IT WAS THE LARGEST DEMONSTRATION in the history of Bonn. Rocks and bottles thrown by youths in ski masks and leather jackets fell like hailstones on the shields of riot police who had barricaded the German Parliament. Behind the rock throwers, thousands of demonstrators chanted “Deportation is murder” and “We are one people.” They filled the streets in such numbers that traffic throughout the government quarter was brought to a standstill. Politicians who had been unable to get through the crush of bodies were being taken to the Parliament by helicopters and police launches that normally patrolled the Rhine. A member of the ruling Christian Democrats who was hit by a protestor’s balloon entered the plenary chamber splattered in paint, triggering angry shouts of “Anarchists!” from the government benches.
The government was proposing to change Germany’s asylum law. Inside the Parliament, the proposal was the subject of what would become an epic thirteen-hour debate, during which the besieged lawmakers denounced not merely the protestors but also each other in historically charged terms. When a Far Right politician rose to speak, other politicians stormed out while shouting, “Neo-Nazi out of Parliament!” Members of the Party of Democratic Socialism gave several inflammatory speeches suggesting that the government’s proposal amounted to rebuilding the Berlin Wall. One PDS representative said, “You will see: whoever votes today to essentially eliminate the right to asylum must know that he is partially responsible for future shootings of refugees at the border.” In response, a member of the Green Party reminded the assembled lawmakers that the PDS was the successor to the East German Communist Party, “the party that built the wall and that in East Germany did everything that was contrary to granting asylum.” As he spoke, waves of applause emanated from the benches of all the major parties.
Germany’s asylum debate occurred in the spring of 1993. It eventually resulted in radical changes to the country’s refugee laws. Before then, Germany had one of the most strongly worded asylum laws in the world. Afterwards, the legal protection it offered people seeking refuge shrank dramatically. Germany’s transformation in this regard illustrates three international trends that have long since come to define the treatment of refugees, particularly in Europe. Germany is an influential member of the European Union, and its experience with refugee issues in the 1990s reflects a darker mood regarding asylum that was settling across Europe during the same period. Germany has also not traditionally seen itself as a country of immigration, and the collapse of the protections it had extended to refugees is in part a reflection of the difficulty of guaranteeing the rights of refugees in societies with descent-based models of belonging.
The most important reason to take note of what happened in Germany, however, is that until 1993, the concept of human rights was at the core of the country’s approach to asylum. In particular, Germany had enshrined a right to asylum in its constitution. This is a plausible way of responding to the needs of refugees, and more than one country has affirmed a constitutional right to asylum. So far, however, a constitutional right to asylum has not proved a durable long-term solution, in Germany or anywhere else. Understanding why this is the case is a necessary condition of making progress on the refugee predicament Hannah Arendt left us with. Assuming, that is, that the rise and fall of a right to German asylum does not cast the very idea of refugee rights into radical doubt.
Nineteen ninety-three was not the first time Bonn was home to a tumultuous constitutional debate. In 1948 the founders of what would soon become the new state of West Germany gathered there in a natural history museum—one of the few large buildings still standing after the war—to begin the arduous task of rebuilding their country’s political institutions. The meeting’s location was not its only aspect influenced by the Nazi years. The Bonn politicians also decided on a new constitution, one that was shaped by their memories of Germany’s descent into fascism.
The Basic Law, as the German constitution is known, is one of the most powerful legal documents ever created. It has been characterized as containing “a more rigid general version of the rule of law than any other constitution in the world.” The constitution gives German courts far broader powers than courts possess in other countries. Over the years German judges have addressed whether nuclear missiles can be located on German soil, how big the public debt should be and other questions that are normally regarded as the purview of politicians. The Basic Law is also extremely difficult to change, requiring two-thirds majorities in both houses of the German Parliament.
Both of these aspects reflected the 1948 lawmakers’ memory of the democratic Weimar Republic that existed in Germany from 1919 to 1933. Weimar’s constitution contained clauses concerning emergency powers and other loopholes that were widely seen as having enabling Hitler’s ascent. The “anti-Weimar Constitution,” as the Basic Law has been called, was thus deliberately designed to prevent an extremist movement from ever wielding power again, by limiting the authority that would be given to politicians. Political leaders would instead be made to operate within the strict parameters set down by the Basic Law as interpreted by judges.
It was in this context that West Germany’s founders included the following sentence in the Basic Law: “Persons persecuted on political grounds shall enjoy the right to asylum.” The lawmakers were conscious of Germany’s responsibility for not only creating but also mistreating large numbers of refugees during the Nazi years. They recalled episodes at the Swiss border during which fleeing Jews were denied entry to Switzerland and instead handed over to German authorities. “If we include limitations [on the right of asylum], the police at the border can do as they will,” one of the Bonn politicians argued during the constitutional deliberations. “This makes the right to asylum absolutely ineffective. We have our experiences from the last war, namely with Switzerland. We can only preserve the right to asylum with a clear and simple rule.”
The clear and simple rule the founders of West Germany eventually settled on applied the logic of the Basic Law to an issue, asylum, that was normally left up to politicians. By limiting political officials’ ability to turn away refugees, the drafters of the constitution sought to ensure that no genuine refugee would ever again be mistreated on German soil. West Germany would thus make a dramatic break from its past. Where Germany had once been a major producer of refugees, now it would be a moral exemplar among nations when it came to the rule of law in general and the treatment of refugees in particular.
In the late 1940s West Germany witnessed a massive influx of people. More than 12 million arrived from Eastern and Central Europe between 1945 and 1949 alone. The new arrivals, however, were the descendants of people who had lived in Germany before 1937 or were for some other reason legally classified as being of German descent. For this reason, the West German government did not regard them as foreigners and they did not need to make asylum claims. The same was true of the 3.8 million people who moved from East to West Germany between 1945 and the construction of the Berlin Wall in 1961. They were seen as members of the German people who happened to have been caught on the wrong side of the Iron Curtain, and were automatically entitled to West German citizenship.
