Blog Editor’s Note
By Barbara Gornik, Science and Research Centre Koper
World Refugee Day has been designated by the United Nations to honour refugees around the world. This day is dedicated to raising awareness of the rights of refugees and the challenges they face as individuals who have been forced to flee their home countries to escape persecution. The issue is more important than it may seem at first sight; from the perspective of understanding the modern societies, it is nothing less than fundamental for it uncovers the underlying values of contemporary political communities, and clearly points to the principles that guide us as a society. The refugee debate is about the relationship we have to individuals as human beings as, to rephrase Arendt (1976), refugees are persons who have at some point in their life lost all other specific relationships – except that they were still human.
Owing to the development of international refugee law in previous century, everyone has the right to seek and to enjoy in other countries asylum from persecution. This right is essential in terms of overcoming rightlessness, which manifests through ‘the abstract nakedness of being human’ (ibid). The right to seek asylum carries within an idea of universality and applicability to all human beings based on their human nature and human dignity. Regrettably, the practice shows it does not come with unproblematic, ready-made solutions that meet the challenges of the contemporary migration movements. To understand asylum ontologically, we must turn also to power relations that manifest not only in what has been said about asylum, but look at the inherent qualities of international law, which has proven not to be immune to exclusionary practices which nation-states employ (Kesby, 2012). One way of doing this is to look at the international law in practice, specifically its politics of victimhood for this is undoubtedly the place where a myriad of political dimensions and power relations intersect.
If we take a closer look at how the figure of a victim is articulated in relation to the right to seek asylum in practice, either in international law or local contexts, we soon realize that victimhood is far from being clear-cut and unambiguous. To disentangle the question of power that conveys through the notion of asylum, one must look at the questions such as who counts as a person entitled to protection under the UN Refugee Convention, what the elements of the criterion for recognition of the status of refugees are, who determines the outcomes of asylum application, what constitutes the legitimacy of an asylum claim, what method determines the category of refugee; what argumentations substantiate the existing techniques and dividing practices of the politics of asylum recognition; what patterns of domination are thereby unfolded; and whether a ‘technocratic legalistic’ classification of refugees’ right to asylum counterposes the idea of human rights.
Why people suffering from extreme poverty, shortages of food and water, natural disaster, inaccessible medical services, violation of economic and social rights cannot benefit from asylum protection or non-refoulement principle? Why fleeing from violence committed by groups as varied as guerrilla armies, criminal gangs, family members, and clans does not qualify for granting asylum? Under which conditions international law allows nation-states to derogate form its obligations? Why does the UN regime rely mainly on sustaining refugees’ life in camps? Why does international law not prohibit detention of asylum seekers? Why is the problem of refugees treated symptomatically and not prevented at its root cause? Which problems pertaining to refugees could be objectively (but are not) avoided? These are but few questions pointing to disappointment and problematic features of the contemporary international asylum law.
Far from saying the UN refugee regime should be abandoned, however, its inherent selectivity makes it impossible to turn the blind eye to the failure of not adhering to basic components of asylum, human dignity, integrity, safety. Evident in this is the fact that right to seek asylum as a human right with the UN regime carries the dual ability to emancipate and dominate, to protect and discipline (Douzinas, 2000) and can be only be viewed as a codification of unceasingly changing power relations (Whyte, 2012) that postulate particular relations of domination manifesting in the multiple less visible, even common-sense hierarchies and forms of subjections that take place within our societies.
In addition to the level of politics and the level of law, the right to seek asylum is also heavily determined at its sociocultural level. The right to seek asylum, as a socially embedded phenomenon, is unavoidably affected by persons who exercise moral agency in context of social reality. For instance, the fact that the Refugee Convention does not define the procedures, which the signatory states are obliged to follow when examining an individual’s claim for protection, leads to flexibility of the asylum procedures, for they are left to each signatory state to develop on their own. The vagueness in this respect allows for disparities among different states as their governments can craft asylum laws based on their different resources, national security concerns and histories. Ensuing Wilson, the right to seek asylum may be framed identically on the international level for all party states, but its articulation will diverge when it is brought into concrete relationships in a certain socio-historical context (Wilson, 1997).
Therefore, the question of concern in ontological investigation is twofold, first it inquires how human rights law frames and shapes local value systems and, second, how local value systems in turn resist or comply with the transnational law standards and how social actors develop different ways of understanding and applying international law. Ontological view in this respect necessarily entails various questions, to list few: are “voices” of asylum seekers within the status determination procedures “translated” to meet the terminology of international law? What are the de facto consequences of securitization of refugees’ discourse? How many refugees are nation-states willing to accept, and why (only that many)? How is the right to seek asylum interpreted and implemented in practice? How is its universality circumscribed and by which reasons? The example of the right to seek asylum in present refugee crisis confirms that the appropriation of “global” human rights ideas at the local level always entails translation, modification and transformation of meaning (Speed, 2006; Engle Merry 2006) and that the ways officials use human rights and how people understand them in everyday life are varied and complex. Speed proves true about human rights practice, that it should be seen as a process of justifying and amending global discourses in line with the values of local environment, where social actors mobilize the discourse of human rights within culturally specific conditions and the ongoing negotiations between meaning, culture and authority.
Nowadays even more so, the question of asylum is especially acute as the power dimensions clearly manifest through the justification of nation-states’ interest, which tighten the existing asylum policies and fortify migration control laws. In political context, the identity of refugees is constantly evoked in relation to the issues of national security, border control, illegal migration and national sovereignty, thereby, overshadowing the debate on their human rights. The recent refugee crisis showed not only that there is lack of interest for refugees’ human rights in many European countries but also that their main aim has been to minimize the numbers of refugees coming from Africa and Middle East, or at least, to keep the situation within the limits of “acceptable” and “controllable,” where the “acceptable” is typically determined by the estimation of costs that refugees pose in terms of administration, integration support, provision of social care, public services and legal advice, in connection with the negative impact of asylum migration inflows on unemployment, social welfare systems, security and national identity.
References:
Arendt, Hannah. Origins of Totalitarianism. Cleveland and New York: Meridian Books, 1976.
Kesby, Alison. The Right to Have Right: Citizenship, Humanity, and International Law. Oxford: Oxford University Press, 2012.
Douzinas, Costas. The End of Human Rights: Critical Legal Thought at the Turn of the Century. Oxford and Portland (Oregon): Hart Publishing, 2000.
Wilson, Richard Ashby, ed. Human Rights, Culture and Context: Anthropological Perspectives. London: Pluto Press, 1997.
Whyte, Jessica.“Human rights: confronting governments?: Michel Foucault and the right to intervene.” In New Critical Legal Thinking: Law and the Political, edited by Matthew Stone, Illan rua Wall and Costas Douzinas, 11–31. London: Routledge, 2012.