by Andy Lamey
The measures Gibney recommends would all be welcome improvements on the way things currently stand, none more so than an international system of refugee resettlement. At the same time, however, his proposals come with built-in limits. Take his suggestion that one-third of the immigration intake of Western states be made up of refugees. From a humanitarian point of view, such an arrangement would certainly be an improvement over the current composition of immigration streams. But a key question this approach raises concerns how big the overall immigration intake of each country should be. Gibney’s answer is that a country’s existing immigration level should set its benchmark. In other words, refugees should make up one-third of however many immigrants any given country takes in right now. As Gibney points out, taking existing immigration levels as a standard gets around the problem of determining some objective international standard: “one can assume that these judgements provide a reasonable (albeit subjective) indication of the total volume of new entrants a state is capable at a minimum of integrating; it is, after all, the level that the government itself has chosen.”
This reasonable-sounding proposal has a paradoxical element that becomes evident when we ask what its ramifications would be in places such as Japan, Israel and Germany, which do not see themselves as countries of immigration (or not a country of non-Jewish immigration in Israel’s case). In Gibney’s scheme, these countries would be allowed to take in low to negligible numbers of conventional refugees—because they take in few immigrants to begin with. Yet placing such policies beyond criticism risks legitimizing the same attitudes that the asylum-awareness campaigns and other measures Gibney proposes are meant to call into question. Similarly, if the international resettlement scheme Gibney favours is to come into being on a wide scale, the unreceptive attitudes of countries with tight models of citizenship must be up for re-examination. Challenging such attitudes, however, requires a degree of criticism of national policies toward immigration, something Gibney’s approach consciously avoids.
Finally, there is Gibney’s call for greater bipartisanship on asylum. There have been times when such an understanding did inform national debates. Malcolm Fraser, a former prime minister of Australia, once told an interviewer that during his time in power, in the 1970s and 1980s, there was such a consensus in place regarding refugees. Fraser, however, made this remark in 2004, after the Australian consensus had been replaced by the attitude on display in the Tampa episode. The timing of Fraser’s comment illustrates how we tend to become aware of the value of a bipartisan consensus on asylum only after it has already broken down. As Gibney himself notes, anti-immigration politicians such as Pat Buchanan in the United States, Pauline Hanson in Australia and Jean-Marie Le Pen in France are all familiar products of democratic politics. The result would seem that bipartisanship regarding asylum will often be hardest to implement just when it is most needed.
This highlights the main problem with Gibney’s approach. All of his proposals rely on elected politicians doing the right thing. As we saw in the case of Australia, where a group of backbench MPs ended mandatory detention, individual politicians can indeed bring about significant changes. But if Agamben goes too far in diverting our attention away from individual political actors, Gibney goes too far the other way in proposing solutions that ignore the structural factors that cause refugees to be mistreated. Often there are powerful incentives for politicians not to do the right thing, as when public opinion is genuinely against refugees. If we place our faith in politicians alone to uphold the rights of asylum-seekers, we are bound to be disappointed. We need to consider the possibility that some decisions, particularly those involving fundamental rights, should not be in the hands of elected officials. Yet precisely because Gibney’s approach takes the exclusive authority of politicians for granted, it does not challenge the latitude they enjoy in dealing with asylum. Like Power’s recommendations, Gibney’s proposals are missing something. They are important and worth acting on wherever possible, yet not sufficient to safeguard the rights of refugees seeking asylum.
The philosophers and the pragmatists respond to Arendt in very different ways. Derrida and Agamben adopt a radical approach, asking us to rethink our sovereign institutions or our commitment to human rights. Power and Gibney take a more practical view, yet in so doing, they leave intact the structural features that make enforcing the rights of refugees so difficult in the first place. Neither approach, in short, mixes idealism with realism in quite the right measure. Could there be a third way that gets the balance right? I believe that there is, and that there is one country where such an approach has already begun. It is to that country that I now turn.
SEVEN
THE RIGHT TO HAVE RIGHTS
IT WAS RWANDA, 1994, and a genocide was unfolding. In Francine Peyti’s village, the killers came in the morning. Members of her Tutsi ethnic group were marched into the village square and made to form two lines. Peyti, a young mother in her twenties, watched as Hutu militiamen set upon a row of Tutsis that included her parents and brother. The attackers used household machetes to hack at their victims’ heads and torsos. After most of the village was dead, one of the younger killers rounded up Peyti, her husband, Paul, and their children. As the boy did so he quietly informed them he was a friend of the family. The teenager then turned to his accomplices and addressed them while waving his machete at Paul: “Go ahead and move on. I’ll kill these ones myself, starting with him.”
The boy brought his machete down on Paul’s finger, separating it from his hand. Convinced of his intentions, the other militiamen left the square. Once they did so, the teenager motioned for Peyti and her family to run in the other direction. Eventually they found an abandoned house, in which they hid for ten days. When they emerged, the society they had known was gone. Throughout the countryside entire villages were empty. The bodies of their former inhabitants were strewn across the floors of churches and schoolrooms, or stacked in mounds every few hundred metres beside village roads.
