Boston College.