State Controls: Borders, Refugees, and Citizenship
Abstract and Keywords
Forced migration and refugees are intertwined with the nation state and its borders. This chapter examines the relationship between the nation state, borders, refugees, and citizenship. It looks at asylum challenges to the nation state and considers borders and refugees in historical context. In addition, this chapter examines the link between the creation and maintenance of borders and the production of refugee movements. It also discusses how the asylum determination system threatens borders, the state, and the international refugee system.
The study of forced migration and refugees, whether in a contemporary or historical context, cannot be understood without reference to the nation state and its borders. Historically, there is a strong contingent relationship between the emergence of the nation state and the (often violent) generation of large-scale refugee movements. Today, refugees are created through, and indeed are incomprehensible without, the interaction of migrants and borders.
The nation is, following Benedict Anderson, the imagined community of individuals who share some common sense of identity and who place their loyalty to each other above their loyalty to strangers (Anderson 2006). The state, made up of the legislature, executive, bureaucracy, courts, and army, is the final arbiter of disputes, holds a monopoly over violence, and is responsible for protecting, regulating, and redistributing property. Nations are roughly congruent with states, although there are many historical and contemporary exceptions: Germany in the interwar period (when a large German population lived in Poland), Hungary, Russia, and Québec today. The nation state is defined by its borders: externally, they constitute the limits of sovereignty; internally, residence and even mere presence within borders allow individuals to claim the protection of the nation state.
Despite tireless and somewhat tiresome efforts to find an alternate basis for citizenship, the status has no logic, power, or moral force outside a nation state (Hansen 2009). A citizen is one who enjoys the full panoply of rights—civil, social, economic, and political—accorded by a nation state; a citizen can call on his or her nation state, and only that nation state, to claim diplomatic protection; and the nation state can in turn demand the ultimate loyalty of its citizens, including the obligation to fight and die.
(p. 254) The international refugee system, as it has developed since the Second World War, has interacted with the state system in complex ways. On the one hand, the non-refoulement duty imposed by the 1951 UN Convention relating to the status of refugees and the Convention’s 1967 Protocol is one of the few legal limitations on state sovereignty. States, in theory, cannot return or transfer refugees to countries where they face a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion’. On the other hand, the idea of refugees, in the sense understood by the 1951 Convention, is in theory and in practice incomprehensible without the international state system.
This chapter will outline the relationship between the nation state, borders, and refugees. The nation state has both the Weberian monopoly on violence and the sole capacity to protect human rights. Borders, in turn, define the limits, with a few exceptions, of nation-state sovereignty: they can fully protect only those within their borders. To be sure, citizenship does allow the state to extend its sovereignty to a degree: it is responsible for its citizens abroad. But outside its own borders, the state’s capacity to protect those citizens is severely constrained, as imprisoned drug dealers around the world can attest. Asylum seekers become refugees by being recognized as such by the state. The state’s obligations to asylum seekers—non-refoulement and the processing of the asylum claim—are triggered when the asylum seeker reaches the borders of that state and claims asylum (Loescher and Milner 2011: 194). And the end point in a successful asylum application is permanent residence and citizenship rights in the new state, ideally a liberal democratic one.
For the purposes of this chapter, ‘refugees’ are understood in both the popular and the legal sense. In the former, refugees are forced migrants; in the latter, following the 1951 UN refugee Convention, they are people with a ‘well-founded fear of persecution’ granted refugee status by a signatory state to the 1951 Convention. An asylum seeker, whether travelling alone or as part of a mass influx, is a person seeking that status.
Asylum Challenges to the Nation State
The contemporary asylum system challenges the very state system on which it depends. It does so for three reasons: first, because it is one of the few areas in which sovereignty is meaningfully restricted; second, because most Convention signatory states or their courts have articulated complex and lengthy legal procedures that make full asylum processing and subsequent appeals time consuming and expensive; and third, because deportation is extremely difficult. In the last, legal, moral, and financial limits mean that traditionally only a minority of those whose asylum cases were rejected were in fact deported. This fact led nation states to erect a wide variety of institutional and legal barriers designed to keep asylum seekers away from their borders: visa requirements, safe country of origin and safe third country rules, carrier sanctions, interdiction at sea, and the declaration of airports international zones (more on these below). These actions, in turn, threaten the institution of asylum itself. States and borders both sustain and undermine the asylum system.
