Policy Innovations Digital Magazine (2006-2016): Commentary: Precarious Lives

...The 21st century will be characterised by the mass movement of people being pushed and pulled within and beyond their borders by conflict, calamity or opportunities ...

…Human mobility is growing in scale, scope and complexity. New patterns of movement are emerging, including forms of displacement and forced migration that are not addressed by international refugee law.

Antonio Guterres
UN High Commissioner for Refugees

Copenhagen negotiators agreed on one thing at least. Climate-related disasters, climate change, and environmental degradation increasingly and massively displace people and leave them without protection. Copenhagen acknowledged that these increasingly frequent crises demand new international agreements. Yet existing refugee protection and international humanitarian regimes designed for mass forced displacement due to poverty, conflict, and persecution are under serious challenge. How can global cooperation for the protection of vulnerable displaced persons be renewed and on what grounds? On what normative or ethical foundations can a renewed framework governing involuntary migration be based?

I propose that human security, that is, the security of individuals and communities, be located at the center of international relations, leading to regional agreements that are ethically, legally, and politically sound. The causes and impact of forced displacement in Asia Pacific today show why.

Forced Displacement in Asia Pacific

In Asia Pacific, people who live precariously outside their places of origin, and whose dignity and human rights are not adequately respected, include refugees, internally displaced persons, undocumented or unlawful migrants, victims of trafficking, stateless persons, and those with only temporary protection from deportation. Their displacement is caused by conflicts, poverty, inequality, poor governance, and disasters for which often the preparations have been totally inadequate. Refugees, migrants, and humanitarian survivors travel together by the same means, arrive at the same times and ports, and often come from the same countries of origin. All are vulnerable, yet while some might merit treatment under a particular international law treaty, for others no international agreement protects their rights, guides burden sharing, or delineates states' obligations. The frequency, size, and shared vulnerability and complexity of these mixed flows urge a realistic review.

A New Response

International agreements are easiest to reach in ad hoc situations and on a regional basis. To handle the increasing movements of goods and people, governments already meet frequently to reach regional agreements. The growing numbers of stateless and displaced persons in Asia Pacific is a shared problem. In Latin America and Africa there is an effort to frame regional agreements to face such questions. Although Asia is immense and diverse, many of the existing provisions of international humanitarian organizations can be brought to bear in pragmatic ways if governments agree to cooperate. Such a "soft law" approach is both pragmatic and ethical. While states' obligations are most solidly based on recognition of the dignity of the human person, solidarity, and inclusive relations that value the common good, their desire to cooperate is enhanced by perception of mutual advantage.

The Refugee Convention

The visionary Convention Relating to the Status of Refugees of 1951 was intended to embrace all persons in need of international protection because of rupture with their country of origin following World War II. Yet by the mid-1980s the numbers and source countries of asylum seekers arriving in Europe and North America rose significantly, straining commitments made under the Convention. Adjudication systems clogged up, resettlement assistance to asylees became expensive, and anti-foreigner sentiments grew. Terrorists were found to use the migratory routes of asylum seekers into Europe, and undocumented migrants mixed in with asylum seekers. As a result, the preferred international response was to offer temporary protection while working toward political agreements that would halt potential migratory movements and allow repatriation.

Changes with the End of the Cold War

The world order changed with the end of the Cold War, and with it the size, nature, and directions of population movements. First, countries erected legal barriers to mass migratory movements, and poor transit countries imitated their hostility to asylum seekers. If a second paradigm shift was needed by the end of the last century, then a fortiori a new conceptual framework is needed in the twenty-first century. Intertwined global crises—economic, financial, energy, food, migration, climate, and ecology—along with the numbers of people displaced and countries affected, add new urgency and complexity.

Categories of People on the Move in Asia Pacific

Refugees
Every urban center with an international airport receives refugees from within the region, e.g. from China (especially Uighurs and Tibetans), Burma, West Papua, and Vietnam. Asylum seekers also arrive in Asia Pacific from Sri Lanka, Afghanistan, Iraq, Somalia, Congo, Sudan, and Angola.

Internally Displaced People (IDPs)
The never-ending oppression in Burma has for decades displaced large numbers within that country. Mindanao in the southern Philippines hosts displaced persons from two intertwined conflicts. IDPs have long presented a dilemma to international humanitarian law because they are nominally under the protection of the government of their own countries.

Increased frequency of natural disasters
Increasingly displacement of people in Asia Pacific is associated with disasters, some of which result from or are exacerbated by climate change. Cyclones, tsunamis, earthquakes, mudslides, and the collapse of garbage heaps are frequently connected with unplanned or poorly planned human activity.

