Understanding legislative and policy responses and ethical imperatives

Introduction

Previous chapters have explored different categories of forced migrants by looking at who is a refugee, a stateless person, an IDP, a ‘victim’ or ‘survivor’ of human trafficking and a ‘child on the move’. This chapter focusses on legislative and policy responses towards these populations who live in contexts that are a mix of care, control and uncertainty. Global, regional and national policy responses in the 20th and 21st centuries to date are explored. This includes a short chronology of UNHCRs ‘durable solutions’ of resettlement, local integration and repatriation; policies for IDPs; legislation around people who have experienced human trafficking; and responses specific to children on the move.

Finally, consideration is given to working with and/or conducting ethically informed research with people who have experienced displacement. This chapter also includes the contributions of key thinkers on these topics and key concepts within these debates. A series of scenarios, based on working within and/or conducting research in humanitarian contexts, and ethical dilemmas for in-class discussions are provided.

20th-century responses

The history of responses to refugees in the twentieth century has been one long series of attempts to circumvent the problem.

(Harrell-Bond, 1995)

It is the absence of burden sharing in the post-Cold War era which explains the growing acceptance of involuntary repatriation as a solution to the global refugee problem.

(Chimni, 1999:1)

In these quotes, Harrell-Bond and Chimni address how responses to refugees failed to address the situation of refugees during the 20th century (see also Key Thinker Boxes 2.1 and 7.1). Chimni’s quote considers the inequalities of responses to refugees, drawing on the idea that the ‘burden’ of assistance

Policy responses and ethical imperatives 175 to refugees can be shared in an equitable way across low- and high-income countries. ‘Burden sharing’ as an idea has a long history within refugee studies and is a well-established term in the global refugee regime (UNHCR, 2000). The ‘prejudicial connotation’ of the term has been highlighted by several academics and campaigning organisations (Thielemann, 203:225). This is now increasingly referred to as ‘responsibility' sharing’, with other terms such as ‘the equal balance of efforts’ or ‘international solidarity' obligations’ beginning to impact on the way responses to refugees are debated (Thielemann, 203:225; UNHCR, 2005).

So-called burden sharing can be about sharing or shifting financial and other costs. A special edition of the Journal of Refugee Studies in September 2003 examined ‘burden sharing’ in a European context, referring to how refugee burden-sharing issues had increasingly risen to the top of the political agenda at this regional level (Thielemann, 2003). At that time, it was argued that the purpose of burden sharing was to ‘institutionalise redistribution’ in ways counter to how distribution would occur without intervention. According to Thielemann (2003:228-232), sharing this ‘burden’ could involve harmonisation of refugee and asylum legislation (sharing policy), redistribution of resources (sharing money') and/or the reallocation of asylum seekers (sharing people). This latter action was considered the most effective but also the most controversial way to share the ‘burden’ throughout the EU at that time.

Another important aspect of the response towards refugees has been the way' in which they live has been described as living in limbo or in liminal situations. Within the literature of forced migration, there is considerable reference to refugees living in limbo, particularly' in relation to refugees in camps (Bousquet, 1987; Hitchcox, 1990; Kunz, 1973; Malkki, 1995; Reynell, 1989; Turton, 2004). For example, Bousquet’s 1987 study' of Vietnamese refugees in closed camps in Hong Kong explored how refugees were living in an intermediate state where they had left their surroundings but were not yet accepted elsewhere. It described how the government of Hong Kong opposed attempts to improve camp conditions and, in doing so, retained the perception of the camp as a temporary holding centre. Malkki’s seminal 1995 study also explored such liminal positions (see Key' Thinker Box 2.2). This position of being liminal and being held in temporary conditions has been continuously replicated in responses to refugees worldwide.

