Six Markers of the Postcolonial Destiny of the Refugee Convention of 1951

 

The Refugee Convention of 1951 has reached its seventieth year at a time when the rights of refugees are being increasingly eroded. The system of identifying and validating asylum seekers is in shambles. Indeed the jeopardy is to an extent where the system actually works against the refugees and asylum seekers both while fleeing and arriving in the host country. Law seems to work overnight to defeat its own purpose. Both globally and nationally screws in the legal machine are being tightened so that people become unable to make use of their rights under the Refugee Convention. The idea is clear: Refugees are a problem, they are not welcome. Even though, we should remember that refugee labour and ‘illegal’ migrant labour form an important part of the global neoliberal economy.

But then the Refugee Convention is innocent of economics. It is supposedly all about humanitarianism, protection, and care. It is uneasy about rights and the fundamental material reality, in other words economic reality, in which the humanitarian ethos can or cannot sustain. In this sense the Convention is a perfect liberal document, which sees no evil, hears no evil. The Convention thinks that humanitarianism with help from international law can protect the shelter seeking people. It will save people from the horrors of war and violence.

Yet the postcolonial destiny of the Convention of 1951 has its lengthening shadow over the life of the latter. The postcolonial destiny is the bind from which the life of the Convention cannot be extricated. We can mention six markers of such destiny.

(a) For one, the word “war” as the prime example of violence is almost missing in this noble document except in odd references dealing with particular country situations or the Second World War. The document strangely did not realize that colonial wars and their legacies like the border wars of our time would keep on reproducing the uprooted millions through the decades. Take for instance the war fields of West Asia. What is now happening there is a rush back of a history that goes back to the understanding between the European great powers during the First World War to divide the colonies and govern the post-war colonial world. The post-colonial region of West Asia and the Maghreb is now obviously reshaping. Make no mistake: a huge historical shift is now taking place, one that involves the history of exactly last one hundred and five years beginning in 1916 with Sykes-Picot accord. From the eastern war fields that spread from Afghanistan to the north of Iraq and Syria to the southern underbelly of the continent a giant wave is rolling across towards Europe.

(b) In this situation, border as an institution has become the most important instrument to manage population mobility.  The institution of “border” has laid the best of dreams to waste. Think of what is known now as the strengthening of the external borders of a region or a country like the EU or the United States. This strengthening of the so-called external borders is in inverse ratio to the standard of compliance to ethical norms of protection. Institutions meant to protect the rights of the refugees have turned upside down from within. The strengthening of institutions signals a weakening of the norms of protection. Take the instance of camps. Camp is an institution intended to protect the refugees. Yet, camps are an instance of the external borders, they are sought to be conveniently located outside the country or the region where asylum is sought, or on the seas, as in the infamous Pacific solution, the off shore places of detention. Governments of countries through which the refugees and migrants will pass to reach their countries of destination are paid (read bribes) by the latter millions of dollars or euros so that the asylum seeking people are stayed away. Camps become places of torture, enforced disappearances, sweat labour, forcible return, and deaths. These places of confinement are in reality the instances of border and boundary making exercises, which draw heavily from colonial practices. Border and boundary making exercises have produced consequences for protection policies that a liberal document hardly anticipated. This is of course strange as wars and borders should have been the first points of concern in any collective exercise of humanitarian responsibility. They make individual determination of asylum status impossible.

(c) One reason why the Convention failed in anticipating the challenge of the time was its obsession with producing categories. Shelter, asylum, refugee, non-refoulement, return, voluntary return, forcible return, protracted displacement, , camp, relief, resettlement, rehabilitation, country of transit, country of destination, first country of arrival, ‘illegal’ immigrant, undocumented refugees and asylum seekers, migrant, irregular migrant – the profusion of categories does not end. Yet this very profusion indicates a reality that escapes neat categorization. We speak here of massive and mixed population flows of footloose population groups in search of security, dignity, work, and livelihood. Even the term “massive and mixed population flows” sprang from postcolonial reality, which the UNHCR later admitted in its vocabulary. But the right lesson has not been drawn. Ask yourself, on the rickety boats on the Mediterranean who is an ‘illegal’ migrant, who a refugee, who an asylum seeker, who a migrant worker, or a Sudanese or a Congolese, or an escapee from a detention camp in Libya, or an Ethiopian escapee of violence? The sea is the perfect place to lose identities – the route to becoming stateless. If the identity of a displaced national was subsumed under the category of refugee, today the identity of the refugee is drowned in the massive flows of the victims of forced migration. The Convention (Article 3) wanted to enjoin upon the contracting parties the principle of non-discrimination in protection. While in reality the principles of protection are now based on the fault lines of race, caste, gender, and religion, there is an ironic twist to the situation. Races, castes, men, women, children, and all possible religious groups are now moving in desperate search for safety. Insecurity haunts all and everyone – without discrimination

(d) If this were not enough, today’s massive phenomenon of ecological marginality reminds us of the El Nino famines of the late nineteenth century that caused the late Victorian holocausts. Historian Mike Davis has suggested, that is how the third world was made. Peasant communities the world over dropped out of the food grains market, succumbed to economic insecurity, and perished in famines. The historical continuity of the colonial plantation system, land degradation, energy consuming gigantic defence and logistical industries, floods and droughts, and the domination of extractive industries have produced ecologically marginal population groups, even though the flashy climate conferences would like us to believe that the danger is equal on everybody. “Climate refugee” is a term that indicates a reality we cannot ignore even when we cannot legally specify the category.

(e) All these are not to say that today’s situation was predictable in 1951. But clearly the framers of the Convention were sharing a liberal disbelief of the power of the colonial past. As if the Second World War had cleaned the world, and a new world could be built on that victory. Not only with the end of WWII began the age of decolonization, the end of the WWII also demanded that the past be investigated rigorously towards imagining a different future marked by the virtues of care and protection. As time passed, the world looked suspiciously like what it was in the late half of the nineteenth century – an age that was marked by expansion of imperial infrastructure, border wars, great games, maritime expansion, colonial labour deployed in plantation industries, eviction from land and peasant dispossession, and the El Nino famines. History stands like a grand jury over our quest for a kinder world.

(f) Yet the Convention has survived. More than the countries of the North who can give it a go by and hardly abides by it (as demonstrated by the European response to the so-called migration crisis of 2015, or Australia’s response to the sea-borne asylum seekers, or the way the US has blocked off the shelter seeking people trying to enter the country from its south), the countries of the South have time and again gone back to the Convention, have practiced protection policies that should be of the envy of the North, and have enriched it. Regional conventions including regional and bilateral arrangements of free movements of people and local jurisprudence have been the early signs of legal pluralism in the international arena. The Convention of 1951 did not envisage this, yet these local sites of evolving norms of protection have kept the ideal of protection and care alive. The Geneva Convention has become the signifier of the virtues of a kinder world yet to arrive even as it fails to protect millions of uprooted in the world.

Perhaps this is how the Convention will lead its life here on. Not as a material legal reality suggesting an overarching infrastructure of global protection, but as a spirit – immaterial but active as a sign.

 

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