Escape from Development and the Plunder of Resources: Causality and Responsibility
A number of domestic political issues take shape at the nexus of what Sassen terms ‘denationalized economic life and renationalized political life’, including those concerned with labor, agriculture, manufacturing, energy, and the environment. Each of these generates calls for national preferences that chafe against free-market contexts. However, nothing rivals the image of immigrant hordes as an incitement to xenophobic nationalism and to demands for fierce state protectionism, amid globalization (Brown 2010: 68–9; Sassen 1996: xii).
The same citizen who concurs loudly with all those who protest against immigrants – largely seen as attacking the few available jobs in an era of austerity and depressed economics – most often fails to revolt against, or even notice the take-over of her government by the powers of legalized economics that cause both the need for austerity measures and economic depressions (Westra, L. 2012: 80–81). The ongoing take-over by corporate power of government institutions is in direct conflict with institutional ‘cosmopolitanism’, which reigned in Europe at the time of the formation of states in medieval times (Glenn 2013: 86–92).
The historical development of states, could not be more different than what is present in state governance today. The papal teachings coexisted with a juridical ‘corpus Christianum’, as empire and church ‘were associated with the notion of unity’ (Glenn 2013: 38). Yet that ‘unity’ did not ensure that the King’s authority would be beyond critique, in fact in the thirteenth century the law and its fundamental norms ‘provides explicitly for rejection of unlawful acts by those in authority’, as natural law was seen ‘to limit the sovereignty of the prince’ (Glenn 2013: 45).
At any rate, the early formal states developed boundaries, imprecise though these were: they were ‘soft border zones’, administered by appointed noblemen (‘marquises’). At that time, the borders were not viewed as impenetrable limits of secular authority; this is confirmed in the writings of Marsilius of Padua, who defended ‘the emperor’ against the Pope (Glenn 2013: 66; Ullman 1988). Important written legal codes contribute to the definition of borders, except in the case of Indigenous peoples whose unwritten laws lead to the presence of ‘aboriginal rights’ and ‘aboriginal title’, based in part on unwritten law, but also on treaty rights: both are admitted and recognized in Canada (Fluker 2014; Morse 2002; Westra 2007).
Further, in many states, specific religions offer a ‘powerful normative background’, based on such religions as Confucianism or Buddhism, for instance, in contrast with written laws, all of which influences strongly the composition of the state (Glenn 2013: 68). But the state only achieves closure, when it has achieved a written constitution:
A written constitution is essential for a successful revolution since it is the marker of a ‘revolutionary zero hour’, a rupture with an ancient regime. As an element of closure, the written constitution also nationalizes the constitutional order, at least for a time, and in some measure, and depending on its success (Glenn 2013: 70).
However, even this ‘closure’ does not eliminate the presence of natural law, after the formation of states, as it was still being taught at universities in the seventeenth and eighteenth centuries, and was viewed as a ‘dominant form of moral and political thought’ as it emerged, for instance, in the work of Grotius in the sixteenth century, and continues to exist. Today it is embodied in jus cogens norms, and the resulting erga omnes obligations, albeit with very limited practical reach.
At any rate, a unified state is necessary in order to have borders, and in order ‘to institutionalize the connection between people and the territorial state through the nation of citizenship’ (Glenn 2013: 187):
This modern notion of citizenship was appropriate for a state territorially defined, but it presents two major deficiencies: The first is that it has no inherent, historically justified, content. Content had to be provided by legislation, so we see clearly in relation to citizenship, the fundamental information base of all forms of human identity. The citizens of a state are perhaps most clearly of all an epistemic community, there is no inherent citizenship; it is stipulated by national legislators for each state (Glenn 2013: 187).
What emerges from Glenn’s analysis is the weakness, the vagueness, of the notion of citizenship, so that its entitlements remain equally vague, and the reasons for the sharp distinction between citizens and non-citizens far less sharply defined than expected. Hence we can raise the question of what is the difference between the concept of a cosmopolitan citizen, and that of a citizen, as communally construed and territorially bound.
