Critical Migration Law Research Paper by Charles Gimoh
Global Conundrum: Contextualising Problematic Refugee and Migrant Situations in the Light of Systemic Limitations of International Laws
One of the most problematic conundrums in the world today, which has remained intractably enigmatic, is the precarious situation of refugees and migrants, and the limitations of relevant international laws and legal systems to address the phenomenon. Mass displacements of people have been fuelled not only by the internal realities of armed aggression, governmental maladministration, ethnic marginalisation, religious persecution, social exclusion, and cultural stigmatisation, but more importantly by externalities arising from legacies of historical domination of the Global South by the Global North, and exacerbated by a multiplicity of ongoing postcolonial activities. These are evident in the incapacitating neo-colonial exploitation and economic strangulation of poor countries by rich countries; the damaging natural resource extraction and human resource exploitation of developing nations by developed nations; the debilitating military interventions of global hegemonies in weaker states; and their continuing oppression of Third World countries.
These destabilising factors have led to swells in global refugee numbers. There are now over 22 million refugees; and 244 million international migrants, almost half of who are women, and most are of reproductive age. They have specific needs and human rights concerns. Alarmingly, global legal systems that are in place to protect the masses of humanity fleeing these conditions are proving largely insufficient and inefficient as they encounter international borders in their flight. At sea, a frightening number of refugees and migrants are dying each year. On land, people fleeing war are finding their way blocked by closed borders. Migrants are discovering that international legal protection systems do not offer comprehensive safeguards beyond their own states.
The significance of this paper is underscored by the need to reformulate international refugee and migrant protection laws to make them more effective, and the necessity of evolving other pragmatic ways of dealing with the global migration problem. Consequently, this paper will advance the argument that the problems faced by refugees and migrants today, are largely due to the limitations of international laws and legal systems that are in place to protect their rights.
Focusing specifically on the condition of maritime refugees in Australia and the situation of undocumented migrants in Europe, I shall argue that refugees and migrants are still largely vulnerable; that these legal systems are inadequate in dealing with many of the situations confronting them; that we must strengthen these legal systems and evolve new global strategies to address the migration situation.
The discussion is delineated along three major areas, with thematic, country and regional case studies. The first part will examine the problematic situation of offshore refugees and the condition of undocumented migrants in terms of their precarious and troublous experiences, using Australia and Europe as country and regional case studies respectively. The next section will look at four limitations in international laws and systems protecting refugees and migrants. And the last segment will propose a pragmatic reformulation of international legal systems protecting refugees and migrants and highlight non-legal strategy to address the migration problem.
The Problematic Situations of Refugees and Irregular Migrants
The UN Refugee convention defines a refugee as any person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. A migrant is any person who lives temporarily or permanently in a country where he or she was not born, and has acquired some significant social ties to this country. And an irregular migrant, also known as illegal immigrant or san papier is an individual who has migrated to another country and is without proper documentation to stay or work there.
Every region of the world is contending with migration flows and the corresponding difficulties they impose on refugees and migrants, as states from America to Australia erect hostile barriers to curtail, contain and at times crush them. Brexit and Trump’s islamophobic immigration ban reflect these trends.
Debate on this issue is historical and current. Scholars like Hannah Arendt had argued about the precarious conditions of refugees following the World Wars and had posited that human dignity needs a new guarantee in a new law on earth, whose validity this time must comprehend the whole of humanity.20] Jaques Ranciere had taken Arendt’s argument further by advancing the idea of resistance. He argues that the refugee would need to breach borders through dissensus, to claim the rights she is being denied by the border. And Nadine El-Enany posits that Nothing is more ordinary than for people to move to seek a better life.Â But there are also dissenting voices, like John Hirst who advocates Australia’s draconian maritime migration model for Europe, and David Goodhart who argues strongly against a liberal border regime. We will reflect on the Australian and European situations.
The Precarious Situation of Offshore Refugees in Australia
The experience of boat refugees in Australia reflects the precarious existence that refugees are forced into by aggressive border controls. In blatant disregard of international human rights and refugee laws, Australia enacted tough measures to deal with the inflow of maritime refugees to the country. Her deterrence-based maritime policy involves boat turn backs and the offshore processing of maritime refugees.