Shacknove has suggested that throughout the 20th century, providing asylum has been viewed by' governments as a ‘worthy' exception to immigration control rule’for those lacking the protection of their own governments (1993:517). However, Shacknove and others have also suggested that this space for asylum is contracting in the post-Cold War era simultaneously with States attempting to contain refugees within their countries or regions of origin. Containment relates to efforts to impose visa restrictions and carrier sanctions, returning refugees to their countries of first asylum, and other restrictive measures that constitute a ‘non-entree regime’ (Chimni, 1998:351). Shacknove examines this preference for the containment of forced migrants in countries and regions of origin, outlining how an enhanced capacity for administrative control and militarisation of borders is being used to deter forced migrants, how the growth of bureaucracies with a preference for order above welfare or rights is operationalising this deterrence and how States are making challenges to the institution of asylum. As Shacknove outlines, this third aspect relates to the way in which:

affluent States are curtailing asylum to the extent that doing so is administratively possible and politically acceptable to citizens . . . and linkage between development assistance and co-operation on migration issues by aid-receiving States.

(1993:522)

The justification for containment thereby relates to the suggestion that ‘substantially greater numbers of refugees can be aided locally than through costly asylum and resettlement policies’ (Ibid., 1993:523). Such justifications, and containment methods, in the words of Shacknove: ‘allow States de facto to circumvent the letter and spirit of the 1951 Convention and the 1967 Protocol’ (Ibid., 1993:532).

To help ground and unravel these arguments, a short chronology of responses to refugees across the globe is provided in Box 7.1. This looks at the establishment of the current refugee framework post-WWII, established at the beginning of the 1950s. The set of norms established included the right to seek asylum in other States and a prohibition on refugees being sent back to countries where they would be at risk. As outlined in earlier chapters, this was to avoid the repetition of a situation in which victims from distinct populations were unable to find sanctuary elsewhere in the world and to manage future refugee movements. The chronology' includes phases of use of UNHCRs ‘durable solutions’ of resettlement, local integration and repatriation and an emergent hierarchy of these solutions as evolved over time (see Chapter 2 for individual explanations). It also begins to outline actions for internally displaced persons (see Chapter 3).

Box 7.1 Selective Chronology of Responses to

Refugees and IDPs in the 20th Century

  • 1950 United Nations High Commissioner for Refugees (UNHCR) established
  • 1912—1969 Nearly 50 million Europeans sought refuge abroad, and all were resettled (Chimni, 1998)
  • 1945—1985 Resettlement promoted as a durable solution in practice, with voluntary repatriation accepted in principle as the preferred solution (Chimni, 1999)
  • 1950 United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) established as a temporary agency to provide humanitarian relief
  • 1951 Convention relating to the Status of Refugees defines who is an individual refugee in Europe
  • 1966 Bangkok Principles Concerning Treatment of Refugees adopted by the Asian-African Legal Consultative Committee formulated as an instrument for the protection of refugee rights
  • 1967 Protocol relating to the Status of Refugees removes the time and geographical limitations of the 1951 Refugee Convention
  • 1969 Convention governing the Specific Aspects of Refugee Problems in Africa adapted the definition to groups of refugees facing the realities of the developing world
  • 1979 International Conference on Indochinese Refugees, where 71 nations met to discuss refugees from Vietnam, Laos and Cambodia and made commitments for resettlement and orderly departure from Vietnam
  • 1984 Cartagena Declaration in South America adapted the definition to groups of refugees, including those threatened by generalized violence, foreign aggression, internal conflicts and violations of human rights
  • 1989-1996 Conference on introducing a Comprehensive Plan of Action (CPA) in Southeast Asia, decoupling the automatic link between asylum and resettlement (Nah, 2016; Courtland Robinson, 1998)
  • 1989-1993 An International Conference on Central American Refugees (known by the Spanish acronym, CIREFCA) held to resolve regional refugee, displaced persons and returnee issues in South America and to seek durable solutions; conceived as a follow-up to the 1984 Cartagena Declaration (Kneebone, 2016)
  • 1985—1993 Voluntary repatriation promoted as the durable solution, emphasising the voluntary character of repatriation (Chimni, 1999)
  • 1989 United Nations Convention on the Rights of the Child (UNCRC)
  • 1980s/1990s Western European countries began to put restrictive policies in place which aimed to ‘combat illegal immigration and abuse of the asylum system’ (UNHCR, 2000:161); sometimes referred to as ‘Fortress Europe’, these included:
    • • ‘Non-arrival’ policies (carrier sanctions, visa requirements, fines for transport companies)
    • • ‘Diversion’ policies (‘safe third countries’ lists created to return asylum seekers to countries of origin)
  • • Increasingly restrictive application of the 1951 Convention
  • • Introduction of'deterrent' measures (detention, denial of social assistance, compulsory dispersal, restricted access to employment and restrictions of family reunification)
  • 1992 Creation of the mandate of the Representative of the UN Secretary-General on Internally Displaced Persons
  • 1993 onwards The notion of safe return introduced in the context of temporary protection regimes in Western Europe (Chimni, 1999)
  • 1996 onwards The doctrine of ‘imposed return’ introduced and acceptance of the reality' of involuntary repatriation meaning that refugees could be sent back to ‘less than optimal conditions in their home country’ against their will (Chimni, 1999)
  • 1996 onwards Increasing use of‘temporary solutions’
  • 1998 Guiding Principles on Internal Displacement devised