(p. 255) Borders and Citizenship
As a horizontal status, citizenship requires limits. It is, as Rogers Brubaker famously noted, ‘internally inclusive’ and ‘externally exclusive’ (Brubaker 1992: 21). For most people and in most cases, the limits of the borders are the limits of citizenship. Put another way, one can only be fully a citizen when resident in the state of one’s citizenship. Even dual citizens, a naturally privileged category, enjoy no diplomatic protection when in the state of their other citizenship(s) and often find they have fewer social and political rights (to health care, to lower postsecondary education fees, or even to vote) when they do not reside in the state granting their citizenship.
Borders and Refugees in Historical Context
Borders are basic to the construction and creation of refugee movements in both historical and contemporary contexts. In the former, nation states have been built through mass flight and mass expulsions. In this sense, Europe’s interwar period, in which there was a valiant and failed effort to match borders to people, was the exception. Both before and after the 1919–39 period, the norm was to match, through expulsion and murder, people to borders (Weinberg 2005: 895). Though often presented as an exceptional case, the expulsion of approximately 750,000 Palestinian Arabs from what is now Israel between November 1947 and September 1949 (Chatty and Farah 2005; Lentin 2005) is part of a broader pattern of displacement and dispossession that underpins the constitution of nation states. As discussed in more detail in Akram’s chapter (this volume) on the establishment of the United Nations Relief and Works Agency for Palestinian refugees, the Zionist leadership from at least the 1890s privately floated the idea of transferring Arab populations out of Palestine (Morris 2004: 41–3). Liberal moral qualms, however, constrained the proposal until the 1930s (Morris 2004: 43). From then, partly in reaction to waves of Arab anti-Jewish violence in Palestine, these checks fell away (Morris 2004: 43–4). From the 1930s, onwards, a consensus, with some British support, emerged in favour of transferring Arabs from Palestine in order to make room for Jews and in order to prevent the emergence of a fifth column within the Jewish state (Morris 2004: 47–52). What the Zionists needed was the opportunity to implement that transfer; war provided it.
Rejecting UN General Assembly Resolution 181 of November 1947 on the Partition of Palestine, first Palestinians and, from May 1948, neighbouring Arab states attacked Israel, thereby providing the opportunity for the Jewish leadership to expel 400,000 Arabs from the new Jewish state (Morris 2008: chapter 3). As Arab attacks on Israeli positions intensified and as Jewish casualties mounted, attitudes hardened, and on 10 (p. 256) December 1947, Israeli tactics switched from one of attacks restricted to military targets. ‘Aggressive defence’, in which each attack would be followed by an aggressive counter-attack, reprisals, and the permanent seizure of Palestinian positions, became official policy (Morris 2004: 73; Chatty and Farah 2005: 468). By the end of the war, through a combination of flight and expulsion—the latter organized spontaneously by Israeli army units—750,000 Palestinians had fled their homes. Although there had been no overall plan and coordinated strategy for expulsion (hence 150,000 Arabs remained), preventing the return of those Arabs who had left became official Israeli policy, one ‘[g]enerally applied with resolution and, often, with brutality’ (Morris 2004, 588–9).
It is often suggested that Israel was born with an original sin that blights, as original sin does, all that Israel has done since (Pappé 1992). What is less remarked on is that most moments of nation building occur against the background of ethnic cleansing.1 A few examples illustrate this point. The creation of the American republic led to the subsequent mass transfer and murder of large numbers of Native Americans as well as to the flight or expulsion of some 60,000 Americans loyal to Britain (Jasanoff 2012: 357). By 1850, most Native Americans east of the Mississippi had been transferred west to ‘Indian territory’, and a massacre of California natives (aboriginals) living near goldfields occurred following the 1848 discovery of gold in the state (Grinde 2001: 374). Back in Europe, Turkey’s emergence after the First World War from the ashes of the Ottoman Empire followed the expulsion of 1.5 million Armenians, of whom some 750,000 died (Pattie 2005: 15).