The Peytis moved to a different part of Rwanda, where they lived in relative peace for three years. But in 1997 Tutsis who had witnessed the genocide were again targeted for violence. During this period, a group of armed men arrived at Peyti’s door and took Paul away in an unmarked car. Two days later they returned with a message. Paul was dead, and Peyti would be next if she told anyone.
There was nothing left to do but run. Peyti and her remaining family made their way on foot and by minibus three hundred kilometres west to the border with Zaire (now the Democratic Republic of the Congo). Zaire was in the middle of a civil war, and Peyti’s sister and other family members decided to stay at the border while Peyti sought a permanent refuge where the others could join her. After a harrowing journey through the countryside during which bandits shot at and nearly raped her, Peyti reached Kinshasa, Zaire’s capital, where members of her extended family lived. After she told her relatives what had happened, they pooled their money to buy her a fake Dutch passport and a plane ticket. In May of 1997 she flew to Canada and filed a refugee claim. After it was accepted, Peyti still faced many challenges, including post-traumatic stress disorder. But she had managed to put the genocide and its aftermath behind her, and so could begin to live again.
Francine Peyti’s story, like every refugee’s story, is a testament to what Hannah Arendt termed the “violent courage of life”: the insatiable will to survive that even genocide cannot snuff out. But Peyti’s journey also symbolizes something about the country she fled to. Peyti arrived in Canada after it introduced a rights-based approach to asylum. Although Canada’s approach is based on human rights, the rights it recognizes do not include a right to asylum. Canada thus holds out the possibility of enforcing human rights in a way that avoids the problems of the right-to-asylum approach. As such, Canada’s experience points toward a means by which rights for refugees might be effectively enforced.
This is not because Canada’s approach to refugees is perfect. As we will see, the country is an ent
husiastic participant in the international trend of turning away refugees. Canada’s shortcomings, however, are the same as most other countries’, while its virtue is particular to it. That virtue is to suggest a means by which enforceable rights might finally be rooted in humanity rather than in citizenship, even in a world of sovereign states.
In 1984 Canada’s Supreme Court decided the country’s most important refugee case. The case was very different from the Team Haiti lawsuit that would preoccupy the U.S. Supreme Court nine years later. The actions of the Canadian government beyond its own borders were not at issue, nor was Canada accused of returning refugees to danger. Nevertheless, in Ottawa as in Washington, Hannah Arendt’s ghost could be felt hovering inside the courtroom. In both cases a key issue was whether refugees are subject to legally enforceable rights. The Canadian government had recently enshrined in its constitution a Charter of Rights and Freedoms that contained some strong rights language. The Supreme Court was now being asked to determine how far those constitutional rights would extend. In the words of Barbara Jackman, one of the lawyers involved in the case, a fundamental question at issue was “whether or not the Charter of Rights and Freedoms are human rights. Does the rights part of our constitution apply to persons who are not citizens?”
The Ottawa case was set in motion in the early 1980s, when Canada received two thousand refugee applications by Sikhs. The Sikhs stated that they feared persecution by the government of India (which was then clamping down on a Sikh separatist movement), only to see their claims universally rejected. The mass wave of rejections came just as Canada’s asylum system was undergoing heavy criticism. Refugee decisions were made by officials who never met the people seeking asylum. Instead, an official would look over a transcript of an interview to determine whether the claimant’s story was bona fide. This method was widely criticized on the grounds that credibility was not just a matter of what someone said, but how he or she said it. As one refugee lawyer remarked of his client, “You’re asking him to place his life, his future, in the hands of a tape recorder … The sense of urgency in the voices of those who are attempting to describe torture or show scars and so on [is lost].” The same criticism was made by people who ran the system. One refugee official told a reporter that she had lost faith in Canada’s approach after judging two thousand cases without meeting a single applicant. “You realize how big an element demeanor is in judging a claim.”
The mass rejection of thousands of claims, coming as it did when Canada’s system was in dispute, resulted in a battery of legal challenges. Brought forward primarily by rejected Sikhs, they all charged that the method Canada used to decide refugee claims was unfair. The Supreme Court case had begun as half a dozen such lawsuits which were eventually amalgamated into one. It involved Harbhajan Singh and five other Sikh men who all belonged to Akali Dal, a Sikh political party. (A seventh claimant, a woman from Guyana, was unaffiliated with Sikhism.) By the time the case reached the Supreme Court, it was no longer about any individual refugee claim. Instead, Canada’s system was itself on trial. Did it give asylum-seekers a fair chance to tell their story?
As with the Haiti lawsuit, part of the case concerned how to read a single word. In Canada, it was “everyone.” Canada’s Charter of Rights contains the following sentence: “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.” On one hand, “everyone” could conceivably be taken to mean every citizen of Canada. If so, then the asylum-seekers would have no case, as the right to life, liberty and security did not apply to them. On the other hand, if “everyone” was taken in a broader sense, to include literally everyone in Canada, citizen or not, then the rejected asylum-seekers would at least have a leg to stand on.
