pity the poor border

Protect the border! Punish the migrant!

Peter Hartcher writing on asylum seeker policy (smh Feb 20, p.27) suggests that the popularity of Donald Trump’s impractical proposal to seal off America’s border with Mexico illustrates ‘how frustrated people can turn to extremes if they think that their borders are not under sovereign control’. He also claims that the Abbott Government’s ‘success in sealing Australia’s borders to boat arrivals …. was ‘central to restoring public confidence that the borders are under sovereign control. Hartcher does not spell out what he understands by ‘sovereign control’ of borders or how he knows that Americans and Australians are concerned about this issue, but it may not be unreasonable to suggest that, in the context of his article, ‘sovereign control’ roughly corresponds to the equally obscure notion of ‘border protection’ that was such an important part of the Abbott Government’s policy platform. This aspect of the Coalition’s platform has not changed with Malcolm Turnbull’s takeover of the leadership. Indeed, Turnbull has been quoted in an ABC PM report as insisting’ we need a strong border protection regime and this Government will stand steadfast in protecting the border.’ (3 Feb. 2016) I will argue that ‘border protection’ and ‘sovereign control of borders’ are significant here because they represent one of the striking issues on which Australian political debate has been let down by media commentators from both academia and journalism. Perhaps I exaggerate? Border protection has been discussed in Lowy Institute publications and the on-line sites The Conversation and Eureka Street. A search through the Lowy Institute website yields a couple of lectures on border protection – one by the Minister, Scott Morrison (available as a podcast) and the other by Michael Pezzullo, CEO of Customs and Border Protection (available as a pdf) – a few podcasts that refer to the potential of drones in border protection and a useful paper on asylum seekers, which I make use of below. Both The Conversation and Eureka Street have published articles referring to border protection, generally in the context of criticising Australia’s treatment of asylum seekers, but no critical examination of the concept of ‘border protection’ itself.

Writing in the London Review of Books, Frances Stonor Saunders (March 3, 2016, p.7) reminds us that the ‘one border we all cross, so often and with such well-rehearsed reflexes that we barely notice it, is the threshold of our own home.’ The intimate quality of this border may, in part, account for the popular resonance of political rhetoric about ‘border protection’. Yet, the border that is so commonly represented as in need of protection is not that of one’s home, in the sense of dwelling, to which Saunder’s observation refers but rather of one’s state, which is a home in a very different sense.

The majority of contemporary states have one or more land borders with other states but Australia is an exception, while most of the other exceptions are located in the Pacific Ocean and the Caribbean. In the normal, land-border case, the border is a line or region in which sovereign control comes to an end. Borders are usually agreed by the states concerned or inherited from earlier such agreements. Where borders are not agreed or the terms of agreement are disputed, states may push against each other, as Mexico and USA did after the 1846-8 Mexican/American War. Many years later, in the decade following the beginning of the Mexican Revolution in 1910, there were incursions from the Mexican side, not always by government forces, across the border and American raids in the other direction. Columbus, New Mexico and other towns along the border were attacked by Mexican forces who were reported to have behaved as invading forces are commonly said to behave – shooting children in the streets and raping women in their front yards. In 1913, the US President Woodrow Wilson ordered the US Army and National Guard to station themselves along the border.

