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Tuesday, 22 March 2016
While recently making major headlines, the arrival of substantive numbers of asylum seekers to Europe has been a pressing political issue for a longer time. This presentation will discuss the role of law in this context as being torn between, on the one hand, increasingly restrictive migration policies and, on the other hand, difficult individual situations…
Join us for the Scholars at Risk Network 2016 World Congress. The SAR Network 2016 Global Congress will celebrate the 15th anniversary of the Scholars at Risk (SAR) Network and the collective efforts of network members and partners protecting scholars and promoting academic freedom worldwide. Over the years, the network has grown from fewer than two…
In 2014, I published an article on Asylum-Seeking Olympians, accredited Members of the Olympic Family who use the Games as a way to flee their country and seek asylum in a new land, at times facilitated by their Olympic Accreditation Cards. With the arrival of the Rio de Janeiro 2016 Summer Olympic Games, refugees are again making Olympic headlines, with the creation of the first ever Refugee Olympic Team. Last Friday, ten refugees marched into the Olympic Stadium waving the Olympic flag, at the end of the Parade of Nations and just before the home country, Brazil.
The International Olympic Committee (IOC) should be congratulated for recognizing the plight of these refugees and allowing them to compete with dignity. Although a team of refugees competing under the banner of the IOC is not the situation I researched, I wish to share my thoughts and analysis. In particular, four qualities make these athletes distinct from past independent athletes (IOA/IOPs) who also competed under the Olympic flag.
It is important to highlight that “countries” do not enter the Olympics, rather “National Olympic Committees” (NOC). This is how American Samoa, Guam, Puerto Rico and the U.S. Virgin Islands compete separately from the United States, although their athletes are U.S. citizens. Additionally, territories like Hong Kong, Palestine, and Taiwan (Chinese Taipei) each have NOCs. There are currently 193 United Nations Member States, but 207 NOCs will compete in Rio.
Independent Olympians vs. Refugee Olympic Team
The IOC has a recent tradition of allowing athletes to compete as independents: Barcelona 1992 (58 Independent Olympic Participants), Sydney 2000 (4 Individual Olympic Athletes), London 2012 (4 Independent Olympic Athletes), Sochi 2014 (1 Independent Olympic Participant), and currently at Rio 2016 (9 Independent Olympic Athletes). At Rio the independent athletes are Kuwaiti, as their NOC is currently suspended. Although the IOAs and the Refugee Olympic Team (ROT) both compete under the Olympic flag, their reasons for existence are fundamentally different: IOA/IOPs are included during political transition and in the event of NOC suspension.
The end of the Cold War resulted in two different delegations competing under the Olympic flag in 1992. At the time of the Barcelona Summer Games, UN sanctions banned the Federal Republic of Yugoslavia (Serbia and Montenegro) from competition, and the Republic of Macedonia had not yet formed a NOC. The IOC permitted 52 Yugoslav and 6 Macedonian athletes to compete as IOPs; three won medals. Likewise, with the dissolution of the Soviet Union and in the absence of new NOCs, athletes from most CIS states formed a “Unified Olympic Team,” competing under the Olympic flag at both the Albertville Winter and Barcelona Summer Games.
More recently, at the time of the 2012 London Games, South Sudan had just gained independence but had not yet established a NOC; its athlete competed independently. Also at London, following the dissolution of the Netherlands Antilles and its NOC, three athletes from Curaçao decided to compete as independents, despite being eligible to compete for Aruba or for the Netherlands as several of their teammates ultimately did.
Furthermore, athletes have competed as independents when issues arose with their NOC. At Sochi 2014, the Indian Olympic Association was suspended due to electoral fraud. The three Indian athletes entered the Games under the Olympic flag and one competed as an IOP. After holding new elections, India’s NOC was reinstated halfway through the Games and the remaining two athletes competed as Indians. Kuwaiti athletes were intended to compete as IOAs at London 2012, but their
NOC’s suspension due to political interference was lifted shortly before the Games. Kuwait’s NOC is again suspended, and Kuwaiti athletes are currently competing in Rio as independents.
The 2016 Russian doping scandal has led to the disqualification of many athletes, notably in Athletics. The IOC rejected a proposal to allow certain “clean” Russian athletes compete as “neutral” athletes under the Olympic flag. Had the IOC accepted, the neutral Russians would have joined the Kuwaitis as IOAs.
The IOC Creates and the IOC Decides
When the IOC previously decided to recognize IOA/IOPs, its decision applied equally to all qualified athletes from the NOC or predecessor state in question. For example, had more than four athletes from East Timor qualified for the 2000 Sydney Games during their country’s democratic transition, they would have joined their teammates as IOAs.
