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Lecture 4

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University of Toronto St. George

Lecture 4 - Reactive Migration & Displacement Refugees, Asylum Seekers and the Securitization of Borders 1951  UN  Refugee  Convention     • The  1951  Convention  relating  to  the  status  of  refugees  is  the  key  legal  document   that  defines  who  is  a  refugee,  their  rights  &  the  legal  obligations  of  UN  member   states   • The  1951  Convention  defined  refugee  as  a  person  with  a  “well-­‐founded  fear  of  being   persecuted  for  reasons  of  race,  religion,  nationality,  membership  of  a  particular   social  group  or  political  opinion  and  is  unable  or  unwilling  to  avail  himself/herself   of  the  protection  of  that  country,  or  to  return  there,  for  fear  of  persecution”    -­‐-­‐   Article  1A(2)   • Background:  established  in  response  to  atrocities  of  WWII,  and  surge  of   refugees/displaced  persons  as  a  resu   • UN  High  Commissioner  for  Refugees  (UNHCR)  =  guardian  of  the  Conve  n • Guiding  principle:  (legal)  PROTECTION   • Major  goal:  the  voluntary  return  home  (repatriation)  of  uprooted    ons • Non-­‐refoulement:  principle  that  aims  to  protect  refugees/asylum  seekers  from   being  sent  back  to  home  countries  if  dangers  are  still  present;  countries  MUST  take   in  refugees  according  to  int   law • The convention that was signed in 1951 has become the touchstone or benchmark of international refugee law à very important document when talking about refugees – it’s where the category began and to this day it’s a document that we rely on to navigate international refugee law • Background: In 1951 there were still many refugees at large across the European continent, they were mostly living in makeshift displaced persons camps – many people had not yet returned to their country of origin or could not return, and were living in rather transient kinds of places • In light of that situation, and in response to the general atrocities of WWII, delegates of 26 countries came together in Geneva Switzerland in July 1951 in order to come up with a “binding international standard for the treatment of refugees and the obligations of the countries toward them” • The political/social background of the category of refugee and the UN convention on the status of refugees is directly connected to the atrocities of ww2 and the holocaust, and the sudden increasing of all these people scattered across the European continent, many of who were unable to return to their countries of origin • There were some earlier attempts pre WW2 by the international community to establish refugee organizations and approve refugee conventions of this kind, legal protection and assistance for refugees was still at a rather superficial level in the immediate years following ww2 • Connected to this convention is the UN High Commissioner for Refugees, established one year prior to the convention in 1950 and it came to be considered the guardian of the convention • This decision was influenced by the 1948 universal declaration of human rights, which was also drafted in a direct response to the atrocities of ww2 • The guiding principle of the 1951 UN refugee convention is legal protection – this means that “the responsibility to protect is rounded in the principle that sovereign states have the primary obligation to protect their citizens against harm but when states are unwilling or unable to do so, that responsibility falls to the international community” – the UN being the most important international lobby that administers that • This raises some problems and difficult questions to answer: • Questions from students: 1. Where does the money come to take in all sorts of refugees? Certain countries might be funding this organization– there are governments that pour quite a bit of money to keep this organization going– but then you end up with ideological tension or political tension between certain political interests, so while the U.S is giving money to this organization, what happens when this organization wants to protect people coming from a certain country that are at odds with U.S foreign policies, such as Cuba – 2. How do you define well-founded fear and persecution? 3. How does a refugee prove their situation? In certain instances, the reasonability is on the individual (the asylum seeker) to prove that he or she is actually being persecuted and often times there’s a question of evidence: how does he or she prove that and often times the immigration refugee boards or whoever is in charge in the country of reception are not necessarily going to believe them or take their story on face value – that’s kind of obvious. 4. How do we actually enforce this? How do you prove that there’s a lack of protection on behalf of the state? Sometimes it’s obvious if it’s war • Questions by prof: 1. At what point does the international community determine that a given state has failed to exercise its obligation to protect and that international intervention is warranted – we’ve seen that with Syria, Bosnia, Yugoslavia. 2. At what point did the international committee feel that this is the moment they have to intervene? 