The Rights of Refugees

In August of 2010, a rusty and dangerously overcrowded ship departed from Indonesia and made a long passage across the Pacific Ocean to Canadian coastal waters off British Columbia, where it was intercepted by the Canadian Coast Guard. Its passengers, 492 Tamil-speaking people claiming to be Sri Lankan citizens, were processed by immigration authorities under Canadian law before being sent to temporary camps and then allowed to settle while awaiting hearings. They became the subject of immediate nationwide controversy, in part because they posed a classic question of conflict migration: why had they come?

The first answer, the one they all gave, is that they were refugees seeking asylum under the terms of the United Nations 1951 Refugee Convention, to which Canada is a signatory. That is to say, they were citizens who were in immediate danger of being killed by their own government. If such a claim is found to be true, any signatory country is obligated to accept them in order to save their lives. This was not an unreasonable assumption: the Sri Lankan government of President Mahinda Rajapaksa had only three months before ended a 25-year civil war against the separatist Liberation Tigers of Tamil Eelam in a total military victory, after which Rajapaksa’s Sinhalese-speaking government made a dramatic turn into triumphalist Buddhist supremacy, interning and taking violent revenge against many Tamil civilians, as later chronicled by a UN commission and by eyewitness journalists like me. The possibility that any group of Tamils could be in immediate physical jeopardy was genuine.

The second answer, one that quickly appeared in the Canadian media, is that they were terrorists and criminals. This, too, was an entirely reasonable assumption. The Tamils of northern Sri Lanka had lived for the preceding decade in the Maoist pseudo-state of Tamil Eelam, a highly militarized guerrilla autocracy with no economy, poor agriculture and few prospects for any life beyond mere survival; most of its citizens lived on less than a dollar a day. A trip to Indonesia followed by a berth on a ship across the Pacific, however rudimentary, is an expensive proposition, costing thousands of dollars. Among the few people from this region who could possibly have afforded such a trip would have been senior officials or well-connected backers of the LTTE, or more innocent citizens who nevertheless had high enough standing and good enough connections in India to buy or bribe their way out (there are indications that many of the passengers had left Sri Lanka for India before the war ended).

This is not necessarily incompatible with them being legitimate refugees: the worst persecutions, and therefore the most legitimate causes for refugee status, are often subjected upon the losers in a conflict. Of the thousands of Tunisians who fled to the Italian island of Lampedusa in the early months of 2011 after the regime of Zine El Abidine Ben Ali fell in a revolution, the only ones likely to have legitimate refugee claims would have been former officials in the Ben Ali dictatorship.

The third answer, one that created an even louder chorus of reaction in the media and in Parliament, is that they were economic migrants seeking easy access to Canada’s booming economy by using the refugee process as a way to “queue jump.” This conclusion was also entirely reasonable, even though there is in fact nothing resembling a queue in the Canadian immigration system (refugee status is actually a slower process than proper immigration). Most, if not all, of the Tamils on board the ship were linked into networks of prior Tamil migrants, most of them living in the Toronto area, who have used the refugee and immigration system to bring thousands of family members and peers to join them; theirs is an economic and entrepreneurial network as much as it is one of asylum. This answer is also fully compatible with the first two: there is no reason why someone could not be at the same time in flight from immediate persecution, in cahoots with rebels or terrorists seeking to commit their own persecution and in search of a better life for his or her family. The three often occur together.

Beyond this was the question of what Canada was going to do with them. Some would have sent them back off to sea immediately. That is what the United States did with boatloads of Haitians headed to Florida in the 1990s, and it is what Australia did slightly later with Iraqi opponents of Saddam Hussein who tried to reach its shores. As Andy Lamey chronicles in vivid detail in Frontier Justice: The Global Refugee Crisis and What to Do About It, these countries parked their arrivals on an island declared non-territorial (Christmas Island for the Aussies and Guantanamo Bay, Cuba, for the Americans) and then returned them. This was reminiscent of Canada, seven decades earlier, forcing the 907 Jews aboard the St. Louis to turn away from its waters and return to Nazi-dominated Europe.

