David E. Zammit Head of Department of Civil Law (University of Malta)

1. David E. ZammitHead of Department of Civil Law (University of Malta)

2. Humanitarian Status: navigating between EU and National Law in a Mixed Jurisdiction

3. Looks at impact of 19th century British colonialism on the Tswana of S. Africa Argues impact was not uniform but often divergent & moving on different directions In particular notes a big difference between the aims of the Protestant missionaries and those of business interests allied with the state John Comaroff: American Anthropologist

4. Missionaries sought to promote a self understanding among the Tswana of being subjects of human rights: entitled to possess and exercise basic rights (such as property, freedom): tried to shape Tswana subjectivity accordingly • State agents saw the Tswana as a collectivity. Like the missionaries they agreed that the Tswana were far from being free and autonomous subjects of rights • Unlike the missionaries they helped to create and reinforce an understanding of Tswana as people bound by the constraints of their culture & tradition and therefore incapable of modernising

5. Culturalist Tswana are a group: lack concept of individual Tswana incapable of changing their culture by themselves: can only reproduce it Tswana cannot hold individual ownership of land…it belongs to the group and therefore to the (colonial) state Rights-Based Tswana are individuals, if not in actuality, in potentiality Tswana can be taught how to change their culture, although this involves radical changes in religion, dress,social attitudes Tswana can be taught individual title over land Resulting Opposition between “Culturalist” & “Rights based ways of representing Tswana

6. Some Key Questions: • How are refugees understood/defined in order to become subjects of human rights? • But what are we taking about? Refugees? Economic Migrants? Irregular Migrants? Clandestini? • Do these categories refer to different classes of people or are they different and competing ways of representing the same reality? • What about calling them human beings? Don’t human beings have human rights?

7. If we should start telling the truth that we are nothing but Jews, it would mean that we expose ourselves to the fate of human beings who, unprotected by any specific law or political convention, are nothing but human beings.” Hannah Arendt: “We Refugees”

8. I can hardly imagine an attitude more dangerous, since we actually live in a world in which human beings as such have ceased to exist for quite a while; since society has discovered discrimination as the great social weapon by which one may kill men without any bloodshed; sice passports or birth certificates, and sometimes even income tax receipts, are no longer formal papers but matters of social distinction”

9. It is necessary resolutely to separate the concept of the refugee from that of the “Rights of Man”, and to cease considering the right of asylum as the conceptual category in which the phenomenon should be impressed” Giorgio Agamben: Contemporary Italian Philosopher: Author of the State of Exception

10. The refugee should be considered for what he is, that is, nothing less than a border concept that radically calls into question the principles of the nation-state and, at the same time, helps clear the field for a no-longer-delayable renewal of categories”

11. Definition of Refugee in the 1951 Geneva Convention [Article 1A(2)]

12. “(any person who) owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his (or her) nationality and is unable, or owing to such fear, is unwilling to avail him (or her) self of the protection of that country; or who not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

13. Focus on Eligibility Criteria Aims: To understand how the law is applied in practice To question what (who) gets left out of the definition

14. Outside Country of Nationality or Habitual Residence • If Stateless then must show that he is outside country of habitual residence • More than 1 Nationality: Must Prove Well Founded Fear • in each case but only if 2nd nationality carries full range of rights • Need not have been a refugee when left the country: sur place refugees

15. Well Founded Fear • Subjective Element: Look at state of mind but may be inferred from objective considerations: decision to app. for asylum • Objective Element: Objective info needed regarding situation in country of origin and applicant’s personal circumstances • Well founded fear need not be proved even on a balance of probabilities: what is required is proof that it is a Reasonable possibility that applicant will face some sort of harm if returned

16. Fear can be based either on Past or Future Events • If no Past Persecution, applicant may still be eligible: e.g. state may be unable to offer protection if non-state actors involved • Even if no current/future risk of persecution, applicant may be so traumatized by previous persecution that return now is intolerable • Holding a passport from the country of origin does not necessarily mean that one is not a refugee but can be indicative

17. Persecution • Not defined but a threat to life or physical freedom is an example of persecution; so would serious violations of human rights; but concept is wider than just hr law • Examples of HR the violation of which = Persecution are: R. to life/freedom from torture…/freedom from slavery/recognition as a person before the law/right to freedom of thought, conscience & religion

18. But recurrent/serious breaches of non-derogable rights and economic/social rights may also constitute persecution • Discrimination may constitute persecution if it is linked to a protected right (e.g. freedom of religion)/ also idea of cumulative grounds • Must assess whether measures amount to persecution in the light of the opinions/feelings psychological make-up of applicant • Prosecution does not usually = Persecution, but may if authorities use prosecution to victimize people/way of harming them

19. What Does Not Amount to Persecution • Fleeing Natural Disasters • Leaving solely to improve economic situation • Persons fleeing indiscriminate effects of armed conflict/other manmade disasters • But applies to persons fleeing civil war whose life is at risk due to their ethnicity

20. Agents of Persecution • Normally the state…but can be paramilitaries instigated by govt authorities • Can be non-State actors (guerillas) • Can even be private individuals if authorities are unable/unwilling to provide protection: should assess whether the State effectively intervenes to protect…the fact that there is a law on the books is not enough: Burkina Faso

21. On Grounds of • One or more of 5 Convention grounds • Sufficient if it is a contributing factor • Motives of Persecutor irrelevant: effect of his actions are what counts • More than 1 Convention ground can co-exist • Cases where authorities impute a belief or characteristic or where applicant was neutral

