I, We or All: A Review Essay on Refugees – Part III of V: Convention and Humanitarian Refugees

If one reads Molloy’s book co-authored with Peter Duschinsky, Kurt F. Jensen and Robert J. Shalka, one might be convinced that national laws are the source of rights and obligations and not the other way around; laws protecting refugees are not rooted in universal rights even when states offer that justification. Even in the case of Convention refugees, the latter are only protected as a matter of right if a state subscribes to the international norm and makes it integral to its own laws as Molloy documents. Why then do nation-states accept the responsibility for accepting refugees who have landed on their doorstep and can prove that they have been persecuted? More significantly, why do states subscribe to and recognize a norm, allegedly based on fundamental human rights that purportedly inheres in the individual, even when that international norm had not been integrated into the laws of a state? Neither Miliband nor Molloy even attempt to answer that question.

Molloy does offer a clue. In the section on “The Convention Refugee Cornerstone” (64-65), he describes why Canadian officials decided to make the Convention Refugee Seeking Resettlement Class the key frame for protecting and offering resettlement to refugees. That class was to be defined as those individuals who met the Convention definition but did not have a settlement option or durable solution. In other words, they were purportedly Convention refugees who could neither be repatriated to the country from which they had fled nor settled within the country where they initially found refuge. However, as the criteria for acceptance were filled, it became obvious that the vast majority of those fleeing Vietnam, Cambodia and Laos were not Convention refugees in any normal sense.

First, they never had to prove that they had a well-founded fear of persecution. Second, the class was defined collectively in terms of the ethnicity of the group fleeing war and violence rather than persecution – Syrians, Rohingya, Vietnamese (rather than Sino-Vietnamese who were persecuted). Thirdly, if they truly had a right to be protected, why did Canada add the requirement that the immigration officer making the determination use the criterion that, “they could become successfully established in Canada.” If they had a right to Canadian protection, the prospect of successful economic and social integration is irrelevant.

Fourth, those who met the Convention definition but were not on Canadian territory did not have the right to Canadian protection. That right kicked in when they hit the Canadian frontier or landed at a Canadian airport. Canada did not project that right abroad. If the intention of officials and legislators was to define a class for those who met the definition and could be targeted for resettlement, as long as they had not found a solution in another country, why were the immigration officers not provided with specific criteria to ensure that refugee applicants accepted abroad were Convention refugees?  Molloy insists that officers were instructed to search for refugees who met the definition and would not become dependent on the public purse were accepted.

Given the rate of acceptance, given the time taken to interview the refugees, there was no way in which an officer could determine with any degree of probability that the applicant was a Convention refugee. The decision formally, and by legislative definition, said they were Convention refugees, but practice made clear that this was a formal justification rather than a substantive one, a cover for accepting refugees for resettlement into Canada whether or not Canadian immigration officers, or anyone else, could justify that they were Convention refugees. Formal requirements are one thing; substantive requirements are another. Conferring an authority to someone to determine who was a Convention refugee and giving that “refugee” the same effective protection as if they were determined to be a Convention refugee, did not make them Convention refugees except in a purely formal sense. As I interpret what took place, the legislative reference to the Convention was merely a cover.

Officials in Canada wanted to offer groups protection through resettlement in Canada. They had been doing so since the Hungarian refugee movement of 1956-7. The process continued with Czechs, Ugandan Asians and Chileans through ad hoc practices. Officials wanted to formalize in law what Canada was already doing. This was hardly an effort to root refugee protection in universal rights.

Canada had ratified the Convention and Protocol in 1969. In 1970, Canada legislated the framework for implementation. That would have sufficed to ensure Canada conformed to its international institutional obligations. The Convention says nothing about resettlement. Including that provision went far beyond anything required by the Convention. Cabinet agreed to use the Convention to identify people for resettlement from abroad no longer confined to Europe. An “oppressed minority policy” enabled cabinet to direct its officials to select oppressed people who were not Convention refugees because they were still in their own country. In reality, the oppressed minority policy proved to be a very handy tool used extensively in Uganda, Chile and Argentina. The 1976 act formally offered the possibility of using the designated class for the oppressed and persecuted under the cover of the Convention definition, even when the refugee was not even outside his or her own country. Hence, a Latin American designated class, later renamed the political prisoners and oppressed persons designated class.

