Frontier Justice
Page 17
Moreover, for a tourist or Japanese person, Japan is one of the safest places on earth, as reflected in its low rates of crime and violence. The language of “safe” third countries, however, misleadingly suggests that the standard to employ when deciding if refugees should be returned to a particular country is whether that country is safe from a tourist’s or citizen’s point of view. It would be better to speak instead of “fair” third countries. That would focus attention on whether the country in question used proper procedures in determining refugee claims. When judged by that standard, many existing third country agreements fail to meet minimum standards of justice.
Here then are the first two vistas viewable from Germany’s castle of exclusion. We see an entire continent increasingly unwelcoming to people running for their lives. And we see the influence that a country’s conception of belonging plays in determining how it treats refugees. There is also a third vista, one that may be even more demoralizing than the first two. Looking out over it, we are forced to confront the historic failure of enforcing a right to asylum at a constitutional level. To see the larger trend here, we need to briefly look at two final countries that have inserted ringing language about asylum in their constitutions, France and Italy.
Like Germany, France introduced a new constitution in the aftermath of World War II, one that also touched on the issue of asylum. In the words of the Preamble of the 1946 Constitution, “Anyone persecuted in virtue of his actions in favour of liberty may claim the right of asylum upon the territories of the Republic.” Even more so than in the case of Germany, France’s asylum clause reflected the history and preoccupations of its drafters. The reference to “actions in favour of liberty” echoed a similar clause in the French constitution of 1793, which had been inspired by the Declaration of the Rights of Man and of the Citizen, but which had legal force only for two years. The phrase’s reappearance in 1946 occurred at a time when memories of French collaboration with fascism under the Vichy government were fresh in mind. As in Germany, the ringing affirmation of the right to asylum was a way of breaking sharply from an authoritarian national past. Unlike in Germany, however, the right in question was not one that any refugee could in principle exercise. Someone like Hannah Arendt, who was persecuted because of her membership in an ethnic group, would not be eligible for France’s versions of constitutional asylum. It was, rather, reserved for someone who belonged to his country’s equivalent of the French Resistance.
When France brought in another constitution, in 1958, it retained the sentence about asylum. Yet even though the right to asylum was affirmed by both postwar constitutions, it had little influence on France’s asylum system. One reason was because it was redundant. The constitutional clause mentioned only a narrow class of exiles. To deal with refugees as such, France took the same steps as other countries, signing the 1951 Refugee Convention and setting up a domestic asylum system that employed the convention’s definition of refugee as someone who feared persecution “for reasons of race, religion, nationality, membership of a particular social group or political opinion.” That definition meant that were a real freedom fighter to wash up in France, he or she could simply file a normal refugee claim, of the same kind someone fleeing racial or religious persecution might, without any special rights based on the constitution becoming involved.
As a result of its irrelevance, France’s asylum clause functioned more as a legal decoration than a meaningful law. It was not until 1993 that a French court recognized asylum as an enforceable constitutional right. By that time, however, France had begun efforts to harmonize its asylum system with those of its neighbours, so that people seeking asylum could be made to file their claim in the first European country in which they touched down. The French government promptly amended the constitution (something that is comparatively easy to do in France) to make it legal to transfer refugees to other European states. As a result, many refugee claimants arriving in France became ineligible for constitutional protection. Today, while “constitutional asylum” still exists on the books as a legal category, it remains as irrelevant as ever and is almost never used. As a study by a group of European law professors put it, “In reality, constitutional asylum was never taken seriously … [and] has remained largely without jurisprudential content.” The irrelevance of the asylum clause is one reason why France today operates an asylum system that has been widely criticized for failing to uphold human rights. The UN Committee against Torture, Amnesty International and other groups have documented shortcomings ranging from asylum cases being decided without hearings to individuals being deported to face torture.
Italy drew up a postwar constitution of its own in 1948. The drafters included politicians and intellectuals who had been exiled under Mussolini, and this experience caused them to affirm Italy’s variation of a right to asylum: “An alien who is denied the effective exercise of the democratic liberties guaranteed by the Italian Constitution in his or her own country has the right of asylum in the territory of the Italian Republic.” However, no law has ever incorporated the constitutional right to asylum into Italy’s domestic laws. As a result, it was left to the discretion of judges whether to refer to it in deciding asylum cases. Overwhelmingly, they have chosen to ignore it.
Italy’s asylum clause has microscopic influence: the country accepts a few thousand refugees every year, and in 2006 was home to a total refugee population of 26,875 people. Almost none of these cases involved the constitutional right to asylum. Precise statistics do not exist, partly because the power to grant constitutional asylum is exercised by local courts, whose decisions are rarely reported. One 2008 estimate speculated that in the sixty years since it was introduced, the asylum clause has been employed in sixty cases. As in the case of France, the legal right enshrined in the constitution is irrelevant to the day-to-day workings of Italy’s asylum system. It instead lingers, as a 2008 report put it, “in the world of betrayed constitutional provisions, only occasionally being brought to ephemeral life by random enlightened judges across the country.”