Key Thinker Box 7.1 Bhupinder S. Chimni — ‘A View from the South’

Professor Bhupinder S. Chimni has recently' retired from the position of Professor of international law at Jawaharlal Nehru University' in New Delhi. During the course of his career, Professor Chimni served as a member of the Academic Advisory Committee of the Office of the UNHCR and was on the editorial board of several academic journals such as Refugee Survey Quarterly and the Journal of International Law. He has also been a Visiting Professor at the American University of Cairo, Brown and Tokyo Universities and has held Visiting Fellowships within various universities, including Cambridge, Harvard and the Max Planck Institute of Comparative and International Law. Drawn to the work of Marx and the role of class from an early stage in his career, Professor Chimni’s contributions are considered seminal to refugee studies and international law relating to refugees. He has been part of a group of scholars self-identifying as the Third World Approaches to International Law (TWAIL) scholars, established to articulate a critique of contemporary international law and institutions from the perspective of the Global South, and focussing on imperialism, the role of resistance in international law and different legal regimes.

In 1991, Chimni provided a critical perspective of voluntary repatriation — which at that time was being increasingly promoted as the ‘most desirable solution, leaving local settlement and resettlement in that lessor order of priority’ (Ibid., 1991:541). Pointing out that most refugees at that time were in the developing world, and that in a postCold War context, non-European refugees were unwelcome. By 1993, the meaning of words and the role of UNHCR in voluntary repatriation were being explored by Chimni, including words such as ‘facilitation’, ‘promotion’, ‘encouragement’ and ‘safe return’ in contexts of voluntary repatriation and wider contexts of restrictive policies within the developed world. Chimni suggests UNHCR’s involvement in facilitatingvoluntary repatriation might encourage return in times of continuing conflict and warned against the dangers of coerced return, resulting largely from receiving and developed States’ concerns to ‘solve’ problems, back to ‘situations from which they fled in the first place’ (1993:442). The shift to returning refugees to their countries of origin to avoid the international community carrying (or in more recent terms, sharing) the ‘burden’ of refugees is also explored.

Throughout his work, Chimni develops the idea that the global refugee regime was established at the end of WWII and was complicit in the fight against the Soviet Union and its allies, with every refugee fleeing the Soviet bloc essentially voting with their feet against the Soviet Union (see, e.g., Chimni, 2004). The end of the Cold War meant that the initial reasons for the refugee regime also disappeared, with refugees no longer having ideological or geopolitical value. The image of a refugee during that time was a white, male anticommunist — not those living within the ‘third world’. With the loss of the centrally planned economies of the ‘second world’, ‘first world’ capitalist countries’ interventions in the ‘third world’, also referred to as ‘non-aligned countries’, created refugees. The generation of millions of refugees became a reality alongside these ‘first world’ interventions, with refugees from Iraq, Kosovo, Afghanistan, Libya and other countries.

