The Case for Asylum Seekers: Reverting to Human Rights

The proliferation of many desires destroyed the good, as it had done with the one truth. The emptied place of the good was filled by the (fear of) evil, symbolised by death and broadly interpreted as the non-achievement or frustration of desire (Douzinas 2000: 84).

The legitimacy of any individual desire, when it is ‘writ large’ in the legal regimes of the state, is guaranteed by the democratic vote, and it permits people to pursue their interests ‘without consideration for substantive moral values’ (Douzinas 2000: 92). These circumstances create a largely amoral society, as the best background for economic and trade transactions, no doubt, but they do not prepare morally sound state institutions, capable of acknowledging the universally valid human rights of refugees and asylum seekers.

Although ‘overt racism … [is] going out of fashion’, and ‘civil rights movements at home and anti-colonial movements abroad undercut the legitimacy of racial exclusion and discrimination’ (Chomsky 2014: 2), ‘global apartheid’ is now imposed, separating ‘the global North from the global south’ (Chomsky 2014: 2). This separation is especially important as it affects refugees at all points in their saga: in the exposure to the conditions that render them asylum seekers; in the situation they find, when they are lucky enough to be able to flee; and even in the conditions of life they find when they reach their goal – life in another country.

The Rights of Asylum Seekers and the Role of the International Convention on the Elimination of All Forms of Racial Discrimination

Conscious of their duty to achieve the total liberation of Africa, the peoples of which are still struggling for their dignity and genuine independence, and undertaking to eliminate colonialism, neo-colonialism apartheid, zionism, and to dismantle aggressive foreign military bases and all forms of discrimination, particularly those based on race, ethnic group, colour, sex, language, religion or political opinions (African Charter on Human and Peoples Rights, Preamble).

This paragraph could apply to any of the third world countries from which come the overwhelming majority of refugees: they are, in various measure, ‘struggling for their dignity’, as well as for their life, against different forms of aggression, all based upon the effects of ongoing discriminatory practices. In fact, all the circumstances that have been discussed in Part I as being causally determinant of the forced displacement of whole populations, start precisely with the discriminatory practice that underlies the harmful activities that force displacement.

Hence, there is a specific reason for choosing the African Charter to open this chapter’s discussion. If we consider the origins of the disparate activities that result in (a) climate change, (b) famine and the illegal deprivation of peoples’ natural resources and (c) the ongoing illegal conflicts, we note one common theme all these human rights breaches share: the total depreciation of the rights, hence the human dignity and value of those who are eventually affected by the consequences of the activities themselves.

Stiglitz adds that non-compliance is equivalent to rewarding the corporations involved by offering them a subsidy for their operations. For instance, ‘nuclear power plants and offshore oil rigs are shielded from bearing the full costs should they explode’ (Stiglitz 2012: 189). As we saw, at the time of Chernobyl (Ukraine), and we still see today after the Fukushima disaster in Japan, the question of possible malfunctions is only a small part of the ways in which these entities can impose harm. The gravest threat posed by nuclear power plants is the unsolved (and unsolvable) problem of radioactive waste, right from the start of their operations, that is, with the uranium mining that is also evidence of discriminatory intent, in the way such operations are located and staffed.

Another example of industrial harms can be found, for example, in uranium mining (Eichstaedt 1994). The history of uranium mining in the four-corner area (Utah, Colorado, Arizona and New Mexico, and the Navajo Reservation between the Grand Canyon and the Petrified Forest National Park) appears to have been written in blood.

The evidence of the narrative is unequivocal. It is consistently one group and one group alone that is targeted. I have termed this approach ‘institutionalized ecological violence’, and the author is correct in pointing out that this form of violence does more than destroy the unfortunate miners, working in hazardous unventilated ‘dog holes’, accumulating in one week multiple doses of the yearly maximum ‘safe’ radiation exposure in their bodies, and eventually succumbing to untreatable cancer and other diseases.

Some mill workers also had up to 60 micrograms of uranium in their urine samples. The yellowcake dust they inhaled and swallowed was making them radioactive from the inside out. This intolerable violence also destroys families who attempt to survive on the pitiful sums allotted to them, or with no compensation at all for surviving wives and children. Finally, this same violence, discriminating against Native Americans, also attacks their survival as people, hence the appeal to genocide in this case. Although we all depend on a healthy, non-toxic environment, Native people have a particular right and claim to the lands they inhabit and from which they assert their identity as a Nation.