The Offshore system was initially adopted in 2001. Tagged the Pacific Solution, it involved processing maritime refugee claims outside Australia in Pacific island nations, and turning back refugee boats from Australian waters. After a lull, the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012 was passed, and offshore processing reintroduced in 2012. Australia revamped the boat turn back policy rechristened Operation Sovereign Borders in 2013.
The government argued the measures would stop deaths at sea and deter illegal migration. However these claims have been strongly contested. It is argued that stringent border conditions expose migrants to dangerous alternatives. Gillian Triggs while criticising Australia’s harsh system, also points out that she has ranked consistently among the world’s top three resettlement countries.
However, Australia ranks statistically low when measured on other critical paradigms. Of the 2.45 million refugees who had their status recognised or were resettled in 2015, just 0.48% were assisted by Australia (11,776 people) Australia was ranked 25th overall, 32nd per capita and 47th relative to (GDP). And Stephen Castles indicates that Just 4828 onshore applicants were granted refugee status in Australia in 2010-11. This was 0.6% of the global total of asylum seekers. Australia is the only country in the world that links onshore asylum grants to its resettlement program: for every boat person recognised, a refugee in a camp is struck off the list. Her post World War 2 intake of European refugees and her absorption of thousands of boat migrants after the Vietnam War are also touted as pointers to a liberal migration history. Klaus Neumann buttresses this view but goes on to argue that In more recent years, however, the comparative size of Australia’s humanitarian program has declined.
Boat refugees, arrive Australian territory and are unfairly politically constructed as a problem by the government. Refugee boats are intercepted at sea and turned back. For individuals who are escaping torture, persecution, or death in conflict zones, refoulement could be tantamount to a death sentence. It is a case of Australia constituting itself into an instrument of sovereign violence.
Other associated psychological, physical, social and economic implications are also precipitated. Most of these refugees are economically impoverished. Refoulement creates serious economic difficulties, significantly amplified if there are children and families involved. The physical strain and dangers in such boat journeys, coupled with the reality that refugees, including children may be in poor health, further exacerbates the situation. This raises health issues, verging on the possibility of death.
Socially, these individuals are left in limbo as having been refused refuge in Australia, they may not be able to return home, and may be unwelcome in the country their boat is repatriated to.
The psychological trauma arising from the harsh border regime is devastating and life-changing. There are stories of individuals developing psychiatric complications, self-harm and suicidal tendencies. Other boat migrants are herded off to Papua New Guinea (PNG) and Nauru where they are detained indefinitely. They may not be able to leave Nauru or PNG except they choose to return to the country they are fleeing from; and they would not be allowed into Australia even if they eventually qualify for asylum.
In these administrative detention centres, refugees are punitively deprived of adequate health care, proper welfare services, exposed to torture, psychological trauma, and inhospitable living conditions. Those allowed to reside in local communities have been exposed to hostility from locals, and brutality from authorities. They live in indignity, insecurity, and uncertainty.
Sarah Keenan and other activists recently highlighted the documented incidents of abuse, self-harm, humiliation and squalor that is the everyday life for refugees on Nauru.The group publicly read from the Nauru Files containing over 800 pages of leaked reports detailing the atrocious situation at the Australian detention centre. Shocking cases of child abuse, sexual abuse, medical negligence, and other inhuman practices. Vulnerable children, women, and men who have committed no crimes have been detained for years. The stories are tear-jerking. Hangings, self-immolation and deaths are not uncommon.
The Troublous Condition of Irregular Migrants in Europe
Borders are not fixed, even though their work is all about fixing, categorizing, and setting people in new relations of power.Borders follow people. Like Australia, Europe is using her borders to define, devalue and dehumanise irregular migrants. They arrive at European frontiers only to be confronted by borders constructed to either debar them from entering Europe, or discipline them for arriving irregularly.
Europe ensures that the odds are stacked high against vulnerable migrants, especially those branded irregular. Each stage of the migrant’s journey is regulated by the intimidating presence of European borders. Sometimes visible, sometimes invisible, but ever ominous, the irregular migrant is haunted by Europe’s borders throughout her engagement with Europe. The experience is a catalogue of trials, troubles, and tragedies for many.
