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Pass Laws in the Global Village: Enemy Aliens - Asylum Seekers, Economic migrants and Border ControlsNehal BhuttaCeuta is a small piece of Europe on the edge of northern shores of Africa. Its 75000 inhabitants are Spanish nationals, coincidental beneficiaries of Spain's incomplete withdrawal from its African provinces. Legally EU territory, Ceuta is a possible point of entry for people from central and sub-saharan Africa who, fleeing persecution, armed conflict or desperately insecure economies, make a dangerous land journey across the continent to seek refuge in the North. Conscious of Ceuta's "vulnerability" to this undesired cross-border flow, in 1993 the EU authorised US$25 million to build a wall around it - two parallel fences, 2.5 metres high and 5 metres apart, topped with barbed wire and fixed with lamps at 33 metre intervals. 30 surveillance cameras overlook rolls of razor wire laid between the perimeter fence and the inside fence. (1) It seems fitting that this erstwhile colonial outpost - its boundaries drawn with the casual avarice of the scramble for Africa - is now a weak point in Europe's new mission : civilisatrice has been replaced with fortification, against the migration of former colonial subjects from the South and East to the North. Unlike the politicians of Europe, the Spanish border guards in Ceuta have little difficulty understanding the link between colonial legacies and the circumstances that may propel people to seek a better life elsewhere. Captain Jose Rebello, interviewed by British journalist Jeremy Harding, asks "What colonial power seriously tried to develop an infrastructure in its African possessions ? What power ever attempted to play down tribal differences ? ... We, the colonial powers, are reaping what we sowed. The sub-Saharans who get here are fleeing death and hunger." (2) The uninvited fleeing "death and hunger" can be crudely split into three categories: persons who claim to be refugees within the meaning of the Geneva Convention relative to the Status of Refugees 1951; those escaping civil conflict or repression who do not fall within the narrow refugee definition, and; persons hoping to escape the endemic economic insecurity which precludes the realization of basic economic and social rights. In any given case, the lines between these categories blur considerably. A "refugee" under the Convention definition is someone who is outside their country of nationality, and who has a "well-founded fear of persecution" for reasons of race, religion, nationality, political opinion or membership of a particular social group. An additional requirement is that the person must be "unwilling or unable" to seek the protection of their country of nationality. States who have ratified the Convention and subsequent Protocol (138 at last count) are obligated to consider the applications of persons arriving in their territory who seek asylum; if applicants are held to fit this definition, then the State must permit them to stay in its territory and accord them the basic civil and social rights enjoyed by its citizens. In practice, this has meant an entitlement to permanent residency and naturalization. The Refugee Convention definition was drafted in the immediate aftermath of World War Two. Initially designed to provide a framework for the processing of displaced millions in post-war Europe, it quickly became another terrain upon which the Cold War was played out. Those crossing the Iron Curtain from East to West were willingly accepted as refugees, living proof of the social and ideological superiority of the Free World. For much of the life of the Convention, a refugee was someone - usually male - fleeing Communism. The many ambiguities of the Convention definition gives States considerable latitude to adjust their concept of "refugee" to ideological, geopolitical or domestic imperatives. Victims of non-state persecution, wars of aggression by foreign states or complete state collapse can fall outside a particular state's interpretation of the Convention, depending on whether it has adopted a restrictive or purposive approach to protection obligations. (3) One state's "deserving refugee" is another's "bogus asylum seeker" - in 1996, Canada accepted 76 percent of applicants from Zaire and 81 percent of Somalis as Convention refugees; the United Kingdom accepted 1 percent and 0.4 percent of applicants from Zaire and Somalia, respectively. For almost a decade, Australia refused to recognise 1600 East Timorese asylum seekers as refugees to avoid impliedly criticising Indonesia's illegal occupation of the territory.