Hence, when the Navajo miners, their families and supporters took on the ‘fight for justice’, requesting child support and simple compensation to survive, they were asking far less than what should have been theirs by right.

… at the age of forty, Peter Yazzie knew the end was near and was driven to a hospital in Albuquerque. He died eight days later, on June 6, 1970. He left a home that was a simple adobe Hogan heated with wood, a wife Dolores, age thirty-six, and ten children ranging in age from two to eighteen. His wife began to collect $250.00 a month on which to raise a family (Eichstaedt 1994: 94).

(Dr. Louise) Abel demonstrated to the assembled doctors, lawyers and government officials that the medical tests are inadequate (Eichstaedt 1994: 151).

This resulted in hundreds of miners being excluded from ‘compassion payments’ ordered by the Radiation Exposure Compensation Act of 1990. When a group is singled out for special treatment that effectively eliminates most of their basic rights to life, health, and free information and consent, then all those involved are guilty of complicity in the crimes perpetrated against them. Through each sad interview describing the story of individual miners and their families (Eichstaedt 1994: 172–95), and through the appendices detailing the hearing on radiation exposure and finally the Radiation Exposure Compensation Act of 1990 (Eichstaedt 1994: 219–37), the story that unfolds is one that should fill everyone with shame. Nor is the United States the only country with that problem. A 2006 report from Australia, relates a similar story:

Cancer cases among Aborigines near Australia’s biggest uranium mine, according to a study by the Federal Government’s leading indigenous research body, appear to be almost double the normal rate. The study also found there had been no monitoring in the past 20 years of the Ranger mine’s impact on the health of local indigenous peoples. Yet since 1981 there have been more than 120 spillages and leaks of contaminated water at the mine located in the World Heritage listed Kakadu National Park (Minchin and Murdoch 2006).

Energy Resources of Australia (majority owned by Rio Tinto), which operates the mine, denied that the aboriginal peoples in the area were exposed to radiation, and in fact announced that the mine would continue to operate until 2020, despite the fact that,

… [a] study compared Aborigines diagnosed with cancer in the Kakadu region with the cancer rate among all Aboriginal peoples in the Northern Territory from 1994 to 2003. It found the diagnosis rate was 90 per cent higher than expected in the Kakadu region (Minchin and Murdoch 2006).

In this case as well, neither the corporation(s) responsible for the extractive activities, nor the Australian government that allowed and, in fact, defended this operation, accepted responsibility for the harms they had perpetrated, or attempted to close the mine and redress the injustice for which they shared responsibility.

Examples can be multiplied, thus, it is neither the facts nor the science that are lacking, but the functionalist approach of industry and institutions that needs to accept the scientific reality and enact the required corrections.

The Fukushima disaster in Japan has brought to the forefront the dangers of a worldwide nuclear radiation. The crisis in Japan has been described as ‘a nuclear war without a war’. Nuclear radiation, which threatens life on planet earth, is not front page news (Chossudovsky 2012).

This reality speaks to the role and aim of the corporation, intended to serve the public good. As well, nuclear power workers at all levels contribute to the manufacture, stockpiling and use of nuclear weapons, with horrifying results for public health for decades following their use.

The most recent abuse of public health and human rights can be observed in the effects of so-called ‘spent uranium’ by the US in Iran, and Israel in Palestine (Fisk 2012). As there are no US official findings regarding the horrible fate of the children affected, so too there are no research data regarding the workers who assembled the ammunitions that used spent uranium.

All these facilities have been placed in remote areas that are far from the centres where wealthy white people live and congregate. The single exception may be Japan, a country where few, if any, unpopulated spaces exist, and here the population is largely homogenous. All these operations are inherently risky but corporations are inherently favourable to risk-taking, especially when the risks are eventually borne by others:

The explosion aboard the Deepwater Horizon in April 2010 began a spill that spewed millions of barrels of British Petroleum Oil into the Gulf of Mexico. BP executives had gambled: skimping on safety increased immediate profits. In this case, they gambled and lost – but the environment and the residents of Louisiana and other Gulf States lost even more (Stiglitz 2012: 189).