In his seminal 1998 contribution on the geopolitics of refugee studies, from the perspective of the Global South, Chimni outlines how post-1945 policy on refugees has moved from a position of neglect in the ‘third world’, to use as pawns in Cold War politics to containment and reliance on the solution of voluntary repatriation to facilitate such containment policies. In this discussion, Chimni outlines how the absence of burden sharing is reflected in responses to refugees which accept involuntary repatriation as a solution. In a 1999 working paper, Chimni reiterates these points, spelling out distinct phases in the history of ‘durable solutions’ between 1945—1985, 1985—1993, 1993— 1996 and 1996 onwards (see Box 7.1 for an enhanced chronology').

In the 1998 contribution Chimni also critiques the imperialist nature of the ‘refugee studies’ project, observing that its framing has become the domain of scholars in the Global North and with a postcolonial critique largely absent. This argument was taken forward in a 2009 paper that explored how Refugee Studies, or Forced Migration Studies, served the geopolitics of States but that both needed to be viewed against a back-drop of the history and relationships of colonialism and humanitarianism.

In recent work, Chimni has reflected on the contradictions of expanding globalisation against State systems that assert sovereignty and border control, within contexts of economic crisis and xenophobia, leaving political leaders unable to pursue liberal asylum policies. His most recent publications (2012, 2017) continue to argue for a historical perspective to be adopted and for the positive aspects of refugees and migration to be spoken about more frequently.

Key references — Bhupinder S. Chimni

Chimni, B.S. (1991) Perspectives on Voluntary Repatriation: A Critical Note, International Journal of Refugee Law, 3(3), 541-546.

Chimni, B.S. (1993) The Meaning of Words and the Role of UNHCR in Voluntary Repatriation, International Journal of Refugee Law, 5, 443-460.

Chimni, B.S. (1998) The Geopolitics of Refugee Studies: A View from the South, Journal of Refugee Studies, 11 (4), 350-374.

Chimni, B.S. (1999) From Resettlement to Involuntary Repatriation: Towards a Critical History of Durable Solutions to Refugee Problems, New Issues in Refugee Research, Working Paper No.2, UNHCR, Geneva.

Chimni, B.S. (2004) International Institutions Today: An Imperial Global State in the Making, European Journal of International Law, 15, 1-39.

Chimni, B.S. (2009) The Birth of a ‘Discipline’: From Refugee Studies to Forced Migration Studies, Journal of Refugee Studies, 22(1), 11-29.

Chimni, B.S. (2017) International Law and IVorld Order: A Critique of Contemporary Approaches (2nd ed.), Cambridge University Press, Cambridge.

Chimni, B.S. and Malvarappu, S. (Eds.) (2012) International Relations: Essays for the Global South, Pearson, New Delhi.

As can be seen from the chronology and from Chimnis work (see Key Thinker Box 7.1), 20th-century responses to refugees have included moments in time when the international community has worked together to protect refugees and seek durable solutions - notably the CPA and CIKEFCA conferences in 1989 and an earlier 1979 conference in Southeast Asia to address resettlement needs of ‘Indochinese’ refugees and the need for countries of‘first asylum’ in that context. As Nah (2016) outlines, the CPA did not imbue norms of refugee protection across Southeast Asia, with a rejection of protection norms perceived to be in ‘Eurocentric’ and consequently imposing unacceptable burdens on developing states. Both the 1979 conference and 1989 CPA occurred after the Vietnam/ American War and have to be viewed within that context, with past guilt

Policy responses and ethical imperatives 181 informing much of the debates around resettlement options. CIREFA has been considered to be a form of peace process and the search for regional durable solutions following the 1984 Cartagena Declaration in comparison (Kneebone, 2016).