The Oxford English dictionary gives two meanings for ‘border protection: ‘(a) orig.U.S., defence or surveillance of the border of a nation or territory, (now) esp. in order to prevent illegal immigration; (b) (in international trade) the imposition of tariffs and other controls to restrict imports.’ The first, with its suggestion that this usage was originally American deserves further examination, which takes us back to the Mexico/USA border.The earliest usage cited by OED of ‘border protection’ in this sense comes from late C19 USA, specifically in the ‘Proceedings of the National Railroad Convention at St. Louis, Mo., November 23 and 24, 1875, in regard to the construction of the Texas & Pacific Railway as a southern transcontinental line from the Mississippi Valley to the Pacific Ocean on the thirty-second parallel of latitude.’ The proposed railroad ‘will do much towards the solution of the Indian question, by reason of the more rapid advance of the great army of civilization, which it will inevitably secure, thus saving to the Government millions annually in the single item of border protection.’ (pxi)
Why was border protection seen as an issue in the USA at this time? Following the American victory over Mexico in the war of 1846-8 a large part of Mexico was ceded to USA and another large slice, this time consisting largely of Mexican desert, was transferred in the Gadsden purchase of 1854. Subsequently, and especially after the American Civil War, white ‘anglo’ settlers moved into the new US territories, leading to conflict with native American tribes who had not resigned themselves to Mexican rule and were no more enamoured of rule by the USA. While they did not give the new Mexico/US border the respect both states thought it deserved, these tribes soon learned to appreciate the pragmatic significance of the border. It was an invisible line in the sand across which Mexican and US Government forces would not normally pursue them. Outlaw gangs on both sides developed a similar appreciation of the border’s utility. Consequently, protection of settlements on or near the border became a real problem for both governments. For the US, the proposed railway promised to allow the rapid movement of troops into threatened border areas. It was also expected to ease the establishment of settlements in these areas, thereby ensuring that the need for their protection would continue for some time.
Yet, while indigenous disrespect for their borders has posed problems for other states in the Americas, the US/Mexico border is hardly typical of land borders. Whether or not they are agreed, land borders are not normally seen as requiring protection. Borders are to be patrolled and enforced, more or less effectively, which is roughly what the first OED definition of ‘border protection’ suggests. What is normally given protection is land, people and resources inside the border rather than the border itself – although attacks on border towns lend a certain substance to the idea that the border needs protection. With regard to maritime borders, things are a little more complex, if only because there sometimes are international waters rather than another state just outside a state’s border.

In Australia, the example that most concerns us here, the Customs Coastal Air-Sea Operations Support (CASOS) Group was established in 1974 to enable officers to carry out ‘aggressive anti-smuggling patrols of the Australian coastline and the surrounding seas and oceans’ (Day 1996, 421). Smuggling of migrants was not identified as a significant issue for these patrols. Over the following years, Customs acquired several ocean-going boats to patrol the waters of northern Australia. Also in the mid 1970s noticeable numbers of boat people started arriving in Australia, most of them initially from Vietnam. Yet, according to the Australian Customs History website (http://australiancustomshistory.com.au/) the issue of people smuggling did not arise until the later ‘third wave’ of boat people, this time mostly from the Middle East, in the late 1990s. Notice, incidentally that reference to waves [of migrants or boat people] suggests the risk of inundation. The Howard Government’s 2001 ‘Border Protection Bill’ sets out provisions for the removal of ships from Australian territorial waters but, in spite of its title, says nothing about the border and what would have to to be done to protect it. Some years later, in 2005, the Border Protection Command was established to coordinate Australian maritime security operations but it does not appear at this time to have been particularly concerned with the smuggling of migrants, although foreign fishing vessels were sometimes apprehended and their crews transferred to immigration detention. The Customs History website reports that in 2007, ACV Triton enhanced customs ability to patrol and enforce Australia’s northern fisheries. What is protected in this case is not the border but the fisheries within it. The following year, to show that Labor could talk border protection as well as the next Party (although members of his party were clearly uncomfortable using the term), Prime Minister Kevin Rudd announced in his National Security Statement to Federal Parliament (December 4, 2008), that Australian Customs Service was to be called Australian Customs and Border Protection Service, with the actual change coming in May 2009. A few years later, following the December 10, 2010 foundering of SIEV 221, carrying around 70 migrants on rocks near Christmas Island, several Indonesian men were charged with aggravated people smuggling.c
Coastal Air Sea Operation
Thus, use of the term ‘border protection’ has a long history in Australian politics. For the most part it has referred to little more than regular border patrols and protection of fishing grounds within Australian territorial waters against threats posed by a few marauding fishing boats from Indonesia, PNG and Timor L’este.

Most Australians would have had no clear sense of the limited resources employed in this border protection racket. Yet, the term ‘protection’ clearly suggests that there is some kind of threat and the use of the term in the context of stopping asylum seekers reaching Australia tells us exactly who is pesenting this threat, thereby giving the sense of threat greater substance. References to ‘waves’ of asylum seekers carry similar implications.

