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…

Part II of V: I, We or All: A Review Essay on Refugees – Xenophobia, Idealism and Pragmatic

Running on Empty: Canada and the Indochinese Refugees, 19, Peter Duschinsky, Kurt F. Jensen and Robert J. Shalka 75-1980, 

Michael J. Molloy, Peter Duschinsky, Kurt F. Jensen and Robert J. Shalka, Montreal & Kingston: McGill-Queen’s University Press, 2017.

 

Humanitarianism

In 1807, the German philosopher Johann-Gottlieb Fichte addressed the German nation in Berlin that was then occupied by the French. For him, and for many others, the state is the expression of and the instrument for reifying and protecting the values of the nation, of the “people”. However, as Tillich wrote in The Courage to Be, “There is a moment in which the self-affirmation of the average man becomes neurotic ….  If this happens—and it often happens in critical periods of history—the self-affirmation becomes pathological. The dangers connected with the change, the unknown character of the things to come, the darkness of the future make the average man a fanatical defender of the established order. He defends it as compulsively as the neurotic defends the castle of his imaginary world…This is the explanation of the mass neuroses which usually appear at the end of an era.” (69-70)

Whether it was Fichte in Germany, the historian Lionel Groulx or the National Citizens Coalition in Canada during the Indochinese Refugee Movement, or Donald Trump and his followers today, these are the enemies of both Miliband and Molloy. But the two authors view the problem from very different perspectives. Miliband focuses on the mind-set of governments and citizens who share in a globalized vision of global rules upheld by global norms and funded by global humanitarian efforts. Molloy documents a bottom-up enterprise in one nation, Canada, in which civil servants formed the fulcrum between political leaders and citizen activists; hearts and minds combined and were prompted by and fed into a unique Canadian political ethos.

Miliband wrote that it is easy for the government, caught up in developing and implementing policy “to allow the story of its purpose and values to be lost.” Molloy has documented how those purposes and values were expressed in the very fact and the manner in which policy was developed and implemented. The irony, however, is that Miliband considers that he was better at government than politics whereas his “approach was to rally people affected by the issues around big goals,” a political rather than a governing function. Molloy writes primarily about the detailed functioning of government in dealing with a refugee crisis in order to achieve big goals.

Thus, though united in their opposition and in their support for refugees, they differ quite radically in the value assumptions underlying both their activities and their analyses. Miliband argues that welcoming vulnerable and vetted refugees is about rights and is about doing what is right, is about defining a national character as well as serving national interests (65-66). Molloy’s depiction suggests it is a much more mundane task of preparing the legislative and regulatory framework, developing the professionalism and élan among staff, and working in tandem with civil society and the media. National character is not so much a prerequisite of such action but what is developed from that action. The treatment of refugees is not a weather vane of values (Miliband 115) but a mode which allows for expression and expansion of one set of values.

“This is a fight for international cooperation over unilateral grandstanding, for the benefits of pluralism over the tyranny of groupthink, and for the enduring importance of universal values over the slicing and dicing of populations and religions in a fake and faulty clash of civilizations. It is a fight for values, insights and institutions that imperfectly uphold the best of human nature in the face of the impulses and arguments that humour the worst.” (Miliband 119) Though Molloy too endorses pluralism, ethnic diversity and multiculturalism, his emphasis is on good governance to hold it all together.

David Petrasek in a 2 February 2018 article, “Liberals’ Vague ‘Values’ Talk Undermines Rights Promotion,” puts the difference in stark relief as he allies with Miliband and rakes the current Trudeau government over the coals. The issue is not over the universality of human rights, but over the grounding and defence of policies in support of human rights. Do we do so because it is the decent thing to do, an expression of virtue, because of international laws and instruments that make rights binding on all states, and the utility of rights in preventing armed conflict, supporting democracy and good governance? Molloy would not dispute any of these claims, simply their relevance in tackling the bulk of the refugee problem. That required rooting the response in terms of expressing a specific set of Canadian values that both Conservative and Liberal governments in Canada at the time believed in.

As Molloy noted in his volume co-authored with Peter Duschinsky, Kurt F. Jensen and Robert J. Shalka, in 1937 Prime Minister Mackenzie King insisted on rejecting Jewish refugees because of “the unchanging, fixed nature of a Canada based on British values.” (449) Molloy, and Prime Minister Trudeau currently, based their positive response to refugees on developing rather than reifying Canadian values.

As Canada’s current Foreign Minister, Chrystia Freeland, opined, Canada should promote its values – diversity, pluralism, multiculturalism, the rule of law – but not impose those values, not insist that the values must be adopted by all states. Witnessing was the order of the day, not insisting that everyone act on the basis of a universal set of principles or rights. This is the central difference between Miliband and Molloy. The latter also includes positioning Canada on the world stage while acknowledging the crucial role of the media and an involved citizenry.