By some standards, the citizens of many democratic countries cannot be called true ‘citizens’, for instance, for Aristotle, citizens were people who were actively involved in the running of their city state, and that was their defining characteristic (Westra 2010: 8–25). For Aristotle, the involved, active citizen has a clear goal: to promote the ‘good life’ for his city-state:
The good life is the chief end for both the community as a whole and for each of us individually. But men also come together and form and maintain political associations merely for the sake of life … (Aristotle, The Politics).
Today’s democratic states are organized and run in direct conflict with Aristotelian doctrine; the ‘common good’, happiness itself viewed as a moral ideal, no longer exists as the goal of any state, as this has been replaced by the right to individual choices and preferences, with no specific connection to morality. Thus we can isolate two basic components of citizenship for Aristotle, the commitment to and involvement in civic life, and the goal of helping to achieve the good life for the ‘state’ as a whole.
The modern citizen has no such lofty ideals and for the most part does not participate in the running of the government, beyond voting at regular intervals. Thus protesters, those who participate in social movements, from Civil Rights to Occupy, the Arab Spring participants, and in Canada, the Idle No More movement, together with many others around the world, appear to be the only groups of citizens who are deliberately active in attempting to reach positive change in their governing institutions, and are inspired by an ideal (Westra 2014b).
In those cases, whether or not they are territorially based, they might be defined as the only true ‘cosmopolitan citizens’ beyond their respective national origins. Thus it seems clear that territorial locations cannot be the only distinguishing characteristics of citizens. This was also noted in Chapter 1, as today’s existence of ‘post-national citizens’, appears to have a lot more in common with cosmopolitan beliefs and interests, at least in principle.
Citizenship, Nationality and Migration
The foreign-born population in contemporary states is now systematically increasing. It now represents one-third of the entire population of Luxembourg, one-quarter of the population of Switzerland, one-fifth that of Canada (Glenn 2013: 193).
It is hard to find the rights or respect due to transnational citizens, when it seems obvious that even the very personhood of migrants seems to be on hold for, in fact in question by, many governments. In February 2014, even Switzerland, a model of a peaceful, civilized state, decided to defy Europe’s open-borders regulations, by deciding to refuse migrants, with the approval of most of their own citizenry. The question is how serious is the concept of personhood in law, when it can simply disappear when territoriality is no longer present?
This raises the further question of the true reach of UN human rights instruments, which do not match the disjunct of human rights personhood, on the one hand, and the diminished personhood of aliens and migrants, on the other (Bosniak 2010). Thus the presence and the treatment of migrants brings into question the very notion of equality before the law (Glenn 2013: 194), for all that – in theory – it is a cherished tenet of most so-called democratic states.
The basic common denominator of all asylum seekers, I have argued, is their poverty, which makes them despair of ever being able to better their situation and that of their families. Hence, what they all share is either the lack of remunerated employment in developed countries and urban settings, or a complete lack of resources, in underdeveloped areas where Indigenous and other land-based communities exist. Globalization touches each person in the globe, in various ways, all of which purports to bring ‘advancement’, ‘progress’ or ‘development’ to those affected by corporate activities.
The results of these impacts on urban workers can be considered first, not because they are more worthy of consideration, but because they are thought of less as poverty-stricken than those whose subsistence is based on direct access to land and water on their lands.
It is an accepted fact that while corporations’ incomes are growing beyond those of several countries, their ‘adjustments’ have not trickled down to the workers they employ (Rifkin 1995: 166–7):
The mounting statistics reveal a workforce in retreat in almost every sector. Forced to compete with automation on the one hand, and a global labor pool on the other, American workers find themselves squeezed even closer to the margins of economic survival (Rifkin 1995: 168).
This dated analysis does not eventually show improvement in the next 20 years or so. In fact, the same author, later, speaks of the ‘slow death of the American dream’:
The first thing to understand about the American Dream is that from the very beginning it was meant to be exclusive to America. It was never meant to be a dream shared with or exported to the rest of the world. Its power rested in its particularism, not its universalism … Its exclusivity is now what makes it increasingly suspect and inappropriate in a world that is beginning to forge a global consciousness (Rifkin 2004: 17).