The 1941–51 period provided a particularly vivid illustration of the nation-building/refugee-production nexus. The creation of India and Pakistan led to the flight or expulsion of 8 million people. Poland and Czechoslovakia, among other East European countries, consolidated their post-1945 nations through the expulsion of their ethnic German populations (across Eastern Europe, 12 million Germans were expelled). Huge numbers of Poles had themselves been expelled as Stalin incorporated eastern Poland into the Soviet Union. More broadly, even after mass returns from war-torn Europe, there were after World War II 1.2 million displaced persons unwilling or unable to return to their homelands, including 400,000 Polish POWs and forced labourers; 150,000–200,000 Estonian, Lithuanian, and Latvian Wehrmacht and SS soldiers, slave labourers, and civilians fleeing the Soviets; 100,000–150,000 ethnic Ukrainians; and 250,000 Jewish refugees, including a small group who had survived the death camps and death marches (Cohen 2012: 5-6).
These nation-building exercises were accompanied, and perhaps made possible, by murder sprees of which the Israeli was numerically the smallest. At the end of the Second World War, some 700,000 Germans were killed through starvation, freezing, accidents, and murder; the rape and murder of women and the killing of children were common (Naimark 2002: 111; Snyder 2010: 332). Flight, expulsion, and deportation also resulted in 150,000 Polish, 250,000 Ukrainian, and 300,000 Soviet deaths during the same period (Snyder 2010: 332). In India and Pakistan, nationalist hardliners used ethnic and religious hatred to pursue, as nationalists often do, the creation of new states and the advancement of their careers. The partition of India and Pakistan occurred in and was made possible by a climate of intense religious hatred, by the systematic murder (p. 257) of civilians, by the decimation of whole villages, and by the mass expulsion and flight of millions of Hindus, Muslims, and Sikhs. It was carnage in which all religious groups were both perpetrators and victims. As Yasmin Khan concludes,
Violence must sit at the core of any history of Partition...It affected women, children and the elderly as well as well-armed young men...Children watched as their parents were dismembered or burned alive, women were brutally raped and had their breasts and genitals mutilated[,] and entire populations of villages were summarily executed...Broken bodies lay along roadsides and on train platforms, while charred wood and rubble were all that remained of large quarters of Amritsar and Lahore.... Partition stories of Punjab in 1947 are marked by specific details and are layered in unique and entirely individual family memories. Yet these descriptions are also shot through with generic imagery and the haunting motifs that have entered the popular imagination of South Asia: the corpse-laden refugee train passing silently through the province, the penniless rows of refugees streaming across new international borders.
(Khan 2007: 129–30)
The rape, mutilation, murder, and abduction of women and girls were a central part of India and Pakistan’s nation-building process:
Rape was used as a weapon, as a sport and as a punishment. Armed gangs had started to use rape as a tool of violence in Bengal and Bihar in 1946 but this now took on a new ubiquity and savagery in Punjab...[Many women] were snatched from their homes and villages by marauding gangs or literally carried away from the slow and under-protected kafilas that made their way on foot towards the border...Women’s bodies were marked and branded with slogans of freedom, ‘Pakistan Zindabad’ and ‘Jai Hind,’ inscribed on their faces and breasts. Those who survived were often humiliated and grossly scarred. They had become symbols of terror.
(Khan 2007: 133–4)
There is no essential connection between nation building and the production of refugee movements any more than there is an essential connection between nation building and war, but there is a strong contingent one.