“Look after the most vulnerable, by upholding their rights, and you don’t just help them, you set a benchmark for the way shared problems are tackled. You establish mutual responsibility as a founding principle of international relations. And you set the stage for tackling other problems, from climate change to health risks.” (Miliband 119) The reality, however, is that if Canada had based its intake of refugees on the basis of refugee rights established in the Refugee Convention, the country would only have been able to admit a very small fraction of the large number that it did admit.

For Miliband, the most important lesson he obtained from government service was the need and importance of being self-critical, of standing outside “your own mind-set and recognize its flaws as well as strengths.” This cognitive exercise is indeed crucial. Miliband notes that Canada stood second to the United States in the most refugees resettled the previous year – 47,000. President Trump cut by more than half the Obama administration’s FY 2017 admissions ceiling from 110,000 to 50,000. Trump also suspended all refugee admissions for 120 days, and limited admissions of refugees from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. The administration set the refugee ceiling at its lowest level ever – 45,000 for FY 2018; only 53,716 were resettled in 2017 compared to 84,994 in 2016; only 37% were principals. Of those 53,716, almost two-thirds were spouses and dependent children brought over through sponsorship rather than through the family reunification program.

In other words, Canada with only 10% of the population of the U.S. and an even smaller percentage of its GDP, now admits almost as many refugees as the U.S. Miliband refers to the unique Canadian private sponsorship program that makes Canada such an outstanding leader in refugee settlement, but does not examine that model or attempt to learn whether lessons learned could be applicable elsewhere. Perhaps it is not enough to look inside oneself; it may be even more important to examine in detail the experience of high-performing countries.

Miliband asks why we should help refugees. This is a very different question than why we do or how we can help refugees. Miliband answers, as many have before him, we are enjoined (by the Bible, the Qur’an, etc.) to love the stranger and help avoid the globalization of indifference. He quotes Rabbi Jonathan Sack’s injunction to identify as strangers, as if the two obligations to love and to identify with, were the same. But one injunction says that we love because we regard the other as ourselves. The other, also echoed in the Qur’an, says that we help the strangers because we regard or have experienced ourselves as strangers.

Is this a distinction without a difference? It is not. There is a radical disjunction between beginning with a universal imperative versus starting with experience. The first cognitively dictates an emotion – love; the second emotionally dictates behaviour. Molloy’s book offers evidence of the efficaciousness of the latter. Hannah Arendt argued that refugees were not in the end protected by a universal doctrine, whether of rights or a universal imperative, because the very nature of being a refugee is that you are denied “the right to have rights.” For in the nation-state system, the effort to protect refugees through a universal doctrine of rights has had only a marginal impact on the number of refugees offered protection.

If refugee assistance is at the heart of the purpose and nature of the global order according to Miliband (115), relatively little would have been done for the Indochinese refugees on the basis of rights and duties. Receiving countries had not signed onto that global order. Resettlement countries became involved, not to expand the global moral order, but simply to play a part without making a universal claim.

Molloy’s book demonstrates how a doctrine of identification as strangers by a minority of Canadians helped very large numbers of refugees who lacked individual rights, even rights under the Geneva Refugee Convention. Miliband cites his own family history to claim “that it was the decisions of individual citizen that saved the lives of my relatives eighty years ago, and that same spirit is what is needed.” However, he seems to have ignored the import of his own family history

The core issue is that, as Michael Walzer wrote, refugees lack membership in a state that will guarantee their protection. Nations have the right to determine who will become its members. The issue then is how and why and by what means will nations accept refugees who are not their members, refugees who may, on first appearance, have little culturally in common with a nation’s current population.

This raises the issue of nomenclature. There are Convention refugee claimants, asylum seekers who arrive at a country’s borders or its airports and claim refugee status because they were victims of persecution under the Convention. If their claim is recognized, they are protected by the state in which they made the claim for it was determined that they cannot safely go home. Such asylees are not to be confused with refugees fleeing war and conflict, a confusion Miliband in his compression sometimes makes. (p. 39) Refugees of the latter kind cannot by and large claim that they were targeted; they fled violence and war, not persecution. As Molloy makes clear, these were part of what was called a “designated class,” identified by membership in a group rather than an individual with a well-founded fear of persecution. They were accepted for resettlement from outside the country because the possibilities of repatriation or settlement in the first country in which they landed did not seem to be feasible. Humanitarian rather than Convention refugees make up the vast majority of the refugee population.

So why do we accept them if we do not have to do so as a matter of right and because our country has signed the Geneva Convention? Miliband offers six reasons: 1) ideals; 2) it is in our DNA to be compassionate; 3) the creation of institutions like the Atlantic Charter during WWII began to define global obligations and mutual interdependence among states; 4) refugees are our obligation as a consequence of a resettlement country’s foreign policy mistakes; 5) the need for stability in an interconnected world; and 6) for strategic reasons since, if nothing is done, there will be no stability and security for ourselves if refugees lack a national home in which they are members and can be protected.

Were these reasons valid when it came to the Canadian resettlement of Indochinese refugees?

To be continued…