Postwar Germany’s understanding of national identity was very different from that found in the contemporary United States, Australia and other countries of immigration. It has been well described by migration scholar William Brubaker: “Because national feeling developed before the nation-state, the German idea of the nation was not, originally, a political one, nor was it linked with the abstract idea of citizenship. The pre-political German nation, this nation in search of a state, was conceived not as the bearer of universal political values, but as an organic, cultural, linguistic or racial community—as an irreducibly particular Volksgemeinschaft [people’s community]. On this understanding, nationhood is constituted by ethnocultural unity and expressed in political unity.”
In countries of immigration it is customary for membership to be defined according to the principle of jus soli, which grants citizenship to anyone born on domestic soil. West Germany citizenship, by contrast, was granted according to the principle of jus sanguinis, literally, as a “right of blood.” Germany’s economy was so booming during the 1950s and ’60s that not only could it absorb millions of ethnic Germans, it also began seeking out “guest workers” from Italy, Greece, Turkey and other Mediterranean countries. They were classified as guest workers because the German conception of belonging did not extend to foreigners gaining permanent admission (even if, in the end, many would in fact become permanent and prove the guest worker label something of a fiction).
By contrast, the number of people who tried to exercise a right to asylum during the postwar years was small. During the 1950s and ’60s, roughly five thousand people a year made asylum claims. Most of these were defectors from the Eastern bloc, and so were eagerly welcomed. Not only did such a reception demonstrate the West’s superiority over the illiberal East, but the roaring German economy created a steady demand for their labour. Insofar as anyone thought about asylum as a political issue, therefore, it was seen not as a source of crisis, but as a point of pride: proof that West Germany had succeeded in making a decisive break from authoritarianism, a variation of which still existed just over the Berlin Wall.
Flash forward to 1980, when a coup in Turkey resulted in ninety-two thousand Turks claiming asylum in West Germany. Neither ethnic Germans nor refugees from communism, they received a much cooler reception. The government introduced a variety of measures designed to make West Germany a less attractive destination. Appeals were restricted and welfare payments were slashed. These and other measures succeeded in reducing the number of claims through the mid-1980s, but in the final years of the decade a global rise in the number of refugees saw asylum applications rise again. In 1987 the government redoubled its border-control efforts: airlines were made to pay “carrier sanctions” when they transported passengers who filed asylum claims without identity documents, and people requesting asylum were denied the right to work for five years. Despite these efforts, in 1988 West Germany received 103,000 asylum claims from Sri Lanka, Lebanon and other war-torn regions, the highest number in its history.
Then the Berlin Wall came down. Millions of Eastern Europeans yearned to start a new life in the West. Germany was an obvious place to do so, but its citizenship laws made it a difficult place to emigrate to for anyone who was not an ethnic German. The constitutional asylum clause, however, which now applied to a reunified Germany, presented an alternative means of entry. Anyone who made a successful claim would be able to permanently live in Germany. But even someone with a weak claim had an incentive to make an application. The asylum clause meant that everyone who sought asylum had to have their claim processed within Germany, a process that could take years. During that time applicants could easily work under the table and earn an income for themselves.
Germany in the early 1990s continued to receive genuine refugees, both because of the crisis in the former Yugoslavia and because Denmark and Sweden made their own asylum systems more restrictive. Yet refugees fleeing persecution were quickly crowded out by applicants from places such as Bulgaria and Romania. They were overwhelmingly economic migrants seeking a better standard of living, and so did not meet the international definition of a refugee. Yet now they accounted for up to 70 percent of the refugee claims Germany was receiving each year.
A vicious circle quickly developed. The more people who filed refugee claims, the longer it took for each one to be decided, leading to a further rise in the number of weak claims. Eventually the average processing time grew to three years, long enough for failed applicants to put down strong roots in Germany. “While the number of applicants who actually attained refugee status could probably have been integrated into Germany with relative ease, pressure built up because most unsuccessful applicants failed to leave or were not deported,” Matthew Gibney has noted. “[The] extended time period allowed asylum seekers to become firmly settled in the country, making deportation politically and ethically controversial.”
The number of applications kept rising and rising until in 1992 it peaked at 438,000. To put this number in perspective, Germany’s post-1989 asylum boom meant that it received two-thirds of all asylum claims lodged in Europe during the 1980s and 1990s combined. As the numbers steadily ticked upwards, breaking record after record, the government went into crisis mode. It introduced still more restrictive measures, including housing asylum-seekers in “collection camps.” But by the time military bases began to be converted for this purpose, too many people were arriving for all but a small portion to be housed this way.
German politicians were not the only people to step up their efforts as the crisis deepened. So too did political extremists. In 1990 the Far Right engaged in three hundred acts of violence. Two years later the number exceeded two thousand. The violence was particularly prevalent in the former East Germany, which was struggling economically in the wake of reunification. According to Free Berlin University historian Wolfgang Wippermann, East Germans were manifesting the strong form of German nationalism that had been preserved behind the Iron Curtain. “Their tradition of nationalism was unbroken. They were isolated … and criticized now by West Germans for being less capable and less productive, they say, ‘This may be so … but we are Germans!’ ” West Germany saw less violence but a sharper rise in support for the Far Right Republican Party, which reached 6 percent in the polls. Its platform was summed up in flyers proclaiming, “Don’t stone foreigners if you disagree with asylum. Use your vote!”
Attacks on “foreigners” became increasingly indiscriminate. They eventually claimed seventeen lives, culminating with the firebombing of the home of a Turkish-German family in the town of Mölln, near Hamburg. After the family’s apartment building was set on fire and a ten-year-old girl and two members of her extended family burned to death, someone called the police to take credit for the attack and ended the call with “Heil Hitler!” The attack galvanized mainstream society, and hundreds of thousands of people marched in Hamburg, Munich and elsewhere to condemn the violence. This and other attacks nonetheless contributed to the atmosphere of crisis, in which curtailing the asylum problem was seen as the only way to halt the spread of extremism.