Threatened Borders: Contemporary Refugee Movements
If the drawing of borders was bound up with the production of refugee movements, so is the maintenance of those boundaries. This is true both legally and politically. Legally, both asylum seekers and refugees are created through the crossing of borders. The 1951 Convention creates a right not to asylum but, rather, a right to ask for it; the Convention imposes on states not a duty to recognize refugees but rather not to return them to countries where they face a well-founded fear of persecution (the non-refoulement requirement). In both cases, the process is initiated through crossing at least one border—when (p. 258) exiting the allegedly persecuting country—and reaching another—the country in which the applicant is seeking asylum (Long 2013: 1). As Article 1(A)2 of the 1951 Convention puts it, a refugee is one with a well-founded fear of persecution who is ‘outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of protection of that country’. Subsequent international agreements, often with a more expansive definition of refugees than the 1951 Convention (the 1984 Cartagena Declaration on Refugees or the 1969 Organization of African Unity Convention Governing Specific Aspects of Refugee Problems), retain the emphasis on borders: they are activated when people flee their country (Loescher and Milner 2011: 191). Resettlement, in which individuals are selected from refugee camps, given asylum status under the Convention, and settled in the granting state, is the exception to this rule, but only 1 per cent of the world’s refugees is considered for resettlement (UNHCR 2011). The corollary of these observations is that states wishing to prevent refugee movements obstruct border crossings. ‘Border closures in the face of mass refugee influx,’ observes Katy Long, ‘are a visible demonstration of a state’s refusal to accept the obligations of refugee protection as established under the existing refugee protection framework’ (Long 2013: 464–7; see also Madokoro 2008).
During the Cold War, when metaphorical curtains and real bullets and barbed wire helped limit large-scale population movements from East to West, the refugee system worked rather well from the perspective of Western governments, which is to say that it caused few political problems (Loescher 2001: 54–7). Refugees were few in number, and, as they were often professional or artistic elites from the Soviet Union, their arrival was an economic or cultural boon, as well as evidence of the West’s superiority over Communism. From the 1980s, however, as the costs of transportation declined, refugee migrations surged. After the end of the Cold War, they skyrocketed (see Bank, this volume).
Within scholarly circles, the combination of large numbers of asylum applications in Europe and large numbers of asylum seekers outside Europe encouraged the hypothesis, tested by several migration scholars, that governments had ‘lost control’ over their borders (Cornelius et al. 2004).
Borders and Refugees
Governments soon reasserted that control over their borders. Across the West, states responded to these dynamics—the trigger of rights through the touching of domestic soil, and the limits on deportation—by efforts to block new asylum seekers’ access to that soil and to expand efforts to return those they had rejected. States introduced a wide range of measures designed to keep asylum seekers from reaching national borders. They expanded visa requirements and introduced substantial fines for airlines that allowed asylum seekers to travel without correct documentation, thereby keeping asylum seekers off airplanes. They declared an often dubious (p. 259) list of countries ‘safe’ and therefore incapable of producing asylum seekers (thus allowing states to avoid processing the asylum claims of any nationals arriving from such countries). And they interdicted asylum seekers at sea, declared airports international zones outside the jurisdiction of courts, and expanded off-country detention (to prevent the lodging of asylum claims) (Hathaway 2005: 283–98; Goodwin-Gill and McAdam 2007).
The second and more recent response has involved expanded deportation. As a recent study concludes, there has been a prodigious rise in the use of deportation by liberal democratic states in the last two decades. In the USA and the UK, developments in infrastructural capacity and legal powers to deport, along with a new-found public and official enthusiasm for expulsion, have seen a tripling and doubling, respectively, of the number of non-citizens who leave these states under the threat of coercion. In the UK, deportations rose from 30,000 in 1997 to 67,000 in 2009 (the figure was 68,000 2008); in the US, they rose from 114,432 in 1997 to 400,000 in 2009 (Anderson, Gibney, and Paoletti 2011: 550). Many other countries, including Canada, France, Germany, and the Netherlands, have also become more serious about using deportation as a way of dealing with illegal migrants, failed asylum seekers, non-citizens convicted of criminal offences, and those suspected of involvement in terrorism. It is no exaggeration to talk of a deportation turn in the practices of Western states in their dealing with unwanted non-citizens (Anderson, Gibney, and Paoletti 2011: 547).
Scholars have argued that these efforts amounted to an attempt to bring refugee and asylum policy under the remit of military, security, and policing policy. Recent literature is replete with arguments that states have ‘criminalized’, ‘securitized’, and ‘militarized’ asylum and undocumented migration. As a recent review put it, ‘prisons or immigration removal centres are singularly useful in the management of non-citizens because they enable society not only physically to exclude this population, but also, symbolically to mark these figures out as threatening and dangerous’ (Bosworth 2008: 207–8).