3. What threshold in terms of lose of life, ethnic cleansing or other harms demand protection must be reached before international military interventions to justify it – military intervention is often a little bit of a tangent but it’s the same idea – 4. When is the situation bad enough that the international committee is called upon to intervene? • Reaction paper question: “Should the UN intervene despite a state sovereignty and if so when and how?” • Sovereignty means that the government is in charge of stuff, that’s where all this authority lies, and all of a sudden they have this external body that is perhaps stepping on the toes of that sovereign state • The major goal of guided principle of legal protection and the convention of Geneva, is that uprooted people can eventually be returned to their homes of origin voluntarily - voluntary repatriation - once situation back home has calmed down and things are allegedly safe, the ultimate goal is that these people can be sent back to where they come from • How do you define and who gets to define at what point the situation is safe? And is it the same across the board for all members of that society? Because certain or all societies will have populations that are more marginalized or discriminated against than others and perhaps return for them is more dangerous than for other individuals • What happens when someone’s country no longer exists or the borders are changed? Some people go stateless • In Germany in the late 90s, Germany took in many refugees from Kosovo when there was a war there – amongst these refugees were people of Roma minority – they lived there for many years and as refugees they had some varying degrees of status in the country • In 2008, the chancellor following the declared independence of Kosovo signed a repatriation agreement with the new government in Kosovo, stating that now that Kosovo exists as an independent nation state you can send everyone back because there’s no more danger • That was not the case for Roma minority – however, because it was determined that Kosovo is now a sovereign nation state, the Roma minority got missed and had large scale deportation, in fact it is forced deportation because these Roma people didn’t want to return to Kosovo after living in Germany; the situation for them is not anywhere near safe, even though it’s now a sovereign nation, because they’re not considered citizens – this is an example where the country of origin may become safer for some but we need to think about the more marginalized people in that society • There is no time limit for being a refugee; it’s about when the country becomes safe again. Who defines if the situation is safe? • Non-refoulement – it’s French, means to “push” or “force back” – according to 1951 convention, there’s a guarantee that a refugee should not be returned to their country if he or she faces serious threats to their life or their freedom • However, not all countries abide by this – example: in 1994, Zaire returned 500 000 Rwandan refugees to Rwanda before the country had reached the safe level of political stability following genocide in that same year – there are documented cases where non- refoulement was ignored • Who was not covered by the convention: persons who have crimes against peace, a war crime, crimes against humanity, a serious non-political crime outside their country of refuge • Question: can you claim refugee status if you’re coming from a country that is considered by the international committee as safe? At just the beginning of 2013, Kenney published a list of safe countries – most of EU countries are on there, basically says that if you have someone coming from one of these countries on the list they’re going to be expedited through the process, pushed through the whole process where they’re being assessed on whether or not they can claim asylum in the country – the assumption is that if you come from a country that’s democratic, why would they be in danger of any kind? There are certain populations that are more vulnerable than others - you can think of homosexuals, or Roma in Hungary – Kenney’s safe country list was spearheaded by his concern about Roma flooding the gates in Canada and coming here to cheat the system when in fact major international human rights organizations have documented all sorts of dangerous and racist and fatal attacks taking place against the Roma community in Hungary – for the people coming here seeking asylum, their whole case is compromised because of the safe country list Limitations  and  Amendments  of  the  Convention     LIMITATIONS:  1951  Convention   • 1951  Convention  had  a  3-­‐year  time  limit:  members  expected  (European)  refugee   problem  to  be  solved  by  then   • Euro-­‐centric   • Male-­‐centric     AMENDMENTS:  1967  Protocol   • The  1967  Protocol  removed  geographical  and  temporal  restrictions  from  the   Convention   • Recognizes  gender-­‐based  persecution  for  first  time.  In  1991,  UNHCR:  “Guidelines  on   the  Protection  of  Refugee  Women”       ONGOING  LIMITATIONS   • Definition  of  “persecution”  remains  vague   • 1951  Convention  and  the  1967  Protocol  are  limited  by  their  stance  of  neutrality— i.e.  