(4) Since the mid 1980s, the numbers of people seeking asylum in Western Europe have risen rapidly, from 170,000 in 1985 to a peak of 700,000 in 1993. The number has since declined, but remains significantly higher than 1985 levels, with approximtaley 450,000 asylum claims lodged during 2000. (5) Of these, almost 300,000 sought asylum in one of five countries - Germany, the United Kingdom, the Netherlands, Belgium or France. Many who enter clandestinely or overstay their visas may never lodge an asylum claim at all, living and working informally as undocumented workers. The levels of clandestine migration are difficult to estimate, but the OECD's chief economist suggests that perhaps 500,000 undocumented migrants enter Europe, and 300,000 enter the US, annually.(6) The number of asylum applications lodged in Australia has remained between 8 and 12 thousand per year over the 1990s, although within this total the number arriving by boat increased sharply in 1999-2000. Whichever category they fall into, the uninvited are not welcome in the developed world. Australia's policies towards unauthorised arrivals - only now becoming a subject of criticism and resistance after ten years - emerged in parallel with the intensifcation of efforts in Europe and the United States to turn back those who try to enter without prior permission of the state. While few countries imprison unauthorised arrivals as zealously, or for as long, as Australia, most have adopted punitive measures against persons within their territory without the necessary papers. There are now over 100 immigration detention centers across Europe, with most being built in the last decade.(7) Experiences of dehumanization, deprivation and racism documented in Australian detention centers (8) have close parallels in other countries, experiences which are unsurprising in light of the professed "deterrence" rationale for locking people up. Embracing the doubtful logic of deterring those who have yet to come by punishing people who are already here, successive governments in Australia and the United Kingdom have insisted that harsh measures are essential for border protection. Those not detained are likely to be rendered destitute, denied access to almost all forms of public assistance and prohibited from working while asylum claims are processed.(9) Ideally, however, unauthorised arrivals are simply to be prevented from setting foot within a state's territory. This aim is achieved through the physical interdiction of "boat people" before they enter national waters, or demanding that international airlines departing "refugee producing" areas ensure that all passengers have the required documentation to enter the country in which they disembark. Most EU countries, along with Australia and the United States, impose heavy fines on airlines for every unauthorised person unwittingly carried into the country. To circumvent asylum seekers' entitlement to claim refugee status once they enter a Convention signatory's territory, some countries have designated certain detention centres and airport holding facilities as "non-national territory." Land borders considered vulnerable are fenced, electrified and kept under surveillance using closed circuit and thermographic cameras. Borders guards are increasingly militarised in their equipment and training, with the United States' establishing a "Border Patrol Tactical Team" that receives counterinsurgency-style training to police its border with Mexico.(10) Unsurprisingly, a number of unarmed border crossers have been shot dead in the last three years. The German BGS uses attack dogs in its patrols along the Polish - German frontier, with 47 attempted entrants requiring medical treatment for bite wounds in the last two years. German border guards are also permitted by law to confiscate any money carried by unauthorised entrants caught at the border, in lieu of a fine. Such fortification of accessible borders propels would-be border-crossers towards the most dangerous terrains, forcing them to take lethal risks and creating a predictably high death toll. A 1997 University of Houston study documented 1200 deaths along the US - Mexico border, while we are yet to count the number of people killed making the sea crossing from Indonesia to Australia in the last few years. The burden of stifling cross-border people movements is increasingly being shifted to the developing world. A direct consequence of lifting internal barriers to goods and people within Europe is a preoccupation with the strengthening of the EU's external perimeter. In exchange for aid or as a condition for future EU membership, non-EU states adjoining the EU are "encouraged" to close known routes for clandestine migration, readmit persons apprehended or turned back in the vicinity of their borders, and improve their surveillance and documentation checks of those crossing their territory en route to Europe. By declaring certain neighbouring countries to be "safe third countries", EU states are able to reject without consideration asylum claims by persons who have passed through Eastern Europe.(11) Asylum seekers in this position may find themselves deported immediately to a bordering state under a readmission agreement, and then expelled from the "safe state" to their country of origin. Between 1993 and 1996, Germany expelled 1453 asylum seekers to Poland who were then deported from Poland in 48 hours, either to another state further east or to their home country.