On September 9 the European parliament passed a resolution calling on Paris to ‘immediately suspend all expulsions of Roma’, saying the policy ‘amounted to discrimination on the basis of race and ethnicity’. French Gendarmes were accused of compiling secret illegal lists of Roma and other travelling minorities in violation of French laws on ethnic profiling. In 2010 France deported 5,000 Romanians and Bulgarians (10,000 in 2009), and vows to continue deporting Roma, all EU citizens, even though the expulsions are against the constitution and break international human rights laws on discrimination and despite the European Commission’s announcement on 1 October that it would initiate legal action against France. Indeed France began fingerprinting departing Roma to prevent their return, proving the futility of invoking human rights law (Crumley, 2010).
The French deportations are not unique. In the damning report, “Not Welcome Anywhere: Stop the forced return of Roma to Kosovo”, Amnesty International says EU countries have been quietly deporting Roma back to Kosovo for over a year. The report singles out Germany as a chief perpetrator, alleging many of the Roma are being forcibly removed from their homes at dawn with nothing more than the clothes on their back; many are made to sign statements attesting their deportation is voluntary. AI calculates that almost 10,000 Roma were at risk of forcible return to Kosovo from Germany alone (DW-World.DE. 2010).
And in Ireland, 63 Roma people who have been living at the Ballymun intersection of the M50 were deported in July 2007.
This paper concurs with Zygmunt Bauman that refugees, and some migrants, such as Europe’s Roma – the exception to the EU-wide freedom of movement and residence – are, ‘human waste, with no useful function to play in the land of their arrival and temporary stay and no intention or realistic prospect of being assimilated and incorporated into the new social body; from their new present place, the dumping site, there is no return and no road forward’ (Bauman, 2004: 77).
Following Hannah Arendt (1975), Costas Douzinas (2000) argues that human rights were always secondary to the rights of national sovereignty (Hirsch, 2003: 152). Therefore, claims of humanitarianism by states as well as human rights-based NGOs fail to historicise the Eurocentric origins of the human rights discourse. Indeed, human rights are always bestowed by those whose rights are assured upon ‘helpless’ others; in addition, the professionalisation of human rights activism over the last two decades disconnects it from the lived experiences of those on whose behalf it seeks to act, thereby dehumanising them (A. Lentin, 2005).
In The Origins of Totalitarianism (1975), Hannah Arendt argues that although the Declaration on the Rights of Man supposedly bestowed ‘inalienable’ rights, they proved to be unenforceable – even in countries whose constitutions were based upon them – whenever people appeared who were not citizens of any sovereign state’ (Arendt, 2000: 34). According to the Italian political philosopher Giorgio Agamben (2004), laws depriving people of citizenship (as in the Nazi 1935 Nuremberg Laws, but also in the case of refugees and migrants, deemed ineligible for citizenship in the western world), mean that human rights, bestowed by international conventions ever since the 18th century Declaration, do not apply to those outside the citizenship pale.
Human rights and treaties, including the 1951 Convention in relation to Refugees, are reciprocal agreements between sovereign states, even though states are the prime perpetrators in depriving individuals of their ‘human rights’. This means, Arendt says, that crimes against human rights, ‘can always be justified by the pretext that right is equivalent to being good or useful… (Hitler’s motto that ‘Right is what is good for the German people’ is only the vulgarised form of a conception of law which can be found everywhere)’ (Arendt, 2000: 40).
Since refugees and migrants such as the Roma are seldom considered ‘good’ or ‘useful’ by the state – on the contrary they present ‘problems’ for sovereignty and state boundary – it is not surprising that despite the universal rhetoric of ‘human rights’, refugees and some migrants, always expected to eventually return to ‘where they came from’, epitomise what Agamben calls ‘bare life’.
Homo sacer and racial states
Bare life, which Agamben borrows from Roman law to name homo sacer, is the opposite of sovereign power, standing at the crossroads between violence and the law (Agamben, 1995: 10). For Agamben, homo sacer is the excluded being, whose life is devoid of value. Therefore the life of a homo sacer is always at the mercy of sovereign power, position in the ‘state of exception’ between inside and outside, licit and illicit. Bauman (2004) uses this idea to think of modernity constructing some categories of people as human waste, and argues that throughout modernity, the nation-state ‘has claimed the right to preside over the distinction between order and chaos, law and lawlessness, citizen and homo sacer, belonging and exclusion, useful (=legitimate) product and waste’ (Bauman, 2004a: 33).
