1. The first module (Module A) deals with linkages between the phenomenon of forced migration and those of racism, xenophobia, and immigration. We shall deal here with trans-border forced migration in the context of racism, xenophobia, and the immigration issues in the world today, though we have to remember that racism and xenophobia produce forced migration within the country also. Since in this course we have another module dealing with internal displacement, we have chosen here to concentrate on cross-border refugee flows and other forced population movements across the border.

While international law on protection of refugees deals with the condition, status, and the rights of persons who have already escaped the persecution and crossed the border to seek asylum, this module deals with what may be called the “root causes” of the flight. It is in this respect that we have to discuss the phenomena of racism and xenophobia, and the relation of the state controls on immigration with the issue of protection of refugees.

2. Yet it must be understood that when we discuss the root causes of the refugee flow and the un-wanted and unprotected status of the refugees, we are not ignoring the historic patterns of migration on which population flows including forced population movements are often built. Some have termed this as “transplanted networks”. This historical perspective is essential as a perspective when we consider refugee flows. Also it must be borne in mind that whatever be the cause, refugees have a right to care, protection, and settlement, though it is true that if the root causes are not considered seriously, then there is a probability that we shall consider the refugee situation as a banal one, and neglect thereby the question of the rights of the refugees or the duty of the States and the international community to protect the escapees of violence. One example is around the concept of “well-founded fear” which is a test for grant of refugee status.

3. The “well-founded fear” concept has evolved from a relatively simple inquiry within which the refugee’s subjective feelings of “terror” were prominent, to a much more complex and wide-ranging inquiry within which concepts such as the “safe state” have become increasingly the sole determinants of the issue of the well-founded fear. Thus, the refugee has become a fundamentally unreliable base point of inquiry such as to justify the shift to a generalized or group-based evaluation of a well-founded fear. Some one has asked rhetorically, but it makes lot of sense: What would happen if the refugee interviewed the government official? Would the official be able to comprehend that many of his or her deepest longings were the same as those of the refugees, but without the physical dislocation? Would they understand that their own doubts were the same as (those of) the refugees? Or take this case, on which a jurist had to comment, “Refugee determination procedure on individual basis and the unequal sharing of burden of care have now produced confused, traumatized, and nervous shelter-seekers who travel rarely with supportive documents, false or no papers, and land in alien systems which are frequently hostile or incredulous” hosts”. In this case involving a Sri Lanka Tamil who had fled persecution allegedly at the hands of the LTTE (R. SSHD ex parte Karunakaran 25 January 2000, unreported), the judge commented, “The civil standard of proof, which treats anything, which probably happened, is part of a pragmatic legal fiction. It has no logical bearing on the assessment of the likelihood of future events or (by parity of reasoning) the quality of past ones… The method of evaluation is itself not one of hard facts. But it requires knowledge not only of applicant’s own tale, and what is accepted of it, but a whole range of other factual matters.”

Therefore the problem we are now confronting in studying root causes is the “exceptional” nature of the refugee situation. Is the refugee situation exceptional because the refugee is merely outside some state responsibility? Or, and this is what we are implying, is the refugee situation exceptional because of the inherent violence of the state, and the incapacity of all states to fulfil their human rights obligations consistently? The question is complicated, because it affects the political attitude and will of the States to grant asylum to a person on the ground of “well founded fear”.

4. In any case, the dual phenomena of racism and xenophobia have become almost universal phenomena. Racism has appeared in new forms, cultural differences are essentialised as biological differences on the supposed reality of which old racism arose and persisted. Conflicts drawn to its extreme level produces neo-racist differences, the sign of which is the increasing division of population groups along supposed physical lines, segregating groups thereby in an extreme manner. Such extreme differences become in time hereditary principles of discrimination. Xenophobia is a related phenomenon; aggressive attitude towards national differences produces neo-racist differences. It had been so earlier also. Partition of states produces the most concentrated violence, reshaping states reshape minds, and the formation of new states happens amidst mass murders, mass dislocations, and mass displacements. Partition refugees are a special category, for they lose the right to return even – a right granted at least nominally to other groups of refugees.

