Rule of Law Chronicles:  Migration, Xenophobia and the Immigrant Other Features
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Rule of Law Chronicles:  Migration, Xenophobia and the Immigrant Other

This is the third article in a series covering attacks on the rule of law.  The rule of law is a political philosophy premised on the promise that all people, systems and institutions are accountable to the same laws, processes and norms that work together to support equality before the law.  This series argues that regressive governance is increasing around the world, including in putative democracies, quashing human rights through strategic actions designed to undermine both the rule of law and human rights.

The relationship between regressive governance and the othering, scapegoating, and demonization of immigrants is so overwhelming that it is difficult to decide where to focus.  So many forms of regressive governance, from nationalism and nativism to fascism and populism, are centered in “us versus them” fear narratives that it becomes difficult to know which bolsters which.  Does the othering and demonizing of immigrants give rise to regressive political parties, or do demagogues rise to power by playing on fear and scarcity mindset that already exists within a population?  There is evidence in both directions.

Before the ethnic cleansing that devastated the former Yugoslavia, the leaders of newly independent nations of Serbia (Milosevic) and Croatia (Tudjman) became increasingly nationalist, harping on differences that had previously gone unnoticed; certainly not to the extent that they would lead neighbors to slaughter one another.  In countries like former Yugoslavia leaders intentionally created and promoted nationalist us-versus-them narratives, preached intolerance, preyed on fear, and fomented discord.  People who had liked or at least tolerated one another one month, were willing to slaughter one another the next.  Other types of regressive leaders like Donald Trump and Victor Orban turned their ire on their borders, fostering nativism, demonizing border crossing, and weaponizing scarcity fears.  They bolstered their own popularity through security theater, promising their constituents that they would keep the dangerous “others” out.  By weaponizing sovereignty they attempt to increase their own legal power, criminalizing migrants and those who would help them, and encouraging vigilantes to act as force multipliers.  Once governments pass laws premised on anti-immigrant fears, like Pandora’s box once opened, it becomes very difficult for subsequent political parties to treat migrants with humanity and remain electable.

Media outlets are guilty of serving regressive leaders.  Appealing to readership, they rarely exercise restraint or even legal accuracy when discussing migrants.  In the US, even self-described moderate or liberal leaning media outlets use words like “migrant hordes” and “surge” to describe asylum seekers, words like “fearful” and “overwhelmed” to describe border communities, and words like “criminal aliens,” “illegal aliens” and “illegals” to describe human beings who cannot be illegal, and who are acting in accordance with the law when they seek asylum.

Most countries of the world have ratified the Refugee Convention.  This can be viewed as a rare instance of unity among nation states, or it can be viewed as pragmatic.  The United Nations was created and the Refugee Convention drafted on the understanding that refugee flows are geopolitically destabilizing, and that it would behoove all nations to work together to prevent refugee flows, assisting those who have no choice but to flee. Most countries of the world expressed shame at their treatment of Jewish and other refugees fleeing Nazis, shunted from country to country, in the words of Hannah Arendt, “like the scum of the earth.”  Because nation states understood that they rely on one another to help prevent countries from passing along the burden of refugees, they bound themselves to non-refoulement. This is a fundamental principle of international law, arguably jus cogens and non-derogable,  which prevents countries from returning any asylum seeker who would be in likely danger of persecution. Among countries of the world that cannot agree on anything, for example the definition of torture, they agreed on this. In spite of these laws to which countries elected to bind themselves, regressive governments around the world not only ignore their legal obligations, but directed their ire at refugees and asylum seekers because it makes them more electable.  Even in democracies, and even in ways that would have seemed shocking until recently.

In the US, public health regulations were instrumentalized to keep out asylum seekers, but only some.  Ukrainians were exempted from these restrictions, arguably demonstrating that nationalism is intimately linked to white supremacy.  This link was introduced in the first article in this series, and will be discussed further in future installments.  The Biden administration lifted this Trump era public health regulation, but put in its place a set of laws that will have a similar effect.  Only a small number of asylum seekers at the southern border will be admitted at a time and only those who have applied for asylum and waited for adjudication of those applications in every country through which they have passed. These policies are a clear violation of domestic and international law, of non-refoulement and the Refugee Convention.  Other countries have similarly been violating international law and regional human rights conventions with little or no negative consequences. Greece, for example has been accused of repeatedly violating international law by pushing back refugees to Turkey.

Some countries pretend to respect international law, but impose regulatory hurdles that have the effect of violating the letter or the spirit of those same laws.  Other countries have leadership that run campaigns centered on their hard line anti-immigrant stance.  Meloni won her campaign for Prime Minister of Italy on an openly anti-immigrant platform.  The conservative New Democracy party governing Greece is similarly openly anti-immigrant, but not as anti-immigrant as the Greek Golden Dawn party, which evolved from an openly neo-Nazi group to win several seats in parliament.  It is not a coincidence that Italy is the first country reached by most refugee and migrant filled boats departing from Libya, while Greece is the first country reached by boats leaving Turkey.

