Frontier Justice

by Andy Lamey

  Such measures are increasingly the norm even in countries that have signed the Refugee Convention. The result is that to some observers, refugees have once again come to symbolize the gap between the rhetoric and the reality of human rights. As was the case after World War I, Western governments today announce their commitment to the moral worth of human beings while giving the back of their hand to refugees who show up at their borders. In the words of Matthew Gibney, a leading refugee expert at the University of Oxford, “liberal democratic states publicly avow the principle of asylum but use fair means and foul to prevent as many asylum seekers as possible from arriving on their territory where they could claim its protections.” Gibney’s phrase to describe the overall asylum situation today is “organized hypocrisy.” It has a familiar ring.

  Against this backdrop, it is not hard to see why Arendt’s pessimistic view of human rights still attracts adherents. They note that more than two hundred years after the declaration of the Rights of Man, ninety years after the refugee crisis that followed World War I, fifty years after the Universal Declaration of Human Rights, we still have not been able to uphold meaningful rights for refugees. It seems a little late in the day to reply that, while the principle is a good one, we are still casting about for a way to implement it. For Arendtians will in turn reply that after a certain point, impossible ideas become bad ideas. If instead we stopped speaking of human rights altogether, it might or might not improve the lot of refugees. But it would at least have the virtue of intellectual honesty.

  Such a cynical argument is not the one I want to make. According to Arendt, “the very phrase ‘human rights’ became for all concerned—victims, persecutors, and onlookers alike—the evidence of hopeless idealism or fumbling feeble-minded hypocrisy.” By that standard, I wish to be counted among the most feeble-minded hypocrites and the most hopeless idealists. For I believe there are good reasons to be more optimistic about human rights than Arendt was.

  One reason concerns the nature of rights. Some of the most scathing passages in Arendt’s discussion occur when she zeroes in on the idea of inalienable rights and subjects it to merciless criticism. “No such thing as inalienable human rights existed,” she flatly declares. In Arendt’s view, a right is only truly inalienable if it is always upheld in practice. But surely that’s not what anyone really means by saying rights are “inalienable.” After all, murder has been a fact of life since societies began, but no one would take this to mean we should not speak of a right not to be killed. Saying rights are inalienable expresses a belief in the inalienable moral worth of human beings. Because we hold this belief, we condemn some practices, such as sending a refugee back to danger, no matter how often they occur. That is very different from claiming such practices are never going to happen—the impossible standard a right has to meet before it can be “inalienable” in Arendt’s terms.

  Another way to say this is that there is a difference between rights understood in a moral rather than a legal sense. If we think of human rights as a moral concept, we are unlikely to concede that such rights cease to exist simply because they are often not upheld in practice. Indeed, it’s precisely because the moral worth of human beings is all too easy to violate that people began speaking of rights in the first place. The Rights of Man were originally used to condemn institutions, such as despotic rule and slavery, that were widespread, ancient and entrenched. Invoking the notion of rights against such institutions was a way of expressing revulsion at the situation of serfs and slaves, and a means of inspiring people to change those situations. So even before we get to the question of how to enforce rights in law, the idea of human rights performs the important task of expressing the judgment we want the law to uphold. In other words, it is precisely because we live in a world of human rights violations that human rights have value as a moral ideal.

  However, even if we do distinguish between moral and legal rights, we still face a problem. Most people who believe in human rights want them to be more than talking points or diagnostic tools. We also want rights to be respected in practice. Rather than eliminating the problem Arendt identified, therefore, distinguishing between moral and legal rights transforms it. The problem is no longer to outline how human rights might be said to exist in the case of refugees. The problem is to show how their human rights might be enforced. Meeting this challenge requires far more than distinguishing between moral and legal rights. It requires showing how refugees seeking asylum might have their rights recognized in a world of sovereign states, something Arendt thought was impossible. I certainly agree with her that it is difficult. But outlining how we can meet the challenge she left us with is the central project of this book.

  To some people this will not seem like much of a challenge. Someone who embraces an open borders view, for example, will be tempted to dismiss it. Advocates of open borders believe immigration controls should be abolished. From this point of view, the fact that liberal states police their borders and turn many people away is a contingent rather than necessary feature of those states. Get rid of immigration controls, an open borders advocate will say, and Arendt’s challenge disappears. For what she really highlighted is not an inevitable tension between national sovereignty and human rights, but one more reason not to stop anyone at the border, refugee or otherwise.

  This response does not really get around the problem. For one thing, the open borders view is controversial. It is at least arguable that human beings need to live in communities that exercise some form of entry control to maintain themselves. Moreover, we currently live in a world in which states guard their right to enforce their borders very zealously, and there is no sign of them giving up this aspect of their sovereignty any time soon. Even if the open borders view turns out to be correct, therefore, it will still mark a significant contribution to human rights to show how those rights might be enforced in a world of border enforcement, which is to say, in the world in which we live.