INACTION—and  the  limits  of  the  UNHCR’s  authority  over  national  governments   (see  Loescher  2001)   • Who signed on and who was not a member? In 1951 the people who signed the original convention came mostly from western countries who were liberal but also included delegates from Iraq, Egypt and Colombia • The most conspicuous absence of the time was by the countries of soviet dominated communist law – although Yugoslavia was one of the original signatures • When first established, the designers of the convention planned to use it only in order to deal with the refugee problem across Europe at the time - dealing specifically with the refugees who were refugees because of ww2 and holocaust – it only applied to people who became refugees due to the events that took place in Europe before January 1 1951 st • UNHCR gave a 1951 convention a 3 year expiry date – they believed “we’re signing this document and we only need it for three years in order to clean up Europe, send people to where they need to go, problem solved” • However, while the European refugee problem was more or less solved, new refugee problems arose afterwards, in other parts of the world: • The refugee problem from Europe in the 1950s to Africa in 1960s mostly having to do with the decolonization of African countries from European countries– that created shifts and movements of people as a result; refugee problem moved to Asia – following that and then by the 1990s it came back to Europe as a result of the Balkan wars – Serbia, Bosnia, Macedonia – entire former Yugoslavia • Another limitation from 1951 convention is the notable absence of women who actually signed the convention but also the notable absence of women related issues and taking into account that in many situations women are more vulnerable in a lot of countries and more likely to become refugees • Luckily there were amendments made in 1967 – issues relating to refugees took on a more global dimension – it was no longer limited to Europe – there was recognition that refugee problems moved outside of Europe and became more global • Also the convention’s time limit was removed it was clear at this point by the late 60s that the causes of forced migration were not diminishing and this was a problem to stay • For the first time, gender based persecution was integrated officially into the convention as a major factor of forced migration • By 1991, the UNHCR issued guidelines for the protection of refugee women • Ongoing limitations with all of this: • Although these amendments were made, along with them came a whole new set of complications because there is no universal standard as to what constitutes persecution or how we define it • Does it have to be something that is state sponsored and focused on individuals? Or does it also refer to widespread social practices and attitudes such as the cultures or traditions in a particular country • What dimensions are we looking at when we talk about persecution? • Sharons & Russell: Questions about the definition of persecution become particularly complicated in gender related cases, for example: “women subjected to female genital cutting, women under the Taliban regimes where education is blocked, or gays and lesbians from countries where their sexual orientation is prohibited by law and subject to severe punishment – gender based factors have on a case by case basis been recognized as grounds for granting asylum and refugee status to the individuals, but there remains no international consensus or standard for doing so” • An important point is that the UNHCR tries to get around an issue by claiming that the source of persecution which we all pointed out is a difficult thing to pinpoint – the source of persecution is not as important as the source of protection – the emphasis is on protection rather than persecution– this means that the UNHCR is more interested in whether a state is willing and able to protect • Another problem is that even though they updated, the1967 protocol is limited by its stance on brutality and thus inaction – and the limits of this authority over national governments – ties in to notion of this tension between sovereign governments wanting to deal their full authority and how does this international organization negotiate that - officially they do have a stance on brutality which often is just based on inaction • Are there laws to punish the states that violate these laws? Causes  of  Forced  Migration     Precipitating  conditions   • Nation  state  formation,  decolonization,  violence  associated  with  nationalism  &   independence  movements;  war,  internal  revolution,  attempted  genocide,  natural  or   technological  disasters     Enabling  conditions   • Resources  are  necessary  –  e.g.  money,  physical  energy,  know-­‐how  (cultural  capital,   social  capital)…   • Forced  migration  is  closely  connected  to  issues  of  nation-­‐state  sovereignty  and  thus,   border  control  and  national  security:  ““The  right  to  refuse  entry  is  regarded  as   inherent  in  the  concept  of  sovereignty”  (Richmond  1993:  15)”     • NOTE:  Voluntary  vs.  involuntary  (forced)  migration…  distinction  is  not  always  clear-­‐ cut   • Governments  may  inaccurately  label  asylum-­‐seekers  as  “economic  migrants”  in   order  to  deny  them  right  of  asylum  (e.g.  