21st-century responses

Moving into the 21st century, this chronology' in relation to refugees and IDPs is continued. However, from 2000 onwards, actions, policies and legislation in relation to human trafficking are included (see Chapter 4), within a shift towards an agenda of securitisation.

Box 7.2 Selective Chronology of Responses to Refugees, IDPs and ‘Victims’ of Human Trafficking in the 21st Century

  • 15 November 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (also known as the Palermo Protocol) adopted at UNGA — supplements the United Nations Convention against Transnational Organized Crime
  • 2002 The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime initiated at a regional conference in Bali, Indonesia, aiming to address practical issues, intelligence sharing and improved cooperation among law enforcement agencies to deter, combat and criminalise smuggling and trafficking networks
  • 2002 The Office of the High Commission for Human Rights adopted the Recommended Principles and Guidelines on Human Rights and Human Trafficking to promote and facilitate the integration of human rights perspectives into national, regional and international anti-trafficking laws, policies and interventions
  • 2003 UNHCR introduced the Framework for Durable Solutions, which aimed to achieve sharing burdens and responsibilities more equitably and redouble the search for durable solutions. Introduced through Development Assistance for Refugees (DAR), Repatriation, Reintegration, Rehabilitation and Reconstruction (4Rs) and Development through Local Integration (DLI)
  • 29 September 2003 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children notice of entry into force (also known as the Palermo Protocol)
  • 28 January 2004 Protocol against the Smuggling of Migrants by Land, Sea and Air adopted at UNGA - supplements the United Nations Convention against Transnational Organized Crime
  • 2004 UN Commission on Human Kights established the mandate of the Special Rapporteur on Trafficking in Persons, especially Women and Children
  • 2005 UNHCR introduced Convention Plus with the aim to improve refugee protection worldwide through multilateral special agreements and to mobilise support and commitments towards refugees
  • 2006 Protocol on the Protection and Assistance to Internally Displaced Persons adopted by Member States of the International Conference on the Great Lakes (also known as the Great Lakes IDP Protocol)
  • 2009 African Convention on Protection and Assistance for Internally Displaced Persons in Africa (also knowm as the Kampala Convention)
  • 19 September 2016 New York Declaration for Refugees and Migrants adopted by 193 UN Member States recognising the need for a comprehensive approach to human mobility and enhanced cooperation at a global level

September 2016 Coinciding with the UN Summit, the Government of Canada, UNHCR and the Open Society' Foundations launched a joint initiative to increase private sponsorship of refugees across the globe. The initiative builds on the resettlement of more than 275,000 private sponsored refugees since the late 1970s in Canada. The initiative had three primary objectives:

  • 1 Contribute to enhanced responsibility-sharing by' expanding the use of private sponsorship as a pathway for refugees in need of protection and solutions
  • 2 Encourage the expansion of resettlement by building the capacity' of states, civil society actors and private citizens to launch private sponsorship programs
  • 3 Provide a vehicle that mobilizes citizens in direct support of refugees and encourages a broader political debate that is supportive of refugee protection

January 2017 Newly elected President of the US, Donald Trump, imposed a four-month suspension of all refugee admissions into the US and indefinitely' banned entry to all Syrian refugees. The executive order placed a temporary' 90-day ban on people from Syrian, Somalia, Iraq, Iran, Libya, Sudan and Yemen.

  • 17 December 2018 Global Compact on Refugees (GCR) affirmed by the UN General Assembly to provide a framework for more predictable and equitable responsibility-sharing and international cooperation to find sustainable solutions to refugee situations that:
    • • Ease pressures on host countries
    • • Enhance refugee self-reliance
  • • Expand access to third-country solutions
  • • Support conditions in countries of origin for return in safety and dignity'
  • 10 December 2018 Global Compact for Safe, Orderly and Regular Migration (GCM) developed and adopted by the majority' of UN Member States as a non-binding agreement to cover all dimensions of international migration in a holistic and comprehensive manner that respects States’ sovereignty

Global responses to refugees since 2000 have involved initiatives from UNHCR such as the 2003 Framework for Durable Solutions, 2005 Convention Plus and more recently involvement in the 2016 New York Declarations and 2018 Global Compact on Refugees (GCR).