A surprising feature of the case is how much unanimity emerged on this point. Not only Jackman and the other lawyers challenging the government but the legal team defending it all eventually agreed that “everyone” meant literally everyone physically present in Canada. Several passages in the Canadian Charter restrict a given right to “Every Citizen of Canada.” If the Charter’s drafters had wanted to restrict the right to life, liberty and security to citizens, therefore, they could have said so. “Everyone” therefore had to include a wider class of people, including both citizens and non-citizens.
Given that the lawyers agreed on this point, it was perhaps unsurprising that the justices would take the same view when they decided Singh v. Minister of Employment and Immigration, as the case is called. What was at issue, however, was what a universal right to life, liberty and security amounted to in practical terms. Here there was no agreement whatsoever among the lawyers. But in the end the court sided with the appellants. In particular, it accepted their claim that people seeking asylum were entitled to an oral hearing.
It may not sound like much, the right to an oral hearing. To this day, however, it is rare for countries to extend constitutional rights of any kind to asylum-seekers. Germany and other states that have experimented with a right to asylum are exceptions to the predominant international trend. The mere fact that potential refugees were deemed to have constitutional rights was thus a breakthrough in itself. But the breakthrough was not just conceptual. The Supreme Court’s decision resulted in Canada’s entire asylum system being overhauled. In 1989 Canada replaced its old Kafkaesque approach with one that gave asylum-seekers a face-to-face interview as a general rule. The Refugee Convention allows signatory states to turn away dangerous individuals such as terrorists and serious criminals, and the Singh decision maintains the same exceptions. But violent cases are a tiny minority, and most people who sought a refugee hearing in Canada in the decade following Singh got one. Canada’s asylum system during the 1990s was far from perfect: decision-makers were too often appointed on the basis of patronage rather than merit, among other problems. But unlike the experience of some societies, the criticism that a given right was respected in theory but not in practice does not apply.
Courts in other countries have recognized the rights of people seeking asylum. Singh, however, is the most important decision of its kind. Because of it, Canadian politicians cannot employ some of the no-entry policies that have been adopted by other countries. In Australia, for example, Christmas Island and other locations have been declared “excised offshore places” for the purposes of immigration law. This allowed the Australian government to decide asylum cases without any opportunity for appeal, a benefit refugee claimants have long enjoyed on the Australian mainland. Even though Singh does not say anything about appeals, it makes any sort of excised offshore place unlikely. This is because Singh applies the idea of a universal right to life, liberty and security to all Canadian territory. Attempts to “excise” parts of Canada for the purposes of refugee law risk being challenged in the courts. Politicians thus have a strong incentive to treat Canada as one seamless “rights zone.”
Another measure Singh rules out is the cunning use of deadlines. Different countries currently impose time limits of varying lengths on refugee claims. In some countries the deadlines are extremely, even viciously, tight. For example, Turkey maintains a two-tier asylum system, in which Europeans seeking refugee status can do so at any time after arrival. Europeans are far less likely to seek asylum in Turkey than people from nearby crisis zones in the Middle East and North Africa. Non-Europeans seeking asylum, however, must do so within five days of entering Turkey, after which even the most well-founded claim is automatically rejected. Even leaving aside the double standard regarding European and non-European claims, the five-day deadline is an administrative weapon deliberately used to deter genuine refugees. In Canada, thanks to Singh, the whole issue of punitive deadlines is a non-starter.
No Kafkaism. No excision zones. No death by deadline. In each of these ways, Singh has functioned as a real law with real power. This brings us back to the central problem of this book. Hannah Arendt argued that so long as sovereign s
tates exist, they will fail to uphold the rights of refugees. She argued that when extending protection to refugees conflicts with a nation’s interests, or requires more than a token sacrifice, refugees will lose out. Hence Arendt’s pessimistic conclusion that human rights were a mere abstraction. She thought it hopeless to believe that rights we acquire by virtue of being human could ever have the same force as rights we obtain as members of a political community.
Singh is a breakthrough because it does what Arendt said was impossible. In Canada we find a sovereign state that enforces a right of refugees seeking asylum with the same powerful tool, constitutional law, with which it upholds the rights of its citizens. Although asylum-seekers have fewer rights than Canadian citizens, that they have constitutional rights at all is enough to show that Arendt was wrong to conclude that it is impossible for states to uphold the rights of refugees in any meaningful way. In Canada the condition of possessing effective rights is not that of being a citizen. Rather, it is that of being human.
Canada is only one country, and human rights are supposed to be universal. We should therefore hope that the Singh decision is studied and copied by rights advocates and lawmakers in other countries. This is not a utopian dream. Legal writers use the term “legal transplantation” to describe the process by which laws made in one country are adopted in another. Legal transplantation is increasingly common, but laws of different countries migrate with different speeds. University of Virginia law professor Frederick Schauer notes that Canadian laws and Supreme Court decisions have often served as inspiration for foreign lawmakers: “Canadian ideas and Canadian constitutionalists have been particularly influential, especially as compared with the United States. One reason for this is that Canada, unlike the United States, is seen as reflecting an emerging international consensus rather than existing as an outlier.”