It is the central paradox of asylum: What right does a non-citizen have to enter a foreign country without permission, especially when the very act of entering a country without papers means that person is ostensibly guilty of a crime? On the other hand, what is the genuine refugee to do: if your government is attempting to kill you or make your life unlivable, you are effectively a citizen of nowhere, and you have no human rights. As it happens, Canada’s constitution provides one answer. Its Charter guarantee of fundamental rights, including the right to life, does not simply apply to Canadian citizens but to “everyone,” which the Supreme Court has correctly interpreted, in its famous Singh decision, to mean that anyone who enters the territory covered by the Canadian constitution has the right to an in-person hearing on Canadian soil to determine the legitimacy of his or her case. Once that boat entered the 320-kilometre zone, we were legally and morally obligated to make those Tamils at home in Canada and spend public money researching the validity of their claims. A handful have been deported; most are still at home here, waiting for a decision. Many more will come: despite the attention lavished on boat people, most refugee claimants arrive, unnoticed, at airports and road crossings. Because very few other countries apply their fundamental human rights to non-citizens, Canada is bound to attract more asylum claimants than its geographic isolation might suggest. People fleeing conflict are by necessity shrewd, and they will find the country most likely to provide safety.

The asylum seeker has become the target of media fascination and election campaign rhetoric, even though refugees are a tiny part, far less than 10 percent, of immigration numbers (and in practice have nothing at all to do with the immigration system). A study in the United Kingdom recently asked voters how many refugees they believed Britain takes in per year; the average response was 100,000. The actual number is 4,700. In Canada, where the ratio is even smaller, I expect we would get a similar response. And so another paradox: the meaner we become to refugees, the more of a problem and a political obsession they become.

In response to this paradoxical situation, journalist and ethics scholar Lamey has produced a superb and immensely readable work that provides a very accessible and truly global tour of the legal status of refugees by examining the political and legal situation in a dozen countries. At the heart of his work is the fundamental conflict between national sovereignty and human rights. Both claim to be universal, yet one inevitably cancels out the other, so that citizens lose their rights when they are banished or forced to flee a state, and states lose their sovereignty if they are forced to view rights as universal and not just for their own citizens. Many see this as an irreconcilable dilemma.

Lamey opens, in a narrative flourish, with the story of a Jewish refugee whose escape from Germany during the Second World War amid history’s largest refugee movement landed her in almost fatal mass imprisonment and persecution in then-free France, where her very statelessness rendered her a criminal. That refugee was, of course, Hannah Arendt, probably the most famous writer on the plight of refugees. She concluded, based on the horrible mistreatment of the millions of refugees who flooded across European borders in the years after the First and Second World Wars, that the concept of universal human rights was an impossibility in a world of sovereign states.

Refugees are not as big a problem now as they were in the war years, or in the years immediately after communism ended. But they have become a leading political and media issue in almost every western state, in large part because every country nowadays believes its system is too soft and it is therefore being taken for a sucker. It would seem obvious that the problem of refugees should not be one for individual, competing sovereign states. It is an international, borderless problem, and it can only really be resolved with some internationally agreed-upon method for protecting, assessing and settling those who are forced to flee, or who claim to be doing so, and rapidly expelling those whose claims are found false.

But international treaties do not always work. The 27 European Union countries, Canada and the United States have signed “safe third-country” agreements by which refugees entering a country’s borders may be sent back to the last country they passed through as long as that country is a signatory to the Refugee Convention. This has led to a false belief that refugees ought to flee to the nearest country, and that running further away must be fraudulent or illegitimate. “If this view of asylum were true,” Lamey writes, “then Israel and Japan would receive more refugee claims than the United States or Australia.” In fact, in a typical year, Japan recognizes 27 refugee claims; in many years, Israel has recognized zero non-Jewish claims. People run to safety, not to proximity, and “safe third countries” are often not safe at all.