The harsh border posture taken by many European governments, reinforced by vitriolic media propaganda has led to the loss of untold numbers of lives in the Sahara as migrants travel clandestinely to avoid impregnable border controls in European airports. This hostile migration stance is inadvertently boosting human trafficking and the accompanying treacherous sea journeys. Aware that they might not get a fair deal under a system that is intentionally structured to exclude many; thousands are ending up in watery graves at the bottom of the Mediterranean in desperate attempts to outmanoeuvre border imperialism.
Many of those audacious enough to scale the humongous Frontex borders erected by the EU at Ceuta and Melila are brutally refouled by Spanish border guards to Morocco for torture by Moroccan guards. Others are being refouled from Greece to Turkey in a new EU arrangement indicative of the commodification of migrants. For those who make it into Europe, some are ending up in squalid detention centres where their rights are being violated. Shocking deaths have been reported in centres like Verne and Hammondsworth. The Indomeni Refugee camp has been likened to a Nazi concentration camp.
Those constructed by the borders as undocumented migrants are certain of a troublous European experience, characterised by exploitation, oppression, and exclusion. The border defines the migrant’s engagement with Europe. It racializes the migrant; criminalises the irregular migrant and penalises anyone who employs her.
Destitution and poor housing conditions are the norms, and there are many Grenfell tower incidents waiting to happen. Many end up working in the black economy where they are under-employed, under-paid, and over-worked. Vulnerable women and children may become modern day slaves in vicious prostitution and child labour rings. Migrants in these conditions are at risk of being subjected to violence and even death.In ‘A Body Does Not Just Combust’, Bruce-Jones gives a disturbing picture of the racial dimension of the migrant’s troublous condition in Europe.
The International Detention Coalition has criticised the EU’s detention of migrant children and other particularly vulnerable individuals such as asylum-seekers, torture survivors, trafficking victims, and migrants with particular health needs.
These terrible conditions directly or indirectly orchestrated by Australian and various European governments, are contrary to the provisions and principles of international human rights and refugee laws which these countries are signatories to. Arbitrary boat turn backs by Australia and the EU negate the principle of non-refoulement in international refugee law. Detentions infringe on fundamental human rights of these migrants and generate further abuses contrary to stipulations of the ICCPR, the Convention against Torture (CAT), the Convention on the Rights of the Child, the Universal Declaration of Human Rights (UDHR) and other treaties. Article 9 of the ICCPR prohibits arbitrary detention; article 16 of the UDHR stipulates the right to family life; articles 2 and 3 of the CAT prohibit and criminalise torture and inhuman treatment; but these states carry on these practises with impunity.
According to Violeta Moreno-Lax, A detailed picture of non-compliance emerges: these deterrence operations do not accord with the UN Convention on the Law of the Sea, the Search and Rescue Convention, the Safety of Life at Sea Convention, the Refugee Convention, or the core international human rights treaties.
The Systemic Limitations of International Refugee and Migrant Protection Laws
The systemic limitations of international human rights and refugee laws are glaring in the light of the endemic abuses of refugees and migrants by states. They do not offer comprehensive safeguards against the victimisation, criminalisation, incarceration, exploitation, dehumanisation, expulsion, and exclusion of the vast majority of refugees and irregular migrants. These limitations abound, but we will briefly explore limitations to do with specificity, practicality, enforceability and sovereignty.
The Specificity Limitation
A common argument against human rights is that they are vague and ambiguous. The existence of a huge number of vaguely defined rights ends up giving governments, enormous discretion. The Refugee Convention is also criticised for its narrow definition of refugee and its limited scope. It does not specify the procedures for determining refugee status. Its narrow specification does not account for categories such as economic, cultural and environmental refugees (like the predicted 150 million climate refugees by 2050) who are fleeing life-threatening situations; and those fleeing indiscriminate violence who face real threats to their lives but who have not specifically been targeted for persecution on the basis of their beliefs, social group or ethnicity. And Sarah Keenan argues that the provision of asylum for Asian, Arab, African and other non-white queers was not what the framers of the Refugee Convention had in mind.
The Practicality Limitation
Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination.82]The hollowness of this UN conception of human rights is immediately obvious. It is not practical. It enshrines an equality of humanity that is detached from reality. It promotes a universality that is practically limited by nationality. Rights are not practically conferred on the migrant or refugee by virtue of their humanity, in a host country if they are not citizens. Rights are practically tied to citizenship. That was the contention of Hannah Arendt many years ago, and it still rings true today, ‘The community of human rights is universal but imaginary, universal humanity does not exist empirically.
The Enforceability Limitation
There are no effective international mechanisms for enforcing refugee and human right laws against states for violations. Most international laws depend on states for local enforcement, leaving room for impunity. There is the problem of inadequate resources at the UN to address issues effectively and tackle big states on whom they rely mostly for support. Also, the non-binding nature of significant provisions in human rights and refugee laws means that states do not always feel obligated to adhere to them.
The Sovereignty Limitation
Parochial national politics and imperial interests often affect the way states engage with international legal authorities, and reflect in their compliance with international laws. Tension exists between many national laws and international refugee and human right laws.
Theresa May’s recent threat that if our human rights laws stop us from doing it, we will change the laws so we can do it, is a reflection of the constant fight by sovereign authorities to redefine, undermine, misinterpret, misapply, limit and manipulate human right and refugee laws to further political interests. There is a historical Western bias that still dogs these treaties and legal system to this day. In a 1947 letter to the UN…the American Anthropological Association openly expressed its concerns about a Western bias in the [Universal] Declaration.. The fragmentation of civil and economic rights into two separate Covenants was largely a consequence of this biased politicisation. Sovereign manipulations and calculations impact on migration laws.
Pragmatic Reformulation of International Refugee and Migrant Protection Laws and the Evolution of New Non-Legal Strategies: an Urgent Need
From the fore-going, it is obvious that the problems faced by refugees and migrants today, are largely due to the limitations of international laws and systems that are in place to protect their rights. Eric Posner bluntly submits that human rights law has failed to accomplish its objectives. And Hathaway and Neve argue that International refugee law is in crisis. We need to pragmatically reformulate these legal systems and evolve a lasting strategy to effectively address the migration challenge.
A multiplicity of ideas has been proffered on the way forward, including restrictive and non-restrictive approaches to migration management. El-Enany categorises these approaches into three strands of arguments. The non-restrictive strand encompasses those arguing for the removal of restrictions, such as many aboriginal scholars; the restrictive strands comprise idealist legal idolisers like Anker et al whose approach consists in reminding states of their obligations under the Refugee Convention and urging them to meet these for legal and moral reasons; and pragmatist-realists like Hathaway et al who argue a realist approach to restriction is necessary to further protection. Chimni advocates a dialogic approach based on deliberative democracy, while Ranciere proposes resistance based on dissensus.
Drawing from scholarly propositions, as well as my practical experience, this paper will attempt to contribute to the debate by suggesting possible solutions. Space will permit only a brief outline. The proposal is a two-pronged approach, one temporary, the other permanent. The first is a reformative strategy while the second is transformative. The temporal approach would involve reforming the current system to provide immediate solutions to ongoing problems, while the permanent approach would involve transforming the global migration system to provide permanent solutions.
Temporal Strategy: Reforming the Migration System
This encompasses conceptual, institutional and structural reforms.
Conceptual Reform of International Human Rights and refugee Laws
In the light of the limitations in the content of various international treaties covering migrant and refugee rights, the problematic aspects of their content would need to be redefined. Specifically, the notions of universality and humanity within the human rights treaties would need to be reconceptualised to give them pragmatic reality and universal applicability within the context of states.
The concept of a refugee in the 1951 convention would need to be redefined to account for other categories of refugee. Abstract and ambiguous provisions, as well as parochially-motivated content with a Western bias, would need to be revised. This would clarify state obligations, rectify imperial manipulations, enhance interpretation, facilitate application and promote humane implementation.
Institutional Reform of International Human Rights and Refugee Institutions
A common argument against international institutions is that they are not democratic. This is a well-founded concern in terms of the UN and its organs saddled with protecting refugees and migrant rights. These institutions would need to be reformed to properly reflect the views and interests of all regions and nations of the world. The ICC for instance, has overwhelmingly focused on African leaders while ignoring widespread inhuman treatment of refugees by the West.