Climate change refugees in the Pacific
Pacific countries are already experiencing the early impacts of rising sea levels. Overcrowding is at the tipping point of climate. Organised migration, planned well in advance, appears to be the only solution for Tuvalu and Kiribati. The world faces a new challenge in the potential disappearance of Pacific countries and thus a totally new category of stateless persons.

Stateless persons
Asia Pacific and Thailand in particular, hosts more than its share of stateless persons. At least 3 million of the world's 12 million stateless persons now reside in Thailand.

Undocumented labor migrants at risk
International labor migration is now a permanent feature of Asian economies. The Asia Pacific region supplies a significant proportion of the world's workers now and will do so in the future. Our concern for those who are undocumented, clandestine, uninspected, or unauthorised is because they are often unprotected by law and are the most easily exploited. Undocumented labor migration ranges from totally voluntary to kidnapping and trafficking. The risk of trafficking increases among the vulnerable. Thailand is a hub for much of the illegal migration in the region, and also for the syndicates trafficking in women and children.

Causes and Challenges

Motives for moving are always mixed. Refugees and other migrants often use the same routes, use the same "agents" or smugglers, and leave behind similarly oppressive human rights situations. Nonetheless, they are not a single phenomenon. Some already have legitimate legal claims on the international community, while the distinct moral claim of others has not yet been acknowledged in any agreed convention.

Some challenges now to be faced include the following:

• Finding helpful language or categories to identify accurately those who are most at risk and least protected in contemporary mobility in Asia Pacific
• Generating a climate of political opinion centered more on human dignity and rights, solidarity, and inclusive relations than on border control, state sovereignty, and exclusion
• Facilitating cooperation at the operational level for provision of adequate and timely assistance to those in need
• Mobilizing existing legal instruments at the national, regional, and international levels effectively to protect the rights of those most vulnerable in the migration process; this may involve moving from a legal status-based response to a rights-based response
• Facilitating the development of regional agreements concerning legal migration and the treatment of the most vulnerable people on the move, regardless of their legal status
• Sharing the benefits and burdens of human mobility in an equitable manner

Normative and Ethical Responses

Human dignity and rights
The real basis of all human rights is the dignity of the human person. The 1948 Universal Declaration of Human Rights enshrined this principle in its preamble: "Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world." The two UN Covenants on Rights (1966) ground human rights on dignity. For Immanuel Kant, dignity is "absolute inner value," and his request to "treat others always at the same time as an end, never merely as a means" encapsulates what it means to respect the dignity of others. For Cicero the Latin word dignitas expressed the Ancient Greek idea that reason uplifts all human beings over the rest of nature. For Cicero, this special status does not yield rights but duties: Because reason lifts human persons up over animals, we should use reason and not behave like animals.

Solidarity and the common good
Our capacity to relate to one another is distinctively human and leads to the notion of a shared good. The common good is best served when all are able to make their own contributions to social and economic life; that is, when all have the opportunity to realize their full human potential, engage in productive work, and lead fulfilling lives. Society functions best when decisions are made with an eye toward what benefits everyone, and not just the few. "A rising tide lifts all boats," is the succinct summary of this principle. The 2nd Vatican Council expressed well for our day the time-honored principle of the common good:

Everyday human interdependence grows more tightly drawn … As a result the common good, that is, the sum of those conditions of social life, which allow social groups and their individual members relatively thorough and ready access to their own fulfilment, today takes on an increasingly universal complexion and consequently involves rights and duties with respect to the whole human race.

The moral basis for the nation-state
The moral basis for the nation-state then lies in its capacity to provide for the dignity and freedom of its citizens and for the human rights of all within its territory. The responsibility to provide protection to refugees, and to all persons who are found to be without the protection of any state, is shared by all sovereign states. When the maintenance of state sovereignty is valued above the protection of human rights, the moral basis of state sovereignty is called into question. Protecting citizens and residents is a broader obligation for a state than simply protecting territory. Human security, that is, security based on human dignity, is a higher value than state security. International relations arrangements can be assessed in view of the human security they provide for those persons without the protection of a state.

Practical Responses

Which categories of people make the strongest ethical claims on the solidarity of the family of nations? Migration expert Matthew Gibney employs the term "precarious residents" in order to identify a class of people whose country of origin fails to provide their needs and even oppresses them, but who are frequently not classed as refugees. He was writing about Zimbabweans in South Africa, but the term can be applied to Rohingyas and other Burmese refugees in Asia, and many if not all the displaced persons in Asia Pacific described above. These people "possess few social, political or economic rights, are highly vulnerable to deportation, and have little or no option for making secure their immigration status." Gibney highlights lack of protection for rights, exclusion, and vulnerability. This approach attends to the social, cultural, and political aspects of the migration experience rather than focusing tightly on the economic aspect.