Further difficulties are imposed upon these non-intended victims by the fact that large corporations, to a great extent, also control the regulatory bodies. Thus the legal outcomes of many of these disasters are often in their favour. Furthermore, their ability to employ expensive lawyers, who are given almost limitless means to countersue any and all groups daring to question their interpretation of ‘the facts’, also works in the favour of the corporate bodies (Westra 2012: ch. 6; Scovazzi 1991; Scovazzi 2012; Simons 2012).

Nevertheless, beyond corporate ‘deep pockets’, the basic disregard for human rights is clearly evident in the North American choice of locations as sites for hazardous operations, or for the ultimate disposal of hazardous waste (Westra and Lawson 2001; Mickelson and Rees 2003; Bullard 2001).

Their practices, for the most part, enjoy success while the corporations enjoy impunity for the harms they impose, because the majority of the victims, eventually becoming ‘refugees’, are different, not fellow citizens of the same background, but ‘others’, viewed as less worthy of respect and consideration than those in the wealthy North who enjoy the profits. Stiglitz concludes this portion of his work, by saying:

There is something to be said here for criminal prosecution against executives … In such circumstances, we have to go beyond fining the company: it is people who make decisions and take actions and they should bear the responsibility for their actions (Stiglitz 2012: 205).

As stated in the African Charter, the starting point for a just treatment of human beings is the acceptance of their basic and equal dignity. Furthermore:

Human dignity appears in the Preamble of the Charter of the United Nations as an ideal that ‘we the peoples of the United Nations’ are ‘determined’ to achieve … the term dignity is also included in Article 1 of the Universal Declaration of Human Rights … The Helsinki Accords, in Principle VII affirm that the participating states will promote the effective exercise of human rights and freedoms: all of which derive from the inherent dignity of the human person (Schacter 1983: 848).

Dignity refers to the intrinsic worth of all humans and that is what generates respect, as it possesses ‘… several nuanced meanings: “esteem”, “deference”, a “proper regard for”, “recognition of”. These terms have both a subjective aspect (how one thinks or feels about another), and an objective aspect (how one treats another)’ (Schacter 1983: 848). Both subjective and objective aspects are foundational to the approach those in power, whether through economic or political organizations, take towards those affected by their operations.

Depriving people of their natural resources, or of a fair wage, or advancing one’s interests without considering others’ rights to health and safety, all implicitly, but clearly, deny ‘esteem’, ‘deference’ or ‘a proper regard’ for the other. The very recognition of the other as an equal is lacking: and that is the first step before further steps may be taken that lead to the victimization of others. However the denial of the dignity of others is in direct conflict with the International Convention on the Elimination of All Forms of Racial Discrimination (1965).

The experience of persecution during the Second World War and the emergence of human rights and justice as central themes of post-war institutions however had a significant impact on the response of states to victims of persecution. Reflecting the spirit of the age, Article 14(1) of the 1948 Universal declaration of Human Rights provided that ‘everyone had the right to seek and enjoy in other countries asylum from persecution’ (Betts, Loescher and Milner 2012: 12).

‘Seek and enjoy’ certainly implies that being an asylum seeker should not consign one to the category of undesirables, perhaps even borderline ‘illegals’, that appears to define today’s asylum seekers, at least until proven otherwise. Nevertheless the initial international concern for refugees was actively opposed by the United States, who preferred the proposed Marshall Plan, that is, providing support to Europe, to a joint commitment with the international community to supply aid (Betts, Loescher and Milner 2012: 13). As well, the UN’s policy after 1950 eventually turned toward attacking the Soviet Union and its allies, so that

International refugee relief operations were curtailed, unilateral initiatives were encouraged, and international organizations unwilling to subordinate themselves to US foreign policy objectives were denied American aid (Betts, Loescher and Milner 2012: 13).

About that time the UNHCR was formed (UNHCR 2011). The UNHCR was established to serve two specific purposes: ‘to protect refugees and to find permanent solutions to their plight, either through voluntary repatriation or through their assimilation within new national communities’ (Betts, Loescher and Milner 2012: 15).

This mandate reflected the efforts of the US to limit both the authority and the functions of the new entity, as reflected in the Statute of the Office of the United Nations High Commissioner for Refugees (UNGA 1950). Particularly limiting was the original definition of ‘refugees’, according to the CSR, from the theoretical point of view, which served US and allied interests to ‘stigmatize the fledgling Communist regimes as persecutors’ while in paragraph 20 of the Statute itself, the UNHCR was clearly being limited in the practical sense, as the only planned financial support was intended for ‘administrative expenditures’ (Betts, Loescher and Milner 2012: 15).