  Open borders advocates are not the only people likely to pooh-pooh Arendt’s challenge. So might someone who doubts refugees are worth singling out for special treatment. Although the laws of most Western states place refugees in a separate category from other migrants, not everyone is convinced this is a good idea. “The legal distinction between ‘refugees’ and ‘immigrants’ is phony,” the distinguished journalist Michael Kinsley once wrote. Kinsley asks us who we would rather be: a starving peasant in the developing world or someone living under an oppressive political regime like the former Soviet Union. The answer, of course, is neither. But if that is so, why do we treat the two cases differently when it comes to immigration law? Why do we distinguish between economic and political motives for entering a new country?

  Kinsley is surely right that there are people in such desperate economic circumstances that their lives are in danger, just as much as the average refugee’s life is threatened by persecution. But the problem with Kinsley’s objection can be seen by asking what people in dire economic circumstances really need. Take his example of someone facing starvation. In countries with food shortages, the poorest of the poor do not have the resources to emigrate. Moreover, there are usually far better ways to assist them than to go through the expensive process of flying them to the West. As Matthew Gibney puts it, “in the case of victims of famine or natural disasters, it is easier for outside parties to deal with the threats people face by exporting assistance or protection (food, building supplies, clean water) to people where they are than to arrange access to asylum.” In the case of someone whose life is threatened by her own government, by contrast, it makes sense to give her priority in the immigration queue, as there are few other ways we can lend her assistance.

  A third and final reason not to take Arendt’s challenge seriously is because one doubts that the situation facing refugees is especially grim. Certainly there are limits to the parallels between refugees in Arendt’s time and those of today. But some enduring problems remain. To see what they are, we need to look at what happ
ens to asylum-seekers in the United States, Australia and Europe. As we will see, if the record of these countries is anything to go by, we are still living in an Arendtian universe. One in which there are many rights for citizens, but few for human beings.

  TWO

  AMERICAN LAVALAS

  HAROLD KOH SAW REFUGEES in his nightmares. It started happening after his visit to United States Naval Station Guantánamo Bay. Located at the southeast edge of Cuba, the Guantánamo base occupies 117 square kilometres (including the water surface of the bay itself) and has a fluctuating population of roughly eight to ten thousand people, made up of American military personnel, their families and support staff. In geographic terms the base is the size of a small city; measured by population, it is closer to a small town. The people Koh had come to see, however, were not members of the normal base community. They were refugees whose presence at Guantánamo was due to forces—military forces primarily, but also political and historical ones—over which they had no control.

  “The downtown part of Guantánamo looks like a military base,” Koh says, “but then you drive out to this fairly desertlike environment.” Koh is a law professor, and in October of 1992 he travelled to Guantánamo with two other lawyers, three law students and three interpreters. The purpose of their trip was to meet with a group of approximately three hundred Haitian refugees who had been apprehended on the high seas as they attempted to reach the United States, and were now being held at Guantánamo. Koh’s group had legally represented the Haitians for seven months, but to date had been able to meet with a only handful of their clients. Early on the day of the legal team’s arrival, they were taken to a vast military hangar, where they were able to meet all the Haitians for the first time. But the location of the meeting had been chosen by the base authorities, and Koh wanted to see where the Haitians actually lived. As a result, Koh and another lawyer, Michael Ratner, were soon taken for a jeep ride. After passing a McDonald’s, Baskin-Robbins and other familiar landmarks, their driver took them through several miles of arid land, turned a corner, and came to a stop in front of a remote group of buildings separated from the rest of the base by a checkpoint and guard towers.

  More than mere curiosity was behind the lawyers’ desire to see where their clients lived. The American government had told the attorneys that the Guantánamo detainees were housed in a “humanitarian” facility. As soon as the lawyers saw the refugees’ living conditions, however, they realized the government had not been telling the truth. “There was no way you could go to that camp,” Ratner recalls, “[and] say it was humanitarian. It’s not even within my vocabulary. I came back calling it Dante’s ninth circle of Hell.”

  The Haitians were crowded into single-room dwellings made of concrete blocks, inside of which they had hung sheets to create a semblance of privacy. Garbage bags were taped over chicken-wire windows in an unsuccessful attempt to keep the huts from flooding with rain. The air was filled with the constant roar of jets as well as gunshots from a nearby target range, and the stench of filthy portable toilets was impossible to miss. The refugees would later show their lawyers a two-foot-long banana rat they had caught. It was merely one of many oversized Caribbean pests, rodents and insects alike, that came into the camp at night and crawled over the refugees as they slept. Seeing such conditions for the first time, the attorneys suddenly realized how it was that a child born at Guantánamo had recently caught pneumonia and died.