Another scholar, Alexander Betts, uses the concepts of "vulnerable irregular migrants" and "distress migrants." Some vulnerable irregular migrants, he argues, have protection needs arising from conditions in their country of origin that are unrelated to conflict or political persecution. These include three broad categories: people fleeing desperate economic or social distress who are in need of protection but are not Convention refugees; people who flee natural disasters but who have no clear legal status and for whom operational responses are ad hoc; and people displaced by causes related to environmental degradation or climate change.

Other vulnerable irregular migrants have protection needs arising as a result of movement. They include the following four groups: stranded migrants who are caught in transit without means to move onwards or back to their country of origin; trafficked persons; victims of trauma and violence in transit whose particular needs may make it inappropriate to simply return them to their country of origin; and forcibly expelled migrants who may face violence and human rights abuses in their host states or on return to their country of origin.

The Betts approach does not address regular labor migrants, many of whom remain vulnerable to abuse even though their status and manner of movement may be regular, and he acknowledges that his term would need to acquire more definitional precision as part of the soft law approach that he advocates.

Soft law is exemplified by the international response to the phenomenon of IDPs. IDPs were first identified as a vulnerable category in 1982. During the late 1980s and 1990s guidelines were developed. Working regionally in a collaborative way, agreements are being reached, often drawing elements and principles from existing international instruments. The recent agreement among 17 countries, signed last October 2009 for an African Union Convention on IDPs, is a good example of this approach. Organisational responsibilities can be assigned when the rights and claims of the displaced on the community of states have been acknowledged. In many cases regional agreements are best suited to deal with ad hoc situations.

Sometimes local pragmatic approaches have been achieved by non-governmental organizations working together with the Red Cross and with a local government. Best practice can build on these experiences. One example was the "Lampedusa approach" involving International Committee of the Red Cross, the International Organization for Migration, the Italian government, the Jesuit Refugee Service, and Save the Children Fund, although this practical agreement broke down when the Italian government withdrew from its commitments. Multiple layers of subsidiarity are needed to manage human mobility.

Seeking Adequate International Instruments

A range of already existing international human rights instruments provide protection measures that complement those of the Refugee Convention, if they are incorporated into domestic law.* Even these, however, do not adequately cover all human rights needs. Areas that still need new or better agreements among states include the policing of trafficking, care for the rights of people displaced by climate change, protection of internally displaced people, and provision of civil rights for de facto stateless persons.

Conclusion

International obligations arise when states of origin or residence are not willing or able adequately to protect the dignity and rights of people on the move. Alongside the increasingly free movement of goods and capital, a global ethic of solidarity is needed that governs the rights of movement of people for the sake of the global common good. The normative personalist moral theory advocated here urges questioning of constructions such as state sovereignty, international security, citizenship, identity, and international law when they do not provide for human security.

Who makes the strongest claims on human solidarity in Asia Pacific today? Those whose dignity and rights are most threatened and least well protected. If the principles of human dignity and of the common good of all are accepted as valid, then protecting the dignity and rights of those at risk becomes the responsibility of all, to be shared by communities according to their capacity. Organized in a subsidiary way, with each state and region acknowledging and exercising their proper responsibilities and authority, there is a place also for individual alertness and community action. Non-government organizations, for example, helpfully identify protection gaps and temporarily fill them while waiting on states to assume their proper responsibilities. Alertness and guidance are needed, as well as clarity about the division of responsibility.

Legally, ethically, and politically, human security, i.e. the security of individuals and communities, is rightly at the center of international relations. The reality of our interconnectedness, more evident today than ever, calls for a farsighted and deep sense of belonging and inclusion grounded in our common human dignity.

* They include: Migration for Employment (ILO 97) (1952); Convention Relating to the Status of Stateless Persons (1960); Convention on the Elimination of all Forms of Racial Discrimination (1969); International Covenant on Civil and Political Rights (1976); International Covenant on Economic, Social and Cultural Rights (1976); UN Declaration on the Human Rights of Individuals Who are not Nationals of the Country in Which They live (1985); International Convention on the Protection of All Migrant Workers and Their Families (1990); Protocol Against the Smuggling of Migrants by Land, Sea, and Air (2001); Palermo Protocol to the UN Convention against Transnational Organised Crime.