Relentlessly, the American Dream of hard work and almost instant rewards has given way to an increasingly unjustified optimism on the part of American workers, whose poverty can be contrasted to the glaring unfairness of the economic inequality that persists and increases, and which owes nothing to ‘hard work’ or other basic virtues:
What is striking about the United States is that while the level of inequality generated by the market – a market shaped and distorted by politics and rent seeking – is higher than in other advanced industrial countries, it does less to temper this inequality through tax and expenditure programs. And as the market-generated inequality has increased, our government has done less and less (Stiglitz 2012: 74).
In the face of these mounting inequalities, workers’ wages have certainly not kept pace with the riches at the top. Unions have lost a lot of the hard-won gains achieved in the 1970s and 1980s, while ‘the threat of capital outflow, should workers get too demanding about rights and wages, keeps workers wages low’ (Stiglitz 2012: 60). Now if the situation is so dire in a country generally believed to be rich, powerful and the very home of opportunity for the poor, we can easily extrapolate from this situation to the conditions of workers in the offshore corporations around the globe.
And what is indeed the final result of the richest country’s race to the bottom is the presence of atrocious conditions for workers in offshore industrial developments, and the corresponding poverty of those not lucky enough to secure any employment at all: that is, poverty that is deep and all pervasive enough to force migration. As well, although US citizens are not among asylum seekers, their situation strongly influences their own reactions, thus that of their asylum seekers from Mexico and elsewhere, attempting to be accepted by the US to gain opportunity for a better life.
Globalization and Workers’ Rights
… the UN Secretary Generally, in establishing in 1999 the UN’s Global Compact Program (a Joint project of the UN and the world’s business leaders), noted two distinct sets of duties of corporations: to respect human rights ‘within their sphere of influence’, and to avoid ‘being complicit in human rights abuses’ – the latter term referring to corporate involvement in governmental action (Ratner 2001–2002: 510).
Much of what was discussed thus far contains lack of respect for human rights, within its ‘sphere of influence’ (broadly understood), and ‘complicity in human rights abuses’ (Ratner 2001–2002: 510), and we will return to some of those issues and the litigation that reflects them below. But there is a class of individuals, that is, those employed by the corporation, whose rights have been considered far longer than the less obvious rights we have discussed in this chapter:
… the ILO suggests that governments, labour unions and business leaders view the sphere of employer-employee relations as an appropriate target for detailed international regulation (Ratner 2001–2002: 509).
The International Labour Organization (ILO 1989) has defended worker’s rights, starting from the Treaty of Versailles of 1919, and established the principle ‘to abolish the injustice, hardship and privation’ suffered by workers and ‘to guarantee fair and humane conditions of labour’ (Steiner and Alton 2000: 242). Many of the standards proposed by the ILO are now covered under economic and social rights, and other conventions that deal with freedom of association and the right to organize trade unions, forced labour, minimum working age, hours of work, weekly rest, sickness protection, accident insurance, invalidity and old age insurance and freedom from discrimination in employment (Steiner and Alston 2000: 242).
In 1941, US President Roosevelt nominated ‘freedom from want’ as one of the four freedoms he supported. He said:
We have come to a clear realization of the fact that the individual freedom cannot exist without economic security and independence. Necessitous men are not free men. In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second bill of rights, under which a new basis of security and prosperity can be established for all – regardless of station, race, or creed (Eleventh Annual Message to Congress, 11 January 1949: 2881).
After outlining details of his vision, Roosevelt adds ‘All of these rights spell security’ (Eleventh Annual Message to Congress, 11 January 1949: 2881). The rights outlined by Roosevelt and those named in the work of the UN preparatory committee, were foundational for the drafting of the Universal Declaration of Human Rights (1948), and many were further spelled out in the wording of the two Covenants of 1966 (Steiner and Alston 2000: 244–5).
Hence it is clear that, although the right to be free from toxic exposures and other chemical substances noxious to our health and development are not established in international law, workers’ rights come a lot closer to a level of security not enjoyed by others within the corporate ‘sphere of influence’. Of course codification of a right is by no means the same as its implementation. Additionally, there are now a host of situations that even Roosevelt at his best and most idealistic could not have anticipated.
