Frontier Justice

by Andy Lamey

  This discrepancy should remind us that when it comes to asylum there is no comparing the power of churches to that of a state. The vast power imbalance between the two institutions was vividly brought home when the U.S. government eventually sent eight members of the Arizona network to prison for people-smuggling. Since that time, authorities in other countries have also demonstrated a willingness to bring the law to bear against sanctuary providers. In 2004, for example, Canadian police launched their first raid on a sanctuary church, St.-Pierre United in Quebec City, and deported an Algerian refugee claimant who was staying there. A similar raid occurred on an even larger scale in Derrida’s own city in 1996, when fifteen hundred police used tear gas, clubs and axes to storm Paris’s St. Bernard Church and evict three hundred African migrants who had been living inside (a raid carried out with such force that when it was broadcast on the news it triggered national protests). Derrida’s private sanctuaries would ultimately seem no match for a government determined to deny hospitality to an individual.

  In 2004 the International Parliament of Writers dissolved and was replaced by two separate organizations in North America and Europe. The website of the International Cities of Refuge Network, or ICORN, as the European successor group is called, features the following disclaimer: “Neither the network nor its individual cities have authority over the laws and regulations of any country. Therefore [it] strongly discourages all applicants and candidates from relying on ICORN as their only option for refuge.” Private organizations that offer help to refugees perform an important and necessary task, and the lengths to which many religious individuals have gone is nothing short of heroic. But the limitation noted by ICORN will apply to any private asylum initiative, whatever its form. For this reason, it does not represent an adequate response to the problem Hannah Arendt identified.

  Agamben and Derrida represent two different philosophical responses to Arendt. Agamben seeks to disabuse us of our commitment to human rights and what he sees as its negative dependence on the state. Derrida, by contrast, focuses on sovereignty and urges us to think outside its current bounds. Derrida employs the language of hospitality rather than rights, but he is much more comfortable than Agamben is with the common-sense idea, shared by human rights advocates, that we need political institutions to enforce, through law, our moral commitments. Yet both Derrida and Agamben take it for granted that the appropriate response to Arendt involves a fundamental rethinking of one of the basic political categories she pointed to. But not everyone thinks that Arendt’s human rights problem is best addressed this way. Our second group of writers, the pragmatists, respond to Arendt at a more down-to-earth level.

  This brings us back to Samantha Power, the first of our two pragmatists. Power was born in Ireland and moved to the United States as a child. In her mid-twenties she travelled to Bosnia to cover the war there. After returning to the United States she served as the founding director of the Carr Center for Human Rights Policy, a research and teaching institute based at Harvard. In 2005–06 she took a leave of absence from academia to work as foreign policy adviser to Senator Barack Obama, whose interest in genocide she is credited with fostering (and whose presidential election campaign she resigned from after calling Hillary Clinton a “monster” in a newspaper interview).

  Throughout all these guises, Power has approached human rights issues from a perspective that mixes idealism with a strong dose of realism. Such a cast of mind is evident in Power’s account of her visit to Chad. The camps the Darfuris occupied, she notes, were “a stew of disease and malnutrition,” not fit for animals, let alone human beings. As the refugees approached Power, they would discuss with her how they thought the outside world should respond. “They would come up to you,” Power recalls, “and they would draw on their sense of what human rights are. It wasn’t a formal sense of what the Universal Declaration of Human Rights says, but a much more intuitive sense: ‘Hey, we’re people, and this is what they’ve done to us. Aren’t you coming? Aren’t you on the outside going to come and help?’ ”

  Power had devoted her career to awakening politicians to the need to stop crimes against humanity, and she could not have agreed more strongly with the basic moral claim the refugees were making. Yet reading Arendt had also brought home to Power that moral claims often fail to motivate action. As Power puts it, “I was reminded [that] summer again of Arendt’s large and prophetic point that when all you can draw upon is your humanity, on ‘Hey, I’m a human being, help,’ that that doesn’t actually buy you very much. That it’s very rarely enough to trigger outside action, to simply be a human being in need.”

  Although Power is an admirer of Arendt, she does not see human rights as an unenforceable concept. Instead, she points to the important role that non-government organizations now play in rights advancement. As Power notes, such groups have grown in size and scope, to the point that they are able to expose and oppose human rights violations around the world: “Arendt could not have envisaged a day when a non-state entity like Human Rights Watch would spend more than US$22 million per year, and would conduct its own rigorous field investigations to shame criminal officials, their abettors, and the world’s bystanders. And far more important than international human rights groups are the hundreds of thousands of indigenous human rights groups—led by labor organizers, women’s suffrage advocates, AIDS activists, fledgling independent newspaper journalists, and others—throughout the developing world. It is with these groups that hope lies.”