For Rio 2016, the IOC identified 43 potential refugee athletes from undisclosed countries to form a refugee team. After consulting with NOCs, the International Federations (sporting bodies such as FIFA), and the United Nations High Commissioner for Refugees (UNHCR), the IOC selected ten refugee athletes from four countries: D.R. Congo (2), Ethiopia (1), South Sudan (5) and Syria (2).
The athletes currently reside in Belgium (1), Brazil (2), Germany (1), Kenya (5), and Luxembourg (1); these countries became the refugee’s Host NOC. It is truly unique that the IOC‘s Executive Board, not a defunct NOC, decided the team’s composition.
Is That My Old Neighbour?
In the past, athletes were able to compete as independents when their home country was unable to participate in the Games. But at Rio 2016, all four countries of origin of the refugee athletes have active NOCs competing in the Games. In theory, the athletes could participate with the NOC of their country of origin and citizenship. In practice this of course is not possible. The sheer reason these athletes are refugees is due their well-founded fear of persecution in their home country, and their inability and/or unwillingness to return to it. This will be the first time that independent athletes compete under the Olympic flag, while their compatriots are still competing under their former national flag.
Avoiding an Olympic Groundhog Day
Olympic Rule 41 states that athletes must hold the nationality of their NOC to participate. In the case of migration, athletes who have already competed for one NOC must wait at least three years before competing for their new NOC. This has happened many times, especially during the Cold War when Eastern Bloc Olympians sought asylum in the West and then competed for their new country upon acquiring its citizenship.
Refugees initially begin as permanent residents of their new countries, but a waiting period of varying length applies before acquiring citizenship. Even in generous countries like Canada, this period is longer than an Olympiad. This means that most if not all ten refugee athletes competing in Rio will not be citizens of their new countries before the 2020 Tokyo Games. It is not impossible that in 2020 they could again be renounced to competing as refugee athletes. This situation would be completely out of the IOC’s control, as it is up to each country to grant citizenship.
The ten refugees competing at Rio are extremely fortunate and will serve as an inspiration to the planet. Also, the financial support provided by the Olympic Solidarity Commission is essential, since Host NOCs have little incentive to spend, as any medals will be awarded to the ROT, not the NOC.
But with more than 20,000,000 refugees worldwide, we all must work harder to end conflicts, so that such accommodations are no longer necessary.
The Public Safety and Emergency Preparedness Minister, Ralph Goodale recently announced that Canada will review its immigration policy on the detention of foreign nationals by the Canada Border Services Agency (CBSA) based on concerns regarding identity, flight risk or danger to the public. Foreign nationals are also detained if they are deemed inadmissible based on security reasons, criminality or violations of human and international rights. If arrested under the Immigration and Refugee Protection Act (IRPA), the person is either held in one of three Immigration Holding Centers across Canada or in a provincial jail or correctional facility pending a review by the Immigration Refugee Board (IRB). While Canada has historically detained foreign nationals with human rights advocates calling for changes to the policy, the recent deaths of three foreign national detainees within a two month span from March to May of 2016, appear to be the catalyst that has opened a policy window for the Canadian government to review and propose changes to its immigration detention regime. These changes include the immigration detention of children, the use of provincial jails to detain foreign nationals and the indefinite detention of foreign nationals without charge. If adopted, these changes which are discussed below, will significantly reform Canada’s immigration detention policy.
Considering that child and youth advocates have been calling for an end to the immigration detention of children, Minister Goodale’s announcement to review the policy is of significance in light of extensive literature on the negative impact of immigration detention on children. According to a Canadian study published in 2015 by Kronick, Rousseau and Cleveland on the experiences of asylum seeking children in detention, children not only experience physical and psychological trauma while in detention but also experience long term effects from immigration detention. According to the recently released 2015 immigration detention data by the Canadian Council for Refugees, 82 children, not inclusive of children accompanying a parent in an immigration holding center, were detained for a total of 1,922 days. While some children are removed from Canada, others are released into the community. In light that these children may have experienced significant trauma arising from detention, social programs are implemented to support these children. The current policy design is confusing as while Canada detains children which may create or exacerbate physical and psychological concerns, it attempts to resolve these concerns through delivery of social programs. A policy reform that ends the immigration detention of children may address this policy problem that intersects between immigration and social policies and aligns with the recently released report by the United Nations Secretary General calling for States to end the immigration detention of children and adoption of alternatives to detention.
Minister Goodale’s announcement to review the use of medium-maximum provincial jails in detaining people that are held under IRPA is timely in light of outcry and petitions by human rights, legal and health advocates to end this practice. Detaining foreign nationals in provincial jails that are operationalized under the Criminal Code criminalizes them. They are treated in the same manner as people who are convicted of a crime. A recent ruling by the Ontario Superior Court awarded $60,000 to an immigration detainee, Jamil Ogiamien, who has been in detention since 2013 at Maplehurst correctional complex. Although the immigration detainee was not in the medium-maximum provincial jail because of a criminal conviction as he was in detention while waiting for a decision by the immigration officials, he was subjected to mandatory lockdown for almost half of the three years. The Superior Justice Douglas Gray ruled the lockdown was in violation of the immigration detainee’s right to freedom from cruel and unusual punishment.