Regarding workers’ rights, the most significant difference between today and Roosevelt’s times may be found in the phenomenon of globalization, coupled with the increasing emergence of offshore production, which effectively moved the requirements of worker’s rights to no-man’s land. indeed, the US discovered the advantages of contracting out some of its most dubious operations. A recent example of that phenomenon can be found in the section on ‘Toxic Trespass’ in my work on ‘State Terrorism’, and the use of Dyn-Corp to perform illegal services for the CIA. In fact extraordinary renditions are only a small portion of the work of such ‘contractors’: the gaolers of Abu-Ghraib were also not regulated by any military code or other national regulation; and the torturers themselves were located in those parts of the world where torture was legally practised (Westra, L. 2012: ch. 4).
In a similar vein, multi-national companies (MNCs) can and do routinely contract parts of their manufacturing offshore, regardless of the absence of enforceable or enforced human/workers’ rights at those locations:
Marxists bemoan how workers are treated simply as cogs in this wheel of capitalist efficiency, compelled by the labour market to produce any good when demand for it increases and opportunity for capitalist profit making arises. Marxists argue this ‘alienates’ workers from a social activity central to their lives, and will eventually foment resistance (Westra, R. 2012: 116).
The ‘demand’ and ‘opportunity’ converge offshore, as resource and labour-rich third world countries provide more favourable conditions than those present in the West, where all costs of production, including labour, are higher.
For instance, China’s regime now provides the sort of workforce that no longer exists in the West, with worker’s conditions amounting to real slavery: workers are compelled to work, mobility is non-existent, migrants have no protection and no guaranteed remuneration, and 15-hour workdays are routine, as is child labour (Westra, R. 2012: 162–5; see also pp. 230–31, nn. 80–89).
Essentially, all MNCs have initiated a system of relocation for both their manufacturing and assembly operations, in the quest for even less regulated regimes than those they face in the home country (Westra, R. 2012: 75). A banner example of offshore relocation of corporate operations, beyond a partial manufacturing and assembly, is of course the infamous Bhopal situation, where thousands of workers perished in a disaster that laid bare a total lack of public health and environmental regulations in India, culminating in the effect of Union Carbide’s disinformation campaign, which convinced workers that they were producing ‘good medicine for plants’ (Baxi 2010).
That blatant lie convinced the workers it would be safe to move into a ‘shantytown’ adjacent to the toxic effluents from the plant itself. The night of the final explosion should qualify as an example of ‘toxic terrorism’, and spur citizens around the world to demand urgently a different ‘war on terror’, far more justifiable than the ongoing one, given the numbers of victims that exist from various forms of toxic exposure.
There is no need to elaborate further the effects on the health and safety of workers, present not only by chemical and pesticide operations, but also by unregulated third world offshore havens. The lack of regulatory infrastructure in India and in China and other so-called ‘developing countries’ is well known. The beneficiaries from this general retreat from laws and regulations are, of course, the corporations themselves, the power of which has grown exponentially. A prime example is the wealth and power of Wal-Mart:
Wal-Mart has indeed become emblematic of a transformation in organization of value-claims themselves … Logistics, a term co-opted from the military, is the term encompassing the state-of-the-art way goods are moved across such networks and supply chains. Wal-Mart, for example, handles 85 per cent of supply chain management in house (Westra, R. 2012: 89).
The working conditions and health of workers is not Wal-Mart’s concern, and the point is hardly worthy of elaboration. But there are also many operations in North America, where the racial background or ethnicity of the workers ensures that no serious effort is made to ensure not only their health, but even their survival.
It seems that the ‘development’ brought by globalization is for the sole and exclusive benefit of the corporations and the governments that support them both in North America and beyond. In the third world, the working conditions offered by industry are joined by the elimination of the resources of local communities, either through pollution or appropriation, as we shall see below. The question that must be answered is, who is at fault? Who is responsible for this ongoing story of irresponsibility and harms, perpetrated with impunity? Hence, before looking at the third world jurisprudence and conditions, it is necessary that we pause and raise the question of responsibility and accountability of those whose power originates the first victimization of impoverished people, which leads to migrations and the further victimization of asylum seekers.
The Question of Responsibility for Asylum Seekers: Before the Flight
1. Responsibility as a cause. ‘Responsible for’ can in a number of contexts be replaced by ‘caused’ or ‘to have as a consequence’ or some such expression that indicates a causal connection (Bovens 1998: 24).
