After the Flight: International Law and the Rights of Asylum Seekers Today

Chapter 5
After the Flight: International Law and the Rights of Asylum Seekers Today

Laura Westra


Legal theory nevertheless remains imperfect, given the absence of clearly correlative rights in favour of a subject of international law competent to exercise protection, and the uncertain legal consequences which follow where breach of obligations leads to a refugee exodus.

Given the uncertain (and promising) legal situation that follows flight, increasing attention now focuses on the ways and the means to prevent refugee outflows (Goodwin-Gill and McAdam 2007: 2–3).

This passage is one of the few that can be found in the scholarly literature that even raises the question of ‘breach of obligations’ on the part of states that precede an exodus, while – equally rare – the second sentence asks how to ‘prevent’ refugee outflows. The crux of the issue is the responsibility/accountability of both governing bodies and legal persons, for which I argued in Chapter 3. That responsibility, I believe, changes completely the situation of asylum seekers, from that of somewhat bothersome supplicants, to that of injured parties demanding justice, if not from a specific nation, then from the global community.

We are clearly addressing a question de lege ferenda, as, to my knowledge, no presently existing instrument considers the situation from this optic. The complexity of the situation cannot be denied: asylum seekers are demanding justice form a diffuse, complex group of legal individuals who have exercised their rights with no consideration for the ‘collateral’ damage they have inflicted (Sheldon 2004). Worse yet, it is seldom possible to isolate a specific perpetrator, and the only institutions that actually bear some responsibility to those that have been harmed, that is, the respective state bureaucracies, are and remain, for the most part, complicit in those harms, be they starvation/deprivation of resources or direct or indirect support of the practices that cause extreme weather events. More direct responsibility may be found where a mass exodus originates from a conflict situation often prompted itself by conflicting economic interests, but which is a situation for which states bear a more direct responsibility.

At any rate the key question remains the lack of respect for human rights: the earlier chapters addressed the major clusters of breaches that occur before the occurrence of a mass exodus. At this point, we need to consider what happens after the flight, starting with the legalities that have been in place since 1951, that is, since the existence of the Convention on the Status of Refugees of 1951.

The UNHCR prescribes certain procedures to be followed regarding all applicants for asylum in all countries. But the government of most countries find themselves in an invidious position as their obligation to apply the CSR to refugees at their borders often conflicts with the strong opinions of their constituents regarding these admission (Rousseau, Crepeau, Faxen and Houle 2002):

In the context of Western host societies in particular, a discourse separating ‘deserving’ refugees from those deemed to be ‘undeserving’ or ‘false’, governs and restricts the acceptance of refugees (Rousseau, Crepeau, Faxen and Houle 2002: 8).

In fact the general public tends to react either with mistrust, because of those seen to be abusing the system, or with strong feelings of rejection, especially in the cases of weaker domestic economies or situations of high unemployment, where all asylum seekers are viewed as usurpers or unfair ‘contenders’ for the job sought by Western countries’ ‘real’ citizens.

In addition, however, the CSR, as a specific international human rights instrument, has no mechanism it can employ in order to ensure states’ compliance, as it relies entirely on the states’ good will (Hathaway 2005: 991–1002). Hence, in this chapter, we consider first, how best to trigger state responsibility, against the background of the present reality, before discussing what other instruments could be called upon to establish the gravity of states’ obligation to comply. At the same time, the insufficiency of the CSR’s purview, starting with its dated definition of refugee, will also be re-examined in the light of today’s global changes (Hathaway 2005).

The Responsibility of States

… whatever the intentions of the drafters, the nature, scope and geopolitical setting of refugee protection today simply differ too fundamentally from the reality of 1951, for the Convention’s rights regime to be taken seriously as the baseline of the international response to involuntary migration (Hathaway 2005: 992).

The very need for international intervention in refugee issues depends on the actions of the state involved. There is the state from which the person or group is fleeing, and the responsibility they may bear for allowing, or not mitigating, the conditions that make life unlivable for individuals and groups, in various ways. Then there is the state where the individuals or groups first arrive on the way to their desired destination. Finally there is the state they are attempting to reach.