However, as Crisp (2016) suggested in response to treatment of Syrian refugees: ‘The Syrian refugee crisis is a symptom of the disorder which currently exists in the international system’ (Crisp, 2016). And:

While European countries are now doing everything in their power to halt the arrival of Syrian and other refugees, it seems highly unlikely that they will be dissuaded from making that journey, however long, difficult, dangerous and expensive it proves to be. In that context, it is important to challenge the conclusion drawn by some European leaders, namely' that human smugglers are a primary cause of the refugee movement across the Aegean and Mediterranean seas. They are not. Smugglers simply' facilitate and profit from people’s desire to move on.

(Crisp, 2016)

Here we can starkly' see the interplay between a lack of responses to refugees and reference to human smugglers which became part of the increasing securitisation agenda from the early' 2000s.

In this same article, Crisp outlines how the refugee regime is ‘now under threat from its founders’. This addresses the ironic situation that the European founders of the 1951 Refugee Convention (see Chapter 2) are now those same States which are erecting fences and walls across Europe, deploying warships in the Aegean and Mediterranean Seas and drawing up deals such as a 6 billion Euro deal for Turkey to be responsible for returning people from Greece and processing them if they arrive in Greece after a 20 March 2016 cut-off date.

In 2014, responses to refugees in Europe also included the EU deciding to end the Italian Navy’s humanitarian search and rescue operation — Mare Nostrum - and replace it with a scaled down version — Operation Triton — which was primarily focussed он border enforcement rather than rescuing individuals from the sea. The end of Mare Nostrum did not, unsurprisingly, deter people from migrating in the first instance, nor did it lead to a drop in departures. It could, however, be linked to an increase in deaths at sea. During 2014, when Mare Nostrum was operational, the death rate was about 1 in 50 people; this rose to 1 in 23 in the first three-and-half months of 2015 (Amnesty International, 2015). Border control, rather than saving the lives of individuals, was reflected in maps showing areas patrolled by both operations and indications of rescues largely taking place.

During 2015 around a million people crossed the border into the EU with both humanitarian and medical needs largely left unmet. As outlined by the civil society organisation, Medecins Sans Frontieres (MSF), 2015 would be: ‘remembered as the year in which Europe catastrophically failed in its responsibility to respond to the urgent needs of assistance and protection of hundreds of thousands of vulnerable people’ (MSF, 2016). Increasing deterrence and anti-immigration policies across Europe did however create an upsurge of solidarity from ordinary citizens, with civil society and volunteers providing services to people in places and spaces neglected by governments.

During the summer of 2015, parallel narratives played out in the media of refugees in boats in the Aegean, Mediterranean and Andaman Seas. In 2015 alone, more than one million people were estimated to have crossed the Mediterranean Sea to European countries seeking refuge, with thousands dying en route (Crawley et al., 2018; ЮМ, 2016). Tens of thousands who made it to the ‘safe haven’ of Europe were left facing fear of daily violence (Human Rights Watch, 2016a) with their rights and freedoms severely curtailed (Human Rights Watch, 2016b). This ‘refugee crisis’in Europe took the centre stage in media and policy discourses taking material shape in new border fences and translating into increasing negative attitudes among European citizens towards non-European immigration.