Italy, Greece, and the United States are weaponizing existing laws aimed at preventing human trafficking, smuggling or organized crime to prosecute immigrant advocates helping asylum seekers.  An earlier article in this series discussed a case to watch in the US Supreme Court that could allow federal charges to be brought against immigrant advocates.  This federal case is still pending, but the state of Florida is presently passing a state based bill that would do the same. The bill is so broad in its anti-immigrant reach that it exposes any charitable actors to felony charges for assisting anyone who is undocumented.  As discussed in the previous article in this series, not only does this reduce the likelihood that people will assist or offer sanctuary to refugees – people who often flee with absolutely nothing and have no local contacts or legal protections, who are effectively stateless and have the most need of assistance – but it severely curtails the very individuals most likely to craft legitimate legal and political challenges to regressive governance.

The hypocrisy, shortsightedness and immorality of these laws, policies and actions are often breathtaking.  For example, a future article in this series will discuss child migrant labor and the extractive, regressive capitalist interests willing to not only turn a blind eye to it, but who are actually working to increase child labor through state laws lowering the legal working age.  All over the world, regressive governments claim fealty to family values and protecting women and children from crime (the patriarchal values embedded in these policies will also be discussed in future articles in these series). Yet they turn a blind eye to dangerous and illegal child migrant labor, child marriage (rape), and human trafficking, or even pass laws they know are likely to exacerbate it.  After all, restrictive immigration laws place power in the hands of people interested in exploiting others.

In the US alone, regressive government policies have permitted or encouraged separation of migrant families, feigning interest in protecting against human trafficking.  They have allowed government employees to craft social experiments on detained asylum seekers, tracking the menstrual cycles of detained teen girls, and permitting or turning a blind eye to the forced sterilization of female immigrant detainees.  There can be no doubt that the actors interested in passing regressive laws aimed at curtailing bodily autonomy for women, an in issue that will be addressed in a future article in this series, are not at all interested in immigrant women bearing children.

The links between the most conservative fringes of regressive government actors, and anti-immigrant and anti-abortion stances get very dark, very quickly.  The shooter at a mosque in New Zealand who killed fifty people selected the mosque because it was almost exclusively attended by immigrants.  In the manifesto he left behind, he stated, more than eighty times, that his actions were “about the birthrates.”  This was a manifesto that had been copied by many others attempting to engage in similar crimes.  What he meant was that there was a movement afoot, encouraged by regressive actors, to reduce immigrant populations in many countries by any means, and at the same time to increase native populations by any means. Victor Orban, the autocratic but elected Prime Minister of Hungary began agitating to end or criminalize abortion and encourage native women to bear more children, at the same time that he began  passing laws to criminalize both migrants and asylum seekers, and the provision of assistance to them.

Orban and other regressive leaders like him know they are in violation of international law and of the human rights and international and regional treaties their own countries have ratified, and they do not care.  The populist benefits of anti-immigrant laws and policies far outweigh any geo-political diplomatic consequences they might, but probably will not, face.  Policies that once seemed outrageous, implausible, existing solely in the imagination of catastrophizing conspiracy theorists, are now drafted and pass into law, even in democracies, because the population becomes desensitized to the hateful rhetoric.  Because the fear narrative of criminal immigrant hordes coming to take jobs and harm women and children works.  As racist, colonialist, extractive, and paternalistic as it is, it works, and it wins votes.  These dark and regressive ideas are on, in putative democracies, and become law.  The rule of law provides validity to these hateful laws, further insulated from the challenges by human rights advocates, who are also being threatened and harassed.

In short, the rule of law — or, more precisely the perversion of the rule of law by regressive power holders – is intimately connected with migration. People who are not safe or cannot provide themselves and their children with necessities have no choice but to flee. We know that politically and economically unstable countries with human rights-violating governments cause refugee flows.  One would think that it would be in the interest of refugee-receiving governments and regional bodies to promote rights and stability in rule of law systems. Instead, regressive politicians demonize migrants and refugees, experimenting with nativist populism, and peddling “us versus them” fear narratives to increase their own power, and to rally vigilantes to act as their force multipliers, perpetrating harm on immigrants.

Regressive countries, with political leadership that disrespects the rights of people promote refugee flows through massive violations of human rights. Regressive leaders in potential receiving countries, instead of leading from respect for human dignity, too often use refugees as props in their “security theater,” designed to stoke fear in their citizenry of hordes of new arrivals taking scarce resources, even when all evidence demonstrates that the benefits of admitting immigrants vastly outweighs any proclaimed short-lived discomfort.

Governments are only governments if borders exist. And regressive governments benefit from turning imaginary lines into front lines, borders into lawless zones where anything goes, and the rule of law does not hold. Most refugees are effectively stateless. By definition they are without the protection of their country of origin and have yet to receive protection from a new host government. This is precisely why ethical, stable, and reliable rule of law, including international human rights law, matters.

Because not a single one of us chooses where we were born.

Dina Francesca Haynes is Professor of Law at New England Law | Boston, where she teaches immigration, refugee and asylum law, human trafficking and constitutional law. She has also taught at Georgetown University Law Center and American University’s Washington College of Law. She has worked in a multitude of countries for the UN and other international organizations.

Opinions expressed in JURIST Features are the sole responsibility of the author and do not necessarily reflect the views of JURIST’s editors, staff, donors or the University of Pittsburgh.