When ‘border protection’ is invoked in this way without reference to the limited forces mobilised for this purpose, it serves as a crude nationalist appeal, suggesting that the state and its people are under threat of foreign (Syrian, Afghan, Sri Lankan… or just broadly Muslim) invasion and implying that any party or person who fails to support border protection must be, to say the least, disloyal. Rather than take a reasoned stand on the issue, Labor simply caved in to this rhetorical pressure.

A second, closely related issue concerns the smuggling of migrants, a challenging issue for those of us who are not familiar with the complexities of international law; it is challenging in the sense not of being intellectually demanding but rather as involving too much boring reading. Here is Turnbull again, this time in an interview with Barrie Cassidy for the ABC TV Insiders program. Turnbull refers: ‘to those criminals, those people smugglers, who are preying on vulnerable people and seeking to take their money, put them on the high seas in boats where like as not, they will drown.’ (Feb 7, 2016). In keeping with the general tenor of Australian discussion, Turnbull clearly describes people-smuggling in negative terms. People-smuggling is more than simply bad behaviour; it is also criminal.
The Australian Attorney General’s department (AGD) has a web page headed ‘People Smuggling’, which identifies people smugglers as ‘ individuals or groups who assist others to enter a country through irregular methods’. It goes on to add ‘People smuggling is a crime under Australian law and it puts lives at risk.’ Notice it does not say that people smuggling is a crime because it puts lives at risk. Two things are asserted here here: that people smuggling is criminal activity and that it puts lives at risk. Why, we might ask, is it a crime to ‘ assist others to enter a country through irregular methods’, even in cases where no lives are put at risk? The question is worth asking because irregular methods are not necessarily illegal and not all illegal actions are penalised.

Bruce Haigh, a retired Australian diplomat, outed himself as a one-time people smuggler in a letter to the Sydney Morning Herald (sept 27, 2007). ‘According to the Howard Government I am a people smuggler and as such should be prosecuted and put in prison. As a young Australian diplomat posted to South Africa from 1976 to 1979, I was confronted by a ruthless police state enforcing white privilege over a black majority through the comprehensive system of race discrimination known as apartheid…. Using my diplomatic immunity I was able to assist victims of apartheid. I took black activists across the [SA/Swaziland] border to safety and shuttled others from one place to another to avoid the security police.’

There are Protocols on both the Smuggling and Trafficking of Migrants to Supplement the UN Convention against Transnational Organized Crime (2000). The latter Protocol describes Trafficking as involving (Article 3a) ‘the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.’ The Smuggling Protocol, in contrast, assumes that migrants volunteered for their journey and that they are not moved in order to be exploited, at least not by those who transport them, in the new environment.
The Australian Institute of Criminology Transnational crime brief no. 2 (January 2008) notes that these criteria do not establish an unambiguous distinction between smuggling and trafficking. Yet, according to both, the Atlantic slave trade trafficked migrants on a massive scale and so, on a smaller scale, does the contemporary movement of female migrants who are lured into becoming sex workers.
On the other hand, like Oskar Schindler and Bruce Haigh, those who, during WW2, assisted the movement of Jews and political activists out of Germany into Switzerland and out of France into Spain were people-smuggling. So, too, were those who worked with the underground railway in antebellum America to assist escaped slaves on their way to the Northern non-slave states or even across the international border to Canada. Few of my readers are likely to regard such cases of smuggling as bad.
The case of European Jews who fled WW2 Europe by boat to Palestine is rather more complicated. Following a White Paper in 1939, British Authorities in Palestine restricted the entry of Jewish immigrants, in part to placate the Palestinian Arab population, declaring the would-be immigrants ‘illegal’ and condemning those who ferried them across the Mediterranean, not as people-smugglers but rather as pirates. The restrictions on Jewish immigration continued for some time after the war and many would-be migrants were interned in camps in Palestine itself, Cyprus and Mauritius – the Indian Ocean precursor to Australia’s harsh Pacific solution.