At any rate, the High Commissioner could use his authority to expand the role and function of his office to serve refugee needs, using high ‘considerable moral authority’ and a unique position (Betts, Loescher and Milner 2012: 20) in novel cases that might not fit precisely the CSR’s definition. One such example was the presence of mass influx of refugees. The first major such case coincided with the Hungarian crisis of 1956:

The invasion of Hungary by the Soviet Army precipitated the mass exodus of nearly 200,000 refugees to neighbouring Austria and Yugoslavia (Betts, Loescher and Milner 2012: 22).

The most important change to arise from this event was that High Commissioner August Lindt (1956–1960) argued that it was impossible to determine the status of Hungarian refugees on a case by case basis, during an emergency situation. Thus he approved ‘all Hungarians in Austria and Yugoslavia as prima facie refugees’ (Betts, Loescher and Milner 2012: 23).

Therefore, at this time, at least two major principles were established as foundational to the situation of mass influx of refugees after the advent of globalization on the one hand, and of climate change on the other. These were the High Commissioner’s power to expand somewhat on the strict CSR definition of refugees, and his ability to change the requirement that each case was to be assessed on its own specific merits, a clearly impossible requirement in the case of mass influx of asylum seekers. These two novel additional acceptable mandates joined the right of refugees to non-refoulement.

In addition, a newly established ‘good offices’ formula, granted by the General Assembly, enabled the UNHCR ‘to raise funds or to initiate assistance programs’, beyond its traditional mandate (Betts, Loescher and Milner 2012: 25). Thus far, all the initiatives were primarily if not exclusively directed to Europeans in need of assistance, but in the mid-1950s, over 700,000 Chinese refugees flooded Hong Kong, desperately needing assistance. In 1957, the General Assembly ‘declared the Chinese refugees to be of concern to the international community … without making a determination that the country of origin was persecuting its citizens’ (Betts, Loescher and Milner 2012: 25).

Hence a third important principle was established, or at least a precedent was established: the lack of a specific persecutory origin to establish the status of refugees, as well as the extension of the expected geographical area from which refugees should receive assistance. In the 1960s the UNHCR

The developing connection between UNHCR and the effects of the primacy of trade and ‘development’ that tends to govern the world today shows the importance of the three emerging new aspects of the CSR policies. These new aspects have led the UNHCR to initiate a new cooperation with other agencies, such as the International Labour Organization (ILO), the UN Development Program (UNDP) and others, through which a new emphasis is emerging on assistance to those in developing countries, a new policy indicating a departure from the original CSR mandate.

This new policy was confirmed in 1976 by ECOSOC which identified the objects of that office’s concern as ‘refugees and displaced persons, victims of man-made disasters, requiring urgent humanitarian assistance’ (Betts, Loescher and Milner 2012: 32). In the 1980s the US confronted a grave asylum crisis, due to the arrival of 130,000 Cubans to Florida; 110,000 Haitians and the large number of Iranians, Nicaraguans and Ethiopians (Betts, Loescher and Milner 2012: 35).

Hence, starting from the last decades of the last century, the presence of mass influx of migrants has increasingly been viewed as a threat to the scarce jobs situation present especially in North America.

One of the results of this situation has been the persistence of refugee camps, where even the victims of persecution, that is, those who fit the basic definition of status refugees, continue to languish, awaiting asylum and a real solution to their plight. Often those who are ‘contained’ in this manner also include those who have been forcibly displaced for various reasons, including the victims of extreme environmental events:

Western governments today are less interested to accept large numbers of refugees. Instead they are focussed on the need to provide protection and assistance for those displaced within their own communities. Indeed containment would appear to be the hallmark of contemporary refugee policy … (Juss 2006: 153).