5. The right to return is a significant issue in this context. Refugees enjoy very few rights but one of the most intrinsic rights for a refugee is the right to return. Although much debated internationally the right to return is most clearly enshrined in the 1966 International Covenant on Civil and Political Rights (ICCPR) under its provisions on the right to freedom of movement (Article 12.4) which says that No one shall be arbitrarily deprived of the right to enter his own country. But this right has often proved to be a chimera at least in South Asia. A historian has shown that perhaps the first group of people, though not refugees, whose right to return was denied by a South Asian state were the Indian emigrants who travelled abroad in the eighteenth and nineteenth centuries to work as plantation labourers. All through the nationalist period the fate of these labourers in their country of domicile was a rallying point for Indian leaders to portray the dark side of foreign rule. There was constant reiteration that the state was responsible for all the people who were born in India. Yet during the legislative assembly debates in 1944 the leaders came to a consensus that these émigrés rightfully belonged to their country of domicile and not in India. Unlike nationalists during the colonial period, the leaders of the post-colonial State formation project no longer looked forward to the return of the emigrants who were slowly being considered as foreigners. South Asian independence was accompanied by a blood bath. The partition of India and Pakistan resulted in two million deaths and about 15 million people were displaced. Most of the refugees were lucky enough to get domicile and often citizenship in their country of domicile. Yet problem arose over the issue of return. In people’s memory their Desh (country) was where they were born. But once displaced they did not have the right to return even when they so desired. South Asian states passed legislations whereby property of the displaced were confiscated by the State and treated as enemy property. So the home that they wanted to go back to remained only in their own imagination. One often hears the argument that because partition refugees got an alternate citizenship they lost the right to return. In South Asia there are however, other groups of refugees who remain as stateless people; yet they are denied the right to return. We have the instances of two such groups of refugees: the Chakmas (Jumma people) and the Bhutanese. This module has to discuss in the context of these experiences as to how South Asia’s political history is predicated by aliens, half-citizens, exiles, refuge, temporary shelters where citizens pass away their lives, illegal immigrants, – in short, the non-state persons who are beyond the pale of citizenship rights, and who are not even the proper subjects of the international law on non-state persons? The focus in any discussion on the right to return of citizens expelled has to be thus on the need to move away from the classical theories of sovereignty, democracy, State, and citizenship, and take the exile, the alien, the displaced (both internally and trans-border), and the half-citizen as the central figure of the politics in South Asia, the figure who is with us like the eternally accompanying shadow, so normalised that we forget its existence which we have taken for granted. In this physical milieu of expulsion, de-enfranchisement, and nationalisation, the right to return is at once the most crucial question and the most hallucinatory claim. The illusory nature in many cases of the right to return shows the deep nature of the causes that force displacement in the first place. The apparent reasons may go away, while the root causes remain. Once the population groups leave, they are reduced to extreme marginality wherefrom it becomes extremely difficult for them to force back to their original position in their “national” societies. Instead of durable solutions we have durable vulnerabilities. The root causes spark off forced migration, but marginal and vulnerable positions have a way of accumulating so that even when causes are removed marginal positions or situations persist.

6. The last point that we shall discuss under this module is the relation between refugee flow and immigration flow, and the way in which immigration is controlled today impacts on refugee protection also. The flow of (illegal) immigration has not only overwhelmed in some cases the flow of refugees, it has got mixed with it also to such an extent that we can say that aliens have appeared as a subject in the world today. Definition is of course available in municipal laws of who is an alien, and this is not surprising, because an alien is an alien to a State (but can there be an alien to all the states on earth?). But illegal immigrants who are aliens to a state have been in a state of double jeopardy – they do not have the good luck to get protection when they arrive, and they will not benefit from any moral responsibility owned by a state wherefrom they decided to exit, a state that evidently does not care much for the fleeing population. Allowing population to leave is part of its pursuit of a “nice exit” policy (except in case of migrant workers when foreign remittances to the economy would be going down). We have to remember that unlike the Civil and Political Covenant, the International Covenant on Economic, Social and Cultural Rights does not create obligations on the states to fulfil immediately on signing. Therefore, a state can get away by arguing that its allocation of resources is insufficient, but is non-discriminatory. An illegal migrant who is forced to move out from his country is seen as showing desire for “good life”, and thus not eligible for his/her right to protection of the social, economic and cultural attributes necessary for his/her dignity. The mix of the two flows, of the refugees and illegal immigrants, now accentuates all the problems facing humanitarian politics today. Here is an instance of what is happening therefore round the world, marking in a very condensed form the non-dialogic segment inhabited by the aliens who suffocate, perish, and die in the most silent way, without any chance to talk to the world of the international that they wanted to enter:

Last month fourteen men and women left their coffee farms in Veracruz, and began the journey north. Within days, their bodies were found on the hardpan of the Sonora desert. On first look, they died of agonizing dehydration, like hundreds more over the last few years, trying to cross the same forbidding border.

But their deaths were caused by more than lack of water. These farmers left their beautiful Veracruz mountains because free-market reforms – no rural credit, no crop subsidies and others – drove them off their lands. And having made the hard decision to look for jobs and a better life in the north, U.S. immigration policy made their deaths practically inevitable.

No visas were available for them – the waiting line for green cards at the embassy in Mexico City goes back to 1976. A draconian border policy has closed the safer routes across, pushing migrants further and further into the desert and mountains, making the great migrant stream less visible, along with its human cost.

