Interdiction at the Expense of Human Rights: A Long-term Containment Strategy

Abstract

Migratory pressure is heavy around the globe and the available data does not indicate any decrease in the foreseeable future. It has always been there: the highest number of immigrants to have come to Canada in one single year is still that of 1913, with more than 400,000. Today, globalization has only increased independent intercontinental migration. Fast and cheap transportation is available, as is international communication, through telephone and internet; knowledge about host countries is circulating through television and videos; large communities exist in host countries and are able to help friends, family, and compatriots. The increase in global migrations also results from the fact that the differences in peace and prosperity have been sharpened between North and South in the past decades. Many societies in the South have become poorer and messier: some people need to escape increasing violence; others seek better survival opportunities for themselves and their children. The increase in these push factors is a negative dimension of globalization. In most host countries, the protection and promotion of rights and freedoms have been reinforced. Constitutional, regional, and international standards are more sophisticated, and implementation mechanisms are more effective. We now know that the interaction of political struggle and legal jurisprudence is key to effectively protecting human rights: the European Court of Human Rights, the InterAmerican Commission, the UN committees, the constitutional case law in, say, Canada, Germany, and South Africa testify that there is also a globalization phenomenon in the field of human rights. In host countries, this case law will often protect the foreigner and declare that she is equal to the citizen on most issues regarding fundamental rights. But our States nowadays often feel dispossessed in a field that has been at the basis of their legitimacy for the past decades: redistribution of wealth and social justice. This goal is challenged by yet another aspect of globalization: essentially free-trade policies and the pressure that economic actors exercise to lower the cost of production. Our States have tried to regain political ground by insisting on their traditional mission since the Renaissance: security. In the past twenty years, a phenomenon of securization of the public sphere has emerged and resulted in the definition of new fields of government activity: food security, environmental security, bio-security, transport security, industrial security, internal security, migration security, to name only a few. States have re-emphasized the role of the border as the traditional and tangible symbol of their power. This is not a new phenomenon. The border has always been used to distinguish between us and them. For example, in the aftermath of World War I, the Canadian government responded to the arrival of impoverished and displaced Europeans by tightening the laws and stationing immigration officials at ports in Europe to prevent further undesirables from setting sail. Following the sharp increase in asylum claims in the mid-1980s, States have launched a huge co-operative effort aimed at controlling migration flows, and in particular reducing irregular flows. This effort targeted especially asylum seekers, because, as these could count on human rights standards and mechanisms to argue against refoulement, host States knew there was a good chance that they would not be able to remove them from the territory. This co-operation was particularly productive in Europe, as the abolition of the control of persons at internal borders of the common European territory created a complete restructuring of all government agencies that used to work at the border (police, customs, health, transport, immigration, etc.). The Schengen process emerged from this and, following the Amsterdam and Nice treaties, the European Commission is now in a position to take the lead on immigration and asylum issues. …