Even at their final destination, refugees may be detained, put in special camps, or held in various jail-like receiving areas:

Most disturbingly, asylum seekers can be detained for failing to arrive with the necessary travel documents, and can remain in detention for the entire length of the asylum process. And while many states have established special holding centres for asylum seekers and irregular migrants, in other countries they are detained in regular jails, alongside common criminals (UNHCR 2006: 43).

Hathaway and Neve’s lengthy study of the realities of the refugees’ situation clearly demonstrates the urgent need for reform (Hathaway and Neve 1997).

There are at least two major initial problems with the refugee situation today: the first is procedural, that is, connected with the way refugees are treated when they attempt to enter a country; the second is substantive, that is, it refers to the treatment refugees receive once they are admitted.

Non-Refoulement, Interception and Other Difficulties Encountered by Asylum Seekers

The Executive Committee,

(b) Expressed the opinion that in view of the hardships which it involves, detention should normally be avoided. If necessary, detention may be resorted to only on grounds prescribed by law to verify identity; to determine the elements on which the claim to refugee status or asylum is based; to deal with cases where refugees or asylum seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the state in which they intend to claim asylum; or to protect national security or public order; … (UNHCR 1986).

This detailed and explicit declaration of the UNHCR Committee attempts to address the various practices that enable the gatekeepers of many states to detain or restrain asylum seekers, or even to return them to their country of origin, in direct conflict with the requirements of the CSR. The worst problems are faced by large groups of migrants, as their collective rights are seldom respected.

According to natural justice, as well as the CSR itself, they should have the right to be heard (including the right to oral hearing, to call evidence, to counsel and to make submissions); they should also have the right to a fair and impartial tribunal (this includes the right to notice, to full disclosure and to a non-biased assessment of their situation).1 Of course, the situation is aggravated by the presence of large migrations, due to conflicts, but primarily to man-made and natural disasters.

The refugee crisis to which Hathaway refers is primarily based on numbers: there are, increasingly, large numbers of asylum seekers, as noted in Chapter 1 (Hathaway 1996), and most often their flight is from developing countries to the developed states in the North. The Northern states have a correspondingly decreasing interest in admitting large numbers of impoverished and untrained refugees:

As the interest convergence between refugees and developed countries has disappeared, Northern states have sought to avoid the arrival of refugees by adopting policies of external deterrence (Hathaway 1996: 49–120; Bell 1980).

At the time of the drafting of the CSR, most of the refugees seeking asylum after the Second World War were Europeans, so that their assimilation was not in question in North America. In contrast, today’s refugees are ‘different’, both racially and socially, and not all desire to be assimilated, or can be easily assimilated should they desire it (Hathaway 1996).

It is worth emphasizing: if the refugees/asylum seekers were part of an indigenous group from any continent, then the whole question would be moot as ‘assimilation’ in their case, as previously argued, would compound the crime(s) already committed against them in forcing them to leave their territories, by adding the crime of cultural genocide (Westra 2007: ch. 7).

The first problem that faces all asylum seekers, without distinction, is the way they are ‘greeted’ upon their arrival at the border of their country of choice. Their first experience of the new country is, for the most part, not one of welcome, but a harrowing experience of interrogation and detention, even if they are not held back from the country’s borders. States want to retain fully their sovereignty over their territories, and that includes strict border controls, such that the first reaction to large influxes of refugees is rejection (Brewer and Kumin 2003).

Perhaps the rejection is neither explicit at the start, nor eventually irrevocable, but the sort of reception that is offered speaks volumes regarding the resistance to invited ‘guests’. These feeling and the practices that ensue, are observed by the International Organization for Migration:

Many States which have the ability to do so, find intercepting migrants before they reach their territories, is one of the most effective measures to enforce their domestic migration laws and policies (UNHCR 2001b: 14).

In fact many states try their best to ensure that migrants never reach their borders in the first place (Brewer and Kumin 2003: 6). Hence interception represents the first of three steps intended to reduce the flux of migrations. In other words, even before refugee seekers arrive at their state of choice, every effort is made by states to prevent them from approaching their borders. The UNHCR Executive Committee has defined interception as ‘active intervention’ by states to impede migrants, as follows:

… one of the measures employed by States to:

(i) prevent embarkation of persons on an international journey;

(ii) prevent further onward international travel by persons who have commended their journey; or

(iii) assert control of vessels where there are reasonable grounds to believe the vessel is transporting persons contrary to international or national maritime law; where in relation to the above, the person or persons do not have the required documentation or valid permission to enter (UNHCR 2003).