And if they had arrived safely, what life would these farmers have found?

They would have become part of a migrant workforce with conditions and wages at the bottom, denied the most basic rights – no unemployment insurance, no medical care, no social benefits of any kind. Because of employer sanctions, the very act of working would have been a crime. Ironically, they might easily have been employed by the same corporations relocating jobs to Mexico, attracted by the very free-market conditions, which force migrants to leave.

But perhaps the worst thing about their deaths is the way they’ll be used, not to advocate for humane changes in U.S. immigration policy, but to justify a new bracero program making border-crossers like them a permanent, second-class workforce for the profit of U.S. business.

President George Bush and his fellow free-market advocate, Mexican President Vicente Fox, are both under pressure to reduce border deaths. Vastly expanding guest worker programs, they argue, would open the doors of legal immigration to those now forced to cross in secret.

While guaranteed labor rights on paper, however, guest workers depend on the continuation of a job to remain in the country. Employers therefore not only have the power to fire workers who organize or protest bad conditions, but in effect to deport them as well.

Beneath a humanitarian cover, business gets what it wants – workers at lower wages with fewer rights…

Twenty years ago, most unions wrote off immigrant workers. In 1986, the AFL-CIO supported employer sanctions. But today unions are rethinking that attitude and as a result, the political alliances that limited the possibility for immigration reform have changed. Amnesty for the country’s 9-11 million undocumented immigrants, which was off the radar screen in Washington just a few years ago, is now a realistic goal.

“Most unions today are at least trying to organize,” explains Hotel Employees Union President John Wilhelm. “And no matter the industry, they run into immigrant workers. That’s what brought home the failure of the AFL-CIO’s old immigration policy.”

Last year, the percentage of U.S. workers belonging to unions dropped from 13.5 percent to 13.3 percent, and fell to 9 percent in the private sector. For the overall percentage to stay constant, unions have to organize 400,000 workers a year; to increase by 1 percent, they have to organize twice that number, a rate not achieved since the 1940s.

Over the last decade, immigrant workers have proven key to labor’s resurgence. “Every period of significant growth in the labor movement was fueled by organizing activity among immigrant workers,” Wilhelm says. “We’re a labor movement of immigrants and we always have been.”

Reflecting this new attitude, unions are proposing an alternative to a new bracero program. “We’re putting forward a comprehensive agenda, including legalization, repeal of employer sanctions, and workplace protections regardless of legal status,” says Service Employees Union Vice-president Eliseo Medina. The new president of the Laborers Union, Terence O’Sullivan calls for opposition to contract labor, and for increasing the ability of immigrants to reunite their families in the U.S.

Illinois Congressman Luis Gutierrez has introduced a bill taking the first step – expanding legalization opportunities for immigrants who arrived before this year.

From the opposite end of Congress, Senator Phil Gramm, a recent convert (like Jesse Helms) to the bracero cause, is introducing a bill to permit recruiting guest workers for a year’s labor, so long as they have no right to stay. At the same time, he proposes increased enforcement of employer sanctions to force workers into the program, making the undocumented even more vulnerable, their labor cheaper and their conditions worse…

The choice is not over what will or will not stop people from coming across the border, but over their status in the U.S. It’s the age-old American dilemma: bondage whether as slaves, indentured servants or braceros) or freedom (even if that still leaves workers with the need to organize and fight to improve conditions).

Behind the debate lies a fundamental question: Is the purpose of immigration law to supply labor to industry on terms it finds acceptable, or is its purpose to protect the rights and welfare of immigrants themselves?

There is another framework for dealing with migration, other than contract labor and death on the border. The UN’s International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families supports the right of family reunification, establishes equality of treatment with citizens of the host country, and prohibits collective deportation. Both sending and receiving countries are responsible for protecting migrants, and retain the right to determine who is admitted to their territories, and who has the right to work.

The Convention recognizes the global scale and permanence of migration, and starts by protecting the rights of migrants themselves. That’s where an immigration policy based on human rights begins.

This is more than a refugee situation that is legally defined and assumed. The new mix of forced and unwanted population flows and the inadequate appreciation of the new phenomenon in refugee studies raises the problem of method. While forced population movements have been hitherto studied from economic and demographic angles, its link with the politics of citizenship is still inadequately appreciated. Similarly, the notion of forced is so narrowly defined, that the structural violence continuously producing aliens escapes our attention, though violence and coercion are considered as benchmarks in determination of refugees.

7.Module A is the beginning. But the module should offer enough glimpses of the problems in the issue of refugee protection today, so that the following modules in this course can be appreciated better. And, one must not forget that in all instances and phenomena cited above gender stays as the most deeply inscribed category of discrimination and difference, if discrimination and difference are taken as the key opening words. A good beginning means an anticipation of the problems that will arise at the end.