Minister  Kenney’s  rhetoric  of  “bogus”   refugee  claimants)   • Some  “economic  migrants”  may  become  “forced  migrants”  along  the  way   • Sociologist Richmond distinguishes between the precipitating and enabling conditions of forced migration • Precipitating conditions = describes macro level events that might create the need for people to flee their countries of origin – while the enabling circumstances tend to describe more micro level situations for individuals or groups – and their capacity or ability to flee • One high profile example of this: establishment of the state of Israel in 1948, which immediately lead to the displacement of 750 000 of Palestinian people out of their homeland • Enabling conditions = when we talk about people leaving their countries of origin, either voluntary or involuntary migrants, oftentimes certain resources are necessary – it’s not so easy to pick up and go, to know where to go, to know how to get there and have the money to get there • To flee, certain resources are necessary – while extreme poverty may be a precipitating condition of migration, the necessary resources for resettlement are in many cases lacking, therefore making it impossible to move • Resettlement costs money, requires physical energy, there’s often a selection bias as to who manages to leave • Richmond: “Often bribes must be paid, documents acquired, tickets bought and provisions obtained. Reactive migration may be demographically and economically selective, favouring the young, the healthy, the able body and those with material resources that can be traded or converted into foreign currency - it may also be gender selective, as adult males may be more proactive than women and children who are often left behind with few options except to react to circumstances outside their control” • Then there’s the question of reception: talking about conditions that force people out, we’re not just talking about why people leave but what happens at the point of reception in new country • Nation state is essential to our understanding of refugee flow because of the core of the movement of these refugees is whether or not asylum seekers will be granted asylum into a country – so receiving countries have the capacities to impose restrictive measures to deny entry into the borders – this is despite the international refugee law and the responsibility of nation states to take people in • Nevertheless, countries can impose all sort of restrictions to make it difficult for people to get in or to actually stay there once they arrive – the right to refuse entry is regarded as inherent to sovereignty – this is where we see a major clash between an international convention such as the UN refugee convention and what it means for a nation state to be sovereign because at the core of a sovereignty there’s this imagined idea that we can refuse certain people from coming or going into our borders – that’s the point of borders, so the government can decide who’s allowed in and who’s out • What are some means that some nation states might use to keep people out? • Student answers: absence of social protection once person arrives, modify citizenship laws to make it difficult to naturalize and claim asylum or refugee status, police or border controls, the access to local services for claimants à important point when talking about research in Canadian foreign policy – and the country list where the purpose is to get people in front of refugee board as quickly as possible and the importance of having evidence to prove your case– hard for someone who just landed here and maybe does not speak English to gather up evidence to know where to get legal counsel to be able to report to legal counsel and to have the financial capital to put together a reliable case in front of the board • List by prof: armed boarder guards, strict deportation measures of undocumented migrants might work as a deterrent or at least governments hope that it works as a deterrent, coast guards to intercept boats carrying potential refugees, restrictive refugee policies that would prevent people from entering • Voluntary vs. involuntary – while it’s important to distinguish between the two because they’re different laws, guided whether or not you’re considered voluntary vs. involuntary migrant, it’s important to recognize that there is quite a bit of overlap between the two • An economic migrant normally leaves the country voluntarily to seek a better life – should he or she elect to return home, they would continue to receive the protection of their own government – however refugees flee because of the threat of persecution and cannot return safely to their homes in particular circumstances • However, this distinction isn’t always so clear cut – for example, refugees will sometimes be labeled economic migrants – this commonly happens with sub-Saharan African migrants trying to gain entry into north Africa or to Europe • EU and North African states as a way to keep them out will label these people as economic migrants arguing that the
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