Australia is bound by the terms of the 1951 UN Refugee Convention which it signed in 1954. Article 31 asserts that refugees have the ‘right not to be punished for illegal entry into the territory of a contracting State’, a formulation which suggests that those who are not refugees in the Convention’s sense may not have this right. Several points should be noted here. First, rights of ‘irregular migrants’ are also specified in other international agreements, including the Universal Declaration of Human Rights (1948) and the more recent (2000) Smuggling of Migrants Protocol, which I consider below. Second, the Refugee Convention’s right not to be punished is framed in terms of ‘illegal’ entry while AGD’s definition refers to ‘irregular’ entry, when it could easily have used the word ‘illegal’. This suggests that, from AGD’s perspective, ‘irregular’ and ‘illegal’ have different meanings, that while illegal entry is almost certainly irregular, there may be instances of irregular entry that are not themselves illegal. Third, it seems that both Labor and Coalition Australian Governments do not understand their obligations under the Convention as prohibiting holding people in indefinite detention while their refugee status is being determined – or while this issue is not even being pursued. It seems that indefinite detention does not count as punishment, although Malcolm Turnbull, the current Prime Minister, has acknowledged that this treatment is ‘harsh’. Perhaps it is not punishment but simply, as David Isaacs suggests (SMH, March 1, 2016), prolonged torture. If refugees have the right not to be punished for their illegal entry, but only to be held in indefinite detention, it is not clear that others should be punished for assisting them.

Yet, while it is easy to see that the punitive aspect of indefinite detention is hardly compatible with Australia’s obligations under the Convention, it is also important to note, fourth that, as the Refugee Cuncil of Australia’s submission points out, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 effectively removes from the Migration Act 1958 references that give effect to the provisions of the 1951 Convention, thereby removing from Australian law refugees ‘right not to be punished’. The Fourteenth Report of the 44th Parliament, Parliamentary Joint Committee on Human Rights, (28 October 2014, paragraph 5.2) noted that the Bill would sever “the connection between Australia’s international obligations and [how] its domestic law engages”. (See Glenn Murrays admirably clear discussion of these obligations, “The facts about ‘boat people’ – The government and media are lying” at http://theaimn.com/facts-boat-people-government-media-lying/). While Australia remains bound by the Refugee Convention, the 2014 Bill abandoned much of its earlier commitment to its requirements. An explanatory memorandum to the Bill makes it clear that the purpose of the Bill is to ensure ‘that the exercise of a range of powers cannot be invalidated because a court considers there has been a failure to…comply with Australia’s international obligations.’ Through this Bill, Australia practically rejects the inconvenient demands of the Convention, as it has done for several years using other tricks, but without clearly renouncing it or publicly campaigning in international forums for its reform. Of course, if, as Tony Abbott is reported to have said (ABC, March 9, 2015, 4.56pm), Australia is ‘sick of being lectured to by the United Nations’ , it could withdraw its commitment to the Refugee Convention and the Declaration of Human Rights. This could prove diplomatically embarrassing – foreign diplomats might laugh at Philip Ruddock, Australia’s special envoy for human rights – although hardly more so than just continuing to flout the terms of these agreements (cf. Khalid Koser’s April, 2015 Lowy Institute analysis).

Why is people smuggling a crime under Australian law? Alongside the 1951 Refugee Convention, Australia is also bound by the Smuggling of Migrants Protocol that supplements the (2000) United Nations Convention against Transnational Organized Crime. The Preamble to the Protocol notes that participating States are concerned ‘at the significant increase in the activities of organized criminal groups in smuggling of migrants and other related criminal activities set forth in this Protocol, which bring great harm to the States concerned [and also] that the smuggling of migrants can endanger the lives or security of the migrants involved ‘ (p.53/4, emphasis added). Here, too, we see the two elements noted earlier: states are harmed and lives put at risk. The latter point is stressed throughout the text of the Protocol and is regularly trotted out in defence of Australia’s ‘harsh’ regime of detention and of its actions to inhibit people-smuggling, as if to suggest that “this hurts us more than it hurts them – we are doing it only to save lives that could otherwise be lost at sea”.