One of the most egregious examples of the preventive interception is the Tampa case (USCR 2002). The Tampa was a Norwegian freighter that answered the distress call of a sinking Indonesian ferry. Most of the 430 passengers were Afghans who wanted to seek asylum in Australia, and to be taken to Christmas Island. The government of Australia, however, refused responsibility and responded that either Indonesia or Norway should take responsibility for the refugees; Australia even refused the medical help requested for the affected persons in the group.

Finally, on 1 September, Australia announced its ‘solution’ to the problem, which was becoming increasingly acute, as the Tampa was not equipped for the number of people it was then forced to carry, and even its crew was at risk. Australia paid US$10 million in aid, in exchange for Nauru’s agreement (Nauru is a Pacific island state) to accept the asylum seekers, while their claims would be processed with the support of the UNHCR. The authors conclude their narrative by adding, ‘Australia’s Pacific Solution was born’ (USCR 2002).

Essentially, like Australia, most countries would rather not have to face large numbers of refugees at their borders, and thus be bound by the appropriate articles of the convention. Various dilationary tactics are used to practise interception before the actual borders are reached. Some countries require a visa for non-nationals intending to enter their borders: Canada is such a country. In 2001, Canada introduced visa requirements for the citizens of Hungary and Zimbabwe. Visas are not easy to obtain, and represent an impossible requirement for a person who is persecuted in her home country, and hence cannot risk asking her government’s officials for a visa.

Other interception practices, are the imposition of sanctions on carriers that attempt to carry refugees who are improperly documented (European Union Council 2001b). This is another manoeuvre often practised in order to avoid ‘asylum overload’ (Brewer and Kumin 2003: 11). The practice of ‘maritime interception’, or ‘interdiction’, is often based on the same rationale. The US intercepts vessels coming from the Caribbean, and Australia, those originating from Indonesia; other countries such as Greece, Italy, Malaysia, Spain and Turkey practise interception both on their contiguous waters and on the high seas. Often interceptions are carried out disguised as ‘anti-smuggling’ or ‘anti-trafficking’ operations.

It is often hard to separate intended interceptions from well-intentioned ‘rescues at sea’, which are required by international law. The US leads the world in interception: according to Brewer and Kumin, from 1982 to 2002, 185,801 people were intercepted at sea (Brewer and Kumin 2003: 11). In addition these migrants are not viewed as asylum seekers, no matter their country of origin, or the location of their interception, that is, this judgment follows even if the interception took place in US waters. Australia has concluded an agreement with Papua-New Guinea, similar to the one with Nauru, but with a significant difference: unlike the Nauru situation, in Papua-New Guinea only Australian authorities process the migrants.

The practice of interception at sea represents a denial of the rights of refugees: the right to seek asylum, and the right to non-refoulement. Denial of these rights, in effect, often continues even after refugees manage to reach the borders of their country of choice.

Denial of Refugee Rights: Detention and Other Initial Measures

Other States viewed detention as prima facie a violation of rights; detention for the purpose of deterrence, it was said, went beyond the spirit of the convention, and entry in search of asylum should not be considered an illegal act (Hathaway 1991: 249).

Arriving at a country’s borders, for the purpose of seeking asylum is not an illegal act, yet those who do arrive are viewed – to say the least – as a threat to a state’s sovereignty, hence several countries, such as the Netherlands, believed that even detention at will would be appropriate for peoples who travelled without the required documents (Hathaway 1991: 250).

As always, in the case of immigrants, it is primarily mass migrations that raise the red flag in the minds of border officials, but even single individuals may create enough uncertainties in the mind of a border examiner in Canada, for instance, to lead him to view detention as a desirable alternative. According to Canadian regulations regarding Refugees, Part 14, ‘Detention and Release’, lists the factors to be considered:

244. For the purposes of Division 6 of Part 1 of the Act, the factors set out in this Part shall be taken into consideration when assessing whether a person

(a) is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister, under subsection 44(2) of the act;

(b) is a danger to the public; or

(c) is a foreign national whose identity has not been established.