The crisis posed a special challenge for Germany’s Social Democrats (SDP). The leading left-wing party, it had been out of power for over a decade. Under leader Björn Engholm, the Social Democrats were in the process of moving to the centre and making themselves more electable, in the mould of the U.K.’s Labour Party under Tony Blair or the U.S. Democrats under Bill Clinton. The asylum crisis, however, was a major obstacle in the way of this goal. The ruling Christian Democrats (CDU) and their wily leader, Helmut Kohl, never missed an opportunity to blame the influx of foreigners on the Social Democrats. Kohl and the CDU had long argued that the only solution to the crisis was to change the constitution, which would require the Social Democrats’ support. SDP stalwarts, however, viewed the asylum clause as a fundamental pillar of justice. But now, with a thousand people entering Germany every day, the government was pounding home the message that every new asylum-seeker could be blamed on the SDP.
At an emergency meeting in Bonn, Engholm told assembled SDP delegates that the party had to act or risk fostering xenophobia. “Let’s not wait until the immigration problem creates new political majorities that we can no longer influence.” His position was echoed by the convention’s only guest speaker, Jewish leader Ignatz Bubis. “We have the freest constitution ever on German soil and never has a democracy lasted so long as the one we have now,” Bubis said from the dais. “But if all democratic parties do not stand together now against neo-Nazism, Weimar cannot be ruled out.” In 1948 the asylum clause had been a means of breaking from Germany’s past. Now the same goal required its abolition. Bubis’s parallel drew applause from the floor, and a majority of the fractured party voted to support changing the constitution. Six months later, Bonn witnessed its historic demonstration and vote. The constitutional amendment won 521–132 and went into effect shortly thereafter.
The compromise the SDP reached with the government included two measures not directly related to asylum. The commitment to blood-based citizenship was loosened, making it easier for long-time foreign residents and their German-born children to acquire citizenship. A cap was also placed on the number of ethnic Germans that could immigrate to Germany. The centrepiece of the asylum compromise, however, involved amending the constitution to permit two measures that made Germany’s asylum system much more difficult to access. The first was a streamlined procedure that permitted the government to automatically reject asylum claims by applicants from countries with acceptable human rights records. The second was a series of so-called “safe third country” agreements. Such agreements stated that any asylum applicant who had passed through any country neighbouring Germany could be returned to that state and have his or her asylum claim determined there.
These procedures had a dramatic effect on the number of asylum claims. They dropped to 122,210 in 1994 and kept falling throughout the 1990s. In that sense the asylum compromise solved the crisis. The new arrangement, however, has been decried by refugee advocates. The revised laws permit the automatic rejection of claims by nationals of countries with human rights records that are of debatable acceptability, including the Czech Republic, Romania, Poland, Ghana and Senegal. The network of safe third country agreements also makes it extraordinarily difficult to enter Germany and legally file an asylum claim. One estimate has suggested that 98 percent of pre-1993 cases would have been ineligible under the new rules.
The end of an era had been reached. “Granting asylum is always a question of generosity, and if one wants to be generous, one has to risk helping the wrong people.” So argued German statesman Carlo Schmid in 1948 when the asylum clause was introduced. “This is the other side of the coin, and this at the same time probably constitutes the dignity of such an act.” After 1993, this sentiment no longer informed Germany’s asylum law. It was replaced by a new arrangement, the spirit of which has perhaps best been captured by Matthew Gibney: “While applying for asylum in Germany is not illegal, it is virtually impossible now to gain protection without violating immigration laws.”
Germany’s asylum crisis had numerous causes that sprang out of the country’s unique historical situation. The most obvious one was the fall of the Berlin Wall and the unprecedented influx it triggered. Germany’s struggle to economically integrate East and West after reunification also influenced the course of events, most clearly in the rise of violence in the former East Germany. An awareness of Germany’s authoritarian past, finally, also permeated the debate leading up to the constitutional amendment. Invocations of Weimar during this time reflected not the possibility that Germany might actually become a fascist state—the drafters of the Basic Law succeeded in creating enduring liberal institutions—but rather a common field of meaning. Calls to avoid the route of Weimar were a means of disassociating asylum reform from xenophobia and of mobilizing public opinion, successfully as it turned out, in favour of changing the constitution.
Yet Germany’s crisis also reflected trends that are thoroughly international. Germany’s status as a bellwether state was noted during the crisis by the writer Günter Grass, who resigned from the Social Democrats when they voted to support the asylum compromise. “I was disappointed because this is the first step to building a castle of Western Europe, beginning in Germany,” Grass said in explaining his decision. Grass’s image of a castle of exclusion is an apt one. From its high towers it is possible to identify three international trends regarding asylum, occurring not only in Europe but far beyond, of which Germany’s experience forms merely one part of a larger, disquieting whole.
The first trend concerns the situation across Europe. Germany is one of the most prominent members of the European Union, and the sharp contraction of the legal safeguards it extends to refugees is part of a continental trend against admitting asylum-seekers. Consider the following snapshots from the history of European asylum, both during and after the fall of refugee rights in Germany.
These images paint a bleak picture of contemporary European asylum. Consider the situation that now awaits asylum-seekers who arrive in Europe by air. Across Europe, they must negotiate their way through so-called international or transit zones. These are portions of the airport in which they are effectively deemed not to have set foot on the soil of the country in question for the purposes of refugee law, and so they are unable to access its court system to enforce their rights. In this way Europe’s airports have become examples of what legal analysts sometimes refer to as “anomalous zones,” or special areas where fundamental legal rules are suspended.
The concept of an anomalous zone was first used to characterize Guantánamo Bay and the limited legal rights Haitian asylum-seekers were able to exercise there. Since that time, human rights advocates in Australia have suggested that their country has its own anomalous zones. “People have said we have our own Guantánamo,” says Linda Briskman, chair of Human Rights Education at Australia’s Curtin University. “You know how certain parts of Australia were excised from the migration zone? That blocked access to Australian courts … people going to Christmas Island [didn’t] have that full access that they would on the mainland.” In Europe, airports now perform the same grim function as Guantánamo and Christmas Island. A place that for business travellers and tourists conjures up images of layover boredom and holiday anticipation is for refugees a legal and moral limbo.