Policies enacted from 2015 onwards in Europe displayed an increasingly curious range of tactics to deter people from trying to reach particular countries. For example, the Danish government placed advertisements in Lebanese newspapers telling Syrians not to come to Denmark. These advertisement detailed changes to Denmark’s asylum laws that would make it a less desirable place for refugees. Denmark also created a law to seize valuables such as jewellery and cash from refugees arriving into the country. Switzerland warned refugees that they would have to hand over any property worth more than 1,000 Swiss francs (c.$980). Some states in southern Germany started seizing from refugees assets worth more than 750 Euros (c.$812). The Slovakian government said that it would refuse entry to Muslim refugees, announcing that it would take in only Christians. The Danish city of Randers made it mandatory for public institutions, including cafeterias in kindergartens and day-care centres, to have pork dishes on their menus with the idea that this might maintain a Danish identity. A number of countries began giving sexual education and etiquette classes to refugees following often unfounded reports of sexual assaults. Perhaps most bizarrely, Norway forced some refugees to cycle across the border to Russia

Policy responses and ethical imperatives 185 in the dead of winter after a number of refugees used a legal loophole to enter Norway on a bike; the Norwegian government deported them back to Russia. In some cases, the refugees cycled back into the Arctic north of Russia. This ‘Arctic route’ has since been reviewed by Norway.

The momentum for development of the Global Compact on Refugees (GCR) and the Global Compact for Safe, Orderly and Regular Migration (GCM) was in response to the arrival of asylum seekers in Europe in 2015 with other, longer-standing issues of concern included in discussions (Ferris and Martin, 2019). This non-binding and ‘aspirational’ Compact now offers ‘the first widely accepted, new, normative frameworks on the movement of people since the ratification of the 1951 Refugee Convention and its 1967 Protocol’ (Ferris and Martin, 2019).

Beyond Europe, the response to Rohingya refugees crossing the into Bangladesh having been displaced from Myanmar is explored in the next and final chapter.

Outcomes from the development of the non-binding GCR and GCM remain to be seen. Ferris and Martin (2019) suggest that the lack of a clear line between voluntary and forced migration will create future difficulties and that two, rather than one, Compacts on global mobility will set in stone the distinctions between refugees and other migrants in terms of legislative and policy responses. With mixed migration characterising the movement of people, coordination between agencies involved is not well established in these Compacts. They go on to explain that within the current anti-migration environment, precarious and dangerous journeys undertaken that result in abuse and violence cannot be considered together as human rights abuses within a framework that has specific actions to address protection for refugees and migrants separately. They also suggest that IDPs, for example, are not best served in this framework: ‘An even more glaring omission in the global compacts is the fact that internal migrants and internally displaced persons (IDPs) are virtually ignored in the two global compacts. . . . The GCM does not mention internal migrants’ (Ferris and Martin, 2019:15).

Regional actions for internally displaced persons within Africa have included the 2006 Great Lakes IDP Protocol and the 2009 Kampala Convention. What happens next in terms of addressing the gap for IDPs globally remains to be seen.

Quite where people who have experienced human trafficking sit within these Compacts is also unclear as there is a largely unexplored interface between seeking asylum and human trafficking. However, under the GCM, Objective 7 — to address and reduce vulnerabilities in migration - has seen a shift from previous language on ‘vulnerable migrants’ to ‘migrants who face situations of vulnerability’ in the final drafting of this objective. This objective also details how these situations of vulnerability may arise from circumstances during travel or conditions in countries of origin, transit and destination. Objective 10 details actions to prevent, combat and eradicate trafficking in persons in the context of international migration.

Since the introduction of the 2000 Palermo Protocol two decades ago, much has been learned about the forms and different facets of human trafficking, particularly how a shift from a criminal justice to a human rights and social justice approach is necessary (UN Special Rapporteur address, 2020). This Protocol now has now been adopted by 176 States with the aim of preventing and combating human trafficking, with most States criminalising trafficking in national laws. There is now a move towards addressing the gaps - particularly around human rights - within the human trafficking agenda to the extent of creating a new international instrument to address the human rights of people who experience trafficking.