These arguments display a flare for the metaphor, but they confuse ends with means. Governments have no a priori interest in criminalizing asylum seekers, not least because restrictions on migration and asylum attract so much criticism from bien-pensant commentators. Understanding such control measures requires taking them seriously as such: as measures designed to reduce asylum pressures. The question for students of public policy is why governments would adopt these measures rather than others, and this in turn requires reflecting on the aim common to all of them. What unites airline check-in employees flicking through passports and coast guards patrolling the seas is an effort to shift the border outwards. These and other measures aim to remove the burden of securing the border from those guarding the juridical line separating one country from another (Hansen and Papademetriou 2013). And states have been compelled to shift the border outwards because the traditional mechanism of border control has been undermined by the regular operation of the asylum system. States cannot simply line the physical border with guards who deny entry to undesirable migrants, because migrants acquire rights as soon as they reach the shores of a signatory state, and above all a liberal democratic signatory state.
(p. 260) For signatories of the UN Convention, an asylum application at the border triggers a complex, lengthy, and often expensive adjudication process. An asylum hearing must be arranged; lawyers must be appointed; a case and possibly an appeal must be heard; and, if unsuccessful, return procedures have to be initiated. Within the European Union, states are obligated to provide asylum seekers with minimum levels of housing and subsistence while their case is being determined (though the generosity and quality of that support varies in practice greatly across the Union). The average adjudication period in Europe in the late 1990s was six months (Hatton and Williamson 2004: 10). At the end of it all, only a minority of asylum seekers were successful: the ‘dirty little secret’ of asylum applications, as the late Arthur C. Helton put it, is that few asylum seekers are granted refugee status (Helton 2002: 169). By the most generous measures, less than 50 per cent of asylum seekers receive either refugee or non-Convention refugee status following the processing of their asylum applications. In most cases, the figure is under 30 per cent. The majority of asylum seekers were and are not refugees as understood either by the Convention itself or the principles underlying it (for instance, the idea that people persecuted by non-state actors, though not strictly speaking refugees, deserve protection).
Until recently, only a minority of those whose asylum applications were rejected were deported. Tracking down and deporting individuals was expensive; asylum seekers deliberately destroyed documentation in order to inhibit return; source countries were reluctant to take them without such documentation (and sometimes with it); and, as they could easily disappear in large cities, the state simply could not find the majority of illegal migrants (Gibney and Hansen 2003). And what this meant was that borders mattered both a great deal and very little. They mattered a great deal because the asylum adjudication process was initiated by crossing them. Whatever difficulties asylum seekers have in reaching a country that is a signatory to the 1951 UN Convention, dodging hostile boats and even bullets, once they arrive and claim asylum they enjoy rights: to the processing of the claim and, in Europe, to housing, social support, and legal advice. But borders also mattered very little because once asylum seekers crossed borders return became difficult, if not impossible.
It was this dual dynamic—the initiation of the asylum process by touching the soil of a signatory country, and the generation by the liberal democratic polity of severe constraints on deportation—that led states to adopt measures designed to extend the border outwards and to remove through deportation failed asylum seekers residing within them. The former were so heavy handed in part because the rights enjoyed by asylum seekers who did reach liberal democratic soil were so robust. As Matthew Gibney noted in an important piece, there is a direct relationship between illiberalism outside the border and liberalism within it (Gibney 2003).
In the same vein, the American and British governments expanded deportation measures once it was clear that traditional mechanisms for border control—asylum (p. 261) processes in Europe distinguishing legitimate from illegitimate refugees, and the border itself in the United States— failed. Once the press politicized the issue by drawing attention to the gaps, literal and metaphorical, in British and American policy, both countries took measures that sharply increased deportation.