Agamben’s concept of bare life is useful in thinking about migrants, refugees and statelessness in the present age of global population movements. David Theo Goldberg (2002) posits all modern nation-states as ‘racial states’, which exclude in order to construct homogeneity – which he sees as ‘heterogeneity in denial’. The racial state is a state of power, asserting its control over those within the state and excluding others from entering the state. Through constitutions, border controls, the law, policy making, bureaucracy and governmental technologies such as census categorisations, invented histories and traditions, ceremonies and cultural imaginings, all modern states, each in its own way, are defined by their power to exclude (and include) in racially ordered terms, to categorise hierarchically, and to set aside. In the modern state, race and nation are defined in terms of each other to produce a coherent picture of the population.
I would like to suggest that Ireland, like other modern nation-states, is a ‘racial state’, whose main aim is to exert control over its territory-nation nexus, even in the era of globalisation, when, national boundaries arguably become secondary, in a global, or European ‘migration regime’. The racial state demonises asylum seekers and unwanted migrants, stems their flow, prevents them from landing to present asylum applications, all in order to regain control, as I now demonstrate by citing some examples of Irish refugee law and practice.
Stemming the tide, regaining control
Like all international instruments, the 1951 Convention is a compromise (Harvey, 2003: 8). Critiquing international law as leaving too much to state discretion, legal scholar Colin Harvey argues that refugee law, with its focus on the award of a status, leaves too much to the (racial) state to decide. The purpose is always to ‘secure national level protection’ (Harvey, 2003: 17).
Asylum seekers and unwanted migrants are demonised by states and media to conjure up cheat, liar, criminal, sponger – someone deserving hostility not by virtue of any misdemeanour, but simply because she is an ‘asylum seeker’ or ‘unwanted migrant’ – a figure that has become a caricature just as ‘Blacks’, ‘Jews’ and ‘Gypsies’ have been and still are. This is part of a racist asylum (and immigration) regime (Schuster, 2003: 244). Wishing to control their border, European racial states have developed regimes and practices – including dispersal, detention and deportation – once only possible at war time and today considered ‘normal’ and ‘common sense’: see the competition between British parties on limiting immigration, but also the acceptance by many human rights NGOs that deportation is a legitimate part of the ‘asylum process’.
Dispersal and direct provision
Dispersal means that asylum seekers have no say in where they live, making the formation of networks of family and friends near impossible. In Ireland, at the end of June 2010, there were 5,860 asylum seekers in 48 direct provision centres. In addition to basic accommodation and meals, each asylum seeker receives €19.10 per adult and €9.60 per child per week, not raised since the allowances were introduced in 2000 (www.irishrefugeecouncil.ie/stats ).
Not allowed to work or access education, asylum seekers are ‘the poorest of the poor… they are marginalised, poor, and, in many respects, they lack freedom’ (Loyal, 2003).
Asylum seekers in Ireland are also excluded from social welfare provisions. According to the Free Legal Advice Centres (FLAC, 2003; 2009), direct provision represents a departure from the normal Irish social welfare code, creating what Agamben would call ‘a state of exception’. According to FLAC, direct provision contravenes the Equal Status Act, even though the Act does not permit a challenge to enactments by the government, further reinforcing the racial state.
In The Deportation Machine: Europe, Asylum and Human Rights, Liz Feckete (2005), who documented 200 case studies, argues that British political parties compete in setting deportation targets. This ‘target culture’ results in brutal use of force in removals, often in violation of domestic law via powers granted to immigration officers, in the removal of protection from refugees fleeing conflict. Deportees – as in the case of the Roma – include many children, contravening another human rights measure, the UN Convention on the Rights of the Child.
Eithne Luibhéid (2004) argues that racial states need asylum seekers (and unwanted migrants) in order to ‘redraw racial and national boundaries that have become destabilised in the contemporary era’. Lisa Schuster’s critique of EU asylum policies leads her to insist that all controls are unacceptable, despite costs to receiving countries, and that protecting national identity is not a valid reason for denying people the opportunity to save or improve their lives (Schuster, 2003: 255) I would add that protecting the national economy is not a valid reason for restricting immigration – a point for discussion.