The problem, however, does not stop at the airport. In recent years EU states may have eased travel restrictions for citizens of other EU states, but when it comes to non-Europeans seeking asylum, the overall trend has been in the opposite direction, in favour of increased restrictions of every kind, whether they concern employment, welfare or rights to appeals. Such measures are justified in the name of border control, by preventing unwanted economic migrants from making false asylum claims. Yet however reasonable such a goal may be in principle, to date there has been little sign that only economic migrants are affected by no-entry policies. Were no-entry policies effective at weeding out false claims, then logic holds that acceptance rates would increase after they are introduced. But European acceptance rates have rarely increased in the wake of tougher entry policies. Instead, both economic migrants and genuine refugees have been made to bear the brunt of Europe’s measures, the effect of which has been to make it more difficult for anyone to obtain asylum, no matter how well founded their claim of persecution.
The overall impact of Europe’s exclusionist turn is difficult to measure, as many people are discouraged from even attempting to obtain asylum there. One outcome that has been noted, however, is a race to the bottom, as European countries compete to appear even more unwelcoming than their neighbours. In Germany’s case, for example, a secondary contributing factor to its refugee influx was Sweden and Denmark making their own systems more restrictive. After Germany changed its system, increased pressure was put on the Netherlands, the United Kingdom and other countries, which in turn introduced more restrictive measures of their own.
Refugee advocates now speak of Fortress Europe. The fortress is not impenetrable: between 1995 and 2004, an annual average of 150,000 refugee applicants received permanent or temporary protection in European countries. But while the lucky ones were being accepted, an unknown number were either turned away or discouraged from even attempting to seek asylum by the many different no-entry policies now in place across the continent. If human rights were born in Europe, they now occupy an autumnal twilight there in regard to asylum.
Germany’s asylum crisis culminated in its loosening, but not abolishing, its descent-based model of citizenship. It is worth noting how this conception of belonging influenced the country’s treatment of refugees, both before and during the crisis. On the one hand, Germany’s understanding of what it was to be German had an inclusive aspect. This was evident not only in the fact that between 1990 and 1994 over 1.5 million ethnic Germans from Eastern Europe and elsewhere were granted citizenship, but also in West Germany’s ability to absorb over 12 million people before the Berlin Wall went up. During both periods, Germany’s right-of-blood approach to citizenship made a considerable difference for ethnic Germans seeking a new start inside Germany.
The flip side of the inclusiveness toward ethnic Germans, however, was a less welcoming attitude toward non-Germans. This was the case even though the dividing line between these groups was a shadowy one. Many of the ethnic Germans granted citizenship in the early 1990s came from families that had lived for decades outside of Germany and did not speak German. They would have appeared no more obviously German than the Bulgarian and Romanian economic migrants whose refugee claims were rejected. In spite of the ambiguity concerning who was an ethnic German, however, Germany’s ethnic approach to belonging still exerted a strong influence on its asylum program. In the lead-up to the constitutional amendment, the atmosphere of crisis was exacerbated by the classification of people making asylum claims as cultural foreigners who did not belong inside the imagined community of the German nation. Moreover, even when the old asylum clause was in place, Germany had a lower acceptance rate than countries of immigration such as the United States and Australia. As we have seen, these countries have their own problems when it comes to admitting refugees. But they have historically accepted a higher percentage of claims than Germany, whose average annual recognition rate between 1980 and 1989 was only 14 percent.
Germany’s restricted conception of citizenship meant that even when the asylum clause was in place, its effectiveness was limited by the country’s view of who did and did not belong in Germany. Arendt referred to such an arrangement, in which membership in a national ethnicity determined membership in a civic community, as “the perversion of the state into an instrument of the nation.” In her view, this was the defining feature of all Western states except the United States, which took a more welcoming view of immigrants. This phenomenon was of course far more extreme in Arendt’s time than ours, and large numbers of immigrants today routinely relocate not merely to Australasia and North America but also to Western Europe.
Nevertheless, it is still the case that national conceptions of belonging influence how welcoming a society is to refugees. Western European states such as France, Great Britain and Belgium have been termed reluctant countries of immigration. The phrase highlights the fact that, although such countries have historically admitted immigrants in significant numbers (in the case of France, there have been decades in which it has admitted more immigrants on a per capita level than the United States), the attitude toward immigration is nonetheless less enthusiastic than in former settler societies such as Australia and the United States, where immigration is part of the national mythology.
Germany is very much a reluctant country of immigration in this sense. And in this way it is indicative of a second larger trend—namely, the difficulty of enforcing the rights of asylum-seekers in countries with descent-based conceptions of belonging. Indeed, when viewed alongside some other descent-based societies, Germany’s reluctance to admit foreigners is comparatively mild.
Consider Israel. Like West Germany, its birth in the late 1940s was strongly influenced by events during the Nazi period. Even more so than the founders of the Federal Republic, the founders of the Jewish state were acutely conscious of the treatment of Jewish refugees. The founders of Israel never drew up a national constitution (because of an inability to agree on the relationship between synagogue and state), but in other ways the state they created would become similar to West Germany. The society that developed in Israel was one that embodied a descent-based model of belonging. But much like West Germany and its guest workers, Israel’s makeup is not homogeneous: 20 percent of its citizens today are Arabs. Nevertheless, when it comes to Israel’s immigration laws, the right-of-blood principle prevails. Under Israel’s famous law of return, Jews who migrate to Israel are automatically eligible for citizenship.
As in Germany, this conception of belonging has at times functioned as a force of inclusion. In 1992, for example, Israel was able to absorb 200,000 Soviet Jews, a remarkable feat for a country of its size. But also like Germany, Israel’s inclusive attitude toward members of its designated in-group has an exclusionary flip side regarding non-members. In Israel’s case, this is most evident in regard to the Palestinians, who enjoy no equivalent to the law of return, and instead comprise a population of more than 1.3 million people living in refugee camps that in some cases are now sixty years old. Unlike any other refugee group in the world, Palestinian families have been displaced long enough to pass refugee status on to their grandchildren.
The Israeli-Palestinian conflict is a familiar one. But what is less well known is that Israel has a second refugee problem. It has long taken an unwelcoming attitude toward asylum-seekers. Although Israel signed the Refugee Convention in 1951, it took the first hesitant and tentative steps toward entrenching the convention in its domestic laws only in 2002. A 2003 Tel Aviv University report suggested that the unwillingness of Israeli politicians to enforce the refugee convention was likely due to the Israeli-Palestinian conflict: “Possibly, one of the reasons why the implementation of the Convention was delayed until now was the fear felt by the State of Israel that applying the Convention would open the door to the return of Palestinian refugees to its territory.”