The last point takes us on to motivation. In much of the literature, scholars seeking to explain refugee policy adopt an implicit state autonomy model—a view of the state as an actor that governs the asylum process independently of wider political currents. On such views, governments, seemingly without reference to the publics that elect them, construct asylum as a problem. In doing so they generate public hostility to asylum seekers whom they would otherwise welcome or at least not notice, and then use this generated opposition as an excuse to implement restrictions (Hassan 2000; Abu-Laban and Garber 2005; Warner 2005–6; Nickels 2007). Such constructivist interpretations both give anti-migrant publics an undeserved pass and reflect a poor understanding of politics and the political process. It is only under the most ideal and unusual of conditions that politicians are masters of events; in almost all cases, they are reacting to them. They have no interest in stirring up political controversy. Indeed, the most desirable situation from a government’s point of view is one in which the economy hums along, producing high employment and low inflation; there are no riots or demonstrations to disturb social peace; and international affairs are characterized by calm, cordial relations among affluent states producing no migrants. The first two conditions rarely obtain (and governments are almost guaranteed re-election when the first does); the last never does. It would be a foolish government that sought to generate an immigration crisis, replete as such crises are with negative public opinion, street demonstrations, activist and some degree of press hostility, and in the worst case anti-migrant violence. These crises, rather, are generated by those who profit from the government’s discomfort. They can be opposition politicians, such as Anne Widdecombe, the British Shadow Home Secretary from 1999 to 2001 who savaged the Labour government over its supposed failure to control asylum, or Tom Tancredo, a Republican member of the US House of Representatives from Colorado who led a bitter campaign against illegal migration in the mid-2000s. These instigating actors can also be the press. In the UK, the Daily Mail whips up anti-asylum sentiment through lurid stories of asylum seekers abusing social benefits, enriching themselves through begging, or making shameless and unfounded appeals to sovereignty-destroying European courts; in the United States, CNN (under Lou Dobbs) and Fox News made ‘broken borders’ a consistent theme in US politics throughout the first decade of the millennium. But even these sparks require fuel: all these campaigns occurred against a backdrop of sharply rising migration: asylum applications in Britain and sharply rising undocumented migration to the United States.
Chronology bears these points out. In both Germany and the United Kingdom, efforts to reduce asylum applications through externalizing the border occurred after (a) a great upsurge in asylum seekers and (b) the politicization of asylum by extra-governmental actors. In the UK, the latter was provoked by the tabloid press; in Germany, it was federal states (which bear the costs of asylum seekers), far-right parties, and, most brutally and (p. 262) tragically, neo-Nazis who murdered first asylum seekers and then Turkish-Germans in the early 1990s. In the UK and the US, the ‘turn to deportation’ occurred after the British press and Conservative opposition got wind of the gap between asylum rejections and returns and after the CNN/Fox/Tancredo campaign against illegal (Latino) migrants (Anderson, Gibney, and Paoletti 2013).
Conclusion: Borders, Refugees, and Citizenship
This chapter has argued that borders are fundamental to the nation state; that borders are basic to the international system as they trigger the rights available under the UN Convention; that the nation state is the anchor of the international refugee system; and that, paradoxically, the asylum determination system threatens borders, the state, and the international refugee system itself. The account points to the importance of both structures and actors. Structurally, borders, rights-respecting states, and asylum seekers on the move interact in a manner that generates restrictive pressures that harm refugee protection internationally. Asylum seekers, both genuine refugees and those who use asylum when there are no other migratory entry points, activate robust rights when they cross borders and apply for asylum. These rights impose costs and obligations on states, and they militate against the deportation of failed asylum seekers in a manner that encourages states to determine and implement restrictions designed to keep asylum seekers from reaching the border and to deport those who have crossed. These restrictions, particularly those that ‘thicken’ the border, inevitably prevent genuine refugees from reaching the borders of 1951 Convention signatory states. And this means, equally inevitably, that states’ defence of their borders risks undermining, and perhaps has in large measure already done so, the international refugee system.
Overly structuralist accounts should be viewed with suspicion, as they imply politics and policy without actors. This cannot be. None of the dynamics highlighted above can be initiated without actors who transform asylum into a political issue that threatens the government of the day. Such actors are diverse: opposition politicians, (often conservative) journalists, local officials, far-right parties, and, of course, avowed racist extremists. But this too only points to a further contradiction: liberal democracy, the values of which underpin the refugee system, generates through the normal operation of liberal democratic politics pressures that threaten that very system.
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