This paragraph describes only one of the five aspects of responsibility listed by Mark Bovens, as an adaptation of H.L. Hart’s analysis of that topic (Hart 1968: 211–30). The others are (2) responsibility as accountability, or ‘liability-responsibility’ (Hart 1968: 215), which captures the moral and political sense of the term, as well as its important legal aspect; (3) responsibility as capacity, that is the ability to exercise responsibility; (4) responsibility as a task, or “role-responsibility” (Hart 1968: 212), which is particularly significant given that those who reach a decision that will result in eventual extreme conditions that produce flight can only do so in their role or function within an organization (or institution), as no individual acting as such can possibly produce the circumstances that affect great numbers of migrants.
Finally, there is responsibility as a virtue, which is not part of Hart’s legal discussion but, according to Bovens, should be considered as part of Hart’s ‘role responsibility’, which defines how that role is played (Bovens 1998: 26). Hence we could and should raise several questions about how the ‘task’ or the ‘role’ is played by authorities. For instance, who is responsible for the policies that result in harm and, eventually, in migrations? Bovens raises the question in his discussion of ‘passive responsibility’, which he views as particularly relevant as we consider the ‘behaviour of complex organizations’:
It is impossible to produce an unambiguous and universally acceptable list of criteria for responsibility in the sense of accountability. Classic forms are after all the subject of classic debates … Political, legal, and moral responsibility, for example, do not always coincide (Bovens 1998: 28).
Yet the question of when does a government official or a corporate executive officer (CEO) behave responsibly is basic to an analysis of the causal connection existing between the roles/tasks assigned to both, and the ensuing results. The question of the human right’s of asylum seekers is so grave that it is absolutely necessary to start by analysing that causal nexus. Their plight is not initiated when they arrive on foreign soil as they try to land when arriving from the sea. Yet that is where the best known jurists and legal scholars who specialize on regimes regarding asylum seekers focus their work. That is, of course, necessary, but it is not sufficient, if we intend to deal properly with the issue, and if we intend to understand fully both the legal and the moral implications of their plight.
In fact, the victimization of such people has a long development, a history that cannot be ignored, as boatload follows boatload of desperate migrants (Raveendram 2012: 1277–312). As well, we cannot limit our quest for that nexus by limiting our research only to proximate causes. We need to reach much further instead, to discover the seeds, the origin s of their situation (Westra 2014b: chs 7, 8). I have argued about the great number of existing victims of legal activities, everywhere in the world: I discuss both the victims of legal persons, and of government activities in conflicts. At this time, Chapter 4 will address the latter while this chapter discusses the former.
However, it is not only legal corporate persons who are responsible for the various ills that prompt migrations, but, as noted in the previous chapter regarding climate refugees, the victimization also arises from complicit governments. We can start with Bovens’ analysis of what he terms ‘passive responsibility’ which, he argues, includes ‘four categories according to which the diverse criteria for responsibility as accountability can be classified’:
1. transgression of a norm
2. causal connection
4. relationship with the agent (Bovens 1998: 28–30).
As we consider each of these aspects of responsibility, we will see how many aspects of corporate/bureaucratic behaviour are (or should be) accountable/responsible for the development of situations that foster grave human rights breaches, that eventually result in migrations.
Asylum seekers do not spring up automatically like mushrooms after the rain: they are the product of failed responsible actions that originate from complex organizations, wholly or in part. We can follow Bovens’ analysis considering each criterion in turn. Given the undeniable need for an established norm before someone may be responsible for its transgression, nulla poena sine lege appears to be our required starting point.
But it is here that the strongest difficulties arise: many of the ‘norms’ transgressed, as we shall see, are not codified as specific articles in a constitution or in a UN regime of international law. Some may exist in preambular texts, others may have been part of ongoing debates, others may exist clearly, but the categories to which they apply may be debated. For example, in another context, the conflict between the right to life, generally accepted as a basic norm of law, and the emerging debates regarding the starting point of human life, leave even that clear norm in doubt (WHO 2013; Grandjean 2013; Landrigan and Etzel 2013; Westra 2014a). Bovens writes:
If someone is to be held responsible for the conduct of a complex organisation, it must be at some point established that that person has by his conduct contravened some norms. That norm need not explicitly exist; in many cases it is explicitly formulated only in the closure of the process of calling to account by the forum (Bovens 1998: 29).