At the outset, the questioning of refugees is, if not hostile, certainly not welcoming. For those who flee a government who may not be willing or able to cooperate with them, securing the appropriate documents requested by the host country’s officials may well be an impossible task. Hence the UNHCR itself (UNHCR 1986) explained the need for very serious grounds indeed before detention could be viewed as legal and acceptable.

In the case of Sahin v. Canada (Sahin v. Canada Minister of Citizenship and Immigration 1985), a Turkish citizen was detained in 1993, upon arrival, and remained in detention to 1994, because he was not in possession of a valid passport or visa (as required by subsection 9(1) of the Immigration Act, and subsection 14(1) of the Immigration Regulations). The applicant argued that his refusal to return to his country of origin was not enough to warrant prolonged detention.

In fact, the right not to return is well-established in international law, and this fact supports the Applicant’s position. Goodwin-Gill argues,

The evidence relating to the meaning and scope of non-refoulement in its treaty sense also amply supports the conclusion that today the principle forms part of general international law. There is substantial, if not conclusive authority that the principle is binding on all States, independently of specific assent (Goodwin-Gill 1996: 167).

Yet there was a strong possibility that the applicant would have been forced to return to Turkey, as long as his status as a Convention Refugee was not established. In contrast, an applicant found to be a Convention Refugee is entitled to the protection of section 7 of the Canadian Charter (Goodwin-Gill 1996: 167):

Section 7 Charter considerations are relevant to the exercise of discretion by an adjudication under section 103 of the Immigration Act which confers on him a necessary but enormous power over individuals.

Fundamentally justice requires that a fair balance be struck between the interests of the person who claims his liberty has been limited and the protection of Society (Sahin v. Canada 1985).

Yet, despite the recognition of the gravity of the decision to detain, Rothstein J continues, by adding:

In many cases, the most satisfactory course of action will be to detain the individual to expedite the immigration proceedings.

In this case, Counsel for the Applicant objected to the treatment the latter had received on the basis of two major challenges to the Canadian Charter of Rights and Freedoms (RSC, 1985, ss. 7, 12):

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

The prolonged detention of an applicant under section 1032 of the Immigration Act (Immigration Act, RSC 1985), although that Act makes no express reference to the Charter, seems to contravene s. 7, as it is patently unfair to detain someone primarily because an adjudicator is not sure that he will make himself available for possible return to a country to which international law explicitly forbids his return.

A similar problem was encountered by the High Court of Australia (Al-Kateb v. Goodwin 2004). In this case the appellant, of Palestinian origins, is presently stateless, and has entered Australia without a visa. The immigration detention provided by the Migration Act ‘is not detention for an offence’ (Al-Kateb v. Goodwin 2004: para. 247), but prolonged detention and ‘deprivation of freedom will after a time or in some circumstances become punitive’ (Al-Kateb v. Goodwin 2004: para. 247). The problem is that a non-citizen, who has entered the country unlawfully, now depends upon securing another country that might be willing to harbour him.

Apparently there is an obvious conflict between the principle of non-refoulement (Article 33 of the CSR), and the right to, in some sense, force admission into a country unwilling to accept a migrant. The principle applies to all states, even to those that have not ratified the CSR, although,

… a significant element of contingency attaches to the obligation, particularly in the case of a mass influx that may constitute a threat to the security of the receiving state (Goodwin-Gill 1996: 169).

In the case of the mass exodus of refugees after an ecological disaster, the well-foundedness of the fear that impels the flight is not in question, although its foundation in ‘persecution’ is a problem and it remains clearly an objectively observable condition as well as a subjective opinion: this renders the situation quite different from that of individual asylum seekers. In contrast, however, the sheer number of migrants may well represent a possible harm to the country to which admission is sought:

Whenever temporary refuge is sought, the existence of danger caused by civil disorder, domestic conflicts or human rights violations, generates a valid presumption of humanitarian need. This has important consequences for the process of determining the entitlement to protection of individuals or specific groups. In particular, the presumption should shift the burden of proof from the claimant to the state (Goodwin-Gill 1986: 897–918).