(12) The Schengen Information System (SIS), a Europe-wide database to monitor "criminals, asylum-seekers and illegal immigrants" and already containing 30,000 records, aims to facilitate the tracking of "unwanted immigrants" from their first attempt to pass border controls, and prevent them from trying again at another frontier. "Airport Liaison Officers" deployed by states such as Australia at airports in refugee producing countries helpfully assist local officials in preventing embarkation by persons without the necessary documents. The Minister for Immigration announced in February 2000 that the Indonesian government had arrested 68 people from China allegedly on they way to Australia to seek asylum, and Australia is providing aid to Middle Eastern and Asian nations to assist the arrest of persons seeking to come to Australia "illegally." Thus it would seem that, for the purpose of migration control, a wealthy state's borders extend thousands of kilometers beyond the geographical frontier. The underlying rationale is that the persecuted, poor or displaced are to be quarantined from the developed world, contained as close as possible to the places they want to leave behind in the hope that they will give up and go home. At the very least, their desperation is to be kept at a comfortable distance. Control Complexes - (Ab)uses of Border ControlsUnlike global transmigrations, border controls are relatively recent phenomena. Their emergence is not co-original with the modern state system, but rather post dates it by almost 200 years. Most states did not have the technical and administrative capacity to police borders until the late 19th century (13); Germany, France and the United States did not enact comprehensive immigration legislation until after 1880, while Britain retained an "open door" policy up to 1905. At international law, the oft-proclaimed "right" of states to control entry into territory - now a universally espoused rationalization for draconian policies - does not emerge in legal discourse until the 19th century (14); classical jurists accepted a general right of free movement, provided it was undertaken for lawful reasons. These could include economic ones, according to Vattel:
Writing in early 18th century, Spanish jurist Francisco de Vitoria regarded the right to migrate freely as having been established "from the beginning of the world" and operating at that time in Europe.(16) This enthusiasm for free movement is unsurpising, expressed as it was at the nadir of the Age of Empire and with industrial capitalism incipient in Europe. From 1700 to 1900, European empires orchestrated the greatest human migrations for a thousand years. Millions crossed the Atlantic to the New World, (as refugees from persecution or famine but mostly as "economic migrants") while millions more were taken from Africa to labor in the New World and the old. Labor migrations within Europe "were a key part of survival for those in poor regions ... [and] ... a key component of the labor force for expanding prosperous regions."(17) Prussian agriculture and Silesian mines could not operate without Austrian and Russian Poles; between 1876 and 1915, 6 million Italians worked on tunnels, railroads, roads and buildings throughout Europe.(18) The newfound legitimacy of border controls in the early twentieth century was inseparable from racist discourses of national identity nascent in Europe, North America and Australia. Nationhood as a biological inheritance - as though civilization courses in one's veins - was central to many nineteenth century nationalisms, lending a self-preservatory urgency to controlling national borders: the unchecked influx of other nationals threatened not only racial purity but nation-ness itself. Few countries articulated this rationale for border control with as much clarity as Australia, which introduced immigration laws excluding non-white races: in the Federation Parliament, Deakin warned members that the "national manhood, the national character and the national future were at stake," while Hughes feared a leprosy plague if Asians immigrated.(19) That the uninvited foreigner is, by definition, a threat to the nation remains the most frequently articulated explanation for repressive border controls. Minister Ruddock once claimed that the recent rise in asylum seekers coming to Australia by boat represented the "greatest assault to our borders in history" - hyperbole that must bring a bitter smile to any indigenous person within earshot. Labor Senator Jim Short maintains that one of the "dividends" of imprisoning asylum seekers is that "social cohesiveness and the harmony of Australian society" is preserved. The racist premises of these arguments are fairly obvious; they are not far removed from the sentiments of Deakin and Hughes, and never lie far beneath the surface of public debate.