There has to be a clear causal connection, at least, even if the norm has not been stated explicitly at the time when some damage has occurred, and the conduct of the organization and/or institution we believe should be held responsible.
Such responsibility could be based on negligent actions or omissions; in fact the behaviours of those who had a role to play in regard to the protection of a population’s rights should represent the conditio sine qua non, or the precondition of a certain state of affairs, and therefore can reasonably be viewed as the cause for that population’s condition. With the third aspect of ‘passive responsibility’ we listed following Bovens, we encounter the most serious obstacle to the ascription of responsibility: the question of ‘blameworthiness’.
Bovens speaks of ‘contributing to a situation’, thus rather than a single, undeniable conditio sine qua non, we are faced with the problem of multiple causes. The two problems Bovens cites, (a) the mental capacity of someone to engage in a specific behaviour; and (b) the availability or alternative causes of action (Bovens 1998: 30), are both only minimally significant in regard to the ecological and other basic rights breaches that result in migrations.
In Canadian and in general in North American common law, the discharge of poisonous materials into the environment is, most often, viewed as a private nuisance, a tortious act as it is considered to be affecting only the natural environment (Hughes, Lucas and Tilleman 2003: 101; Hickey v. Electric Reduction Co. of Canada, Ltd. 1970).
In addition, a ‘public nuisance’ is a criminal act; where ‘a court must balance, in a general manner, the defendant’s right to engage in an activity, without undue restriction, against the public right to have its interests protected’ (Hughes, Lucas and Tilleman 2003: 101; Hickey v. Electric Reduction Co. of Canada, Ltd. 1970). Salmond defines common nuisance:
A public or common nuisance is a criminal offence. It is an act or omission which materially affects the reasonable comfort or convenience of life of a class of her Majesty’s subjects … (Salmond 1969: 64).
At present, it is far more than ‘comfort’ or ‘convenience’ that are at stake, as most often we are facing the deprivation of the means of survival, because corporate (state-sanctioned) activities, such as mining and other extractive industries, severely affect third world local communities. Nevertheless there is usually no ‘smoking gun’, no immediately perceivable wound or other observable harm to a specific individual, as we confront instead the challenge of the ‘indeterminate plaintiff’ (Hughes, Lucas and Tilleman 2003: 115; Jones v. Mobil Oil Canada Ltd. 1999; Hoffman v. Monsanto Canada Inc. 2002).
The ideal approach in all these cases would be the application of Rylands v. Fletcher (Rylands v. Fletcher 1868; Cambridge Water Company v. Eastern Counties Leather 1994), which added the requirement of ‘foreseeability of damage to Rylands’ ‘non-natural use’ condition; but strict liability is no longer an option, despite the presence of thousands of untested harmful substances in use.
Further, there is yet another challenge to be met in the case of ecologically harmful exposures or deprivations: that of the indeterminate defendant (Hughes, Lucas and Tilleman 2003: 119). That issue emerged in Snidell v. Abbott Laboratories (1980). In that case a woman who had used DES (diethylbestserol) during pregnancy had no ill effects, but her daughters, as all the daughters of mothers who took that drug (intended to prevent miscarriage), would eventually suffer cancerous growths.
This case is particularly significant, because one cannot even point to one exclusive manufacturer of the drug, any more than one can isolate one chemical substance alone, where multiple, cumulative exposures result in pollution of waters and agricultural resources, following industrial operations or development projects. Such cumulative exposures are (and have been) present in the ‘chemical valley’ of Sarnia, Ontario, and the Aamjinwaang First Nation which is also located in that area. Health Canada has confirmed multiple health hazards in its ongoing research in the area, but nothing is done to reduce or eliminate emissions from each separate corporate actor in the area, as long as they each meet self-established ‘safe’ emission standards, with no independent confirmation, and no effort to assess cumulative impacts (Rosenberg-Goldin 2005; Westra 2014a: ch. 2).
It seems that responsibility is fairly easy to establish, although we cannot pinpoint one