The level of obligation of states is not fully specified in any international instrument. The need for protection and assistance is undeniable: something must be done to provide aid. What is needed indisputably, is a ‘meaningful response to the humanitarian needs of victims of serious disruptions of the public order’ (Hathaway 1991). Hathaway proposes four categories of refugees:

(1) ‘refugees defined by the Convention and Protocol’; these are entitled to non-refoulement and to all the rights set out in the Convention;

(2) ‘refugees who are protected by regional agreements’, who may also be protected against return, and enjoy other specific rights;

(3) ‘refugees who fear harm as a result of serious disturbances of the public order’. These refugees may be entitled to special consideration because of man-made harms to which they have been exposed;

(4) ‘all persons who are involuntary migrants as a result of natural or man-made causes’ may claim UNHCR assistance for resettlement and legal protection, but they are not automatically covered by international law (Hathaway 1991).

Although the first chapters of this work have attempted to lay out the legal situation of Convention Refugees and the main problems they encounter, and that has been the main topic of the scholarly work of James Hathaway and Guy Goodwin-Gill, the main topic of this work is the legal status and the conditions of the refugees here listed as the third and fourth categories. These are the persons whose conditions already are and are increasingly becoming intolerable because of climate change and other man-made assaults, but who are not explicitly and clearly protected under international law.

Present Instruments Beyond the CSR (1951) and the Protocol (1967)

[I]t appears that respect for the peremptory norm of non-refoulement in mass influx situations comes at a price: the trade-off for accepting the obligation to admit large numbers is a de facto suspension of all but the most immediate and compelling protection provided by the convention. The OAD Convention, the Cartagena Declaration, the Executive Committee Conclusions, the EU Peremptory Protection Directive, and the UNHCR’s views, all affirm the applicability of non-refoulement to mass influx situations (Goodwin-Gill and McAdam 2007: 336).

The documents listed in the above passage address the problem of mass influx (European Union Council, 2001a: arts. 3(2), 6(2); UNHCR 2001a: paras. 6,13; UNHCR 1980: para. (a); UNHCR 1994: para. (r)). Mass movements from one country to another are based on international cooperation, but the obligation of states to non-refoulement is not dependent upon ‘burden-sharing arrangements’ (Council of Europe Committee of Ministers 2000: preambular passage, para. B).

This fact, together with the reality on the ground wherever the receiving country is located, mean that a mass influx of asylum seekers imposes a grave burden on the country expected even to provide only ‘temporary protection’, premised on the possibility of an eventual return (Fitzpatrick 2000; Goodwin-Gill and McAdam 2007: 340–41). Temporary protection is intended to apply to both international and EU law, and the receiving state should not confine mass asylum seekers to camps, but should admit them to its territory.

However, according to the temporary protection granted under the Temporary Protection Directive (European Union Council 2001a: see for instance preambular para. 2), cases of mass influx of displaced persons who cannot return to their country of origin have become more substantial in Europe in recent years. In these cases it might be necessary to set up exceptional schemes designed to offer immediate temporary protection: what emerges from such temporary measures is the necessity to consider the fairness and ultimate justice of such arrangements, so that the result is not further victimization of the victims.

No matter how diffuse the responsibility for the conditions that force the mass exodus, it is clear that not only are the asylum seekers victims of harms imposed through negligence and wilful blindness, by systemic, established multi-party practices, but the receiving state may certainly bear only a partial responsibility, and in many cases deserve support from the international community: ‘… there must also be a greater commitment to preventive approaches and increased readiness to help receiving countries cope’ (Goodwin-Gill and McAdam 2007: 339). This collaboration seems to be required, as the international community’s response to mass influx is temporary protection:

Temporary protection has a relatively long history as a concept of international refugee law, yet its meaning and legal basis are far from well-defined. [It is] regularly touted as ‘an exceptional measure’ and a ‘pragmatic tool’ to respond to the extraordinary circumstances of mass influx of asylum seekers (Edwards 2012: 2).

The conditions described in Chapters 2, 3 and 4 indicate clearly the limits of the CSR in regard to the mass influx of asylum seekers who originate from situations of collective harms. Minimally, ‘temporary protection’ is necessary (UNHCR 1981), and additionally, the provision of ‘international protection’ (UNHCR 1981: 3), and finally, at least one specific instrument was designed for the protection of refugees fleeing from extreme events generated by climate change (UNHCR 2011; see next section for details).