Just how ephemeral the right to asylum is in Italy today can be seen by noting the country’s response to asylum-seekers entering from its former colony Libya. During the 1990s Libya had been a pariah state, subject to an arms and air embargo for supporting international terrorism. Libyan leader Moammar Qadhafi grew disappointed during this time by what he saw as a lack of support from fellow Arab leaders, and sought to improve his international standing by repositioning himself as an African leader. “As part of his new pan-African policy,” migration scholar Hein de Haas has noted, “Qadhafi started to welcome sub-Saharan Africans to work in Libya in the spirit of pan-African solidarity.”
The influx of newcomers to Libya eventually resulted in an anti-immigrant backlash. As a result, migrants who would have otherwise stayed in Libya now continued travelling northward. Beginning in 2001, thousands of migrants began to hire smugglers to take them to the island of Lampedusa, a popular Italian holiday destination. Italy’s equivalent of Christmas Island, Lampedusa is located only 113 kilometres from Africa, of which it is geologically a part. Some observers have suggested that Qadhafi was pleased by and encouraged the influx of black Africans into Lampedusa, as it provided him with a means by which to extract concession from Italy. If so, his strategy worked. In 2004, Italy signed the first of a series of treaties with Libya that permitted Italy to return migrants to Libya and that would see the two countries conduct joint naval patrols. Two months after agreeing to accept returnees—by which time Libya had also paid compensation to victims of terrorism—the European Union lifted its embargo. The EU move followed strong lobbying by Italy, which had argued that Libya needed to import military equipment in order to better patrol its borders.
Italy’s interdiction program followed a similar trajectory to that employed by the United States against Haitians. At first, efforts were made to screen out refugees to ensure that they were not returned to Libya. In 2009, however, screening efforts ended, and
Italy began returning people to Libya without determining whether they were refugees. Yet Italy’s own screening program indicates that the Lampedusa arrivals contained genuine refugees seeking to escape persecution. During the first eight months of 2008, for example, Italy’s Trapani district, which includes Lampedusa, had a 78 percent asylum acceptance rate. Italy is thus now likely to be handing over refugees to Libyan authorities, even though the North African dictatorship has no asylum system of any kind, and even though Libya regularly returns people to Egypt, Eritrea, Syria and other persecution regimes. As Human Rights Watch summed up Italy’s regressive move, “For the first time in the post-World War II era, a European state ordered its coast guard and naval vessels to interdict and forcibly return boat migrants on the high seas without doing any screening whatsoever.” Viewed against this backdrop, Italy’s constitutional commitment to asylum is a cruel mockery of the human rights it purports to uphold.
The asylum clauses of Germany, France and Italy all reflected a common desire on the part of their drafters. It was to make a strong break from a historical romance with fascism, whether under Hitler, Pétain or Mussolini. In each case, the asylum clause failed to function as an effective and adequate response to the needs of refugees seeking asylum. This is least true of Germany, where the clause did have the force of law. But as we have seen, even when the asylum clause was in place, Germany’s commitment to asylum was compromised by its narrow conception of belonging. Eventually the clause’s most powerful effect proved to be negative, when it created an incentive for economic migrants to file unfounded asylum claims. In the end, the law’s very power led to a crisis in which the only solution was to severely reduce Germany’s already limited commitment to asylum. Refugees arriving in Germany today can no more take asylum for granted than can those who seek protection in France or Italy. On the whole, the European experiment with a constitutional right to asylum must be judged a failure.
What are we to make of the world we now inhabit? The current international situation confirms Arendt’s analysis of the condition of refugees and her emphasis on the power of states. “We don’t have an internationally agreed system,” says Howard Adelman, a former director of the Centre for Refugee Studies at Canada’s York University. “We don’t have a system where refugees can go internationally and make a claim under a common set of rules. Instead, the very system forces them to shop around and reinforces the Hannah Arendt principle, that in fact it’s predominated by a state-run system, and rather than being a system of rights it’s a system of state power. One that never resolves the central problem of giving political membership to these people who don’t have that membership.”
For Arendt, the central dilemma for refugees was the incompatibility of national sovereignty and human rights. All the evidence to date suggests that despite the genuine improvements since Arendt’s time, we have not yet fully reconciled these two central aspects of modern politics. Most of the time it makes sense to think of rights not merely being compatible with sovereignty, but presupposing it. The absence of functioning governments in Somalia and elsewhere hardly represents a breakthrough for the enforcement of civic rights. And while liberal democratic states are hardly perfect, they do often uphold the rights of their own citizens.
With refugees, the situation is different for a reason Adelman highlights: membership. Democratic states respect the rights of their own citizens partly because members of a democratic society have the power to change their government. This creates an incentive for political leaders to be at least minimally responsive to the needs of the electorate. With asylum issues, however, the people most adversely affected by negative decisions, the refugees themselves, are not able to directly influence the law. It is also a sad fact that restrictive measures regarding asylum are popular enough with voters to attract bipartisan support. This is evident in the United States, Australia and Germany, where both right-wing and left-wing parties implemented or supported no-entry policies. The result is that it is all too easy for liberal democratic states to fail to take the rights of refugees seriously.