Just what great harm people-smuggling causes states remains unclear unless, it results from the administrative burden of processing asylum seekers or the fact that it promotes domestic criminal activities and associated forms of corruption, like producing or creating a market in fraudulent travel and identity documents. Yet, on the latter point, while it may be convenient for government officials to blame foreigners, most contemporary states are perfectly capable of generating corruption and criminality without outside assistance. So, unless migrants are smuggled on a large scale relative to the size of the receiving state’s population, it is difficult to see how this would amount to ‘great harm’.
Article 3 of the Smuggling Protocol specifies that ‘Smuggling of migrants” shall mean the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident’ . In this case, too, we see ‘illegal’ entry where the AGD has ‘irregular’. Like the Refugee Convention, this Protocol specifies in Article 5, that the smuggled migrants ‘shall not become liable to criminal prosecution under this Protocol …’

The same Article clarifies what the Protocol means by ‘illegal entry’: ‘crossing borders without complying with the necessary requirements for legal entry into the receiving State.’ This is another way to describe what the International Organization for Migration calls ‘irregular migration’. ‘From the perspective of destination countries irregular migration is entry, stay or work in a country without the necessary authorization or documents required under immigration regulations.’ IOS notes that the sending country might take a different view, regarding exit from its territory without appropriate documentation as irregular or illegal.
Article 6 requires states to criminalize the smuggling of migrants and several related activities, such as the provision of false travel or identity documents. In fact, this Article places Australia under no onerous obligation since ‘people smuggling’ has been treated as a crime in Australia since the Migration Act of 1958 while, without using the term ‘people smuggler’, the 1901 Immigration Restriction Act (section 9) imposed penalties (detention followed by deportation), not only on the wrong kind of immigrants, but on the ‘master, owners, and charterers of any vessel’ bringing prohibited immigrants into Australia, making an exception ‘in the case of an immigrant of European race or descent’. The 1958 Migration Act identifies people smuggling by reference to persons who have ‘no lawful right to come to Australia’, which raises a question noted earlier. Since, by signing the Refugee Convention in 1954, Australia had agreed that asylum seekers who enter Australia by illegal means should not be penalised for doing so, how could it justify penalising those who assist them?

Many Australians like to think that we have moved on from the bad old days of the white Australia. Yet, while the policy itself was abandoned in 1972, its most egregious instrument (regulation of entry to Australia with its associated punitive regime) has not only survived but become notably more aggressive

While the Smuggling Protocol insists that the smuggled persons should not be charged for their illegal entry, ie. for having been smuggled, it is easy to understand how the taint of criminality might rub off on them. There is a related point to notice about the Refugee Convention’s ‘refugee’ and the Smuggling Protocol’s ‘migrant’. Let me begin by acknowledging Mawuna Remarque Koutonin’s comment that, while both expatriates and migrants come from elsewhere, expatriates are normally white Europeans and migrants are not ( The Guardian (Aus), March 13, 2015). Not all European whites are equal in this respect but Koutonin probably exaggerates to make a point.

I have argued elsewhere (2000, 2001, 2002) that citizenship operates within the international system of states as a regime of population management. From this perspective, the ‘great harm’ caused by the smuggling of migrants would be that it threatens the work of this regime.

Article 1A of the 1951 Refugee Convention, as modified by the 1967 Protocol, defines a refugee as a person who, “owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinions, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.” The Convention could be read as an extended apology to the millions of European Jews who were let down by the international order during WW2 and the years leading up to it (David Marr, ‘Illegals’ – Australia’s latest smear on refugees’ TheGuardian 22, 2013). Marr’s title may be misleading since the politicians and officials who insist on the term ‘illegal’ can always say that they are simply following Article 5 of the Smuggling Protocol. That the term really does smear refugees is simply an added bonus. Koser makes a related point: ‘The Convention’s definition reflects that the Refugee Convention was drafted specifically ‘to find solutions for those who had been displaced across Europe by Nazism and the Second World War. Hence, as originally drafted, it covered only those who were refugees as a result of “…events occurring before 1 January 1951…” and focused on “…events in Europe.”’