The new Irish Immigration, Residence and Protection Bill, about to be debated in the Daíl, allows for summary deportations, contrary to a 2008 Supreme Court ruling, despite the Coalition Government having committed to a fair immigration policy, and even though summary deportations may be struck down by the courts (ICI, 2010).
It is worth noting, however, that human rights NGOs, including the Irish Refugee Council and Amnesty International, accept deportations ‘as a reality’, and merely insist that deportations be carried out in conformity with Ireland’s human rights obligations (Irish Refugee Council, 2004), which begs the question of whether human rights organisations ultimately uphold the state’s right to control and maintain its sovereignty and boundaries. A further illustration to this lacuna is the absence of protest against deportation as a technology of state control, is the response to the death of deported Angolan Jimmy Mubenga from the UK in October 2010, due to the rough handling of the private security firm charged with his deportation. Indeed, when objecting to the brutal handling of deported ‘failed’ asylum seekers, as in Mubenga’s case, British MPs articulated their demands for an inquiry in nationalist terms. According to Julian Huppert, a Liberal Democrat member of the home affairs committee, ‘if, as a nation, we are treating people like this, it is absolutely outrageous’ (The Guardian, 2010).
Conclusion: Human rights and its others
Harvey (2003) argues that international conventions and human rights instruments provide only minimal standards in relation to refugees. Contrary to the accepted wisdom that the inhuman treatment of asylum seekers and unwanted migrants by Western racial states is about the infringement of their ‘human rights’ (e.g., Fraser and Harvey, 2003; Feckete, 2005), I want to argue that the very notion of ‘human rights’ is no longer theoretically adequate.
Costas Douzinas (2007) argues that human rights are ultimately not about common humanity, but about politics:
‘If human rights are entitlements given to people on account of their humanity and not their membership of some narrower group such as nations, class or party, then those people who have no law or group to protect them, the refugees, the stateless, the prisoners in Guantanamo Bay, should have at least the protection offered to humans qua humans. And yet, these are people who have no or very few rights. In this sense, one could claim that human rights as described by liberal philosophy do not exist, because birth and basic humanity does not come with any attached rights. Politics creates rights and only civil rights created politically and enforced legally by domestic legal systems give protection to political action, in other word, citizens’ (Douzinas, 2007: 99).
Thus the human rights discourse is above all limited by differentiating between refugees and citizens (sharpened by Ireland using a constitutional amendment in 2004 to revoke birth right citizenship to further differentiate between citizen and non-citizen). Douzinas emphasises state sovereignty as the ‘centrally important terrain for the battle over rights in a globalised world’ (Hirsch, 2003: 151), reminding us that human rights depend on the rights of citizenship, and cover up the ambitions of powerful states.
What are the implications of all this to antiracism? Racism and anti-racism are increasingly unfavoured discourses in a Europe intent on discourses of multiculturalism and integration. Alana Lentin (2005) links, on the one hand, ‘historicist’ racism – based on being able to civilise ‘racial inferiors’ by exposing them to the ‘superior’ culture of the dominant group – at the heart of racial states’ integration policies, and on the other, human rights which dehumanise those they seek to benefit because they are practiced on behalf of others and granted and violated by states in equal measures.
When human rights become professionalised, she adds, ‘migrants themselves have become consistently absent from the discussions that take place in these privileged transnational spaces, due precisely to the fact that they are not free to travel across borders once they reach Europe.’
Unsurprisingly, Roma voices have been totally absent from the argument between the EU and France’s President Nicolas Sarkozy, who rejected the EU Justice Commissioner’s suggestion that his expulsion policies echo Nazi policies, and insisted that France would continue to dismantle Roma camps, which he described as a ‘crackdown on crime’ (demonising all Roma as criminals). And all this despite the protestations of human rights bodies such as Amnesty International.
Last word to Agamben. Differentiating between refugee / unwanted migrant and citizen harbours dangers not only for migrants and refugees – outside the law, forever positioned in the twilight zone of the ‘state of exception’ – but also for citizens. The camp – concentration camp as well as refugee and Roma camp – is the paradigm for modernity, a state we are all still living in. Thus the apparently marginal figure of the refugee / migrant unhinges the trinity of state-nation-territory, and must be considered the central figure of our political history, calling into question the very principles of the nation-state:
‘It is only in a land where the spaces of states will have been perforated and topologically deformed, and the citizen will have learned to acknowledge the refugee that he himself is, that man’s political survival today is imaginable’ (Agamben, 2004).