  For Power, an important reason to place our hope in the rights groups of the developing world is that they “see themselves not as ‘human beings in general,’ ” but as members of particular communities, with a stake in how elections are conducted, in whether the police uphold the rule of law, and other local issues. For this reason, Power suggests, such groups are not vulnerable to the criticisms Arendt makes of human rights and their lack of effectiveness. When we look beyond states to civil society, we find a reason to continue to place our faith in the rights of humanity.

  Power’s view of NGOs is a refreshing contrast to Arendt’s more cynical take on the subject. Arendt was dismissive of the “professional idealists” who formed such organizations. She wrote, “The groups they formed, the declarations they issued, showed an uncanny similarity in language and composition to that of societies for the prevention of cruelty to animals. No statesman, no political figure of any importance could possibly take them seriously.” Arendt’s negative view has not aged well. As we saw in the Haitian refugee crisis, it was a coalition of groups acting in the name of human rights that closed the Guantánamo HIV camp. This is only one example of what NGOs are capable of, and Power is right to stress the crucial role such organizations play in the advancement and protection of rights around the world.

  But this still leaves the question of whether NGOs can address the particular problem we are concerned with, which requires the enforcement not of the rights of people in general, but of people seeking asylum. Power’s remark that rights groups often see themselves as members of local communities first and foremost, rather than proponents of human rights in general, does not really address Arendt’s criticism of human rights, as her criticism does not have to do with how human rights organizations see themselves, or what their motivations are. Rather, Arendt highlighted the problem of upholding enforceable legal rights for someone who is no longer a member of a political community and so no longer fully protected by the law of any country.

  Once the nature of Arendt’s human rights problem is recalled, it is sobering to note a less encouraging lesson of the Haiti refugee crisis. The Yale team was supported by one of the most distinguished coalitions of non-governmental groups ever assembled. Supporting briefs in its lawsuits were filed by Amnesty International, the Lawyers Committee for Human Rights, the International Human Rights Law Group, the American Immigration Lawyers Association, the United Nations High Commissioner for Refugees, the National Association for the Advancement of Colored People, the
American Jewish Committee, the Anti-Defamation League and a half-dozen other organizations. These and many other dedicated NGOs also conducted extensive extra-legal advocacy work on the refugees’ behalf. Yet in the end, even they were unable to overturn the Bush-Clinton policy of returning refugees to danger.

  That such a distinguished coalition of NGOs was ultimately no match for federal administrations determined to violate the rights of refugees should cause us to recognize what NGOs can and cannot achieve on their own. What refugees need is shelter and protection, either from their own government or from some other powerful entity that is trying to do them harm. That is not something labour unions, AIDS activists or the other groups Power mentions can provide by themselves. Rather, it is something that can come only from another state, one that admits refugees and allows them to remain inside its borders. As important as NGOs are, they are not capable of enforcing the rights of refugees on their own. Stressing the importance of NGOs as Power does, therefore, although it is true as far as it goes, does not strike Arendt’s human rights problem at its root.

  An emphasis on the responsibilities of states is one of the defining features of the work of Matthew Gibney, our second pragmatist and final respondent to Arendt. Like Power, Gibney is himself a migrant. A native of Australia, he moved to the United Kingdom in the early 1990s to study at the University of Cambridge. While there he became interested in asylum and wound up writing his PhD dissertation on the subject. Almost as soon as Gibney started his research, Germany experienced its asylum crisis, and asylum shortly became a high-profile issue in other countries. “The topic was hot pretty soon after I picked it up and has remained so ever since,” Gibney says. Today Gibney continues to work on issues related to asylum at the Refugee Studies Centre at the University of Oxford. “It is an area where the state can make an absolutely huge difference in an individual’s life,” Gibney says of his ongoing interest in the topic. In 2004 he published The Ethics and Politics of Asylum, the first book to examine both the political and ethical issues surrounding asylum.

  Gibney’s book opens with a quotation from Arendt, whom he goes on to criticize and praise. He points out that Arendt tended to see refugees in state-centric terms, as people persecuted by their own governments. The concept of a refugee is more coherent, Gibney argues, if it is broad enough to include someone like an Iraqi displaced by the U.S.-led invasion of Iraq, or a Zairean in flight from the Ebola virus. That is, anyone whose vital subsistence or security needs have been violated in such a way that their only recourse is to flee their home country. In redefining the very category of a refugee, Gibney displays his frequent willingness to go beyond Arendt’s analysis. But when it comes to the difficulty of enforcing the rights of refugees, Gibney agrees with her. As he crisply summarizes her basic insight, “In spite of the lofty rhetoric of human rights … the implications of a lack of citizenship in a world carved up amongst sovereign nation-states were, as Arendt realised, absolutely devastating.”