We can take comfort in the thought that, had much of Europe fallen under Nazi control for a second time in the mid-1950s and had other states complied with the Convention’s obligations – as many, not just Australia, now fail to do (see Nils Muiznieks, the Council of Europe commissioner for human rights, NYT March 14 2015) – the international community would then have had mechanisms in place to deal more humanely and efffectively with the ensuing refugee crisis than it did in the 1940s. It is more important to notice how the Refugee Convention’s efforts to produce a definition comprehensive enough to cover events of the recent European past resulted in a set of criteria, which immigration officials and their political masters can now use as a checklist for assessing those who present themselves as refugees.

In such cases, whether or not a fear of persecution is to be counted as ‘well-grounded’ becomes a matter to be decided by outsiders with little or no knowledge of the conditions from which the migrant has fled. Yet, it seems decidedly odd to ask whether a reasonable person would feel fear in such conditions. As with other emotions, in the case of fear reason need have little to do with it. If fear drives a person or family to leave their home, it is certainly real enough. RCOA believes that the provisions of the Bill were ‘likely to obscure rather than elucidate the circumstances under which a person is likely to have a well-founded fear of persecution.’ Those who are judged to satisfy criteria designed to cover Europeans displaced by Nazism and WW2 are regarded as ‘genuine’ or ‘legitimate’ refugees while the rest are not ; they are seen as cheating, as economic migrants, at best – as if there were something underhand about fleeing the threat or the reality of poverty.

The possibility that refugees may not be classified as ‘genuine’ according to these criteria ensures that those who present themselves as refugees are often regarded with suspicion and anyone who makes a understandable effort to portray their situation as fitting the criteria is likely to be suspected of gaming the system.
Thus the Convention’s belated but otherwise commendable efforts to require that states protect refugees creates an atmosphere of suspicion around ‘irregular’ migrants, who arrive without a visa and evade immigration controls.

Koser goes on to note that the Convention has been updated in a 1967 Protocol and again by regional complements in 1969 and 1984 ‘to cover particular circumstances in Africa and Central America respectively [but not, we might note, the Middle East] Nevertheless, significant gaps remain in the definition as it applies to contemporary circumstances. In particular, there is a growing consensus that over the next decade or so, the effects of environmental change are likely to compound other drivers of displacement, increasing migration pressures globally including in Australia…. [T]he 1951 Convention does not refer to asylum seekers and this is one of the main reasons why the Convention has proved so hard to implement in contemporary circumstances.’
Thus, even allowing for subsequent updates, the Convention is hard to apply in contemporary circumstances. In other words, it is out of date. Fair point! Yet, the Refugee Convention has aways been out of date in this sense. Designed to regulate the conduct of states towards European migrants during past emergencies, it has little to offer in case of emergencies that take a different form.

I suggested earlier that Australian political debate around border protection has been let down by commentators in both academia and journalism, although I have not discussed their efforts in this blog post. The same might be said about discussion of ‘people smugglers’ and their clients. Jane Goodall observed recently in her regular Inside Story columns – a discussion of Current Affairs TV – that we certainly ‘need facts and information, but above all we need eyewitness reportage.’ ( Inside Story, Feb 23, 2016). I agree that broadcast ‘facts and information’ are normally open to diverse interpretations and that they are frequently misleading, but it is hard to be impressed by the eye-witness reportage available on Australian television. While we clearly need ‘facts and information’, we also need something more, serious critical analysis, including work on the terms of current in political discourse – ‘border protection’, ‘free trade’ and many others – which, in both print and broadcast commentary, is in dangerously short supply. I referred earlier to Glenn Murray’s admirable “The facts about ‘boat people’ – The government and media are lying.” Only his title seems to me misleading: ‘lying’ suggests that the Government and media know the truth and are deliberately distorting it. I have already noted an excuse the Government might use but, while I would not put lying past them, the media are simply not doing their job: some may well be mendacious, but for the most part, they are more likely to be lazy, careless or both. The anti-intellectual character of Australian culture has often been noted. It is all too apparent in the failure of journalistic and academic commentary to attend to what Governments, parties and individual politicians are up to with the words they use.

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