[Editor’s note: The below is a rejoinder to ‘Humane mobility: A manifesto for change,’ a recent statement calling for “a deep reimagining of migration” signed by over 100 academics and civil society activists in response to the new UN Migration Compact published on 12 July. What follows is the text our author would have preferred to see.]
We refuse the state-centric authoritarian and often violent ‘sovereignty and borders’ approach to migration policy. Instead, we insist on a human-centred approach to policy, based on openness, respectful listening and responsibility to the objective realities of the actual lives of the people most affected.
We refuse the use of reductionistic categories for people that are shaped in ways apparently designed to erase or minimise our responsibilities to them. We accept that we inescapably are ethically responsible to each other as human beings. People are always more important than administrative procedures; procedures and borders should be used to more effectively implement rights, not used selectively to obstruct and deny human rights.
We refuse the externalization of responsibilities and the normalization of extraterritorial refoulement by violent border externalization policies. All legal technicalities aside, we believe morally that human beings should be free to approach the borders of our societies’ territories and ask for our protection when they need it, and we expect our democratic states to efficiently organize the required actions according to our values.
That is already the basic position in international law, but states now are systematically violating and undermining the non-refoulement principle, mainly by commissioning extraterritorial refoulement services by third-party states or regimes, and pretending that this outsourcing of illegal activities makes it legal for them; it does not. Externalization policies necessarily involve “effective authority or control” (UNHCR, 2007) in commissioning acts of refoulement extraterritorially, and thus are fundamentally incompatible with international law.
Another systematic abuse is the dishonest misapplication of admissibility procedures based on the presumption that a country is generally a so-called “safe third country” when that is contrary to all the credible evidence available. Deeming a “safe third country” to exist in contradiction of the evidence (1,2,3) is an act of arbitrary power, which at the same time as committing direct injustices also establishes that operating norm of power as unconstrained by facts and laws, which is systemically extremely dangerous.
The sharp division between “economic migration” and “forced migration” in current law and political practice is artificial and somewhat arbitrary. Economically forced migration is really also forced migration. States parties to the CESCR 1966 have international legal treaty obligations to ensure that their citizens’ economic rights are met inasmuch as the states’ resources allow. Failing to do so in terms of Art.2.1 CESCR 1966 is a human rights violation. Systematically failing to allocate the state’s resources in terms of the CESCR and in persistently discriminatory patterns can effectively be political persecution; failing in that manner, also in an indiscriminate way, can cause serious harm equivalent in severity and scale to the indiscriminate serious harms in violent conflict situations. Yet the latter is covered by international law as grounds for international protection while the former is not. That is arbitrary and irrational, and thus not fit to stand as law.
Clearly, many putative ‘states’ or regimes around the world now are not even plausibly trying at their duties defined by Art.2.1 CESCR 1966. Many so-called ‘states’ now are manifestly kleptocratic despotisms, but our current international political practice is to preferentially attribute legitimacy and statehood to regimes, according to our governments’ and their affiliated big business interests’ economic utility and political convenience, rather than with respect to the rights and freedoms of the people of whom those regimes claim to be representative. That is unacceptable and intolerable.
Attribution of legitimacy to any regime should be strictly contingent on prior, positive justification of a regime’s claims to representativeness, popular consent, and its practical degree of respect for universal and inalienable human rights, before it is ever treated in international politics and law as a representative state. We absolutely reject the notion that a regime which holds the monopoly of violence within the territory it claims should be treated as a ‘representative state’ in international relations. The choice of different conceptions of sovereignty is a highly abstract topic, but the practical consequences of getting this wrong are severe and longstanding.
We believe that to restore and maintain international human rights and humanitarian laws in practice, and stop the backsliding and degeneration, we need to make a clear decision for the popular sovereignty principle and then apply it consistently throughout law and policy from now on. We must stop attributing legitimacy to regimes which have not positively proved they have earned it from the people they claim to represent and act for. We must stop doing business with tyrants. In the longer-term, it always ends up more expensive for everyone than doing business honestly and justly.
Concretely, international contract law should be harmonized up to best practice standards and across business corporate-corporate and business corporate-‘state’ parties, so that decent legal standards of fair contracts apply equally at international level as at national level and between business corporate entities and putative ‘states,’ including the principle of authorized representative signatories, so that abusive contracts and odious debts become financially unsustainable propositions, and ultimately so that kleptocracies become fully exposed economically to their subject populations’ interests.
The externalized social costs of doing business with tyrants include high inward migration of low-skilled and/or highly traumatised people, which is of course most costly for the people directly affected, and also costly for the receiving societies. Externalization and containment policies cannot work adequately, because they do not address the root causes. Injustices are the root cause of conflicts, and violent conflicts are the main cause of mass migration. If we want sustainably and justly lower migration rates, we need to work on international justice, not on increasing violent border policies. Doubling down harder on merely containing ‘the problem’ of refugees, which is not in fact the real and larger issue, is not a rational response.
Making lucrative deals with kleptocratic and despotic regimes to violently contain refugees and IDPs and stop them leaving places where they are suffering persecution or indiscriminate serious harm is not only illegal, in the longer-term it is also likely to be highly counterproductive. Supporting those regimes and other third-party agents (some of the so-called “Libyan coastguard” are the same people as the trafficking gangs, but now with more EU-supplied ships, money and weapons
Antagonistically competing with the pressures to leave by increasing the violent pressures not to leave or to force people back—while there’s naturally a positive feedback between those activities and the motivations to leave—is not only unjust, but also intrinsically very inefficient. Looking at it as a system, it’s inherently likely that the costs of that strategy will rise exponentially.
We also need a new public dialogue on humanitarian intervention in massive violent conflicts, such as Syria. Because we have done nothing relevant, adequate, or timely for Syria, it is almost certain that we will face another violent conflict of that scale and severity again soon. Current public discourse on this is mostly at the level of slogans and rival echo chambers. It is inherently an extremely complicated topic, and the risk-balancing decisions involved will probably never be perfect, but failing to act is also a choice and, as we have seen with Syria, inaction can have even more severe and far-reaching consequences than imperfect choices to act and how to act. Better starting points for improving the public discourse would be the Human Rights Watch and International Commission on Intervention and State Sovereignty reports.
“The new name for peace is justice,” Karol Wojtyla said. If you want more peace and consequently less forced migration, do more justice, not less. Don’t double-down ever-harder on more unjust deals with despots, and commission even more border violence, expecting it to result in long-term, sustainably reduced inward forced migration figures. The reality is that the EU’s current policies fall short of even their own ethically-limited aims.