At any rate, the 1970s to the early 1980s saw the intrusion of political issues that precluded the successful application of the UNHCR’s ‘three traditional solutions … (that is) repatriation, local integration and resettlement’ (Betts, Loescher and Milner 2012: 39). Funds were easily available, primarily from the US, for the support of such camps, as other, more permanent solutions, appeared less and less viable. However, the fall of the Berlin Wall changed the political landscape especially in Europe, but with the additional collapse of the Soviet Union, the UNHCR was in a position to effect voluntary repatriation for many:

At any rate, the UNHCR was clearly taking steps to expand its mandate and responsibilities to deal with mass influx of refugees, while the new international issues it faced included the increasing number of IDPs, already numbering 24 million by 1992 (Betts, Loescher and Milner 2012: 53; Report of the Representative of the Secretary-General on Internally Displaced Persons 2003). These changes prompted the President of the Security Council to note, in 1992, that

… the non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to international peace and security (UN Security Council 1992).

However it was not the presence of pure humanitarian concerns that were driving new security initiatives for the protection of refugees, but the interests, once again, of Western powers (Betts, Loescher and Milner 2012: 59). In fact, the major changes were initiated precisely by Western powers after 2001 and the attacks on the US, events that led to a new phenomenon: the emergence of the so-called ‘war on terror’ (Westra 2013; Cassese 2006) creating the newly formed confusion between refugees and terrorists:

Politicians and the media began to portray all border crossers, whether migrants or refugees, as potential terrorists and security threats (Betts, Loescher and Milner 2012: 62).

The ‘securitization’ of refugees emphasized the already latent racial discrimination present in several decisions informing the development of the UNHCR and its policies. Thus, rather than seeing an incremental expansion of protection and consideration for refugees, as asylum seekers and IDPs, consonant with the ongoing development of the mandate of earlier times, we are faced instead with

… a series of migration control measures to deter new arrivals, by increasing pre-arrival screening, routinely detaining asylum seekers and deporting refugees to so-called safe third countries … (Betts, Loescher and Milner 2012: 63).

The discriminatory roots of current approaches include the US’s treatment of migrants from Mexico and Central and South America. They are particularly obvious as we consider the plights of US supported camps established in Gaza and in the general housing of Palestinian victims of Israeli aggression and colonization, and other forms of ethnic/racial and religious discrimination, which are consonant with the ongoing treatment of persons of Arab origins, also evident in the ongoing presence of ‘no-fly’ lists, based on names, origins and, at most, allegations.

Significantly, in 1976, only 7 per cent of the UN’s 150 Member States viewed their immigration rates as too high; by 1993 the percentage had jumped to 35 per cent – a five-fold increase in less than three decades. Today, 40 per cent of the UN’S 193 Member States have policies aimed at reducing immigration (Bimal 2007: 97).

To support these statistics we can simply review the costs of border control to the ‘25 richest countries’, which amounts to between US$25–30 billion per year (Pecoud and de Guchteneire 2007: 4). The proposed ‘scenario’ counsels border openness, rather than the ongoing harsh trends in border control, in the context of globalization, and trade openness; and the need for ‘new people to produce goods’ which the authors believe demand such openness (Pecoud and de Guchteneire 2007: 4–5).

In contrast, I propose to view the desperate efforts, often unsuccessful despite their high costs, to block out refugees as a manifestation of the ongoing presence of racism and discrimination based on ethnic, religious and ideological preferences. The scenario of ‘migrations without borders’ advocates migrations to be viewed and considered together with immigration. In that case, the distinction between the voluntary and involuntary movement of peoples would be eliminated. In some sense this scenario might be best: it emphasizes human rights in a specific, cosmopolitan sense, as ‘individuals are protected on the basis of personhood, not of nationality or citizenship’.

This means that civil society, human rights groups and NGOs can contest government measures, and they have indeed sometimes opposed them in the courts: in other words, control is controlled and states are limited in their initiatives (Pecoud and de Guchteneire 2007: 5).

However the international ‘controls’, based as they are on time-honoured theory and principle, are still to a great extent subject to economic and other interests of the most powerful nations, especially the US. Of course this point could also be made about the appeal to discrimination’s prevention: a jus cogens norm that is not always observed by these countries, as their actions and inactions are based upon the goal of solidifying their power and influence, as well as supporting their own ideology. Hence the principles of respect for individual rights, let alone group rights, do not motivate its decisions.

The US was the first country to oppose protests, based on principles and the defence of human rights, such as the Occupy Movement, environmental movements and those who intend to defend social, economic and environmental rights (Westra 2014). Nevertheless, the human right to free movement is a basic right and as such it should be independent of the UNHCR and should not need to be included in the rights protected by that organization.