Whatever the cause, Israel today places a daunting set of obstacles in the way of anyone who attempts to claim asylum. One major hurdle is the Israeli border itself. Highly militarized, it separates Israel from countries with which it is still legally at war. The border remains governed by a law from the 1950s that classifies anyone who might try to enter Israel by land without an entry permit as an “infiltrator.” As the Tel Aviv report summarizes the law, infiltrator status applies to “any person who has entered Israel knowingly and unlawfully and who is a national or citizen of Lebanon, Egypt, Syria, Saudi-Arabia, Trans-Jordan, Iraq or Yemen, or is a resident or visitor in one of those countries.” The law’s wide scope means that the tiny number of asylum-seekers Israel receives from Sudan, Iraq and other nearby oppressive states, a group that amounted to sixty people during the 1990s, are automatically classified as infiltrators and imprisoned rather than allowed to file asylum claims. In recent years, Israel has also been known to engage in instances of “hot return,” forcibly returning Eritrean asylum-seekers to Egypt, from where they have been sent back to Eritrea, the worst possible outcome for any refugee.
Even when refugees do manage to enter Israel, their problems do not end. Israel’s asylum system is highly secretive and bureaucratic, and the government does not publicize the fact that it is legal to seek asylum. People who manage to lodge a claim cannot legally work or receive public medical services, which obliges them to either work illegally or spend long periods in destitution. Should they seek a work permit they face the Catch-22 of having to first pay a fine, often thousands of shekels, to cover the period during which they had no legal status in Israel. Israel’s asylum system is so unwelcoming that UNHCR says it amounts to a form of “constructive refoulement,” one that provides strong incentives for refugees to return to or remain in the same countries where their lives are in danger.
Israel’s asylum problem may be extreme but it is not unique. A similar situation prevails in Japan, which has its own debt to Germany. During the second half of the nineteenth century, Japan looked to Germany as a cultural and political model to emulate. This was evident in everything from the Prussian military uniforms the Meiji emperor would parade in to the Prussian-inspired constitution Japan introduced in 1890. A strange quirk of Japan’s Germanophilia is that the East Asian nation is today a more direct descendant of nineteenth-century Germany than is Germany itself. As writer Ian Buruma has put it, “Much of what attracted Japanese to Germany before the war—Prussian authoritarianism, romantic nationalism, pseudo-scientific racialism—has lingered in Japan while becoming distinctly unfashionable in Germany.”
Contemporary Japan’s essentially nineteenth-century conception of belonging manifests itself in a variety of ways, including a suspicious view of foreigners. The influence of this attitude on Japan’s asylum system has been vividly documented by former Amnesty International caseworker Saul Takahashi, who worked in Japan in the 1990s, during which time he encountered an asylum system deliberately designed to turn people away. The experience of a Somali man named Ahmed whom Takahashi tried to help was typical: “He saw the people in the refugee division and told them that he needed asylum, that he couldn’t go back to his country. He asked them for help. They just kicked him out. No explanation, nothing. They didn’t even give him the form to apply. He is confused and angry. I am not. It happens all the time.”
Takahashi and other chroniclers of Japan’s asylum system depict something out of Kafka. Legal aid is “hopelessly inadequate,” so lawyers representing refugees must often do so pro bono. Even if a lawyer does decide to work for free, it is up to the interviewing officer whether the attorney will be allowed to attend the hearing or not. During the hearing, the applicant is expected to meet an “unusually high standard of proof,” as the UNHCR puts it, and is asked to present arrest records and other documents few refugees can provide. Once the hearing is over, the deciding officer can issue a negative decision without providing any reasons. Needless to say, not knowing what a decision is based on makes it difficult to appeal.
Japanese officials are quick to point to Japan’s record on helping refugees outside of Japan. In recent years Japan has been one of the top three donors to UNHCR, giving between US$75 and $110 million every year (only the United States and the European Union give more). Many countries fail to help refugees of any kind, whether abroad or at their borders, so Japan’s record of generosity to the UN is to be commended. Yet when Japan’s UN donations are measured in per capita rather than absolute terms, Japan’s ranking drops to seventeenth or twentieth place depending on the year. More importantly, the argument that Japan’s aid to refugees abroad allows it to ignore asylum-seekers at home is a bit like a hospital saying it is going to let leukemia patients die while it focuses on cancer patients. The two groups represent people in distress who need different forms of help, one through international aid, the other through migration law. Yet Japan is so uncomfortable offering the second form of aid that, as Takahashi puts it, “it is practically impossible to get asylum in Japan.”
Takahashi’s pessimism is born out by the minuscule number of people who are able to obtain Japanese asylum. In 2005, for example, when the United States recognized 18,766 asylum claims, Japan recognized 145—and that year’s level was unusually high. Between 1993 and 2002 Japan recognized an average of 27 asylum claims per year; between 1994 and 1997 it accepted exactly one asylum application a year. These statistics are the result of an asylum system designed not to protect refugees from danger, but to protect Japanese people from refugees.
Much like Israel, Japan represents German-style restrictiveness taken to an extreme. But in the degree of explicitness each country has been willing to write human rights into its constitution, Japan and Germany are opposites. Whereas Germany’s asylum clause was a ringing declaration of the right to asylum, albeit one that was undermined by Germany’s narrow conception of belonging, Japan’s commitment to human rights was artful and ambiguous from the start. The English version of Japan’s constitution prohibits discrimination by nationality or race and states that “all of the people are equal under the law.” The Japanese text, in contrast, replaces the unrestricted term “people” with kokumin, or “citizen of the country,” which of course excludes non-citizens. When read against the backdrop of Japan’s treatment of refugees, the difference in meaning between the two documents all too vividly illustrates the gap Arendt identified between the rights of citizens and those of human beings.