These recent announcements on potential changes to Canada’s immigration detention regime highlight that Canada has finally recognized the policy issue of immigration detention which has been labelled, most recently by Stephanie Silverman and Petra Molnar, as a “black box”. The adoption of alternatives to reduce and potentially end the immigration detention of foreign nationals, in particular children, will be a policy reform that human rights, legal, health and child & youth advocates should closely monitor.
Vanessa C. Wachuku is a PhD student in the Policy Studies Program specializing in the Immigration, Settlement and Diaspora Policies stream at Ryerson University.
 Canada Border Services Agency. “Arrests, Detention and Removal”, 04 January 2016, online: http://www.cbsa-asfc.gc.ca/security-securite/arr-det-eng.html
 Muriel Draaisma, “Federal Government reviewing immigration detention process after strings of deaths”, CBC News 16 May 2016, online: http://www.cbc.ca/news/canada/toronto/public-safety-immigration-detention-1.3584700
 John Kingdon and James Thurber, “Agendas, Alternatives and Public Policies”: Longman, 2011
 The Canadian Press, “Liberals want to end jailing of child migrants, public safety minister says”, CBC News 30 May 2016, online: http://www.cbc.ca/news/politics/child-migrants-jail-end-goodale-1.3607712
 Michelle Zilio, “Ottawa to change migrant detention policy to reduce the use of provincial jails”, The Globe and Mail 15 June 2016, online: http://www.theglobeandmail.com//news/politics/ottawa-to-change-migrant-detention-policy-to-reduce-use-of-provincial-jails/article30482750/?cmpid=rss1
 Rachel Kronick, Cecile Rousseau, and Janet Cleveland, “Asylum-seeking children’s experiences of detention in Canada: A qualitative study.” American Journal of Orthopsychiatry, vol. 85, American Psychological Association, United States, 2015.
Canadian Council for Refugees, ‘Immigration Detention Statistics 2015”, March 2016, online: http://ccrweb.ca/sites/ccrweb.ca/files/immigration-detention-statistics-2015.pdf.
 End Immigration Detention of Children. “End Immigration detention- United Nations Secretary General. 13 May 2016. online: http://endchilddetention.org/end-child-detention-united-nations-secretary-general/
 Audrey Macklin, Raoul Boulakia and Barbara Jackman. “Media Release – Over 100 lawyers and legal scholars from across Ontario join call for Minister Naqvi to stop accepting immigration transfers to Ontario jails”. 26 May 2016. Online: https://stoptransferstojails.files.wordpress.com/2016/05/media-release-over-100-lawyers-and-legal-scholars-from-across-ontario-join-call-for-minister-naqvi-to-stop-accepting-immigration-transfers-to-ontario-jails.pdf
 Amy Dempsey, “Judge awards inmates $85,000 over lockdowns”. The Star 12 May 2016, online https://www.thestar.com/news/canada/2016/05/12/judge-awards-ontario-inmates-85000-over-lockdowns.html
 Geoffrey York, “Freed from Canadian Detention, South African man in Limbo”. The Globe and Mail 14 June 2016, online: http://www.theglobeandmail.com/news/world/freed-from-canadian-detention-south-african-man-left-in-limbo/article30462108/
 Stephanie Silverman and Petra Molnar, “Everyday Injustices: Barriers to Access to Justice for Immigration Detainees in Canada,” Refugee Survey Quarterly 2016: 35 (1): 109-127, http://rsq.oxfordjournals.org/content/35/1/109.abstract
“Genuine cosmopolitanism is a rare thing. It requires comfort with real difference, with forms of life that are truly exotic relative to one’s own. It takes its cue from a Roman playwright’s line that “nothing human is alien to me,” and goes outward ready to be transformed by what it finds.
The people who consider themselves “cosmopolitan” in today’s West, by contrast, are part of a meritocratic order that transforms difference into similarity, by plucking the best and brightest from everywhere and homogenizing them into the peculiar species that we call “global citizens.”
This species is racially diverse (within limits) and eager to assimilate the fun-seeming bits of foreign cultures — food, a touch of exotic spirituality. But no less than Brexit-voting Cornish villagers, our global citizens think and act as members of a tribe.”
This short excerpt from this NY Times editorial contribution illustrates why cosmopolitan worldviews do not connect with most people. And why the human rights discourse as a key feature of this cosmopolitan identity is effectively rejected by a large part of the electorate when it doesn’t concern them directly and immediately.