Similarly, the cover of the Convention was used to include Jews fleeing the Soviet Union who wanted to migrate but were neither outside their own country nor could prove they were individually targeted for persecution. After all, no Soviet citizen had the right to emigrate. In any case, these “refugees” hated being designated as refugees. Raph Girard, the Canadian immigration officer in charge in Rome managing the flow of these “refugees,” invented the designated class regulation to facilitate the selection and processing of Eastern European escapees that the officers encountered rather than what the Convention defined a refugee to be. The self-exiled designated class focused, not on persecution, but on the reality that the Soviets and their allies stripped such people of their citizenship, making them conform to what Hannah Arendt called humans without rights rather than Convention refugees. Formally in law and by regulation, all the other parts of the legislation that conferred   practical benefits on Convention refugees were extended to the designated class.

In early 1978, Canadian immigration mandarins, long before the public and the media were interested in and taken up by the plight of the Indochinese refugees, began working on the use of the designated class to apply to the Indochinese since Canadian officials recognized that the people escaping in boats were going to have to be resettled expeditiously, regardless of their motivation for running away. Speed of determination would be essential otherwise first countries of “asylum” would not permit them to land. With only 45 minutes at most to determine whether anyone was a Convention refugee, officials recognized that, given the large resettlement operation anticipated, which turned out to be even larger than expected, there was no time to consider whether the individual had a well-founded fear of persecution. Instead, they were simply given the same settlement package as Convention refugees as if they were actually determined to be Convention refugees. Officials rarely looked at these refugees through a “protection” lens but rather through a commitment to a practical solution.

What about the second reason Miliband offered for giving what came to be called the Designated Class, namely that empathy and compassion were built into our DNA, if even in only a metaphorical sense? That is more readily dismissed as a fiction. That would make the xenophobic supporters of Trump in America, Viktor Orbán in Hungary, not to count those who voted for Brexit in Great Britain and who supported Marine Le Pen’s Front National in France, or Geert Wilders’s party in the Netherlands, members of a different species with a fundamentally different nature or DNA. Even in Canada with the overwhelming effort of the private sponsorship program, there were only 7,600 sponsorships of the 32,281 privately sponsored Indochinese refugees who arrived in Canada in 1979-80. Though viewed as extremely large at the time and since, even if the size of each sponsorship group was calculated on the basis of ten Canadian members rather than the minimum of five, that would mean that only 76,000 Canadians were involved in the direct sponsorship of refugees, approximately .3% of the population at the time.

Even when we look at the numbers who supported the decision to admit Indochinese refugees in 1979 (Molloy 155-6), they do not indicate that most Canadians supported the government initiatives:

Month Commitment Too High Too Low Just Right
February 5,000 52% 7% 37%
July 50,000 38% 13% 49%
Aug.-Oct. 50,000 52% 11% 37%

Only when media and elite support was at its peak in July of 1979 did a majority support the intake of the refugees. More commonly, a majority almost consistently thought the figure was too high, even when it totaled only 5,000. If empathy and compassion are built into our DNA, then those who share that trait as a dominant gene number under 1%. 48% may have the DNA as a recessive gene. About 52% seem to lack that gene altogether.
The support for the intake of a designated class of refugees, in this case, the Indochinese, was never really rooted in universal rights or in our biology. Even those who helped Miliband’s family escape Nazi Europe never claimed a universal moral precept for their actions. Not “everyone” must, but “on doit” (Miliband 46), one must, or, as those interviewed in 1979-80 indicated, they personally had to act. The compulsion was inner, not an external universal obligation or duty and not because all had to act.

Even Christians who sponsored refugees, such as the Mennonite Central Committee which led the pack of Christian organizations in signing Master Agreements that guaranteed the private sponsorships of their members, did not cite even their Christian beliefs as the prime motive for sponsoring refugees. As Bill Janzen explained (Molloy 78), they were motivated by the following factors, possibly in their order of importance: 1) they themselves had been refugees; 2) they had successfully partnered with the Canadian government previously; 3) their church ethos dictated acting for good in society; 4) they had extensive experience in working with Vietnamese overseas; 5) they lacked a cynical belief – held by many on the left – that the matching formula was a ploy to dump government responsibilities onto the private sector; 6) there was also an absence of a skeptical belief – again from the left – that government favoured taking in refugees from Communist countries rather than those fleeing a right-wing dictatorship. This strongly suggests that experience rather than universal norms served as the main propellant behind the initiative to sponsor.

To be continued…


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