  Gibney’s approach to writing about refugees is reminiscent of Arendt’s in that he puts forward a political theory that is richly informed by historical fact. His book is simultaneously an incisive critique of what contemporary thinkers have said about asylum issues and a magisterial documentation of the ways Western states respond to asylum-seekers. But Gibney ultimately seeks to do more that diagnose and describe intellectual and political trends regarding asylum. He also makes recommendations regarding how governments should treat refugees and asylum-seekers. In doing so, Gibney hopes to avoid the otherworldly perspective that sometimes informs the recommendations of academic theorists. As Gibney puts it, “The detached perspective of the ‘philosopher,’ in which all or most obstacles to what is practically possible are removed, can give us a critical perspective that is simply unavailable to policy-makers.”

  This pragmatic perspective leads Gibney to eschew some of the more radical suggestions that other writers on asylum have made. As he notes, there is an academic school of thought that suggests the only way wealthy states can be fair to international migrants is to adopt open borders. Yet this overlooks the negative effect unfettered immigration could have on the welfare state: not only is it possible that a wave of recent arrivals might have short-term welfare needs that drain the receiving state’s resources, but open borders could potentially result in such a huge influx that it erodes the population’s willingness to provide public goods. Only slightly less unrealistic, Gibney argues, is the position of some refugee advocates that all measures states currently use to deter asylum-seekers from reaching their shores, such as imposing visa requirements and airline fines, are unjust and must be abandoned. It is a fact of life that economic migrants lodge false refugee claims, Gibney notes, and the question is not whether governments should put in place measures intended to stop them, but which particular no-entry measures are defensible.

  What refugee policies does Gibney consider realistic? In outlining his answer to this question, we come to the core of Gibney’s response to the asylum crisis. One thing politicians can do, he proposes, is to increase the number of refugees they admit—without raising the overall number of migrants they take in. Gibney notes that immigrants currently fall into three broad categories: economic migrants, family reunification cases and refugees. In no Western country do refugees make up one-third of the total immigration intake. This is the case even though refugees have a stronger moral case for entry than members of the other two categories. Were states to decide that they should take in more refugees at the expense of economic and family migrants, Gibney argues, it would “have profound implications for the distribution of protection.”

  This proposal is meant to avoid the backlash that might be expected if politicians were to increase immigration overall. Gibney’s scheme is intended to be politically effective, given the constraints politicians currently face. But as Gibney points out, political leaders should not merely follow public opinion: they also have a responsibility to shape it. To that end, he proposes more long-term measures, designed to challenge the constraints politicians now operate within.

  To foster that outcome, Gibney calls on politicians to pledge not to exploit popular anxiety over foreigners, as they sometimes do by playing off negative stereotypes about people seeking asylum (such as that they are all criminals, or prone to disease). As Gibney puts it, “Political leaders could attempt to establish greater political bipartisanship on asylum issues in order that the minimum requirements of humanitarianism can be met. The costs able to be borne for refugees are likely to be greater in a state where there is a political consensus not to exploit asylum for electoral gain than in one where it is seen like any other issue.” Gibney also proposes government-sponsored public relations campaigns to increase awareness of the moral importance of asylum. Such efforts would see more resources devoted to combating racism and xenophobia, which sometimes colour public attitudes toward refugees.

  In addition to these original proposals, Gibney also echoes a call that previous writers on refugee issues have made. It is that refugee-receiving states work together to create a new international system based on the principle of resettlement sharing. Right now, the United States, Canada and a few other Western countries individually seek out refugees from crisis zones overseas. But not only are these countries the exception, there are wide disparities in the overall number of refugees different countries admit. In 2004, for example, the United States, with a population of 292 million, took in 74,016 refugees, enough people to fill a modern football stadium. Japan, meanwhile, with a population of 127 million, found it in its heart to take in 24 people that same year, or about enough to fill a small bus. The disparity widens even more when we consider the millions of refugees in poor countries such as Pakistan and Iran. Gibney joins a long line of writers who call for an international system that would distribute refugees among receiving states in a more even-handed way. Various methods of doing so have been put forward, but each would see receiving countries work together to relo
cate refugees, either directly from crisis zones or from one receiving country to another, to counteract the wide disparities that characterize the current system.

  Gibney’s approach, like Power’s, might be described as this-worldly idealism. It eschews radical or utopian visions for more practical and achievable outcomes. Although Power directs her attention to non-governmental organizations while Gibney focuses on politicians, their proposals are not mutually exclusive. There are many areas where NGOs and governments can work together. Consider Gibney’s proposal to reshape public opinion. This has been a goal of groups such as the Refugees, Asylum-seekers and the Media Project, or RAM, a U.K.-based organization set up to counter the tabloid press’s negative depiction of refugees by having British media outlets hire journalists who are themselves refugees (a project that has since evolved into the Exiled Journalists’ Network). Politicians can provide groups such as RAM with financial and other forms of support. Similarly, Canada currently allows churches and other organizations to sponsor the resettlement of refugees from overseas, a process that often sees government working with non-government groups. Were European and other countries to adopt a similar program, it would harness the energy and creativity of NGOs in an area that has traditionally been left entirely to governments.