It is remarkable that of the three major causes of mass exodus, only one ‘rates’ the consideration of the UN High Commissioner for Refugees, while the other two desperate situations – that is (1) deprivation of the means of survival; and (2) the presence of an ongoing conflict situation – do not appear to rise to the level that requires a separate report from the UN High Commissioner for Refugees. In fact, Erika Feller, Assistant High Commissioner (Protection), UNHCR, described the situations that initiates exodus as follows:

the classical persecution-driven movement, where refugees, individually or in small groups, flee state or non-state persecution including that comprising deliberately targeted acts of violence;

the mass-influx situations where large scale displacement is provoked by danger of violence accompanying conflicts or civil disturbance and which overwhelms receiving state apparatuses;

cross-border displacement provoked by natural disasters or man-made calamities, such as nuclear disasters;

mixed flows of persons moving as an integral and often indistinguishable part of an asylum/migration movement (Feller 2011: 4).

The remarkable aspects of this list are, primarily: first, describing ‘natural disasters’, presumably originating from climate change, as ‘natural’, rather than belonging to the category ‘man-made’; second, ignoring the overwhelming number of victims of poverty and starvation (see Chapter 3), as well as the originating cause of their condition. Thus climate issues (although viewed as ‘natural’), and mass influx originating from conflicts (see Chapter 4), are apparently viewed as integral components of the problems that render the Convention ‘unfit’. With reference to a recent article appearing in the UK Daily Telegraph, Feller adds:

He [Ed West] asserts that the problems are compounded by the reluctance or inability of, in this case, the UK Government, to properly distinguish between economic migration and protection-motivated flight, and he lays at the feet of the convention the responsibility for what he calls ‘the people trafficking industry’ (Feller 2011: 1; West 2011).

As the 1951 Convention and the 1967 Protocol can be viewed as a ‘limiting factor’ (Feller 2011: 5) rather than a basis for real protection for today’s numbers in mass influx, the first step must be to understand those documents for what they are: at best, simply a ‘basic statement’ (Feller 2011: 5) which does not lend itself to the complex applications we need today:

Even article 14 of the Universal Declaration of 1949 went no further than to state that ‘Every one has the right to seek: and to enjoy asylum from persecution’. The original formulation, i.e. ‘the right to be granted asylum’ was dropped (Feller 2011: 5).

In fact the strongest international legal efforts today seem to centre on the criminality of ‘human traffickers’, in what seems to be a somewhat ill-conceived campaign, if it is not substituted by legal, safer means of escape, given the total lack of alternatives available to asylum seekers. Whether the mass influx attempting to reach Europe, for instance, originates from conditions of abject poverty and starvation (Chapter 3), or from the necessity to escape violence and conflicts in the asylum seekers’ native lands (Chapter 4), or even the extreme events arising from climate change (Chapter 2), there are usually no options for refugees other than the dangerous and costly escape offered by illegal ‘traffickers’.

Repeatedly we see in the media interviews with new arrivals, say, in Lampedusa, Italy, battered and exhausted, but happy to be alive, as too many perish along the way. Thus, although these asylum seekers no doubt understand both the grave dangers and the illegality of the means of transport chosen, their usual response is that they prefer to accept the risks involved for themselves and their families, rather than continue to face the hopeless situation they left behind. That situation is in some sense parallel to that of young women and children sold into prostitution, in order to facilitate the survival of the rest of their families in the third world:

Child prostitution, child pornography and the sale and trafficking of children are crimes of violence against children. They must be treated as crimes and attacked as the most serious crimes are attacked, such repellent abuses are so far removed from any notion of work or labour that it seems strange to focus on them in an ILO report. Yet, while they are crimes, they are also a form of economic exploitation akin to forced labour and slavery (International Labour Organization 1998: 31).

