Outline of talk

1. Seeking Sanctuary: Asylum and the Politics of Compassion in IrelandAnwen Tormey, Dept. of Anthropology, University of Chicago

2. Outline of talk • States’ contradictory approach to Asylum • Two arcs of my discussion today • The evacuation of politics into jurisprudence • The evacuation of jurisprudence into humanitarianism

3. Refugees ... “the most symptomatic group in contemporary politics”(The Origins of Totalitarianism, Hannah Arendt 1951)

4. brings into relief the claims of: • citizens v. non-citizens • economic migrants v. political refugees • national v. international legal regimes • social, political, economic and moral barometer of the nation-state

5. Post-War Refugee Protections: • 1951 UN Convention Relating to the Status of Refugees • 1967 Protocol • and a range of instruments such as 1969 Organization of African Unity Convention on Refugees July 28, 1951 twelve nations sign the Convention on Refugees

6. Definitions: • A refugee is someone who owing to a well founded fear of persecution for reasons of political opinion, race, religion, nationality or membership in a particular social group are outside their country of nationality and are unable or, as a result of such fear, unwilling to return to it ... An asylum seeker is someone who is seeking refugee status

7. Narrowness of 1951 UN Convention In contrast to the 1951 Convention, the 1969 OAU definition affords refugee status to “every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of nationality”

8. The post 1951 triumph of human rights is also a triumph of the nation-state: • despite the lofty rhetoric of human rights based legislation, refugees and asylum-seekers must rely on the generosity of an inter-national system where each member claimed the sovereign right to determine their entry and citizenship policies

9. A ‘schizophrenic’ approach to asylum has emerged among Western States since the 1980s: • While states publicly avow the moral importance of political protection regimes and global responsibility for refugees • States have simultaneously emplaced an amazing array of restrictive measures:

10. Restrictive Measures Include: • Schengen Acquis - Biometrics and information sharing among EU member states (other than Ireland and UK) • Frontex (EU Border Police), Detention, Dispersal regimes • VISA regimes, Carrier Sanctions • Refusal to allow asylees to land on sovereign soil in order to make claims • Plans to concentrate asylum camps extra-territorially and process claims outside sovereign territory of EU member states A group of Sub-Saharan African migrants sits in an Italian Coast Guard boat as they are brought to the harbour of the Italian island of Lampedusa, on 15 April 2011. EPA/BGNES

11. EU Asylum Legislation • Common European Asylum System • largely aspirational?? • 2008 European Pact on Asylum • “... expresses, at the highest level, the political commitment of the European Union and its Member States, vis-à-vis their citizens and non-member countries, for an effective common policy in immigration matters.”

12. What is the Pact? • The Pact is a political document, by which the Member States of the European Union have a commitment to each other, their citizens and the rest of the world. It contains a set of political objectives and strategic guidelines for the development of European immigration and asylum policies.

13. 5 key areas of the European Pact: • 1. To organise legal immigration to take account of the priorities, needs and reception capabilities determined by each Member State, and to encourage integration; • 2. To control illegal immigration by ensuring the return of illegal immigrants to their country of origin or a country of transit; • 3. To make border controls more effective; • 4. To construct a Europe of asylum; • 5. To create a comprehensive partnership with countries of origin and transit to encourage synergy between migration and development (part of EU’s “Global Approach to Migration” (2005).

14. EU Rights-Based Legislation • The Charter of Fundamental Rights contains a preamble and 54 Articles, grouped in seven chapters: • chapter I: dignity (human dignity, the right to life, the right to the integrity of the person, prohibition of torture and inhuman or degrading treatment or punishment, prohibition of slavery and forced labour); • chapter II: freedoms (the right to liberty and security, respect for private and family life, protection of personal data, the right to marry and found a family, freedom of thought, conscience and religion, freedom of expression and information, freedom of assembly and association, freedom of the arts and sciences, the right to education, freedom to choose an occupation and the right to engage in work, freedom to conduct a business, the right to property, the right to asylum, protection in the event of removal, expulsion or extradition); • chapter III: equality (equality before the law, non-discrimination, cultural, religious and linguistic diversity, equality between men and women, the rights of the child, the rights of the elderly, integration of persons with disabilities); • chapter IV: solidarity (workers’ right to information and consultation within the undertaking, the right of collective bargaining and action, the right of access to placement services, protection in the event of unjustified dismissal, fair and just working conditions, prohibition of child labour and protection of young people at work, family and professional life, social security and social assistance, health care, access to services of general economic interest, environmental protection, consumer protection); • chapter V: citizens’ rights (the right to vote and stand as a candidate at elections to the European Parliament and at municipal elections, the right to good administration, the right of access to documents, European Ombudsman, the right to petition, freedom of movement and residence, diplomatic and consular protection); • chapter VI: justice(the right to an effective remedy and a fair trial, presumption of innocence and the right of defence, principles of legality and proportionality of criminal offences and penalties, the right not to be tried or punished twice in criminal proceedings for the same criminal offence); • chapter VII: general provisions.