The asylum systems of Israel and Japan are among the most extreme of any democratic state. They highlight the inverse relationship that exists between the narrowness of a country’s conception of belonging and its ability to uphold human rights. In theory a descent-based society could respect the rights of out-group asylum-seekers by subjecting their claims to fair hearings and resettling those determined to be refugees in other countries. In practice, the ethnic favouritism that defines the migration law of descent-based societies makes it very difficult if not impossible for refugees to find asylum there.
The plight of refugees who seek asylum in countries that uphold a tight model of citizenship calls into question two arguments that are commonly made in refugee debates. The first is what we might call the geographic theory of refugee migration. This view was well expressed by Mark Krikorian of the Center for Immigration Studies, a Washington, D.C., think tank that advocates reduced immigration. “Asylum is analogous to offering a drowning man a berth in your lifeboat,” Krikorian has said, “and a genuinely desperate man grabs at the first lifeboat that comes his way. A person who seeks to pick and choose among lifeboats is, by definition, not seeking immediate protection.” This argument is often made by critics who say that the United States and other countries take in too many “bogus” refugees. A real refugee, they say, will run immediately to the nearest democratic state and seek asylum there. In Krikorian’s view, if someone bypasses one democratic country and files a claim in another one farther away, then that is a sign the person is not a true refugee.
If this view of asylum were true, then Israel and Japan would receive more refugee claims than the United States or Australia. After all, both are democracies located near African, Middle Eastern or Asian crisis zones. Despite their frontline status, however, both countries receive only tiny numbers of refugee applications. Between 1993 and 2002, for example, Japan received an average of only 174 applications per year, while during the same period Israel averaged 150. (This period includes six years during which Israel received no applications at all.) In both cases, the brutally unwelcoming asylum program functions as a powerful disincentive against refugee arrivals. Just as Mohammad Al Ghazzi asked around about Canada, Sweden and Australia while he was in Syria, it is common for refugees to put some forethought into where they will run. Anyone who looks into the possibility of seeking asylum in Israel or Japan quickly discovers that it is a lost cause and redirects their energies elsewhere.
This shows the problem with the geographic theory. Geography obviously plays some role in determining where refugees will flee, but it is not the only consideration. Refugees’ decisions about where to escape to are also influenced by whether or not the country they run to is likely to accept them. To borrow Krikorian’s metaphor, they care whether or not the country they will place their faith in really is a lifeboat. This practice is sometimes dismissively referred to as “asylum shopping.” In reality it is a reasonable and necessary precaution to take regarding a decision that is potentially a matter of life and death.
The case of Japan highlights a second problem, namely, the concept of a safe third country. Many countries today now have signed safe third country agreements. As in the case of Germany, such agreements allow a country to turn away refugee applicants who have passed through another nation that has signed the Refugee Convention and have the applicants file their claim in the first such country they entered. That Japan and Israel have signed the Convention shows it is not much of a safeguard.
Moreover, for a tourist or Japanese person, Japan is one of the safest places on earth, as reflected in its low rates of crime and violence. The language of “safe” third countries, however, misleadingly suggests that the standard to employ when deciding if refugees should be returned to a particular country is whether that country is safe from a tourist’s or citizen’s point of view. It would be better to speak instead of “fair” third countries. That would focus attention on whether the country in question used proper procedures in determining refugee claims. When judged by that standard, many existing third country agreements fail to meet minimum standards of justice.
Here then are the first two vistas viewable from Germany’s castle of exclusion. We see an entire continent increasingly unwelcoming to people running for their lives. And we see the influence that a country’s conception of belonging plays in determining how it treats refugees. There is also a third vista, one that may be even more demoralizing than the first two. Looking out over it, we are forced to confront the historic failure of enforcing a right to asylum at a constitutional level. To see the larger trend here, we need to briefly look at two final countries that have inserted ringing language about asylum in their constitutions, France and Italy.
Like Germany, France introduced a new constitution in the aftermath of World War II, one that also touched on the issue of asylum. In the words of the Preamble of the 1946 Constitution, “Anyone persecuted in virtue of his actions in favour of liberty may claim the right of asylum upon the territories of the Republic.” Even more so than in the case of Germany, France’s asylum clause reflected the history and preoccupations of its drafters. The reference to “actions in favour of liberty” echoed a similar clause in the French constitution of 1793, which had been inspired by the Declaration of the Rights of Man and of the Citizen, but which had legal force only for two years. The phrase’s reappearance in 1946 occurred at a time when memories of French collaboration with fascism under the Vichy government were fresh in mind. As in Germany, the ringing affirmation of the right to asylum was a way of breaking sharply from an authoritarian national past. Unlike in Germany, however, the right in question was not one that any refugee could in principle exercise. Someone like Hannah Arendt, who was persecuted because of her membership in an ethnic group, would not be eligible for France’s versions of constitutional asylum. It was, rather, reserved for someone who belonged to his country’s equivalent of the French Resistance.
When France brought in another constitution, in 1958, it retained the sentence about asylum. Yet even though the right to asylum was affirmed by both postwar constitutions, it had little influence on France’s asylum system. One reason was because it was redundant. The constitutional clause mentioned only a narrow class of exiles. To deal with refugees as such, France took the same steps as other countries, signing the 1951 Refugee Convention and setting up a domestic asylum system that employed the convention’s definition of refugee as someone who feared persecution “for reasons of race, religion, nationality, membership of a particular social group or political opinion.” That definition meant that were a real freedom fighter to wash up in France, he or she could simply file a normal refugee claim, of the same kind someone fleeing racial or religious persecution might, without any special rights based on the constitution becoming involved.
As a result of its irrelevance, France’s asylum clause functioned more as a legal decoration than a meaningful law. It was not until 1993 that a French court recognized asylum as an enforceable constitutional right. By that time, however, France had begun efforts to harmonize its asylum system with those of its neighbours, so that people seeking asylum could be made to file their claim in the first European country in which they touched down. The French government promptly amended the constitution (something that is comparatively easy to do in France) to make it legal to transfer refugees to other European states. As a result, many refugee claimants arriving in France became ineligible for constitutional protection. Today, while “constitutional asylum” still exists on the books as a legal category, it remains as irrelevant as ever and is almost never used. As a study by a group of European law professors put it, “In reality, constitutional asylum was never taken seriously … [and] has remained largely without jurisprudential content.” The irrelevance of the asylum clause is one reason why France today operates an asylum system that has been widely criticized for failing to uphold human rights. The UN Committee against Torture, Amnesty International and other groups have documented shortcomings ranging from asylum cases being decided without hearings to individuals being deported to face torture.