(20) Dehumanizing a social group is a crucial prerequisite for violating their human rights with impunity, as Hannah Arendt well understood. She observed in The Origins of Totalitarianism that "those whom the persecutor has singled out as the scum of the eart - Jews, Trotskyites etc - actually were received as scum of the earth everywhere." Wealthy states everywhere "prefer to keep prejudice and ambiguity in tact as the first line of defence,"(21) encouraging - or at least, doing nothing to combat - the view that illegal immigrants are "greedy", "opportunistic", "scum" (assorted UK tabloids), "queue jumpers", "dishonest" or "terrorists" (Australian papers). Bordering on the absurd: A paradox of globalization ?A paradox that it is immediately apparent and commonly remarked upon is, how can states commit themselves to the dissolution of barriers to flows of trade and capital while simultaneously fortifying barriers to people ? How is it that the neo-liberal values of risk taking, adaptability and flexibility are praiseworthy in an unemployed person who travels to another city to find work, but the worker who comes from another country with the same aims is a self-serving opportunist deserving only of incarceration and expulsion ? The paradox is more apparent than real. Falling to earth from the ethereal heights of ideology, we find that the "neo-liberal values" of global capitalism conceal an enduring reality - that the "freedoms" promised by liberalization are the prerogatives of the wealthy, just as the "development" promised by colonization accrued only to the metropole. A free market in labor is subject to the right to exclude; economic and social rights are subject to the right to exploit a territory's natural, labour and intellectual property resources, wherever they may be. In the history of capitalism, there is nothing paradoxical about a situation where humans move most easily across frontiers when they most resemble commodities or capital: people with lots of money, or with marketable scarce skills. The vehement insistence on "sovereignty" against the uninvited, at a time when most states are delegating control over other social policies to unaccountable transnational entities, is similarly not as contradictory as it seems. Frustration at governments' reluctance to respond to their electorates' growing economic insecurity, and the attendant crisis of losing democratic control, may be deflected by highlighting repressive state measures in "defence" of national sovereignty . Tony Blair made the connection in a confidential memo to staff in April 2000: "There are a clutch of issues - seemingly disparate - that are in fact linked. They are roughly combining "on your side" with toughness and standing up for Britain ... [A]sylum and crime may appear unlinked to patriotism, but they are partly because they are toughness issues ... On asylum we need to be highlighting removals - also if benefits bills really start to fall, that should be highlighted." (22) Populist demagoguery against "illegals" has become a maginot line in the defence of states finding it harder than ever to convince constituents that they act for the "public good". It is not that the North no longer needs migrant labour. In the decade after World War Two, all industrialised European states used temporary labour recruited from less developed regions such as southern Europe, and eventually supplemented from the Middle East and Asia. Legal channels for labour migration ended in 1973, but a substantial undocumented workforce continues to do the low-skill, low-wage work that domestic populations shun. In the United States, a permanent undocumented workforce estimated at between 3 and 10 million occupy the many contingent and insecure jobs created by a post-industrial economy. A United Nations' report notes the contradiction between tough rhetoric and draconian measures against "illegal", and industrialised countries continued dependence on their labour: there is "official disapproval" but "systems of enforcement less effective than they might be so that enough construction workers, fruit pickers or nannies can find their way in."(23) Paul Ganster of the Institute for Regional Studies in California comments that "the one certain thing is that, in times of expansion, the authorities have looked the other way in terms of undocumented labour".(24) The threat of being reported to immigration authorities ensures that undocumented workforces are "hyperexploitable", and easily dispensed with when work dries up. An undocumented African worker in the south of Spain explains: "It's torture ... [The boss] knows you'll put up with all the extra work he gives you to do, to get everything out of you. He knows very well that if you do get your papers one day, you'll change your job and look elsewhere. Without papers, you'll stay the same for ever; you depend on those papers."(25) In the US, employers have reported undocumented workers to the INS when they are no longer needed, or complain about their conditions.