Although clearly not to be treated like regular forms of labour, prostitution, the production of pornography and pornographic performances share with all forms of forced labour and slavery the initial impetus that leads children to participate in these criminal enterprises; the desperate poverty in which children most often live in the third world; their suffering is part of the ‘structural violence’ that is endemic to ‘deep poverty’ and to ‘racism’ (Farmer 2005: 26–30). Paul Farmer speaks of the situation that exists in Haiti, one of the poorest countries in the world:

All the standard measures reveal how tenuous is the peasantry’s hold on survival. Life expectancy at birth is less than fifty years, in large part because two of every ten infants die before their first birthday. Tuberculosis and AIDS are the leading causes of death among adults; among children, diarrheal disease, measles, and tetanus ravage the undernourished (Farmer 2005: 31).

Farmer reports the story of Acéphie, a good-looking young girl, still in primary school at 19, but – in all senses of the term – a child, expected ‘to help generate income for her family’ (Farmer 2005: 33). She was not sold into prostitution, but, as ‘hunger was a near-daily occurrence for … [her] family’ (Farmer 2005: 33), as she helped to bring produce for sale at the market, she was encouraged when she caught the eye of a soldier. Soldiers were among the few people earning a regular salary in the area, so she became his sexual partner, with her parents agreement, despite the fact that he was married and he entertained other women on occasion.

She was totally unprepared to hear shortly after the end of their relationship that he had died of AIDS. Eventually, through other relations she had while working as a servant in the city at the Embassy, she became pregnant. After a difficult pregnancy, and after contracting a number of infectious diseases, she discovered that she, too, had AIDS, as did the wife of the dead soldier and several of their children (Farmer 2005: 35). Hence, the sexual exploitation of children is not only a direct affront to their human rights, and their dignity, but an indirect attack on their health and survival.

Essentially, when the circumstances that face people are as dire as those facing the families who are so desperately poor that they can resort to selling their children for sexual exploitation, it is understandable that these circumstance might even force the flight with no regard for precautions or any consideration of the illegality involved. This point brings us back to the causality discussed in the previous chapters. The present question goes beyond that, as its focus is the ‘legality’ of the legal instruments and the actual conditions asylum seekers meet on their arrival.

The question, therefore, is what other instruments or approaches might better fit with the main principles in international law, given the changed circumstances of present refugees, and the changed meaning of ‘persecution’ that might be applied.

Current Instruments Regarding Mass Influx: Conceptual and Practical Challenges

1. Mass displacement poses particular challenges for receiving states, for other states affected in the region and, increasingly, for the international community ….

2. The present note attempts: i) to describe and classify the responses to mass influx which have been developed, ii) to identify and analyse the issues at stake which require resolution; and iii) to provide recommendations which could lead to the development of coherent and practical approaches to the problem that, while tailored to the particular context, are in line with globally accepted refugee protection principles based on the 1951 Convention and the 1967 Protocol (UNHCR 2001a: 1).

The first ‘device’ used by states faced with large numbers of arrivals, is to extend ‘temporary protection’, without the need for extensive status determination, which would conflict with the immediate requirements for emergency assistance. This approach requires a prima facie recognition by a state of the refugee status and of the objective conditions giving rise to the exodus, without, however, a clear definition of these conditions as ‘persecution’.

Nevertheless this step is necessary to ensure protection from refoulement.2 The first of a list of ‘Areas for Clarification or Reinforcement’ in the UNHCR document Protection of Refugees in Mass Influx Situations (2001a), is ‘9. Exclusion of persons not deserving of international protection’, although no specific system is suggested to distinguish ‘deserving’ from ‘non-deserving’ refugees. Other listed areas include the quest for appropriate solutions for protracted situations, and a reconsideration of resettlement criteria (UNHCR 2001a: 2–3). Clearly ‘temporary protection’ in cases of mass influx requires ‘a need for resettlement countries to reconsider their resettlement criteria’ (UNHCR 2001a: 3). At any rate, the first step is the need for

14. Defining the trigger for temporary protection:

Agreeing on what constitutes mass or large-scale displacement is an essential first step in order to define the triggering factor for activating temporary protection. Mass displacement is prompted by a significant event or situation in a country of origin, which is easily recognizable as the trigger for an exodus. In numerical terms, what counts as ‘large-scale’ or ‘mass’ influx will necessarily differ from country to country and/or from region to region, and must be decided on a case-by-case basis (UNHCR 2001a: 3).