The inordinate influence of major powers over these institutions and their decisions would need to be neutralised. Chimni’s dialogic model could be adopted and adapted to facilitate collective decision making instead of leaving states to ultimately decide how they treat migrants as they currently do.
Structural Reform of International Economic and Political Order
The next logical step would be to restructure the current asymmetric economic and political imbalance in the global system. Majority of today’s migrants and refugees are migrating due to the direct and indirect consequences of these imbalances.
The West would need to redress its historical injustices, and address current exploitation of poor countries. Reparations, redistribution, and reconfiguration should take place.
Surrogate neoliberal economic institutions like the World Bank, IMF and WTO would need to be truly democratised and restructured to facilitate the equitable redistribution of wealth to enhance living conditions in the global south.
New research shows that developing countries send trillions of dollars more to the west than the other way around. Why?
Structural inequities enabling Western capitalist oligopolies to extract wealth from the Global South while curtailing the ability of Southern countries to profit from Western markets should be redressed.
The systemic bias which gives Western passport holders such as Britons and Americans, visa free access to 174 countries, while citizens of poor nations like Afghanistan have visa-free access to only 28 countries, would need to be addressed. Human-beings should enjoy fair migratory privileges.
The reforms should curtail the ability of Western imperialists to intervene militarily and politically in developing countries. A fair distribution of global wealth would greatly reduce conflicts in states (thus reducing refugee numbers) as well as stem economic migration.
Curtailing Western military imperialism would significantly reduce mass displacements. Western military adventurism is implicated in major refugee crises. In Afghanistan, Iraq, Libya, Syria, Yemen, Pakistan, Somalia, Mali, and elsewhere the livelihoods of millions have been destroyed by the forces of U.S. and Western imperialism.
A UN Human Development Report called for a rewriting of global economic rules to avoid inequalities between poor countries and wealthy individuals. The UN wants a more representative system of global governance. Satvinder Juss argues this is necessary. He then adds that liberalisation of migration control must also follow.
Permanent Strategy: Transforming the Migration System
Dismantle national borders. This is the ultimate goal of all the measures enumerated above; it is the ultimate solution to the migration situation. People should be allowed to move freely, it is one of the highest expressions of our humanity. Freedom of movement is the first and most fundamental of man’s liberties. Without it, other rights are precarious.
While some have argued that this would lead to an unprecedented movement of people to the North, historical evidence suggests that only about 3% of the world's population migrate. The global migrant proportion is essentially unchanged from where it was back in 1900, even though it has never been easier to move between countries. In 2015, 244 million people, or 3.3 per cent of the world’s population, lived outside their country of origin.105]
El-Enany contends that 'People have always moved…The memories of those who argue for, implement and assert immigration controls are short. And many aboriginal and Third World thinkers share this view. A permanent solution to the state-created migration crisis is to take down the borders. People driven by desperation and other migratory factors will continue to move, and many will continue entering the West, even if the entire region was sealed up with a ring of fire.
This paper has examined the problematic situation of refugees and migrants, focusing on the precarious and troublous existential experiences they are relegated to by border regimes in Australia and Europe. The appalling limitations of international human rights and refugee laws have been highlighted by the unmitigated vulnerabilities that these migrant groups they are meant to protect, remain exposed to.
Existing legal protection suffer from conceptual and systemic defects including issues to with their conception, definition, articulation, interpretation, application and implementation.
In the light of these established anomalies, I have argued for the pragmatic reformulation of international human rights and refugee laws to make them practically effective in promoting the interests of migrants and refugees and in protecting them. I have also underscored the need for a permanent solution to the global migration problem, one that must be preceded by a profound structural adjustment of the current global order, not only to neutralise the economic inequalities between the North and South, but also to curb Western imperialism, as these are major catalysts of mass migration.
This equitable rebalancing of the global order should naturally lead to the dismantling of every border and the restoration of the primordial right of every human everywhere to move freely within every part of this universe which is our collective home.
Research paper by Charles Gimoh
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