(26) Border controls thus have an important function complementary to "globalization":they "facilitate the extraction of cheap labour by assigning criminal status to a segment of the working class" (geographer Saskia Sassen). Industrialised states' dependence on migrant labour is likely to increase. A recent United Nations' study estimates that, at current fertility and migration levels, the working age population in the EU will decline by 61 million in fifty years, avoidable only if net immigration doubles.(27) Maintaining "fortress Europe" in parallel with a labour shortage promises a dystopic scenario: labour migrants are treated as a flexible and mobile pool of workers, accepted as and when needed, but without rights of free movement, settlement or political enfranchisement in the places they work. In apartheid South Africa, racially-based pass laws had a similar effect. Local responses, global responsibilitiesThe reasons behind why people move across borders, and where they try to go, are complex. Poverty and persecution are significant "push" factors, but by no means decisive ones. In her review of two hundred years of migration in Europe, human geographer Saskia Sassen concludes that migrations are "patterned, bounded in scale and duration, and conditioned on several particular processes. Migrations were not simply an indiscriminate flow from poverty, as suggested in the imagery of 'mass invasions' ... [O]nly a very tiny fraction of poor people emigrate..."(28) Nevertheless, intensifying immiseration combined with social instability and institutional collapse are powerful incentives to leave a place, and with the almost complete closure of legal avenues of migration to the developed world, there are only two options: apply for refugee status or enter illegally. Receiving states are not insulated from the causes of migration, but bear some responsibility for the volatile mix of poverty and conflict which underlie recent cross-border movements. Last year, Afghanistan and Iraq produced the largest number of refugee applications in Europe and Australia. In Iraq's case, the West financed and armed Saddam Hussein's brutal dictatorship throughout the 1980s, and since 1991 has punished the civilian population with a sanctions regime that has crippled the economy; Afghanistan's fundamentalists were first nurtured by the US to undermine Soviet control, and then left to their own devices at the end of the Cold War.(29) In Eastern Europe, Latin America, Africa and Asia, Northern-dominated international financial institutions mandated the implementation of structural adjustment programs (SAPs) that devastated economic growth, intensified poverty and retarded social development, to the benefit of northern banks. (30) According to UNHCR, SAPs "have undoubtedly prompted migratory movements" from all of these less-developed regions.(31) Global polarization is accelerating, with the industrialized states (20 percent of the global population) accounting for 85 percent of trade, investment and growth - up from around 70 percent in 1966. Over the same period, the poorest 20 percent's share of global income fell from 2.4 percent to 1.4 percent. Net transfers of income from the developing to the industrialized world amounted to $147 billion, while development aid was uniformly cut. Border controls play at least some part in preserving this maldistribution of income and wealth, impeding one of the few direct ways in which redistribution can occur: an OECD study found that in 1998, foreign workers remittances across 30 countries totalled $50 billion, about as much as the OECD dispensed in foreign aid that year and up to one and half times the value of individual countries' exports of goods and services. In July 1999, two teenage boys from Guinea Conakry, Fode Tounkara and Yaguine Koita, hid in the undercarriage of an Airbus bound for Brussels.(32) Discovered along with their frozen corpses was a letter addressed to the "Excellencies, gentleman members and responsible citizens of Europe." The letter offers "our most delightful salutations, the most loving and respectable in life" and implores "please help us ... We have war, sickness, hunger etc. In Guinea we have many schools but a great lack of education ... we suffer too much in Africa and need your help to struggle against poverty and war. We want to study and become like you in Africa ...". The poignant and self abasing tone of the message touched a nerve in Belgium, which, in a fit of bad conscience, gave the children's bodies a ceremonial departure and increased development aid to its former dominion. A Belgian columnist observed, however, that if the boys had arrived alive they would have been transported straight to a detention center to wait deportation, and their note would have been "read only by an immigration official or police officer before being tossed in the bin."
Endnotes
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