Clearly, the question of the duration of ‘temporary protection’ is and will remain a bone of contention. More important, though, remains the effort to fit seamlessly mass influx into the framework of the 1951 Convention and the 1967 Protocol. Given the limitations it imposes, that approach might not the most fruitful, although some of the major scholars working on the topic maintain its support (Foster 2007: 58–65). The question of ‘fear’ needs to be reconsidered: the required element of ‘fear’ is viewed as ‘self-evident from the event or situation which obviously precipitated the flight’ (Foster 2007: 4).

This document seems to consider that the fear has been generated by an indisputable ‘act of God’, as no questions are raised about the possibility of a responsible actor or actors, at least as contributors to the ‘event’ that generates the fear. As well, the description of the origin of the exodus as an ‘event’ is problematic in itself: the model appears to be that of a sudden natural disaster, such as an earthquake or a tsunami. What this assessment excludes is the possibility of an indictable person or persons whose activities might have precipitated the event. It also excludes the existence of a slowly developing crisis, one which develops incrementally over time, until it becomes unbearable.

Both economic deprivation and diminishing resources fit this pattern, a case similar to the case of the proverbial frog in the warming pot of water, staying in it until, slowly, the water reaches a boil. What is missing from this unquestioning approach to the causes of mass exodus is what is explicitly noted in the ILC Report of 2013, which highlights this neglected aspect of the mass influx of refugees:

The commission had before it the sixth report of the special rapporteur (A/CN.4/662) dealing with aspects of prevention in the context of persons in the event of disaster risk reduction, prevention as a principle of international law and international cooperation on prevention (ILC 2013: ch. VI, paras 50–62).

However, the reference to prevention, which entails some form of human agency as operational before the situation becomes extreme enough to force the flight, is not elaborated further, nor does it occur with more details. We noted in Chapters 2, 3 and 4 that the most extreme situations tend to develop with increasing frequency today. In all cases, it seems necessary not to lose sight of the question of causality, which remains the basis of any proposed preventive action.

In contrast, the UNHCR’s ‘Summary of Deliberations on Climate Change and Displacement’ (UNHCR 2011), starts by stating as one of its main messages:

Responses to climate-related displacement need to be guided by the fundamental principles of humanity, human dignity, human rights and international cooperation (UNHCR 2011: 1).

Yet, below, it adds: ‘the terms “climate refugee” and “environmental refugee” should be avoided as they are inaccurate and misleading’ (UNHCR 2011: 1), without further clarification or explanation, other than a further comment in the section titled ‘Setting the Scene’. Here the Summary lists all the severe results, both short- and long-term of climate change’s impacts on all aspects of people’s life, health and livelihood, increasing the concern for human displacement and migration (UNHCR 2011: 2). Still, there is no indication of why the terms to be avoided are ‘inaccurate and misleading’.

A further puzzle is that the report even states that, with reference to small island states, the ‘language that such states will “disappear” (i.e. the loss of their international legal personality), or “sink” ought to be avoided’ (UNHCR 2011: 2). Once again, no explanation is given as to the advocated permanence of the ‘international legal personality’ of an island which has disappeared. This approach brings to mind Isola Ferdinandea, a small island of volcanic origin, which rose from the sea in early 1831 near Sicily, Italy, close to the present harbour town of Sciacca. While the Spanish, French and English were debating its ‘nationality’, and whose banner should fly on it, the island quietly disappeared. To my knowledge, no one asserted that its ‘international legal personality’ had persisted, although this example does not refer to a state, as in the case of Nauru for instance.

At any rate, the report emphasizes ‘the impact and not solely the causes of displacement’ (UNHCR 2011: 3):

Future climate-related displacement whether internal or external is likely to be characterised by multiple causality, such as conflict and loss of livelihoods. The ‘tipping point’ for a disaster is not just a physical one; in fact the social tipping point often occurs much earlier and can trigger the decision to leave one’s community (UNHCR 2011: 2–3).

Yet, in the face of the acknowledgment of such ‘tipping points’, the report simply harks back to the 1951 Convention, expressing a concern that, where circumstances dictate legal approaches too distant from the language and the sense of the Convention, present regimes would represent further hazards as ‘only a few rights are currently recognized as giving rise to the obligation of non-refoulement’ (UNHCR 2011: 4), adding: