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How the international system copes with involuntary migration: norms, institutions and state practice.

THE EVOLUTION OF A NORMATIVE STRUCTURE

Roots

Were they but accessible, Philistines and Hebrews of Biblical times could attest that mass migration is nothing new, either as a phenomenon or a problem: sometimes for the migrants, sometimes for the peoples they encounter, sometimes for both. Indeed one could structure an entire history of the human race in terms of the great migrations--of Vandals and Visigoths, Arabs, Mongolians and Turks, Jews and Huguenots, Spanish and English, Zulu and Dutch, Irish and Italian, Russians and Armenians, impelled at a certain moment (by duress, ambition, dreams) to move from the known place to one that could at best be imagined. Through great migrations, we humans have filled up the once empty spaces of the earth until now there are none, other than the regions of water, sand and ice.

Some migrants came quietly; some, like the Jews and Huguenots, were welcomed in certain times and places. Many others came with trumpets and pikes, came as conquerors and stayed to rule. Whatever happened when people sought to migrate or resist migration, for millennia it happened without the guidance or restraint of commonly accepted rules and principles. Those who were strong, took what they wished; those who were weak, accepted what they must.

International legal regulation of anything, much less migration, is a relatively recent development, conventionally dated from the middle of the seventeenth century. The foundation of the system of principles and rules accepted by the leading states, the concept and value that first lent the system coherence, was sovereignty, the sovereignty of princes initially, later the sovereignty of nation-states. And the operational essence of the idea of sovereignty was exclusive legal authority within the recognized limits of the sovereign's domain. That authority included discretion to determine who could enter, who could remain, and, although this was rarely an issue, who could leave.

As long as sovereignty was, with trivial exceptions, a property of hereditary rulers, it did not portend much for migration, because a ruler's authority was contingent not on his or her special relationship to a determinate people in a determinate place, but on heredity and hence on the fortuities of marriage, death and descent. That a people should change their sovereign and a sovereign his people was in no way anomalous. In addition, many boundaries were vaguely demarcated and disease could in the space of an historical moment strip people from the land. In ages of high infant mortality and brief adult lives, moreover, when perforce most of Europe was thinly populated and skilled artisans, shrewd bankers, and adroit merchants at a premium, rulers would often welcome migrants, for they added to the territory's sparse human capital. The rich and the skilled continue to find a warm welcome in many countries.

The French Revolution marked a great change. It restored to prominence a principle of political organization salient in the Greco-Roman world on whose shattered base modern Europe had been built. It restored the principle of citizenship. A particular people for a particular place. A people with a right to that place and claims to govern it whether themselves or through proxies. A people made one by history, distinct from other peoples, with mutual obligations by virtue of their shared distinction. A national community. In Prussia and Russia and Austria-Hungary, there were subjects, not citizens. Subjects came and went along with territories won, lost and exchanged. Most people lived very close to the land. Outside army duty, they might in their whole lives not travel more than a few miles beyond their village. To a peasant, the man wandering over from the next valley was "foreign." One owed him as little as one owed someone who had wandered in from the other side of Europe.

The makers of the Revolution proclaimed an end to all that. Those who accepted the Revolution and happened to live within that agglomeration of territories haphazardly assembled by the generations of monarchs who had called themselves French were "Citizens." Others were not. Without the "other," without the "foreigner," there could be no citizen. When all were subjects, no one in theory had rights. If subjects were themselves without rights, the foreigner's lack of them was neither a denial nor a distinction. The declaration of common citizenship was a declaration of shared rights, shared not promiscuously, however, shared among the people of France. And so it was also a declaration of who did not and could not share, if Frenchness were to mean anything, much less be a reason to die. For die was what a vast number of Frenchmen did for the next quarter century in the defensive wars which opened the revolutionary era and in the aggressive ones which led by tortuous steps to its close.

The French were Europe's teachers. By assembling at the call of their government and hurling themselves against the professional armies sent by the rest of Europe to restore the old order of things, they demonstrated the power generated when a great mass of people contiguously inhabiting a large territory began to think of themselves (or could be induced to think of themselves) as forming a single community separate from and competitive with communities living on the other side of some notional, adventitious line on maps most of them had never seen.

But while, in transforming the French from subjects of the King to citizens of the nation, the Revolution implied a hierarchy of rights defined by citizenship, like the American Declaration of Independence it so quickly followed, the Revolution insisted that the rights central to a dignified existence were the common property of all people everywhere. The right to enter a country, to remain and enjoy benefits and opportunities coextensive with those of long settled inhabitants was not among them. In theory, it still is not today; but theory is palpably eroding under the pressure of hard facts, conflicting interests, and moral uncertainty.

A regime is a mental device invented by some clever academics in part as an aid in explaining why there exists a degree of peaceful stability, even cooperation among states which cannot be easily accounted for by theories stemming from the hypothesis that every government all of the time exploits power differentials to maximize gains, the hypothesis, in other words, that states are reflexive predators. In lay language, regimes are the rules and principles (and related institutions) states develop to guide and coordinate their activities with respect to the various items on their agendas like trade, narcotics, fishing rights, pollution of the oceans, and many more.(1)

Not all of the clustered rules and principles that form a regime may be regarded as "legal" by the private persons and public officials who pursue their ends within it. What is "law" at any given time is finally a subjective judgment, hence a matter of degree. If most governments think that a particular rule is legally binding, if they are prepared to regard deviation as law-breaking and to complain and demand compensation on that ground, and if they correspondingly feel some restraint about deviating themselves, then for the parties concerned the rule is a "law." A regime will invariably have many such rules; but it may also have some to which most parties are only provisionally committed, informal understandings recognized as such and hence subject to unilateral adjustment.

With respect to certain issues, like who could do what to whom on the high seas, regimes began to take shape centuries ago. In the case of migration, until the twentieth century, nothing like a regime could form because all governments agreed that, absent a specific agreement to the contrary, each of them was at liberty to exclude anyone for any reason. In the Nineteenth Century, the only generally conceded restraint on a government's discretion that related to migration was the requirement of decent treatment for aliens once they had been allowed to enter. With respect to what we would today call human rights, such as the right to a fair trial, not only could an alien's government demand equal treatment, in addition his or her treatment had to satisfy an international minimum standard.

But though the last century had nothing one could reasonably call a migration regime, it was the temporal site of certain practices which in some respects augured the regime that would eventually arise. The principal augury of today's regime that gradually spread was the practice of including in extradition treaties a "political offense" exception. Extradition treaties themselves proliferated because international law was not seen to impose any obligation on states to hand over to other states at their request persons accused or convicted of crimes in the asking state. Moreover, some governments like that of the United States were inhibited by their own constitutions from picking up the citizens of another state and turning them over for trial or punishment, in the absence of authorization by the legislature or an extradition treaty. The political offense exception made the treaty inapplicable when the crime attributed to the accused had a political character.(2)

Why were states so reluctant to hand over to their governments people far more threatening to those governments than common criminals, people among whom were potential or successful assassins of public officials and other assorted subversives many of whom would today be regarded as "terrorists"? One motive sometimes shared to a degree by reactionary states with those of a more liberal cast was a desire not to get involved in other peoples' conflicts. But liberal states like France and Britain doubtless had a second motive. Many of the persons protected by the political offense exception were champions of national self-determination for Poland or some sliver of the Balkans or were seeking the overthrow of absolutism in Russia. These causes enjoyed numerous and influential sympathizers in liberal states, indeed echoed many of the slogans of contemporary liberalism. Whatever the accused may have done, it had been done in the name of liberty. Hence, they were seen as potential martyrs to the liberal cause. And since, in the illiberal states, above all Russia, advocacy of liberal goals could itself be cause for punishment, harsh deeds were understandable.

In addition, states like Russia or the Ottoman Empire were not known for the quality of their criminal process. Those who had been convicted of crimes might therefore be innocent, and those who were merely accused might never have a fair chance to prove their innocence. Thus the practice of refusing to extradite for political offenses could be seen as a forerunner of the broader protection now available to refugees.

It was not only by their way of being that reactionary governments in Europe and the Middle East contributed, however inadvertently, to the gradual emergence of an international principle of safe haven. Beyond simply being their charmless selves, they contributed actively by means of energetic persecution which catapulted whole groups of people into a desparate search for new homes: Supporters of the aborted liberal revolutions of 1848 in Germany and Hungary; various Christian minorities within the shrinking Ottoman Empire; Jews battered by pogroms in Russia. Acceptance of these fleeing masses by countries self-consciously populating themselves through immigration--countries like the United States, Argentina, and Australia--contributed nothing to the principle of asylum for the persecuted. But countries like the United Kingdom that had more selective immigration policies also opened their doors. Reflecting the attitude of the liberal states was Britain's 1905 Aliens Act adopted at the height of antisemitic pogroms in Russia. With respect of those "seeking to avoid prosecution or punishment on religious or political grounds or for an offence of a political character, or persecution involving danger of imprisonment or danger to life or limb on account of religious belief," the act created an exception to the prevailing policy of refusing entry to persons without the means to support themselves.(3)

The turmoil spawned by the First World War spilled new waves of migrants across international frontiers. Some, like the Greeks of the Anatolian Plateau, fleeing alongside the retreating fragments of the Greek national army, could return to the ancestral home. But two of the largest clusters of involuntary migrants, Russians escaping the Bolshevik Revolution and Armenians fleeing starvation and massacre in Turkey, had neither a realistic prospect of returning home nor a single evident sanctuary. Given the inextinguishable antagnoism between them and the regimes in their former homes, in effect they were stateless, and thus under the existing scheme of things, stripped of legal protection.

Out of the international response to their condition appeared the first signs of the regime that would finally emerge in the wake of the next great war. In 1922, under a program initiated by the League of Nations, fifty-four states agreed to collaborate in the recognition of certificates of identity to be issued by international agencies under League auspices.(4) These certificates would substitute for passports and enable the refugees to move on from the countries where they had first found protection. From then until the outbreak of the Second World War, similar agreements were executed first for the Armenians and then for certain other groups, principally refugees from Nazi persecution. These agreements did not commit states to give financial assistance to the refugees either directly or through the agencies authorized to provide identity and travel documents. The latter had to scramble for funds on their own. Nor did states commit themselves to provide documented refugees with residence and work permits. Each government remained at liberty to determine the targets and the extent of its philanthropy.

The one effort at extracting a broad commitment proved abortive. Only eight states were willing to ratify the 1933 Convention on the International Status of Refugees which prohibited the parties from denying entry or expelling refugees, and of the eight, half gutted their nominal commitment with various reservations and declarations.(5) Although the small formal steps taken by the League members on behalf of refugees left them in a largely pre-legal condition dependent on the discretion of individual governments, as one of the leading authorities on refugee law has written, "the period was also remarkable for the very large numbers of refugees not in fact sent back to their country of origin, whether they fled Russia after the revolution, Spain, Germany or the Ottoman Empire."(6) He notes in this connection that following the collapse of Republican resistance to the Fascist armies in Spain, France within the space of just ten days admitted 400,000 refugees.

The Refugee Treaty System

The vast uprooting of peoples caused by Nazi invasions, by their attempt to exterminate the Jews, by their enslavement of peoples from occupied territories, and by all the other circumstances of the Second World War, once again left the victors with an acute refugee problem which the Sovietization of Eastern Europe rapidly intensified. The allies began even before the war's end to organize relief and rehabilitation for the millions of displaced persons. But shortly after the end of the war the emphasis began to shift from relief to all war victims to assistance and protection for a narrower category of persons designated as refugees from persecution, a shift codified in the 1951 Convention Relating to the Status of Refugees which defined the persons who would be considered as falling within the mandate of the United Nations High Commissioner for Refugees, the agency created a year earlier by the General Assembly to assume relief and protective functions. A refugee was a person

[who] owing to [a] well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.(7)

Although sponsored by a global organization and replete with universalistic rhetoric, the Convention functioned within narrow temporal and geographic limits. The well-founded fear of persecution had to arise from events associated with the Second World War or "events occurring in Europe before January 1, 1951." These limits meant that the Convention applied largely to refugees from Soviet Bloc countries, an outcome clearly intended by the United States and its allies. Despite its being one of the Convention's chief architects, the United States refused in the end to commit. And so the United States continued to pursue its national interests and exercise its humanitarian impulses unrestrained at least formally by international norms.

This went on until 1967 when the United States ratified the Refugee Protocol(8) which removed the temporal limits and extended the substance of the original Convention to refugees throughout the world.(9) That substance amounts in the end to two norms. One is the rule of non-return or, in the generally used French phrase, "non-refoulement." Parties to the Protocol undertook not to send an alien who had entered, by whatever means, back to the country of origin if he or she had the well-founded fear of persecution which defined a refugee under the Protocol and the original Convention. The only exception was for someone found by the state of potential refuge to represent a threat to its security. The other norm precluded punishment for illegal entry of persons who had entered in search of asylum.(10)

What about persons who arrive at the frontier and request asylum? Does the rule of non-refoulement apply to them? Though raised often enough, the question has never received a definitive response. Efforts to summon a consensus among United Nations members that persons claiming fear of persecution should not be summarily turned back at the border have not been successful. But despite the reluctance of states to commit themselves formally, in practice states have generally admitted persons who arrive at their borders with claims to protection which are not palpably without merit.

In assessing the extent of the formal intergovernmental commitment to assist and protect even those persons who satisfy the Protocol's by no means generous definition (putting aside the matter of claims at the frontier), one needs to enumerate the obligations that states party to the Protocol clearly have not assumed. They are not obligated to refrain from expelling anyone who can find sanctuary elsewhere or to provide more than temporary shelter for those whom they choose or are required to retain. Thus they have claimed the right to house their beneficiaries in detention camps, bar them from employment in the local economy, and expel them as soon as their fear of persecution ceases to be credible or an alternative place of refuge is found. States have not, moreover, assumed any obligation to assist refugees in getting to the point where the doctrine of non-refoulement may require the grant of asylum. They do not, for instance, have to instruct their embassies to process asylum applications, much less to request persecuting states to allow the departure of their victims, or provide the persecuted with temporary sanctuary in the embassy. Finally, they have not assumed any obligation to accept the advice of the UNHCR or any other international agency about how to define the terms or about how to proceed in assessing claims to refugee status.

Not only the obligations but the beneficiaries thereof are narrowly fixed even by a fairly generous construction of the Protocol's definition. For it implies that the refugee has been individually targeted for persecution or is a member of a group which is virtually outlawed. Any Jew from Nazi Germany might have qualified as a refugee; but not any Mayan peasant in Guatemala today, even though violations of Mayan human rights are grave, persistent and pervasive. Still, it has been the view of the United States and probably would be of many other countries that in cases like Guatemala, only certain activists may develop a well-founded fear of persecution. Construing the definition to embrace primarily those who by their acts or associations stand out from the general population and even from some minority regarded with suspicion or revulsion by the authorities implies a highly individualized assessment of asylum claims (that is claims not to be summarily expelled or denied entry), a procedure that is impossible to implement in the face of sudden mass exodus.

The one other thing that must be said of the definition is that, if through an unimaginable investment of resources, states could fairly process the vast number of contemporary claimants who might fall within the Protocol's definition, they would still end up denying refugee status to a very large number of persons who might fairly be called "involuntary migrants." The number will, of course, vary widely depending on one's conception of what should be deemed to make departure "involuntary." That conception might reasonably include persons fleeing their countries of residence because of a credible fear of imminent death or crippling and regardless of whether the proximate cause of flight was (1) a threat directed at them personally; (2) a generalized condition of intense violence in their home country; or (3) hunger.

THE DE FACTO SYSTEM

State Practice

How have states coped, on the one hand, with a definition that excludes millions of persons fleeing for their lives and imposes extraordinary administrative difficulties, and, on the other hand, with the periodic tidal flows of refugees that have marked the last four decades? Perhaps the first point one should note is that in most instances of mass flight, most of the refugees have managed to get into other countries and remain. Often they have done so with the knowledge and cooperation, however grudging, of the authorities. Sometimes they have entered illegally, infiltrating or pouring across borders and disappearing into local society. The several million persons who fled Afghanistan after the Soviet occupation, going mainly to Pakistan, exemplify the first set of cases. Exemplifying the second are the hundreds of thousands of Salvadorans who fled the war in that country during the 1980s and entered the United States.

A second point is that only rarely have states attempted forcibly to halt the flow short of their borders. Probably the most notorious exception, prior to the 1994 Cuban exodus, has been the largely successful effort of the United States to interdict Haitian refugees. Malaysia briefly implemented a policy of intercepting Vietnamese boat people and towing them away from the shore; but a combination of criticism and pressure from Western countries and receipt of assurances from the critics that they would eventually resettle the Vietnamese restored Malaysia's previous policy of grudging tolerance. A third salient point about the coping process is that states of first refuge have often not even attempted individualized assessments. And a fourth is that states which have taken large numbers of refugees and have attempted individual assessments have usually found themselves accumulating a very large backlog.

A fifth indisputable point is that the degree of generosity evidenced by receiving states at any given moment varies widely, as one would anticipate where governments are making choices on the basis of perceived interests rather than as directed by a comprehensive and precisely articulated cluster of legal norms. No country more perfectly illustrates this point than the United States which, almost without exception during the Cold War, welcomed and aided persons who had left communist countries, whether singly or en masse, while blockading Haitians and insisting on individual hearings and applying relatively rigorous standards of proof to Salvadorans and Guatemalans.(11)

A sixth point is that once asylum seekers actually manage to enter a country, they have rarely been forced to leave. After trying for years to round up and expel the almost half million Salvadorans who had originally entered or remained in the country illegally, the United States Government finally agreed to grant them a temporary reprieve (of indefinite length). Forcible repatriation of substantial numbers of people from a particular country is rare. And even when it not patently illegal, it tends to evoke criticism, as the Hong Kong authorities discovered in 1993 when they forcibly repatriated Vietnamese boat people found not to satisfy the Convention definition. Although the United States was then engaged in physically intercepting Haitian refugees and returning them to the jurisdiction of that country's violent de facto government, it joined the chorus of condemnation.(12)

An additional aspect of state practice over the past four decades is some degree of regional variation. The nations of sub-Saharan Africa have appeared particularly inclined to accommodate refugee flows. The appearance may reflect something more than administrative ineptitude and resignation in the face of the irresistible. For when certain African states--for instance, Ghana in the 1970s and Nigeria a decade later--decided to send voluntary migrants home, workers and small entrepreneurs attracted by temporarily more dynamic economies, they proved efficient, even ruthlessly so, in bundling the unwanted out of the country.(13) That Africans actually feel either a higher degree of moral responsibility for involuntary migrants from other African countries or a much lower order of economic and social threat is at least suggested by the difference in breadth between the UN Refugee Convention's definition of refugee and the definition in the 1969 Convention on Refugee Problems in Africa adopted by members of the Organization of African Unity. The latter while incorporating the UN definition, includes:

every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his [sic] 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 origin or nationality.(14)

African states have been prepared to pay a heavy price for their hospitality. In defense of apartheid, South Africa's white government violently harassed governments harboring activists of the African National Congress, combining overt incursions and aerial bombardment with all of the forms of clandestine terrorist violence. Whatever the roots of African tolerance for the forced migrant--cross-border ethnic ties, relatively attenuated national identities, less encroachment by refugees on developed urban areas, fewer social services to be strained and social goods to be consumed, greater empathy stemming from comparable vulnerability, stoic acceptance of the unavoidable, all have been suggested--its existence seems clear to this point.

As already noted, Europe's response to mass migration in the 1920s and 1930s displayed a similar willingness to assume responsibility in case of mass migration away from persecution and harshly authoritarian and intolerant regimes. Many of the migrants--particularly the Russians, Armenians and Spaniards--were given not merely temporary refuge but the chance to integrate into the recipient country. Europe's migrants, like those of contemporary Africa, were not crossing perceived cultural/racial divides, divides maintained in part by illiteracy, primitive systems of global communication and the cost and difficulty of long-distance travel. The revolution in international communication systems, as well as in the diffusion of knowledge, and the radical reduction in the costs and availability and speed of intercontinental travel have bridged that divide. The swelling number of people crossing it have substantially contributed to a crescendoing demand among European electorates for sharp limits on all cross-cultural immigration, regardless of the immigrants' motives and needs.

A final point about the international coping mechanisms. The seven phenomena sketched above reflect the choices, interests and improvisations of individual states. Still, as I have suggested, the practice of individual states is not entirely unpatterned. They have influenced each other, naturally, and all have been influenced by the slender norms of the migration regime, primarily the rule of non-refoulement and, perhaps more diffusely, by the norms of the overlapping, far more elaborate regime of human rights. At a minimum, human rights norms limit national discretion over the treatment of migrants pending decisions about their status. The Refugee Convention and Protocol prohibit punishment for applicants who have entered or stayed illegally. Human rights law and practice dictate that, however characterized, detention for an extended period is punishment and is thereby prohibited in the absence of precise charges (of activities previously determined to be criminal) and conviction after expeditious and fair trials.(15) In limiting the period of detention, human rights law correspondingly exerts pressure to accelerate processing of asylum requests in those states that are loathe to parole applicants into the society while their cases are being considered.

Human rights norms also affect the conditions of detention. Article 10 of the International Covenant on Civil and Political Rights states that "[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."(16) Presumably the minimum standard of treatment must be higher when the persons detained are not charged with or even under suspicion of having committed criminal acts. The Covenant is, moreover, subject to an interpretation which would prohibit any state from discriminating among persons seeking asylum, if not among migrants generally, on the basis of their race, color, sex, language, religion, political or other opinion, national or social origin. One may fairly dispute whether the past practice of the United States satisfies this legal prohibition.

Global Coping Arrangements

As they have been forced to wrestle with the mass migrations flooding over the formally neat arrangements of the refugee treaties, states have enlarged the jurisdiction and resources of the United Nations High Commissioner for Refugees (UNHCR). Indeed, from the moment at the beginning of the 1950s when they conceived the main formal elements of the present regime, the leading states have implicitly conceded a need to extend assistance and protection beyond the formal jurisdictional boundaries they had created through their definition of a "refugee." The very diplomats who approved the Refugee Convention recommended in a Final Act of the conference that states not apply the Convention strictly.(17) In 1957, when the members of the Executive Committee of the UNHCR (dominated by representatives of the states who are the main voluntary contributors to the agency budget) could not reach agreement on the question of whether Chinese refugees in Hong Kong satisfied the Convention definition, the General Assembly authorized the Organization to use its "good offices" on their behalf. In subsequent resolutions the Assembly frankly eliminated the formal distinction between Convention and non-Convention refugees and authorized the UNHCR to act on behalf of "refugees who were in a situation 'analogous' to that of Convention refugees because they were victims of man-made events over which they had no control."(18)

These resolutions have simply regularized the practice of the UNHCR, a UN agency respected for its will to act consistent with the spirit of its mandate, even when that has meant exceeding its original letter, and to anticipate ex post facto authorization from the General Assembly. By its consistent efforts on behalf of refugees fleeing unnatural disasters--mostly pogroms and wars--it has given the migration regime world-wide presence and coherence. Those efforts include establishing camps, providing and coordinating relief, interceding with host governments on the refugees' behalf, monitoring refugee settlements in an effort to protect their human rights, providing identity and travel documents, fostering rehabilitation and training and other measures designed to provide refugees with means of self-support, facilitating repatriation, and, where repatriation is not a viable option, seeking the integration of refugees in countries willing to accept them as permanent residents.

The means for immediate relief and for the beginnings of economic rehabilitation come primarily from the agency's own budget, supplemented by the efforts of some national aid programs and a plethora of mostly western-based non-governmental organizations (often working with local NGOs) which, in addition to raising money from private sources, have become channels through which a growing proportion of governmental assistance flows. These NGOs are now key elements of the international regime, supplementing the resources and administrative infrastructure of the UNHCR and influencing the policies of their respective national governments. In dramatic cases like Rwanda, where the physical remoteness, scale and velocity of migration bursts through the international safety net, probably the only available means for avoiding a holocaust is employment of the unrivaled logistical capacity of the US Armed Forces.

Internally Displaced Persons--The UNHCR's explicit mandate from the General Assembly currently endows it with responsibility for materially assisting and protecting nearly twenty million people, an eight-fold increase since 1970. Sizeable number though it is, twenty million constitutes only a minority of the globe's involuntary migrants. For an additional twenty-five million are displaced within their own countries, not so much ignored in most cases as actively molested: by their nominal government, by insurgents or by more-or-less autonomous paramilitary formations. They are, in the words of a UN report, "persons who have been forced to flee their homes suddenly or unexpectedly in large numbers, as a result of armed conflict, internal strife, and systematic violations of human rights or natural or man-made disasters."(19)

Until very recently, if they were not the most wretched of the wretched, they were at least the most ignored and least protected. As far as protection is concerned, they fell and still fall outside the explicit mandate of the UNHCR, the only UN organization with the authority, means and personnel for worldwide day-to-day monitoring and intercession on behalf of the endangered. With respect to assistance, while they are potential beneficiaries of both UN humanitarian agencies (like UNICEF and UNDP) and NGOs (like CARE and OXFAM), the agencies lack a universally conceded right of access to a country for the purpose of helping displaced segments of its population. Legal formalities aside, providing assistance without the cooperation, much less with the veiled or open opposition of public authorities, is extremely difficult when it is possible at all.

Where the displaced are in countries that have ratified the 1949 Geneva Conventions and Additional Protocol II of 1977, the International Committee of the Red Cross (ICRC) is the one organization with a formal right to assist and protect, but only if displacement occurs in the context of a largescale internal conflict.(20) How large is often a matter of dispute with the incumbent regime often insisting, even as it clings to a few square miles around the capital, that the problem is little more than banditry.

In some instances, the UNHCR has partially bridged this yawning gap in the international migration regime. It has done so either in response to special authorization from the General Assembly or as an incident of ministering to trans-border refugees inside a country that has many internal ones. No one in either the humanitarian or human rights communities, including the High Commissioner for Refugees, has suggested that these ad hoc arrangements are in any sense satisfactory. Among other flaws, they have in a substantial number of cases confronted the UNHCR with awful dilemmas. In Bosnia, for instance, it has been torn between assisting people inside the country, partially with an eye to dissuading them from swelling the war-induced refugee population of Central and Western Europe, and helping them to escape chronically perilous conditions (and in the process probably facilitating the policy of ethnic cleansing). In countries where external and internal migrants coexist and the latter are objects of government hostility, remonstrating with the government over its treatment of the latter, may compromise cooperation in assisting and protecting the former. While by their acts and omissions, the official organs and leading states of the General Assembly have provided the UNHCR with moral dilemmas and conflicts of interest, they have denied it sufficient resources adequately to aid all the internally displaced where political conditions permit.

It was with an awareness of the virtual vacuum of protection for the internally displaced that the United Nations Human Rights Commission in 1992 requested and obtained from the Secretary-General appointment of a Representative to study the protection problem and prepare a report. In his first report a year later, the man chosen, a former Sudanese diplomat named Francis Deng widely respected for his intellect and integrity, underscored the need to develop legal norms addressed explicitly to the perils of displaced persons and machinery for monitoring compliance.(21)

Two kinds of norms are required. One would limit the means governments could adopt during states of emergency when, under the various human rights treaties, most rights (with the universal exceptions of life and security from torture and other forms of cruel treatment) are subject to suspension.(22) This must be done because it is conditions susceptible to characterization as emergencies that produce internal displacement. The other would obligate states to allow humanitarian organizations to aid the displaced. Such a declaration would contribute to the widening conviction that where governments block humanitarian relief to persons in imminent danger of death from starvation or disease, it may be introduced without the consent of the government, even, in extremis, by force.

Parts of the machinery necessary to monitor enforcement of these norms is already in place. Humanitarian and development agencies like UNDP and UNICEF have field representatives in most potential national sites of mass displacement. They could be instructed to report violations to the Office of Humanitarian Affairs at the United Nations or to a specially-created crisis-anticipation and strategic-planning unit attached to the Office of the Secretary-General. The same unit in New York could receive and collate data from human rights and humanitarian relief NGOs and national intelligence agencies. In addition, the General Assembly could institutionalize the system of human rights monitors like those hitherto deployed, in cases like El Salvador, to facilitate the settlement of internal conflicts. Further to the end of protecting the internally displaced, it could augment the resources available to the Human Rights Commission and its support staff at the Geneva-based Human Rights Centre.

The Shrinking Refugee?

Refugee Advocates, critical as they often are of existing arrangements and practices, fear that on balance the future will be worse. Western Europe, a long established place of refuge for involuntary migrants, is the major immediate focus of concern. The consequences of growing hostility to foreign residents, particularly non-Europeans, in the various states and the reactive erection by national governments of stricter barriers to entry will, it is feared, be compounded by regional harmonization of migration controls generally and of asylum policies and procedures in particular. One critic argues with passionate exaggeration that the future is already here. "[U]nder the guise of 'harmonization,'" he has written, "European governments have effectively renounced their commitment to an inter-regional system of asylum.(23) Asylum as well as immigration in general is coming under increasingly severe controls because, in the words of another scholar/advocate, "[t]o a great extent the distinction between refugees, illegal immigrants, drug traffickers and terrorists has become blurred in the public mind and they are all seen to be problems which can only be resolved by stricter border controls."(24)

Harmonization of rules and procedures governing immigration and asylum is an inevitable incident of the effort to achieve completely free movement of persons, as well as goods and services, throughout the European Economic Community. Control over entry is so closely bound up with the idea of the nation-state and of the right of national self-determination, lies so near to the heart of sovereignty, that its complete surrender to a supra-national authority is bound to be resisted bitterly. To the extent enthusiasts for integration can hope to overcome resistance, it must be in part through achieving intergovernmental agreement on common external controls that maintain or even advance the preferences and interests embodied in each national control system. Because immigrants are not today the object of great solicitude from important segments of any national electorate and restriction is a major theme in the domestic politics of most members, harmonization inclines naturally toward closure.

Most Community states severely limit ordinary immigration. Thus the rapid increase in immigrants in most states stems almost exclusively from clandestine migrants and asylum seekers. Even if Community members were united in the desire to maintain Europe as a major place of refuge and to generous compliance with the non-refoulement norm, measures to reduce illegal entry by so-called economic refugees would incidentally tend to inhibit asylum claims. Because asylum is increasingly identified as a main source of Europe's immigration problems, the incidental effects are likely to be ignored. At worst, they may be contrived.

One current technique for enforcing restrictions on ordinary immigration which may coincidentally thwart some asylum claimants is a uniform system of fines for common carriers which bring persons without entry visas to European points of entry. In addition, the act of assisting or conspiring to assist entry of persons without visas is being criminalized. The kind of intense persecution that drives legitimate bids for asylum will often erupt with little warning. Targets will sometimes have a slight window of opportunity for leaving the country. It may close long before an embassy concludes its evaluation of a request for refuge. Simply visiting an embassy may trigger the acts the latent victim fears. Ironically, common carrier penalties may have much less impact on economic migrants. For with the aid of family and friends who hope to follow, they may leisurely accumulate sufficient funds to support a plausible request for a tourist visa which will open the door to an illicit permanent stay.

Still, concern over the fines, however uniformly onerous, may be a little exaggerated. Many national governments have long required common carriers to check for visas if they are carrying passengers from countries whose citizens require them. Uniformity and an overall increase in severity of the fines seems unlikely to have much affect on the status quo. What is feared, I gather, is the imposition on common carriers of an obligation to go beyond a cursory check of visas. But the elements of the feared wider inquiry are unclear. That the passenger has a return ticket? Funds sufficient for maintenance during the visit?

The visa itself seems likely to remain the main obstacle. Hence a more serious concern is the prospective evasion of non-refoulement through refusal to grant or readiness to cancel visas to persons assumed to be seeking them in order to present a claim of asylum when they reach an EC country. What advocates fear is an agreement among all Community states that applicants must apply for asylum through one of the European embassies in their own countries.(25) On-site decisions diminish the opportunity for asylum in at least two ways: (1) they are reached by diplomats through an opaque, informal process (far from the censorious eyes of refugee advocates) rather than by quasi-judicial officials in a transparent, trial-type hearing which in some countries is subject to judicial review; (2) they deprive the applicant of non-refoulement protection, since it snaps into place only when he or she has reached another country (or is at least subject to its effective authority). Asylum may be denied, after all, simply because a country has set some numerical limit to the number of people it will take in a given year. But if the applicant is already in the country, the rule of non-refoulement temporarily trumps the limit; applicants are protected from expulsion until their fear has ceased to be credible.

It is not only the potential evasion of non-refoulement and the consequent peril for persons fearing persecution that animates critics of harmonization. Another source of concern is the larger number of people fleeing the generalized violence of civil wars and inter-communal brawls. While they qualify for assistance from the UNHCR, since in most cases they cannot demonstrate that they as individuals are, or are likely to become, objects of persecution, they do not, of course, satisfy the definition of the Refugee Treaties. Hence, in theory their asylum applications will be rejected wherever they file and, even if they filed in a Community member state, once rejected they could not invoke non-refoulement to block deportation.

What in fact has generally happened to these "de facto" refugees as they are sometimes called is either of the following. Some countries have simply allowed them to remain indefinitely. In others, de facto refugees have had no need to test the generosity of the host government; rather they have been able to rely indefinitely on the sluggish pace of asylum adjudication in most of Europe(26) where petitions will be presented and defended with meticulous care by immigration lawyers and every possible appeal exhausted. What has hitherto been critical, then, is getting to Europe.

Heavy pressure for on-site processing is one of the measures directed specifically at potential refugees that tends to link harmonization with the prospect of a straitened European gate. Others are: (1) prohibiting multiple asylum applications (countries would treat a claimant's rejection by one community member as binding on all the rest); (2) distributing applicants according to community criteria rather than applicant preference, largely by making the country that admits or issues a visa to the applicant or possibly the country of residence (should it differ) responsible for hearing the claim (3) coordinating views about conditions in the home countries of the bulk of applicants to the end of establishing uniform presumptions about the credibility of their claims.

As the system has functioned, an alien arriving in a member country by one means or another may apply for asylum. While awaiting decision, which together with appeals of an initial rejection can be years away, applicants in many countries are paroled into society and either allowed to work or provided with financial support. Under another possible scenario, the alien enters the Community as student or visitor with a visa from one or several Community members. (They are now working toward a common visa.) Deciding to seek asylum, the applicant may file simultaneously or serially in several or all member states or choose the one believed to be most generous in evaluating asylum claims and/or to have the most elaborate system of review. Each country makes an independent determination according to its procedures, presumptions, and sources of information.

If harmonization follows the lines sketched above, the applicant will be able neither to try his or her luck in a number of countries nor to choose the one with the best general record of approval or the best rate for applications from this individual's country of origin. Analysis of asylum decisions in cases involving persons from the same country with roughly similar sorts of claims shows a striking diversity of results. In the mid-1980s, for instance, "some 90 percent of Tamil refugees from Sir Lanka were recognized in Denmark. During the same period in Germany, however, the figures for Tamil refugees were 8 percent for 1984, 37 percent for 1985, and 20 percent for 1986."(27)

Integration and harmonization could have a benign affect on European Community asylum policies if they encouraged agreement on the equitable distribution of refugees among the members. Wider distribution of the refugees might help to exempt them from the increasingly indiscriminate popular hostility particularly to non-European migrants. Candidates for asylum have evidenced distinct national preferences. The relative abundance of employment opportunities and welfare services, together with the relative liberality of asylum norms and practices, have no doubt influenced them. All of these elements have made Germany a favored port of call. In 1988, 1989, and 1990, 61, 54, and 62 percent, respectively, of all persons seeking asylum in the EC chose Germany as their point of entry.(28) Had an allocation agreement already been in place, it might have moderated the accumulation of electoral pressure which finally moved the German government sharply to narrow the opening for asylum applicants. A combination of measures, including more summary procedures and refusal to consider for asylum persons coming to Germany through safe countries, have abruptly shrunk asylum applications. In short, Germany is attempting a unilateral redistribution of potential asylees.

It is conceivable that a community-wide fair sharing agreement, one incident of harmonization, will in some measure reduce the pressure felt in all countries to restrain migration. But the German experience may be read as a confirmation that countries can ward off refugees without benefit of multilateral arrangements. That will depend, presumably, on whether an increase in undocumented immigration rapidly succeeds the decline in entries effected through the avenue of asylum.

In any event, the natural momentum of harmonization is toward much tougher restrictions on entry. For there is no blinking the fact that the elimination of internal barriers to movement unaccompanied by general adoption of the more severe national standards and procedures governing asylum could hardly elicit support from those member states most anxious to reduce their intake of persons from outside the community.

The political forces driving restrictive policies in the latter countries seem far more compelling that the forces urging generosity in the countries hitherto occupying the liberal camp. There may be exceptions. The Dutch Parliament has stated its determination to assure that country's compliance with its international commitments concerning refugees. The European Parliament and the Council of Europe also have spoken in favor of generosity. Nevertheless, in Europe the Parliament and the Council are nowhere near so revealing of regnant political sentiment as are national governments. And in the Schengen Agreements and Dublin Convention and in proposals developed by the Ministers responsible for immigration, they have evidenced a commitment to restraint, a readiness to adopt most or all of the measures feared by refugee advocates, that closely tracks the growth of anti-foreign sentiment within national electorates.(29)

Whether the Community can effectively enforce a much more restrictive policy is unclear. Open requests for asylum have been increasing alongside informal immigration. According to UNHCR data, the number of people seeking asylum in EC countries rose from 420,000 in 1991 to 560,000 in 1992, with an estimated 400,000 in the first half of 1993. This increase has occurred in the face of what is overall a very high rate of rejection: on average, only about 9 percent of applications are accepted.(30)

Particularly since the single European Act of 1986 envisioned the abolition of internal controls, but with antecedents in anti-terrorist consultations begun in the mid-seventies, Ministers and officials of the member states have been working to enhance cross-border cooperation among police and other law enforcement agencies. Within the framework of the Schengen Accord of 1985 and its 1990 Implementing Convention, working groups (including representatives of all community members other than Denmark, Ireland and the U.K.) have been developing schemes of operational cooperation in a wide range of areas including asylum which has its own sub-group.

One product of their exertions is a project consisting of a central computer into which information will be poured automatically from national data banks. The resulting common data base will give government agencies access to identical information on wanted persons, 'undesirable aliens,' asylum-seekers, persons to be expelled or extradited, and certain other categories of people. Specifically to facilitate implementation of agreed approaches to immigration and asylum matters, the states participating in the Schengen arrangements are establishing another system to store and share data concerning visas. With the coming into force of the Treaty of European Union in November 1993, joint enforcement planning is continuing as part of the overall Union administrative and consultative structure.(31)

The pooling and exchange of information and other forms of cooperation are essentially opaque. The concerned officials are politically accountable only to national ministers primarily concerned with national security and law enforcement. It remains to be seen whether, in the event an individual discovers that he or she has been injured as a consequence of these activities, effective judicial review and restitution are possible.

ASSESSING THE REGIME

Is There An International Migration Regime?

Before turning to assessment of the regime, we need to step back and confirm its nature and proper scope. Arguably there is no international migration regime in the sense of a coherent cluster of norms and institutions which both reinforce and reflect accepted ways of dealing with some international relations issues. There is simply a refugee regime. At any given time, it affects directly only a small portion of humanity, and a somewhat larger portion of that subset of the species which is currently on the move away from ancestral homes or clearly would like to be. Beyond the refugee regime's jurisdiction lies a hodge-podge of the idiosyncratic law and practice of 180-odd nation states assiduously pursuing their narrow interests and normative fragments from other regimes, primarily the human rights one.

This is not a merely academic point. It connects with the question of whether the refugee issue ought to be kept as separate as possible from the immigration one. Once they begin to fuse in the public discourse of wealthy and stable states, where for the most part electorates are demanding sharp reduction in the intake of "foreigners," the prospect for refugees dims. Hence it is only if they can be kept on a separate track in the minds of electors and leaders that refugees can hope to find safe havens as the generality of immigrants confront a closing door.

Even in a country like Germany, where a right of asylum, enhanced by procedural guarantees, is built into the constitution, the separate track is proving difficult to maintain. The chances of overcoming that difficulty, in Germany or elsewhere, will vary in part with the sheer numbers of regugees who seek admission and in part with the degree of success in handling two other factors. One is the ability to articulate a morally compelling distinction between the condition of refugees and other potential immigrants. Another is the ability of each concerned country to find ways of embodying that distinction in procedures that are seen to work. Managing to do either is decidedly problematical.

The raw truth is that hundreds of millions of people (the figure continues to rise) are threatened every day with death, mutilation, crippling disease, starvation, and degradations of a hundred sorts. And they enjoy a firm guarantee that if they remain where they are, their awful conditions will endure. How persuasive, ultimately, is the moral distinction between X who credibly fears imprisonment for writing editorials critical of the government, Y who is in flight from chaotic tribal conflict in her homeland and Z, a landless Indian peasant with two young and malnourished children (surviving out of an original five) whose only means of employment, weaving fish nets, has been destroyed by new technologies? The less persuasive the distinction between X, on the one hand, and Y and Z, on the other, the more the images of refugee and immigrant tend to merge. However, they also tend to merge when, in an effort to soften the moral tension caused by distinguishing sharply between X and Y/Z, as well as to provide X with maximum assurance of asylum, governments adopt spongy criteria and quasi-judicial procedures; for together they guarantee a process not only messy and prolonged, but one that, as it is colonized by advocates, will grind more and more coarsely until asylum becomes little more than another avenue of immigration.

Critique Of The Regime

Most academic scholars and human rights activists appear united behind a wide-ranging critique of the present regime which they characterize as arbitrarily underinclusive in defining who is to be excluded from its benefits and arbitrary and capricious in treating those who are theoretically included. It is underinclusive, they argue, in terms of the liberal ideals which animate it. Rooted in the perception of a common humanity, those ideals impose moral obligations to help all human beings who, through no fault of their own, are threatened with death or crippling injury or otherwise fall below the minimum needed for the experience of human dignity. It is, they argue, as immoral for a state to bar the entry of people fleeing ethnic pogroms or civil wars as it is for one person to ignore another seen bleeding by the roadside.

Nor can the cases be consistently distinguished in terms of sharpness of need. A person able to demonstrate a "well-founded fear" of being targeted for execution, torture, or indefinite detention is not necessarily at greater risk than civilians occupying de facto free-fire zones in guerrilla-infested territory and collectively suspected by the government of lending aid and comfort to its enemies. Nor, for that matter, some might argue, is he or she more immediately threatened than peasants stripped of their crops by natural disaster and left to rot by a corrupt and incompetent government. And, one might add, their condition seems indistinguishable from that of persons, such as homosexuals in some countries, who suffer not from the positive acts of government officials but rather from their indifference and consequent failure to protect. Finding a failure of protection in a Brazilian city, a federal court judge ruled that a homosexual applying for asylum satisfied the statutory criteria.

The second facet of the critique is that even those who satisfy the narrow treaty-based definition of refugee are frequently rejected, while, most conspicuously in the case of the United States, those who probably do not qualify are often admitted. Even after emigration from Cuba had begun to correspond fairly closely to decline in living standards there, the United States continued until the late summer of 1994 to admit virtually all Cubans who reached shore or a US vessel. Even after the military government instituted a reign of terror against persons and social groups deemed hostile to it and the economic sanctions sponsored by the United States aggravated chronic deprivation, most Haitians have been denied entry. Before the Haitians, Salvadorans and Guatemalans discovered the disadvantage of fleeing a right-wing regime and lacking politically influential predecessors already settled in the United States.

Gross anomalies occur because interpretation and application are left almost entirely to the discretion of individual states. Each government, only slightly restrained by human rights law, decides such matters as who will hear asylum cases? How will they be trained? What presumptions will they apply? What standard of proof should they employ? Can they use as evidence, material like confidential reports from the foreign office, not subject to critical examination by the applicant? To what extent, if any, are their decisions subject to judicial review? Does the applicant have a right to legal representation?

The treatment of applicants pending decision or after rejection on purely numberical grounds (the year's quota had been filled) execution of which is blocked by the rule of non-refoulement is subject to an almost equally broad discretion. European governments have generally paroled persons into society; now, however, there is movement toward detaining them. American policy has varied, with geopolitical interests and domestic politics the critical determinants.

International human rights treaties impose a little order on procedures and treatment, but probably not enough to justify the claim that anything like the rule of law prevails in this area of national jurisprudence. Article 13 of the CCPR states that

An alien lawfully in the territory ... may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.(32)

It leaves largish room for interpretation. Is an alien who makes it to the immigration kiosk "in the territory"? How about one who is hauled out of a leaking boat on the high seas into a Coast Guard cutter? Should a public ship be deemed "territory"? Is an alien who enters ostensibly as a tourist and then, immediately after arrival, applies for asylum, "lawfully" in the territory? In short, one could credibly argue that the Article applies only to persons who have passed through immigration in possession of a valid visa obtained in good faith.

Even persons to whom the article applies are guaranteed neither a trialtype hearing nor a right of appeal. Subject to restrictions "necessary to protect national security, public order (order public), public health or morals," however, they enjoy under article 12 of the International Covenant the right to liberty of movement. But a government inundated by asylum seekers might plausibly claim that their detention was necessary for public order.

Human rights norms do establish a protective floor below which governments cannot in any circumstances sink. They cannot lock people up in dangerous and noisome cells; they cannot detain people indefinitely if they are not shown to constitute individually a serious threat to national security or the rights of others; they cannot discriminate among migrants purely on the basis of their race and other ascrptive characteristics (although they probably could distinguish among them on grouns of the relative ease of assimilating peoples). Government officials carry these legal obligations around wherever they go, including the high seas and foreign military bases. The High Commissioner for Refugees has hitherto been the main organ of the international community available to monitor and urge compliance with these standards. Theoretically the newly established High Commissioner for Human Rights can, certainly the office should, supplement the UNHCR's efforts.

A further threat to just administration of the international standard stems from the bonding of decentralized implementation and the rubbery language of the refugee treaties. For it gives states considerable flexibility as they set about translating the "credible-fear-of-persecution" norm into operational guidelines for asylum judges. Is fear "credible" only if, given the person's position, the feared event is likely to occur? Or must the scenario envisioned be sufficiently likely that a reasonable person positioned like the applicant might well feel fearful? Must the feared event be seen as imminent or something reasonably likely to occur if the individual, for instance, continues to write editorials critical of Islamic fundamentalism?

The word "persecution" establishes a wide field of play for contesting interpretations. What deprivations beyond death, torture and detention suffice? Should a government or a society that requires women to cover their hair and wear black, sack-like garments be seen as persecuting any woman who prefers suits by Chanel to dresses by Khomeini? Does it matter how restrictions are enforced, whether by exclusion from public employment or publicly supported educational institutions, by caning or by imprisonment? Can it not be argued (it has been by at least one scholarly commentator) that all women who wish to ignore one or more of the sexist rules of behavior characteristic of many, probably the great majority of societies, has a credible fear of punishment? And is it not also arguable that in such societies, women can be seen as being persecuted by virtue of their membership in a "social group." As I suggested above, could not homosexuals in many societies make a still stronger claim to living with a credible fear of persecution by reason of their membership in a particular social group?

The human rights community obviously inclines toward a broad view of persecution as the prospective violation of any human right, in other words, as a credible threat to punish some current status or membership or planned or desired activity protected by the human rights conventions. Most governments and asylum judges interpreting government policy have thus far adhered to a more restricted notion of persecution, and have doubtless done so out of an appreciation that the broadest credible interpretation would vastly increase the number of the world's refugees. But because a plausible but narrow construction denies refugee status to a great number of affecting cases, in liberal polities it is bound to be contested and, regardless of political outcome, to remain an enduring source of political tension, bureaucratic conflict and moral confusion.

What is to be Done, if Anything?

Among the few things that can be confidently anticipated in today's chaotic world are (a) chronic increase in the number of involuntary migrants punctuated not infrequently by mass exodus and (b) increased resistance among the electorates of wealthy states to existing much less increased arrival rates for migrants, however labeled. In the very long run, of course, the second phenomenon could change. It is, after all, not unlikely that most wealthy countries will be unable to stem the flow of undocumented aliens and hence their populations will become more ethnically and racially diverse. Political competition in pluralistic societies will probably accelerate the process as political activists of recent and still expanding ethnic streams work the system in order to enlarge their electoral base. Although this is less predictable, the rate of ethnic diversification and the ease of communication between new arrivals and their countries of origin could, in conjunction with post-modern cultural forces in the most developed states, partially neutralize the assimilative forces of the host societies. And, rather than Balkanizing and polarizing society, the resulting multiculturalism might in turn thin out the distinction between the indigenous and the foreign, between citizen and alien. While that pretty scenario is imaginable for the very long term, in formulating policies now, Western political leaders must assume an environment in varying degrees unreceptive to the absorption of large numbers of migrants coming, as most invariably would, from across racial/cultural divides.

One possible response of Western policymakers is to accept in their essence the present normative and institutional arrangements, to accept them on the grounds that, for all their faults, they may be the best, politically sustainable means of assisting involuntary migrants, one likely to function rather more coherently now that the Cold War is history.

One of the present regime's declared vices, its decentralization and the consequent diversity of interpretation and enforcement, may also be a virtue. For it provides, albeit higgledy-piggledy, the flexibility required by often volatile shifts in the generosity of public sentiment in one or another country and helps the international community as a whole avoid a grinding, polarizing, and quite possibly futile effort to negotiate clearer standards and procedures.

Nor, despite what some enthusiasts of virtually open borders seem to imply, is the regime morally incoherent. There is, in fact, a quite sensible basis for not including in the refugee regime victims of famine and lethal poverty. Because their agony results from the mere indifference or ineptitude of public authority, not its active hostility, assistance can be brought to them by compassionate governments and private groups. In other words, the danger can be alleviated in situ by uncoercive means which do not challenge the authority of governments or the sovereignty of states. In place protection of those targeted by governments conversely requires coercion. The costs of coercion--to those who employ it, to innocent bystanders, and even in many instances to its putative beneficiaries--discourage its use and guarantee inconsistency to the extent it is used. Improbability of use makes deterrence unlikely. Coercion, moreover, will normally require more time to achieve its effects than the targets are likely to have. Flight will usually be the most efficacious alternative, almost invariably so where targets are too few to excite the moral passion normally requisite for the triggering of potentially effective intervention.

Excluding from refugee status persons fleeing the generalized violence of an internal conflict also can be justified on the basis of alternative means for achieving the protective end. In some cases samaritans can exercise the protective function by establishing safe havens within the country in uncontested areas to which non-combatants can flee. Where that is not possible, but where the conflict seems subject to fairly rapid resolution, the migrants require no more than temporary safety and sustenance rather than a new home. Discrete targets of persecution will often have no foreseeable opportunity to return in safety. Hence the countries to which they flee must contemplate them as permanent residents.

Not only does the present regime have distinct virtues, in addition it is susceptible to considerable improvement short of radical reform. The governments that are its main supporters could help by enhancing the funding and expanding or clarifying the mandate of various UN agencies that do or could assist in protecting refugees, internal or external. The leading states could also act to strengthen the Secretary-General's capacity to anticipate events likely to generate mass population displacement and to bring them expeditiously to the Security Council. In the meantime, they would remain at liberty to expand or contract the space for refuge in light of their individual perceptions of national interest.

Further enhancement short of root-and-branch change would entail reducing the incentives of states to plunge toward the lowest common denominator of refugee receptivity. Principally this would involve negotiating some burden-sharing mechanism. Without it, refugees will tend to flood into countries with the most liberal policies or those that are the most accessible geographically, thereby generating political pressures for tight ceilings and unrelenting enforcement which could in turn catalyze a free-for-all national competition to reduce access.

A second option, less innovative than may at first appear, is for the wealthy states to increase exponentially material support provided directly to migrants and support for those developing countries willing to shelter and where necessary assimilate involuntary migrants and to cooperate in discouraging their onward movement to Europe and North America. By this means, if coupled with the automatic denial of refugee status to persons arriving from safe countries or who could have found asylum in places nearer their country of origin, the OECD states would effectively isolate themselves from consideration as likely venues for third-world refugees.