22. Race • Any kind of distinctive ethnic characteristic, whether real or perceived: • Can be a majority group • Eg denial of citizenship on this basis

23. Nationality • Need not only refer only to Citizenship, but extends to groups of people defined through their real or perceived ethnic, religious, cultural or linguistic identity, regardless of whether this difference has been formalized legally

24. Membership of a Particular Social Group • Where applicant belongs to a group of persons who share a common characteristic other than the risk of being persecuted, or who are perceived as a group by society • Usually characteristic is Innate (sex/kinship ties), Unchangeable (eg his history) or Otherwise Fundamental to Identity, Conscience or the Exercise of his/her Human Rights: shld not be expected to change it

25. Group members must be set apart in some way either because they see themselves as different or are so seen by the persecutor • Group members need not know each other • Need not be a small group: eg women in general

26. Political Opinion • Should be interpreted broadly to encompass any opinion concerning matters on which the machinery of the state, government or society is engaged: may be an opinion on gender roles • The Key Point is that the opinion must be one which is not tolerated by the authorities or by the community and for that fact alone s/he is exposed to persecution

27. What is excluded from this definition? • Emma Haddad (2004): • The actual meaning behind the concept of refugee is anything but self-evident • The problem becomes one of how to define a concept that is labelled differently according to context and to discipline • Notes the abundance of words and labels used in everyday parlance to discuss refugees, words that have become so intertwined and conflated that it becomes continually harder to distinguish between them:

28. Economic migrants, illegal immigrants, asylum-seekers, displaced persons, political refugees, bogus asylum seekers, stateless persons, “B”-refugees, de facto refugees • Conceptual confusion about the meaning of refugee-hood, its causes and its management – also contributes to the misery of both refugee and host and to the inflammation of international tension

29. The meaning of the term also involves manipulation of its definition according to the actor wishing to define the concept…in talking of the refugee we need to have an appreciation of the fact that the concept is both descriptive and normative

30. Shacknove (1985): 4 Underlying Assumptions in Refugee Convention: • That a bond of trust, loyalty, protection and assistance between the citizen and the state constitutes the normal basis for society • That in the case of the refugee, this bond has been severed • That persecution and alienage are always the physical manifestation of this severed bond • That these manifestations are necessary & sufficient conditions for determining refugeehood

31. Consequences of Refugee Label • Encoded in the definition of refugee are “images of dependency, helplessness and misery” (Harrell-Bond & Voutira, 1992) • The label connotes humanitarianism, yet it creates and imposes an institutionalised dependency; it assigns an identity, yet this identity is stereotyped; it is benevolent and apolitical, yet at the same time highly politicised”

32. Refugee Definition is thus: (1) socially stigmatising, (2) It denies the individuality and agency of the refugee and (3) It shapes our imagination, not only by representing the refugee as an anonymous passive victim, but also by excluding and rendering legally/socially invisible those who are not refugees

33. Among these persons who are not considered as real refugees we find: • Persons leaving solely to improve economic situation; • Persons fleeing indiscriminate effects of armed conflict/other manmade disasters; • Internally displaced Persons; • Groups in general: the definition presupposes an individualised assessment of an individualised threat of persecution.

34. Subsidiary Status: a solution to the restrictive nature of the Convention? • The EU Qualifications Directive recognises these developments and defines a ‘person eligible for subsidiary protection’.

35. It lists 3 grounds that give rise to subsidiary protection status: • (a) death penalty or execution; or • (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or • (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

36. Subsidiary Status as defined by EU: • Creates a parallel and inferior class of refugees • Goes some way towards including persons excluded by the Convention (e.g. those fleeing generalised violence but still need to prove an individual threat) • Subsidiary protection recipients do have some of the same rights as refugees. But other rights are reduced: Refugees entitled to a residence permit valid for 3 years, Subsidiary Protection for 1 year, Member States may impose obstacles on their entry into the Labour Market…have no right to family reunification

37. JRS on Temporary Humanitarian Protection in Malta (2005): • “The law fails to define the content of humanitarian protection, apart from stating that anyone enjoying humanitarian protection will have “special leave to remain in Malta” until it is possible for the person concerned to move on safely to another country. • Therefore, as opposed to asylum seekers and refugees, who enjoy certain legal rights which are linked to their status, people granted humanitarian protection enjoy benefits rather than rights, all of which are granted on a purely discretionary basis.”

38. Impact of Subsidiary Status on Social Perceptions (Marchetti 2007): • Refugees today are not perceived as belonging to a clear and consistent category • Most refugees encountered today are perceived as “less authentic” than those of the past • Boundaries between refugee status and humanitarian status have become blurred • Boundaries between refugees and economic migrants have also become blurred

39. “If we consider the institutional and legal framework, we realize that the fragmentation of categories can be read as a positive attempt to interpret a changing context, but it doesn’t necessarily lead to a higher level of protection”

40. “By multiplying the forced migration labels, the intention seems rather to empty out the meaning of the refugee figure than to add new substantial rights to other categories of migrants”

48. Practically all irregular migrants who arrive by sea and who are sub-Saharan Africans are placed in detention. • The official reason is unclear: “to process them in a regular manner”, “to make it possible to determine their status”, “to ease their integration into Maltese society”, “to provide for their housing”…or my personal favourite: “because that is what governments do” (i.e. lock people up) • Almost all “apply for asylum”, often without even realising that they have applied!!!