analysisBy Jackson Nyamuya Maogoto
No one wants to become a refugee. No one should have to endure this humiliating and arduous ordeal. Yet, millions do. Even one refugee forced to flee, one refugee forced to return to danger is one too many - UN Secretary-General Ban Ki-moon, Message for World Refugee Day 2011
In a globalised world, the biggest threat that seems to seep through for developed states is refugees who are often perceived as a cancer or an unnecessary dilution of values or just as a nuisance (and often a combination of these three broad precepts). In most European countries, for example, we see an ever elevated metaphorical wall to keep out refugees. And many politicians are content stating that the wall should not simply be eight foot high but topped with miles of barbed wire.
In North America, hardworking refugees are unable to get basic documents, even after decades of toil and paying tax. In Kenya (where the author hails from) grenade attacks often get associated with refugees - worrying because, unofficially, the third largest city there is also considered the world's largest refugee camp. Spare a thought too for some of the vitriolic sentiments in Southern Africa. Traditional hospitality is running low. The same question visits us in discussing the shifting humanitarian, political, social and economic environment in countries generating and receiving refugees - what are the implications in the formal recognition of the rights of refugees and asylum seekers?
The contradictions of statehood
As a general reflection on a blog (a very considered one at that), I will dwell on generalities but some that may be familiar as this entry is not supposed to be an indictment or a lack of appreciation. I write from what may be considered a privileged position. I have a work permit, but that often illuminates the heart-wrenching stories I hear from those on humanitarian visas. We see individuals who are deported back to their 'sources', temporary protection visa regimes that can be revised on a whim, and the detention of asylum seekers. It calls to mind a quote by Professor Costa Douzinas in one of his works: "[t]here is a great paradox ... in asking the law to protect the refugee".
Recognition of the human rights of those who are exiled and persecuted should be a clear test case of the utility of human rights law. On the other hand, the modern state is defined by its exclusion of others through its laws - to ask the law to heal this wound by offering protection to those it seeks to exclude as 'aliens' or 'unlawful non-citizens' is to ask for a significant change to be made to modern practices of statehood.
There are some serious concerns about the treatment of refugees. It is important to remember that they are as equally entitled to the protection of international human rights treaties. Prolonged detention of asylum seekers, including children while processing visa applications, is often a breach of the right to liberty under international norms. Concern arises in turning asylum seekers back at the port of entry without providing them any opportunity to apply for asylum or to obtain legal advice as to how this might be done. These practices are in breach of the 1951 Refugee Convention which provides refugees with protection from sending them back to the country in which the persecution they have fled may have been taking place. Upgrading a country of origin's status does not magically assuage fear - nobody wants to feel fear, and an administrative fiat cannot be a catharsis.
Jackson Nyamuya Maogoto is senior lecturer at the University of Manchester school of law. His research interests are in Public International Law, Jurisprudence and Human Rights. He has published extensively in his fields of teaching and research interest. He is the author of six books, and has participated and delivered numerous conference papers in domestic, regional and international forums.