This policy option would rest on four premises. One, already enumerated, is that for the foreseeable future, generous asylum policies, even if limited to persons with a well-founded fear of persecution, will aggravate the divisions already roiling political life in many of the affluent democracies. A second permise is that significant but not implausible increase in support levels, particularly financial and logistical aid and technical assistance, for third world governments that provide a haven of first instance, will both persuade and enable those governments in the generality of cases to maintain refugees from neighboring countries indefinitely and ultimately, where they cannot return home, to assimilate them. The third premise is that the described investments (if you will, the "inducements") would actually reduce the flow of cross-cultural migrants rather than simply shifting asylum seekers from open applicants for admission into the category of undocumented infiltrators. The final one is that democratic electorates will believe the third premise and regard the hypothesized pay-off as an efficient investment rather than a waste of resources that could otherwise fund more Draconian means.

In dealing with another widely perceived threat to society, crime, the American electorate has thus far been unwilling to see much less to respond positively to a somewhat analogous trade-off, that is investment to alter the life chances of poor youth in order to reduce the social costs of crime and the financial costs of punishment. They have not bought the tradeoff in large measure, I believe, because it has been impossible to demonstrate to their satisfaction a close causal relationship between a particular kind and size of investment and corresponding reduction in violent crime. If at existing levels of knowledge and political sophistication, it has been impossible to sell that trade-off, can we have any confidence that the migrant trade-off would be bought, even assuming leaders could be found to sell it?

Perhaps not, yet it could be argued that this second option is already being tested, albeit on a very small scale. When in the mid-1980s, the budget of the UNHCR reached a half-billion dollars, it was conventional wisdom among refugee experts that the limits of international support had been plumbed. As we approach 1995, its budget is 1.5 billion and rising. Meanwhile, those Cubans testing the once generous asylum policies of the United States are finding a new home in Guantanamo, while in Germany, for years affluent Europe's greatest asylum donor, the once long backlog of pending applications shrinks apace.

(1.)See e.g., Conway Henderson, Human Rights and Regimes: A Bibliographic Essay 10 HUM. RTS. Q. 525--43 (1988).

(2.)The definition of political offense remains problematical. See, for instance, cases involving efforts by the United Kingdom to extradite alleged IRA terrorists from the United States: Matter of Doherty by Gov. of United Kingdom, 599 F. Supp. 270 (S.D.N.Y. 1984) and Quinn v. Robinson, 783 F. 2nd 776 (9th Cir. 1986), cert. denied, 107 S. Ct. 271.

(3.)Aliens Act 1905, Y.B. 5 EDW. 7, ch. 13 (1905).

(4.)League of Nations Covenant, in 13 AM. J. INT'L L. 128 (Supp. 1919).

(5.)Convention Relating to the International Status of Refugees, 159 L.N.T.S. no. 3663 (1933).

(6.)GUY S. GOODWIN-GILL, THE REFUGUEE IN INTERNATIONAL LAW 71 (1983).

(7.)Convention Relating to the Status of Refugees, opened for signature 28 July 1951, entered into force 22 Apr. 1954, 189 U.N.T.S. 137.

(8.)Protocol Relating to the Status of Refugees, G.A. Res. 2198 (XXI), 21 U.N. GAOR, Supp. (No. 16) at 48, U.N. Doc. A/6316 (1967).

(9.)While 1967 is the date of its formal adhesion to the international regime, the US continued operating outside it until 1980 when the Congress at last adopted implementing legislation. Among other things, the legislation substituted the Convention's definition of a refugee for the narrower one adopted by Congress shortly after the War.

(10.)And this preclusion is so qualified that a substantial number of persons who enter with a well founded fear of persecution in their home countries are not in fact covered by its terms.

(11.)See Cheryl Little, United States Haitian Policy: A History of Discrimination, 10 N.Y.L. SCH. J. HUM. RTS. 269 (1993).

(12.)Deborah Sontag, Reneging on Refuge: The Haitian Precedent, N.Y. TIMES, 27 June 1993, at [sections] 4, 1.

(13.)Sheila Rule, Ghanaians, Expelled by Nigeria, Return Home to Start Over, N.Y. TIMES, 12 May 1985, at [sections]1, 14.

(14.)OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969, 1001 U.N.T.S. 45 (1969).

(15.)See, e.g., the 1979 Report on the Situation of Human Rights in Argentina, prepared by the Inter-American Commission on Human Rights of the Organization of American States (pp. 140--41), in The Inter-American Commission on Human Rights: Ten Years of Activities, 1971--1981 317 (Washington, OAS 1982). See also Rodriguez-Fernandez v. Wilkinson, 654 F. 2d 1382 (10th Cir. 1981).

(16.)International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, 999 U.N.T.S. 171, entered into force Mar. 23, 1976, ratified by United States 1992.

(17.)GOODWIN-GILL, supra note 6, at 13.

(18.)Isabelle Gunning, Expanding the International Definition of Refugee: A Multicultural View, 13 FORDHAM INT'L L.J. 35, at 51 (1989--90). The entire article is a very useful account of the de facto expansion of the definition by the General Assembly, the UNHCR, and individual states.

(19.)Analytical Report of the Secretary-General on Internally Displaced Persons, U.N. Doc. E/CN.4/1992/23 (1992).

(20.)Protocol Additional to the Geneva Conventions of 12 Aug. 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 12 Dec. 1977, 1125 U.N.T.S. 609, reprinted in DOCUMENTS ON THE LAWS OF WAR 447--64 (Adam Roberts & Richard Guelff eds., 1982). See also DAVID FORSYTHE, HUMANITARIAN POLITICS: THE INTERNATIONAL COMMITTEE OF THE RED CROSS (1977).

(21.)FRANCIS M. DENG, PROTECTING THE DISPOSSESSED: A CHALLENGE FOR THE INTERNATIONAL COMMUNITY (1993).

(22.)JOAN FITZPATRICK, HUMAN RICHTS IN CRISIS: THE INTERNATIONAL SYSTEM FOR PROTECTING RIGHTS DURING STATES OF EMERGENCY (1994).

(23.)James Hathaway, Harmonization for Whom? The Devaluation of Refugee Protection in the Era of European Economic Integration, 26 CORNELL INT'L L.J. 719 (1993).

(24.)Gil Loescher, The European Community and Refugees, 65 INT'L AFFAIRS 617, 624 (1989).

(25.)They also fear that, unlike the US, the Community will decide not to process in-country requests for asylum. The Refugee Convention imposes no obligation in this respect.

(26.)Which is not to imply that the process is any more expeditious in the United States.

(27.)Daniel Kanstroom, The Shining City and the Fortress: Reflections on the Eurosolution to the German Immigration Dilemma, 16 BOSTON COLLEGE INT'L AND COMP. L. REV. 201, 222 (1993).

(28.)Hathaway, supra note 23.

(29.)See Elizabeth B. Ferris, The Politics of Containment: Asylum in Europe and Its Global Implications, in 1994 WORLD REFUGEE SURVEY 20 (Virginia Hamilton ed., 1994).

(30.)John Benyon, Policing the European Union: the changing basis of cooperation on law enforcement, 78 INT'L AFF. 70, 3 (1994) 497, at 502.

(31.)Treaty on European Union and Final Act, 7 Feb. 1992, 31 I.L.M. 247.

(32.)ICCPR, supra note 15, at art. 13.
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Author:Farer, Tom J.
Publication:Human Rights Quarterly
Date:Feb 1, 1995
Words:12711
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