  Koh describes what he saw at Guantánamo as “a rights-free zone.” It is a description Hannah Arendt would have understood. Much like Arendt and the other women held at the French camp at Gurs, the Guantánamo detainees would debate the idea of collective suicide. As an outside observer, Koh experienced a less severe, but still unsettling, form of distress. For months after his trip, he had nightmares in which he was officially responsible for turning back refugees. In his dreams, Koh saw himself organizing and executing the deportation of Haitians on a wide scale, to the one country where their lives would be in danger.

  In reality, Koh and Ratner represented the Haitians’ best chance for freedom. Working alongside many other attorneys and an army of law students, not to mention the refugees themselves, the two attorneys set in motion a sprawling legal odyssey, one that would eventually reach the Supreme Court of the United States. The lawsuit they initiated raised many complex issues, several of which changed as the litigation evolved. At its core, though, was an attempt to bring human rights law to bear on a controversial border-control practice now used by countries as far away as Australia: interdiction at sea. A disturbing question the Haitian refugee case and its aftermath raise is whether human rights can be enforced beyond dry shore. Or must we accept the view, long put forward by maritime chroniclers, that the ocean is a lawless wilderness; a place where people have always been able to do things that are forbidden on land?

  The United States takes in more refugees than any other industrialized country. Between 1946 and 1994 it admitted more than three million people seeking protection. Yet there has long been one group of asylum-seekers who have called into question the United States’ status as a country of first asylum. In the early 1970s, visitors to Florida’s eastern coast began to report the steady arrival of Caribbean fishing boats. The people on board made an incongruous sight during tourist season, when Florida’s luxury beaches were teeming with wealthy sunbathers. One description of events at a beach just north of Miami in 1972 gives a vivid account of what an early landfall looked like: “Vacationers, slick with suntan lotion, gazed uncomprehendingly at the unpainted, battered fishing smack riding low in the water among the sleek white cabin cruisers. So crowded with black people, the small boat looked like a cartoon of Washington crossing the Delaware. The boat ran right in on the surf and grounded on the white sand beach, spilling black people. Dressed in rags, they carried little baskets and bundles, and spoke a strange, mellifluous language.”

  The language the boat people were speaking was Creole, the majority language of Haiti. Mired in chronic poverty, Haiti was then under the dictatorial rule of Jean-Claude Duvalier, known as Baby Doc, who had inherited his position as head of state from his father, François “Papa Doc” Duvalier. Under the Duvaliers, who presided over Haiti from 1957 to 1986, violence was a regular part of political life. Papa Doc, in particular, pioneered new methods of terror, which were often carried out by his private militia, the Tontons Macoutes, named after a bogeyman in Haitian folklore. After Baby Doc came to power he made cosmetic reforms, such as giving the Macoutes a new name. But he preserved their methods, which included leaving corpses of the government’s critics hanging in public places.

  Haiti’s educated classes began fleeing the country almost as soon as Papa Doc came to power. In the 1960s and 1970s the elites were followed by poorer Haitians, who lacked the means to travel by air and took to the high seas in whatever boats they could build or find. The most common route of travel was across the Windward Passage, the 80-kilometre-wide body of water between Haiti and Cuba, then northwest along the Cuban coast, before finally crossing the Florida Strait to the United States.

  Throughout the 1970s, a few thousand Haitians reached the United States this way every year. But in 1980 the number of Haitians arriving by boat spiked to almost 25,000. The same year, Fidel Castro announced that he would not stop anyone who left Cuba via the port of Mariel. Cuban Americans launched a flotilla of boats in response, eventually bringing 125,000 of their family members to Florida. The Mariel Cubans included several thousand criminals and psychiatric patients who, though relatively few in number, came to define the Mariel refugees in American public opinion. Combined with the strain on Florida’s social services that came with so many people landing at once, the boatlift’s overall result was a widespread perception that the border was unguarded. After losing his bid for re-election in 1980, Jimmy Carter cited Mariel as an important reason for his defeat: “The refugee question has hurt us badly. It wasn’t just in Florida, but it was throughout the country. It w
as a burning issue. It made us look impotent.”

  It was with these events fresh in mind that Carter’s successor introduced a policy to stem the flow of people coming to Florida. However, the migrants who would be most affected were not Cubans, who could count on Florida’s large Cuban-American voting bloc to speak up for their interests, but Haitians. In 1981 the administration of Ronald Reagan signed an agreement with Jean-Claude Duvalier’s regime that allowed the U.S. Coast Guard to interdict boats carrying undocumented Haitians and return them to Haiti.

  Reagan administration officials said that the Haitian boat people were merely looking to improve their standard of living. Economic migrants have few rights under international law: no nation is legally obliged to take a special interest in their welfare. Refugees, however, are a different story. In fact, the year before the Reagan-Duvalier interdiction agreement came into effect, the United States had incorporated the Refugee Convention into its domestic law. That meant the American government was obliged to never return a refugee to a situation where he or she had “a well-founded fear of persecution.” This put the government in a dilemma, as it was determined to stop the stream of boats from Haiti, yet did not want to be seen as violating the refugee-protection standard it had just pledged to uphold.