Key Concept 7.1 Deterrence Policies

Deterrence, as it relates to asylum seekers and refugees, refers to policies that attempt to discourage future arrivals by imposing difficult living conditions and a lack of opportunities for rebuilding lives within a country of asylum. As outlined within the chronology in Box 7.1, from the 1980s, Western European countries began putting restrictive policies in place which were sometimes referred to as ‘Fortress Europe’. These included non-arrival and diversion policies, an increasingly restrictive interpretation of the 1951 Refugee Convention and specific deterrence measures such as increasing use of detention, policies creating destitution through denial of social assistance, compulsory dispersal and deportation (UNHCR, 2000:161). Restricted access to employment, family reunification and health services have also become common measures used to make seeking sanctuary from persecution less appealing. As outlined in the next and final chapter, asylum seekers now face the closure of borders across Europe; increasingly dangerous sea crossings to Italy, Greece and other countries; inhumane reception conditions in a number of countries and complex asylum, social care and criminal justice processes.

Such deterrence measures have been enacted across the globe. In the early 1990s, Australia responded to the arrival of asylum seekers with mandatory detention policies which aimed to deter subsequent arrivals. In 2001 Australia reacted to arrivals of asylum seekers by boat by introducing what became known as the ‘Pacific Solution’. The aim was to deter asylum seekers making the dangerous journey by boat, and this was operationalised by removing those intercepted to third countries for processing. This involved asylum seekers being intercepted or moved by boat by the Australian Navy and transferred to offshore processing centres on Nauru and Manus Islands in Papua New Guinea, operated by IOM. Whilst detained, access to legal advice was denied and lengthy processing times were largely left unchecked. By the time this scheme was dismantled in 2008, a total of 1,637 people had been detained. Following a brief period where a more liberal asylum policy was adopted, offshore processing for asylum seekers was reintroduced; by 2013 the Manus Island processing centre was enlarged, and Nauru processing centre reopened.

Writing from Manus Island, Kurdish journalist Behrouz Boochani’s account of seeking asylum in Australia and being sent and detained on Manus Island from 2013 is now available as a book — No Friend but the Mountains: The True Story of an Illegally Imprisoned Refugee. Boochani spent nearly five years typing passages of this book, one text at a time, from a secret mobile phone whilst detained. Manus Island Regional Processing Centre was declared illegal by Papua New Guinea in 2016 and closed in October 2017.

As Welch and Schuster (2005) outline, detention of asylum seekers in the USA takes place in a way that is ‘quietly concealed by government officials’ as opposed to the ‘public and loud’ voices against detention in the UK (2005:398). They suggest that unnecessary detention of asylum seekers in a post-9/11 USA relates to prevailing trends in imprisonment and policies seen to be ‘tough on crime’ (2005:403). Currently in the USA, deterrence policies include those that Amnesty International considers to be aimed at the full dismantling of the US asylum system (Amnesty International, 2018). These policies and practices include pushbacks of asylum seekers at the US-Mexico border; well publicised family separations, including the separation of children from their parents; and, increasingly arbitrary and indefinite detention of asylum seekers (Ibid., 2018).

Pushing asylum seekers back into countries of origin at borders is a long-held practice in many nations. When pushbacks happen, the principle of non-refoulemettt is compromised. UNHCR has been detailing pushbacks within Southeast Asia since at least 1984, when people were pushed back into Laos from Thailand in eight separate occasions, and in 1988, when a boat with nationals from Vietnam was pushed back into international waters (Courtland Robinson, 1998:116, 182). Burmese refugees have been frequently pushed back into Myanmar following the end of the political ‘buffer’ and demise of the Karen National Union, which opposed the central Burmese military government along the Thailand-Burma border in the late 1990s. This is something that continues today.

Whilst there is often a common-sense perception that there is a relationship between deterrence measures and numbers of new arrivals, there is little evidence that this is actually the case. Deterrence policies developed over the past few decades have, however, increased the demand for and reliance on ‘smuggling’ networks, pushing people towards increasingly more precarious and dangerous routes, which can create exploitative conditions fitting definitions of human trafficking.

 
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