Nor is a constitutional “right to asylum” really a solution. Germany had such a right, undoubtedly to atone for its role in creating the world’s most horrendous refugee problem during the war. This situation led, after the collapse of communism, to a few years when Germany was accepting more than 400,000refugee claimants per year, few of them legitimate. A sharp tightening of this policy ensued. Italy has a right to asylum too, yet manages to have allowed in only 26,875 refugees since the Second World War. Lamey argues that such a right is bound to fail, not only because the determination of who is a refugee, and who is therefore subject to that constitutional right, is bound to be a political process, but also because it inevitably leads to a vast increase in the proportion of non-legitimate claims.

What Lamey proposes is to internationalize Canada’s approach and expand it. He calls it a “portable-procedural” system by which “lawmakers could relocate asylum applicants to a sufficiently rights-respecting third country,” which would “thereby break the vicious circle of unfounded claims and ever-lengthening determination times within a particular state.” This system, he argues, would avoid situations like the ones facing Italy now or Germany in the 1990s, where a constitutional guarantee causes an enormous flood of illegitimate claims. Such a flood would likely stop, he posits, if claimants understood they could be relocated. To safeguard claimants’ rights in the country where they first land, Lamey proposes three non-negotiable requirements: the timely right to a full hearing, right to legal counsel and a prohibition on arbitrary detention.

But as much as Lamey’s plan would solve innumerable political problems, implementing such a system today seems politically daunting. We get a good sense of this in Ruben Zaiotti’s book Cultures of Border Control: Schengen and the Evolution of European Frontiers, in which the Dalhousie University political scientist provides a very thorough institutional study of the history of Europe’s successful 30-year effort to eliminate all internal borders while maintaining a secure external frontier within the 25-country Schengen zone. One exception to the borderless Europe has always been asylum policy, which varies widely among EU countries. In theory, refugees are meant to be processed and settled in the country in which they land; in practice, this has meant that the frontier countries, especially Italy and Greece, have accepted the legitimacy of fewer than 1 percent of asylum seekers and have tried to fob them off on neighbouring countries—as we saw this year when Italy attempted to send refugees from the Arab revolutions by train to France, causing France to shut down the Rome-Paris rail service.

This should have been solved long ago. In 2003, the European Council agreed on a Common European Asylum System, based on a proposal by British prime minister Tony Blair, to create “external asylum processing centres,” located in one or two EU member states in which asylum seekers would be assessed. If found in need of protection, the asylum seekers would be “distributed around the EU” while those found illegitimate would be rapidly deported. “It would enable persons in need of international protection to access such protection as soon as possible and as closely as possible to their needs, ‘therewith reducing felt needs and pressures to seek international protection elsewhere’,” Zaiotti writes. This sounds good, but it never got off the ground. Some countries, like Sweden, considered it unworkably inhumane, as it would intern families in camps and force them to settle in countries with little relation to their cultural or economic needs. Other more xenophobic countries felt it would open them to a flood of refugees without any sovereign control.

As a result, we are now in a situation where Europe, whose millions of displaced citizens brought us the word “refugee” and its concept in the first place, seems to be engaged in a vigorous interstate refugee-policy race to the bottom, in which every state fears that its asylum policy might be less harsh and restrictive than its neighbour’s. Lest we forget how our ancestors got here, and what they were very often fleeing, we ought to step above the headlines and start talking to our neighbours about something like Lamey’s proposal. As Zaiotti’s study suggests, Lamey’s ideas may not be as politically plausible as they look on paper, but there are good reasons to try. It seems odd that we are able to build multinational coalitions of armies with record speed to strike blows against tyranny on the other side of the world, but we are unable to join forces with our neighbours, at far less cost, to do something about the boatloads of people fleeing those very same tyrannies. It is time for a coalition of the welcoming.