Italy drew up a postwar constitution of its own in 1948. The drafters included politicians and intellectuals who had been exiled under Mussolini, and this experience caused them to affirm Italy’s variation of a right to asylum: “An alien who is denied the effective exercise of the democratic liberties guaranteed by the Italian Constitution in his or her own country has the right of asylum in the territory of the Italian Republic.” However, no law has ever incorporated the constitutional right to asylum into Italy’s domestic laws. As a result, it was left to the discretion of judges whether to refer to it in deciding asylum cases. Overwhelmingly, they have chosen to ignore it.
Italy’s asylum clause has microscopic influence: the country accepts a few thousand refugees every year, and in 2006 was home to a total refugee population of 26,875 people. Almost none of these cases involved the constitutional right to asylum. Precise statistics do not exist, partly because the power to grant constitutional asylum is exercised by local courts, whose decisions are rarely reported. One 2008 estimate speculated that in the sixty years since it was introduced, the asylum clause has been employed in sixty cases. As in the case of France, the legal right enshrined in the constitution is irrelevant to the day-to-day workings of Italy’s asylum system. It instead lingers, as a 2008 report put it, “in the world of betrayed constitutional provisions, only occasionally being brought to ephemeral life by random enlightened judges across the country.”
Just how ephemeral the right to asylum is in Italy today can be seen by noting the country’s response to asylum-seekers entering from its former colony Libya. During the 1990s Libya had been a pariah state, subject to an arms and air embargo for supporting international terrorism. Libyan leader Moammar Qadhafi grew disappointed during this time by what he saw as a lack of support from fellow Arab leaders, and sought to improve his international standing by repositioning himself as an African leader. “As part of his new pan-African policy,” migration scholar Hein de Haas has noted, “Qadhafi started to welcome sub-Saharan Africans to work in Libya in the spirit of pan-African solidarity.”
The influx of newcomers to Libya eventually resulted in an anti-immigrant backlash. As a result, migrants who would have otherwise stayed in Libya now continued travelling northward. Beginning in 2001, thousands of migrants began to hire smugglers to take them to the island of Lampedusa, a popular Italian holiday destination. Italy’s equivalent of Christmas Island, Lampedusa is located only 113 kilometres from Africa, of which it is geologically a part. Some observers have suggested that Qadhafi was pleased by and encouraged the influx of black Africans into Lampedusa, as it provided him with a means by which to extract concession from Italy. If so, his strategy worked. In 2004, Italy signed the first of a series of treaties with Libya that permitted Italy to return migrants to Libya and that would see the two countries conduct joint naval patrols. Two months after agreeing to accept returnees—by which time Libya had also paid compensation to victims of terrorism—the European Union lifted its embargo. The EU move followed strong lobbying by Italy, which had argued that Libya needed to import military equipment in order to better patrol its borders.
Italy’s interdiction program followed a similar trajectory to that employed by the United States against Haitians. At first, efforts were made to screen out refugees to ensure that they were not returned to Libya. In 2009, however, screening efforts ended, and Italy began returning people to Libya without determining whether they were refugees. Yet Italy’s own screening program indicates that the Lampedusa arrivals contained genuine refugees seeking to escape persecution. During the first eight months of 2008, for example, Italy’s Trapani district, which includes Lampedusa, had a 78 percent asylum acceptance rate. Italy is thus now likely to be handing over refugees to Libyan authorities, even though the North African dictatorship has no asylum system of any kind, and even though Libya regularly returns people to Egypt, Eritrea, Syria and other persecution regimes. As Human Rights Watch summed up Italy’s regressive move, “For the first time in the post-World War II era, a European state ordered its coast guard and naval vessels to interdict and forcibly return boat migrants on the high seas without doing any screening whatsoever.” Viewed against this backdrop, Italy’s constitutional commitment to asylum is a cruel mockery of the human rights it purports to uphold.
The asylum clauses of Germany, France and Italy all reflected a common desire on the part of their drafters. It was to make a strong break from a historical romance with fascism, whether under Hitler, Pétain or Mussolini. In each case, the asylum clause failed to function as an effective and adequate response to the needs of refugees seeking asylum. This is least true of Germany, where the clause did have the force of law. But as we have seen, even when the asylum clause was in place, Germany’s commitment to asylum was compromised by its narrow conception of belonging. Eventually the clause’s most powerful effect proved to be negative, when it created an incentive for economic migrants to file unfounded asylum claims. In the end, the law’s very power led to a crisis in which the only solution was to severely reduce Germany’s already limited commitment to asylum. Refugees arriving in Germany today can no more take asylum for granted than can those who seek protection in France or Italy. On the whole, the European experiment with a constitutional right to asylum must be judged a failure.
What are we to make of the world we now inhabit? The current international situation confirms Arendt’s analysis of the condition of refugees and her emphasis on the power of states. “We don’t have an internationally agreed system,” says Howard Adelman, a former director of the Centre for Refugee Studies at Canada’s York University. “We don’t have a system where refugees can go internationally and make a claim under a common set of rules. Instead, the very system forces them to shop around and reinforces the Hannah Arendt principle, that in fact it’s predominated by a state-run system, and rather than being a system of rights it’s a system of state power. One that never resolves the central problem of giving political membership to these people who don’t have that membership.”
For Arendt, the central dilemma for refugees was the incompatibility of national sovereignty and human rights. All the evidence to date suggests that despite the genuine improvements since Arendt’s time, we have not yet fully reconciled these two central aspects of modern politics. Most of the time it makes sense to think of rights not merely being compatible with sovereignty, but presupposing it. The absence of functioning governments in Somalia and elsewhere hardly represents a breakthrough for the enforcement of civic rights. And while liberal democratic states are hardly perfect, they do often uphold the rights of their own citizens.