This paradoxical relationship, the same institution that makes possible the enforcement of our own rights routinely violating the rights of desperate outsiders, recalls something Carl Jung once said about the human psyche. Jung believed that each of us has what he called a shadow side, a negative aspect of our personality that we prefer not to think about. Refugees seeking asylum in the West illustrate the shadow side of democracy. The same democratic governments we rightly value as superior to any undemocratic alternative routinely fail to respond to the needs of refugees in a rights-respecting way, and instead contribute to their oppression by closing the doors of escape.
Is there a solution to this problem? In other areas involving rights, the solution to democratic injustices has been to protect them at the constitutional level. This is what separates liberal from pure democracy. The tyrannical potential of the majority is limited by a constitution, which says some rights are fundamental and cannot be overridden by a simple majority vote in Congress or Parliament. Given the effectiveness of this approach in other areas, it is no surprise that European lawmakers of the 1940s would see a constitutional right to asylum as the means by which the horrors of the past would be avoided. In seeking a constitutional solution, they were turning to a plausible and potentially powerful rights-enforcement mechanism. The failure of a constitutional asylum in this regard is therefore not a small failure. One of the most powerful tools of rights-enforcement our civilization is capable of, constitutional law, has to date been unable to guarantee refugees asylum.
One possible response to this state of affairs is to continue to affirm the value of a constitutional right to asylum. We should not dismiss such a right based on the experience of only three countries. After all, Germany was dealing with unique historical circumstances in the early 1990s, and France and Italy never enforced the right to asylum in a meaningful way. What if that right were taken seriously and implemented under different circumstances? Surely then it could function as an effective solution.
This is an understandable response to the rise and fall of a right to asylum. What it overlooks, however, is that any asylum system based on a constitutional right to asylum will suffer from three limitations. The first is that such a right is all too easily rendered ineffective by a government’s ability to determine who is and is not a genuine refugee. Germany’s constitution before 1993 may have formally denied politicians the ability to turn away refugees, but they always retained the power to classify any individual case as illegitimate. A right to asylum focuses on an outcome, that of obtaining refuge, but says nothing about the methods that are used to determine who is entitled to that refuge. For this reason, it is easily subverted. Any state determined to clamp down on its borders can still do so by refusing to recognize the overwhelming majority of claims.
The second problem with a constitutional right to asylum is that even if a government takes it seriously, its implementation can be undermined by the actions of neighbouring states. Part of Germany’s problem was that none of its neighbours had equally strong asylum clauses. Rather it was an island of constitutional refuge in a sea of comparatively unwelcoming states. This arrangement punished Germany for its commitment to asylum and rewarded nearby states with more punitive systems by seeing Germany’s inflow of claims dramatically increase as those of its neighbours held steady. This was one of the factors that made the constitutional amendment possible, in that there emerged a widespread view among Germans that it was unfair for them to have to process so many more claims than other EU states. Given how many states today continue to approach asylum in a spirit of deterrence, it is a real possibility that, were any future state to adopt a constitutional right to asylum, it could again see a huge spike in claims due to the comparative unattractiveness of its neighbours’ refugee systems. This makes it less likely that any state will ever again introduce a right to asylum. It also means that even if a serious right to asylum does
reappear, it could all to easily have the same outcome as occurred in Germany.
Finally, there is the third problem. It is that a right to asylum may not actually be the best right to enforce on refugees’ behalf. The foundational right of refugee law is the right of non-refoulement, or the right not to be returned to a place of persecution. The right to asylum affirmed in the Basic Law was slightly different. Suppose a genuine refugee arrived in Germany and was relocated to another country where they were in no danger of persecution. That would violate a right to asylum within Germany itself but still respect the refugee’s right not to be returned to danger.
Once we recognize that a right to asylum within an individual state is conceptually distinct from non-refoulement, we are obliged to ask where refugees should be able to exercise such a right. That is, in which state in particular should refugees enjoy a right to asylum? In 2008 the global population of refugees was nine million, not counting internally displaced persons. There are many countries with much smaller populations. Iceland’s, for example, is 317,000. If we concede that not all nine million refugees have a right to move to Iceland, which would result in Iceland’s culture and institutions being overwhelmed, then we recognize a competing good that can in principle trump a right to asylum. The right to non-refoulement, by contrast, can be respected without obliging any particular state to admit refugees in numbers that would overwhelm local institutions. The claims of refugees and host societies can be simultaneously respected by transferring refugees from one state to another so long as the receiving state respects their rights. Non-refoulement is thus a more ultimate principle, in the sense that its exercise and enforcement is less conditional upon the circumstances of the society and state that first recognizes such a right.