15. The Ethics of Asylum: what’s at stake in refusing asylum?

16. What is our responsibility to refugees? • How do states decide ethically?

17. Should states accept? • Should decisions be made on a moral or a political basis? • Should we distinguish between economic and political refugees? • How many do we accept? • Should we decide based on the political interests of citizens? • Should we decide based on foreign policy interests? • Should we make decisions based on notions of distributive justice? • What about the notion of majoritarian views? • (if we agree then we have to accept that states can disregard refugee claims)

18. ‘Closure’v. ‘Open Borders’

19. - Arguments for Closure • States, as communitarian interest sets, are justified in restricting entrance of asylees/refugees in order to protect the social, political and economic interests of communities of current citizens - • But ... this communitarian argument for discretion in granting entrance usually boils down to a constitutive arguments about shared cultural attachment and distinctive identity being disrupted/swamped by foreign influences • (see Will Kymlicka 1995, Michael Walzer 1983 and Charles Taylor 1993)

20. How are foreigners assumed to disrupt the interests of citizens? • Large inflows may lead to racialized violence • Put pressure on State’s infrastructure (health, education, welfare regimes, etc) • Undermine law and order in the state (differences between populations may be intractable)

21. What does the argument for Closure overlook? • Harm Principle: Under the principle that states should refrain from engaging in harm to others, do states have a responsibility to accept refugees? • In case of Kosovo/Albanian bombing? • Encouragement of Kurds to revolt? • Invasion of Iraq/Afghanistan? • Support of refugee-producing regimes? • Destabilising outcomes of neo-liberal policy/structural adjustment enforced by IMF/WB?

22. What does argument for Closure overlook? (Cont’d) • Harm: Is inflicting harm morally different than failing to aid? • Distance: do we give priority to those on our doorstep over those who are living in refugee camps (need v. distance)?

23. Open Borders

25. Open Border Arguments: • (Broadly) views states as morally required to: • impartially consider the claims of citizens and strangers alike. This implies: • idea of universalizability, human equality (means all people have a right to same protections, life chances, etc. of Western citizens) • liberty to move freely as a norm - exclusion by the state then has to be justified • represents a radical challenge to territorial sovereignty

26. Liberal inconsistencies re: Open Borders Approach • Often, liberals support free movement within but not between states • Liberal support for right to leave state without corresponding right to enter • Moral inconsistency between globalized mobility of goods/services/information but not people • shouldn’t labourers be able to seek out best returns just as global investors do?

27. Open Borders and Welfare State • Open borders’ proponents believe in range of social as well as civil and political rights for individuals** • For some (e.g., Singer and Singer 1988) means states have no right to restrict the welfare state only to citizens • BUT ... in practice, such solidarity requires some ‘fellow feeling’ which many be difficult where membership changes rapidly • No one can be sure of the practical outcome of open borders in a world where half the people live on less than US$2 /day

29. “Centuries of turmoil, conquest, famine and subsequent immigration  have certainly taken their toll on the Irish: it's left them with a deliciously dark sense of humour and a welcoming attitude towards strangers. That famous ability of the Irish to find craic (fun times) in boom or bust times means you're always in for a treat.”(http://fun.umakant.info/)

30. ENCOUNTERING THE TIGER:seeking asylum in the land of a hundred thousand welcomes

32. “We’re against the spongers, the freeloaders, the people screwing the system … Too many are coming to Ireland … I’m saying we will have to close the doors. The majority of them are here for economic reasons and they are thumbing their noses at Irish hospitality and demanding everything under the guise of the Geneva Convention while the taxpayer is paying for it all. … [t]here should be compulsory health checks for all illegals so that our health system is protected and our disease eradication programmes are not interfered with … and there should be a referendum on the question of giving automatic citizenship to asylum-seekers’ children born here.” Minister Noel O’Flynn Irish Times Jan. 29, 2002

33. Further reading on Racism and Immigration in Ireland: “If I wanted to go there I wouldn’t start from here: re-imagining a multi-ethnic nation” and “Toward a strategic immigration policy: some key elements” Author: Piaras MacÉinrí, Dept. of Geography, Univ. College Cork, Ireland

34. States and Asylum “If the provision of protection for refugees is its central goal, then the system of asylum offered by Western states is currently in deep crisis” (Gibney 2004:229) Immigrant- and refugee-receiving states capitalize on the crises generated by high-profile human smuggling events to implement a series of restrictive measures designed to control immigration (Mountz 2010: xv)

35. The Evacuation of Politics into Jurisprudence

36. (1) presumptive skepticism on the part of adjudicators; (2) high certainty thresholds in the evaluation of asylee testimonial evidence as truthful, or likely to be truthful. (3) accelerated procedures and under-developed evidentiary procedures

37. The Evacuation of Jurisprudence into Humanitarianism

38. Closing Thoughts “Liberal governments may have to open themselves to the fact that under conditions of ongoing violence people will take recourse to many ways of escaping that violence ... their methods of escape might not be ‘legal’ at least as the immigration authorities or even psychiatrists define legality.” [Das, 2007:330-335] “This need not require that we be agnostic about the issue of truthful testimony. However, contemporary political realities demand that we acknowledge the fact that many asylees are forced to convert the psychic trauma of impoverishment and hopelessness into a performed psychic trauma of formulaic political violence” [Malkki 2007: 341]