With refugees, the situation is different for a reason Adelman highlights: membership. Democratic states respect the rights of their own citizens partly because members of a democratic society have the power to change their government. This creates an incentive for political leaders to be at least minimally responsive to the needs of the electorate. With asylum issues, however, the people most adversely affected by negative decisions, the refugees themselves, are not able to directly influence the law. It is also a sad fact that restrictive measures regarding asylum are popular enough with voters to attract bipartisan support. This is evident in the United States, Australia and Germany, where both right-wing and left-wing parties implemented or supported no-entry policies. The result is that it is all too easy for liberal democratic states to fail to take the rights of refugees seriously.
This paradoxical relationship, the same institution that makes possible the enforcement of our own rights routinely violating the rights of desperate outsiders, recalls something Carl Jung once said about the human psyche. Jung believed that each of us has what he called a shadow side, a negative aspect of our personality that we prefer not to think about. Refugees seeking asylum in the West illustrate the shadow side of democracy. The same democratic governments we rightly value as superior to any undemocratic alternative routinely fail to respond to the needs of refugees in a rights-respecting way, and instead contribute to their oppression by closing the doors of escape.
Is there a solution to this problem? In other areas involving rights, the solution to democratic injustices has been to protect them at the constitutional level. This is what separates liberal from pure democracy. The tyrannical potential of the majority is limited by a constitution, which says some rights are fundamental and cannot be overridden by a simple majority vote in Congress or Parliament. Given the effectiveness of this approach in other areas, it is no surprise that European lawmakers of the 1940s would see a constitutional right to asylum as the means by which the horrors of the past would be avoided. In seeking a constitutional solution, they were turning to a plausible and potentially powerful rights-enforcement mechanism. The failure of a constitutional asylum in this regard is therefore not a small failure. One of the most powerful tools of rights-enforcement our civilization is capable of, constitutional law, has to date been unable to guarantee refugees asylum.
One possible response to this state of affairs is to continue to affirm the value of a constitutional right to asylum. We should not dismiss such a right based on the experience of only three countries. After all, Germany was dealing with unique historical circumstances in the early 1990s, and France and Italy never enforced the right to asylum in a meaningful way. What if that right were taken seriously and implemented under different circumstances? Surely then it could function as an effective solution.
This is an understandable response to the rise and fall of a right to asylum. What it overlooks, however, is that any asylum system based on a constitutional right to asylum will suffer from three limitations. The first is that such a right is all too easily rendered ineffective by a government’s ability to determine who is and is not a genuine refugee. Germany’s constitution before 1993 may have formally denied politicians the ability to turn away refugees, but they always retained the power to classify any individual case as illegitimate. A right to asylum focuses on an outcome, that of obtaining refuge, but says nothing about the methods that are used to determine who is entitled to that refuge. For this reason, it is easily subverted. Any state determined to clamp down on its borders can still do so by refusing to recognize the overwhelming majority of claims.
The second problem with a constitutional right to asylum is that even if a government takes it seriously, its implementation can be undermined by the actions of neighbouring states. Part of Germany’s problem was that none of its neighbours had equally strong asylum clauses. Rather it was an island of constitutional refuge in a sea of comparatively unwelcoming states. This arrangement punished Germany for its commitment to asylum and rewarded nearby states with more punitive systems by seeing Germany’s inflow of claims dramatically increase as those of its neighbours held steady. This was one of the factors that made the constitutional amendment possible, in that there emerged a widespread view among Germans that it was unfair for them to have to process so many more claims than other EU states. Given how many states today continue to approach asylum in a spirit of deterrence, it is a real possibility that, were any future state to adopt a constitutional right to asylum, it could again see a huge spike in claims due to the comparative unattractiveness of its neighbours’ refugee systems. This makes it less likely that any state will ever again introduce a right to asylum. It also means that even if a serious right to asylum does reappear, it could all to easily have the same outcome as occurred in Germany.
Finally, there is the third problem. It is that a right to asylum may not actually be the best right to enforce on refugees’ behalf. The foundational right of refugee law is the right of non-refoulement, or the right not to be returned to a place of persecution. The right to asylum affirmed in the Basic Law was slightly different. Suppose a genuine refugee arrived in Germany and was relocated to another country where they were in no danger of persecution. That would violate a right to asylum within Germany itself but still respect the refugee’s right not to be returned to danger.
Once we recognize that a right to asylum within an individual state is conceptually distinct from non-refoulement, we are obliged to ask where refugees should be able to exercise such a right. That is, in which state in particular should refugees enjoy a right to asylum? In 2008 the global population of refugees was nine million, not counting internally displaced persons. There are many countries with much smaller populations. Iceland’s, for example, is 317,000. If we concede that not all nine million refugees have a right to move to Iceland, which would result in Iceland’s culture and institutions being overwhelmed, then we recognize a competing good that can in principle trump a right to asylum. The right to non-refoulement, by contrast, can be respected without obliging any particular state to admit refugees in numbers that would overwhelm local institutions. The claims of refugees and host societies can be simultaneously respected by transferring refugees from one state to another so long as the receiving state respects their rights. Non-refoulement is thus a more ultimate principle, in the sense that its exercise and enforcement is less conditional upon the circumstances of the society and state that first recognizes such a right.
These considerations suggest that a right to asylum is not the most effective means by which to help refugees. It does not follow, however, that we should reject the idea of constitutional rights for refugees. Taking some decisions out of the hands of elected officials is a time-honoured and effective way of increasing the likelihood that rights claims will be respected. What the evidence to date suggests, though, is that what refugees need most is not the right to asylum in any particular state, but the constitutional right to have proper procedures used when their claims are being decided. Procedures, that is, that would decrease the likelihood of well-founded claims failing to be recognized. That would in turn reduce the possibility of refugees being returned to danger.
Such at least is the basis of the framework of refugee rights I will shortly defend. Not everyone, however, would agree that what refugees seeking asylum need is another set of constitutional rights. Before putting forward my proposal, therefore, it is necessary to see how other observers have responded to the Arendtian refugee dilemma. As we are about to see, those responses include the suggestion that there is no solution at all.