Agamben, Giorgio. 1995. Homo Sacer: Sovereign Power and Bare Life. Stanford, Ca: Stanford University Press.
Agamben, Giorgio. 2004. ‘We refugees’. www.egs.edu/faculty/agamben/agamben-we-refugees
Arendt, Hannah. 1975. The Origins of Totalitarianism. San Diego: Harvest.
Arendt, Hannah. 2000. ‘The perplexities of the rights of man’, in The Portable Hannah Arendt, ed. Peter Baehr. Harmondsworth: Penguin Books.
Bauman, Zygmunt. 2004. Wasted Lives: Modernity and its Outcasts. Cambridge: Polity Press.
Crumley, Charles. 2010. ‘Why E.U. Threats Won’t Stop France from Deporting Gypsies’, Time, 1 October, http://www.time.com/time/world/article/0,8599,2022820,00.html?xid=rss-mostpopular#ixzz11DlMxJwH
DW-World.DE. 2010. ‘Amnesty report condemns EU Roma deportations’, 28 September, http://www.dw-world.de/dw/article/0,,6051742,00.html
Douzinas, Costas. 2000. The End of Human Rights: Critical Legal Thought at the Turn of the Century. Oxford: Hart.
Douzinas, Costas. 2007. Human Rights and Empire: The Political Philosophy of Cosmopolitanism. Abingdon: Routledge-Cavendish.
Feckete, Liz. 2005. The Deportation Machine: Europe, Asylum and Human Rights. London: The Institute of Race Relations.
FLAC. 2003. Direct Provision? An Analysis of the Scheme of Direct Provision in Ireland. Dublin: FLAC.
Foucault, Michel. 1978. The History of Sexuality, Volume I: An Introduction. New York: Random House.
Fraser, Ursula. 2003. ‘The asylum procedure’, in Ursula Fraser and Colin Harvey (eds.) Sanctuary in Ireland: Perspectives on Asylum Law and Policy. Dublin: IPA.
Goldberg, David Theo. 2002. The Racial State. Oxford: Blackwell.
Guardian, 2010. ‘MPs demand inquiry into flight death’, 16 October.
Harvey, Colin. 2003. ‘Refugees, asylum seekers and international human rights protection’, in Ursula Fraser and Colin Harvey (eds.) Sanctuary in Ireland: Perspectives on Asylum Law and Policy. Dublin: IPA.
Hirsch, David. 2003. Law Against Genocide: Cosmopolitan Trials. London: Glasshouse Press.
Holland, Kitty. 2005. ‘Stuck in Ireland’s “hidden villages”’, The Irish Times, 9 April: W4.
Immigration Council of Ireland. 2010. ‘Costly court challenges are inevitable if Government persists with move to allow summary deportations’ Press Release, 3 October.
Irish Refugee Council. 2004. ‘Irish Refugee Council interim guidelines on deportation, 26 July 2004’, www.irishrefugeecouncil.ie
Lentin, Alana. 2005. ‘Racism and human rights: Towards a new humanitarianism?’ The Voice of the Turtle. www.voiceoftheturtle.org/show¬article.php?aid=426
Lentin, Ronit and Robbie McVeigh. 2006. After Optimism? Ireland, Racism and Globalisation. Dublin: Metro Eireann Publications.
Loyal, Steven. 2003. ‘Welcome to the Celtic Tiger: Racism, immigration and the state’, in Colin Coulter and Steve Coleman (eds.) The End of Irish History? Critical Reflections on the Celtic Tiger. Manchester: Manchester University Press.
Luibhéid, Eithne. 2004. ‘Childbearing against the state? Asylum seeker women in the Irish Republic’, Women’s Studies International Forum, special issue edited by Ronit Lentin and Eithne Luibhéid, 27/4: 335-349.
McGee, Harry. 2003. ‘Media responses to asylum’, in Ursula Fraser and Colin Harvey (eds.) Sanctuary in Ireland: Perspectives on Asylum Law and Policy. Dublin: IPA.
O’Mahony, Peter. 2003. ‘Supporting asylum seekers’, in Ursula Fraser and Colin Harvey (eds.) Sanctuary in Ireland: Perspectives on Asylum Law and Policy. Dublin: IPA.
Schuster, Liza. 2003. ‘Common sense or racism? The treatment of asylum seekers in Europe’, Patterns of Prejudice, vol. 37/3: 233-256.