UNDESIRABLE: Japan wants to expel 24-year-old Kurdish asylum seeker Mazlum Balibay, seen here with his sister Suzan in their apartment in Kawaguchi, north of Tokyo. Balibay has been working on building sites since he came to Japan seeking refuge in his early teens. Photo credit: REUTERS/Thomas Peter

Rough Refuge: Banned from working, asylum seekers are building Japan’s roads and sewers

By Reuters
9 August, 2016

A Reuters investigation has revealed that Kurdish asylum seekers in Japan are working without permits on government projects – building Japan’s roads and sewers – even as the authorities insist they leave. Japan’s strict immigration rules and shrinking working-age population have spawned a black market in labor, especially in the construction sector. Still, politicians are loath to consider lowering barriers to migrant workers, despite calls from major Japanese companies to do so.

To read the the full story, please click here

Everywhere, the contradiction between a push for border controls based on fantasised threats of migrant invasion and identity politics, on the one hand, and the imperious needs of globalised markets for exploited labour which maintains competitiveness, on the other, creates more Kafkaesque human rights situations for migrants. Once again, “facilitating mobility”, as Agenda 2030 for Sustainable Development calls for, is the only long term solution.

Inspiration and Innovation: the Rio 2016 Refugee Olympic Team

Guest contribution by Justin Margolis, B.A, M.Sc.
9 August, 2016

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.

 

“U.N. Deadlocked Over Draft Agreement on Refugees and Migrants”

In the International New York Times
3 August, 2016

“Western European countries, along with Russia, resisted what many had hoped would be a pledge to resettle one-tenth of all the people fleeing war and persecution. And the United States balked at language that would have committed all countries to not detaining undocumented children who arrive at their borders.

At issue is a 22-page draft “outcome document” that the 193 countries of the United Nations are trying to agree on before the annual gathering of world leaders at the United Nations General Assembly in September. It is not legally binding. Still, the negotiations are so difficult that a draft text that had been expected to be adopted on Monday, after being postponed at least once before, was postponed again.”

For full article, please click here

The negotiations for an outcome document in view of the 19 September UN summit on large movements of refugees and migrants in New York seem deadlocked. It is very worrying to see that the US and Europe are not supporting the end of child detention, changing the initial text from “detention is never in the best interests of children” to “detention is seldom if ever in the best interests of children, we commit to minimizing this practice and using it as a measure of last resort.” Even more worryingly, the negotiated draft has nothing to say about how to manage mobility and diversity in the future, how to integrate these dimensions of our contemporary societies into democratic structures, with a proper normative framework and effective institutions to ensure that the human rights of all, including migrants, are protected and security is guaranteed. As was the case for the Development Agenda 2030 or the Paris Agreement on Climate Change, the is an urgent need of a long-term strategic vision on mobility and diversity, which goes well beyond responding to the present issues of individual States and sets out a human-rights-framed agenda for mobility and diversity throughout the planet.

 

The New Ideology of the New Cold War: Orderism

Article in the NY Times
2 August, 2016

“In its heyday, Communism claimed that capitalism had betrayed the worker. So what should we make of Moscow’s new battle cry, that democracy has betrayed the voter?

It’s a worldview that has become increasingly clear through the era of Russia’s president, Vladimir V. Putin, via a mosaic of public political statements, off-the-record conversations with academics and intelligence insights. Let’s call it “orderism.”

Orderism has started to challenge democracy in many parts of the world — Turkey, Poland, the Philippines. But Mr. Putin’s Russia believes it holds the copyright on this formula, and sees it as the sharp end of the wedge it is trying to drive among the nations of the West.

The ideology’s basic political premise is that liberal democracy and international law have not lived up to their promise. Instead of creating stability, they have produced inequality and chaos. The secular religion worshiped in the Western parliaments was globalization (or, in theEuropean Union’s case, Europeanization). These beliefs, according to the orderists, overlooked the downsides.”

What populist politicians (Putin, Trump, Le Pen, Wilders, Farage, Erdogan and many others) hate most are institutional checks and balances which can protect individuals (and especially the voiceless) whose rights and freedoms are threatened by the tyranny of the majority: an independent judiciary with effective access to justice, efficient national human rights institutions and ombudspersons, expert auditor-generals, solid anti-corruption mechanisms, principled law enforcement, free media, energetic civil society organisations, strong trade unions…

The political lesson of the Thirties – that, without checks and balances, majorities will be wrong – which had translated into the contemporary, complex and evolving overarching human rights doctrine, seems to have been entirely forgotten by this first generation of politicians who has no memory whatsoever of the WWII years. Majority rule does not mean political legitimacy if human rights are violated. We might have to learn this lesson again, and may be the hard way.

Trying to embrace the present complexity, diversity and mobility of our fast-changing societies through complex institutional mechanisms (such as the European Union) is not a sign of decadence: the simplistic “solutions” of populism and nationalism can only turn wrong in the long term.

Do we really all have to suffer through a renewed bout of extreme right populist governments before we collectively realise that democracies are complex accountability machines which rest on a tripod made of electoral representation, effective human rights guarantees and the Rule of Law?

How can we make clear to all, as Jean Monnet famously said, that “Nothing is possible without men, nothing is lasting without institutions”.

  Fence - Wire. Photo credit: Openphoto.net

Reforming Canada’s Immigration Detention Policy

Guest contribution by Vanessa C. Wachuku
18 July, 2016

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[1]. 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[2] 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[3] for the Canadian government to review and propose changes to its immigration detention regime. These changes include the immigration detention of children[4], the use of provincial jails to detain foreign nationals and the indefinite detention of foreign nationals without charge[5]. 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[6], 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[7], 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[8].

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[9].  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[10] as he was in detention while waiting for a decision by the immigration officials[11], 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”[13].  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.

[1] Canada Border Services Agency. “Arrests, Detention and Removal”, 04 January 2016, online: http://www.cbsa-asfc.gc.ca/security-securite/arr-det-eng.html

[2] 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

[3] John Kingdon and James Thurber, “Agendas, Alternatives and Public Policies”: Longman, 2011

[4] 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

[5] 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

[6]  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.

[7]Canadian Council for Refugees, ‘Immigration Detention Statistics 2015”, March 2016, online: http://ccrweb.ca/sites/ccrweb.ca/files/immigration-detention-statistics-2015.pdf.

[8] 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/

[9] 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

[10] 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

[11] Damian Hornich and Kevin A. McGivney, “Prison Lockdowns and Charter Damages: Ogiamien v Ontario 2016 ONSC 3080 (CanLII.)  25 May 2016, online http://canliiconnects.org/en/summaries/42111

[12] 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/

[13] 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