CHANAKYA NATIONAL LAW UNIVERSITY

Project Report

On

“FORCED MIGRATION: NATION STATE, BORDERS AND

RIGHTS”

“Public International Law”

Submitted To-: Submitted By -:

Mrs. Sugandha Sinha Tarun Kulhar

Dept. of International Law Roll No. 1659

Chanakya National Law University, B.B.A. LL.B. (Hons.)

Patna. (5th Semester)

 ACKNOWLEDGEMENT

The success of this final report is the outcome of Guidance and valuable suggestions provided by
all the concerned without whom the report could not fide on the right back. I would like to
express my sincere gratitude to Mrs. Sugandha Ma’am for giving me an opportunity to do this
project work. I also express my sense of deep gratitude towards the other faculty members for
introducing a program which enables us to learn more. Finally, I will be failing in my duty, if I
do not thank my parents, friends and well-wishers for their enthusiastic support and who have
directly or indirectly helped in some way or the other in making this final report a success.
 RESEARCH METHODOLOGY: Type of Research

The research includes different options. They are:

 Exploratory research:

It is usually a small-scale study undertaken to define the exact nature of a problem and to gain a
better understanding of the environment within which the problem has occurred. It is the initial
research, before more conclusive research is under taken.

 Descriptive research:

It is to provide an accurate picture of some aspects of market environment. Descriptive research

is used when the objective is to provide a systematic description that is as factual and accurate as
possible. It provides the number of time something occurs, or frequency, lends itself to satisfied
calculations such as determining average number of occurrences.
 OBJECTIVES

The following will be the objectives from this project report-:

1. To gain knowledge about laws pertaining to Forced Migration.

2. To gain knowledge about the refugees and migrants.

3. To understand the relevance of Nation State, Borders and Rights.

4. To understand their application.

 HYPOTHESIS

The hypothesis which researcher has made is that migration is a very important issue in
international scenario and the laws are being formulated and the rights are being given to the
refugees and migrants like borders rights etc. and day by day the problem is resolving and from
the past decades it is in very better situation.
 TABLE OF CONTENTS

1. Introduction………………………………………………………………….07

2. Refugees and Migrants.............................................................................…...09

3. Consolidation of the Nation-State and the Inter-National Order……………..11

4. The Role of Migration in the Constitution of the Inter-National Order……....14

5. Asylum Challenges to the Nation State……………….……………………...17

6. Thickening Borders…………………………………………………………...19

7. Conclusion………………………………………………………………..…...21

8. Bibliography………………………………………………………………..…23
 INTRODUCTION
The study of forced migration and refugees, whether in a contemporary or historical context,
cannot be understood without reference to the nation state and its borders. Historically, there is a
strong contingent relationship between the emergence of the nation state and the (often violent)
generation of large-scale refugee movements. Today, refugees are created through, and indeed
are incomprehensible without, the interaction of migrants and borders.1

The nation is, following Benedict Anderson, the imagined community of individuals who share
some common sense of identity and who place their loyalty to each other above their loyalty to
strangers (Anderson 2006). The state, made up of the legislature, executive, bureaucracy, courts,
and army, is the final arbiter of disputes, holds a monopoly over violence, and is responsible for
protecting, regulating, and redistributing property. Nations are roughly congruent with states,
although there are many historical and contemporary exceptions: Germany in the interwar period
(when a large German population lived in Poland), Hungary, Russia, and Québec today. The
nation state is defined by its borders: externally, they constitute the limits of sovereignty;
internally, residence and even mere presence within borders allow individuals to claim the
protection of the nation state.

Despite tireless and somewhat tiresome efforts to find an alternate basis for citizenship, the status
has no logic, power, or moral force outside a nation state (Hansen 2009). A citizen is one who
enjoys the full panoply of rights—civil, social, economic, and political—accorded by a nation
state; a citizen can call on his or her nation state, and only that nation state, to claim diplomatic
protection; and the nation state can in turn demand the ultimate loyalty of its citizens, including
the obligation to fight and die.2

The international refugee system, as it has developed since the Second World War, has interacted
with the state system in complex ways. On the one hand, the non-refoulement duty imposed by
the 1951 UN Convention relating to the status of refugees and the Convention’s 1967 Protocol is
one of the few legal limitations on state sovereignty. States, in theory, cannot return or transfer
1
S. Castles and M.J. Miller, The Age of Migration: International Population Movements in the Modern World (New
York: Palgrave Macmillan, 2009), p.1
2
R.B.J. Walker, Inside/Outside: International Relations as Political Theory (Cambridge: Cambridge University
Press, 1992); D. Bigo and R.B.J. Walker, “International, Political, Sociology,” International Political Sociology, 1
(2007): 1-5
refugees to countries where they face a ‘well-founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social group, or political opinion’. On the
other hand, the idea of refugees, in the sense understood by the 1951 Convention, is in theory
and in practice incomprehensible without the international state system.

This chapter will outline the relationship between the nation state, borders, and refugees. The
nation state has both the Weberian monopoly on violence and the sole capacity to protect human
rights. Borders, in turn, define the limits, with a few exceptions, of nation-state sovereignty: they
can fully protect only those within their borders. To be sure, citizenship does allow the state to
extend its sovereignty to a degree: it is responsible for its citizens abroad. But outside its own
borders, the state’s capacity to protect those citizens is severely constrained, as imprisoned drug
dealers around the world can attest. Asylum seekers become refugees by being recognized as
such by the state. The state’s obligations to asylum seekers—non-refoulement and the processing
of the asylum claim—are triggered when the asylum seeker reaches the borders of that state and
claims asylum (Loescher and Milner 2011: 194). And the end point in a successful asylum
application is permanent residence and citizenship rights in the new state, ideally a liberal
democratic one.

For the purposes of this chapter, ‘refugees’ are understood in both the popular and the legal
sense. In the former, refugees are forced migrants; in the latter, following the 1951 UN refugee
Convention, they are people with a ‘well-founded fear of persecution’ granted refugee status by a
signatory state to the 1951 Convention. An asylum seeker, whether travelling alone or as part of
a mass influx, is a person seeking that status.3

3
K. Bade, Migration in European History (Oxford: Blackwell, 2003), p.129
 REFUGEES AND MIGRANTS

Governments soon reasserted that control over their borders. Across the West, states responded
to these dynamics—the trigger of rights through the touching of domestic soil, and the limits on
deportation—by efforts to block new asylum seekers’ access to that soil and to expand efforts to
return those they had rejected. States introduced a wide range of measures designed to keep
asylum seekers from reaching national borders. They expanded visa requirements and introduced
substantial fines for airlines that allowed asylum seekers to travel without correct documentation,
thereby keeping asylum seekers off airplanes. They declared an often dubious (p. 259) list of
countries ‘safe’ and therefore incapable of producing asylum seekers (thus allowing states to
avoid processing the asylum claims of any nationals arriving from such countries). And they
interdicted asylum seekers at sea, declared airports international zones outside the jurisdiction of
courts, and expanded off-country detention (to prevent the lodging of asylum claims) (Hathaway
2005: 283–98; Goodwin-Gill and McAdam 2007).4

The second and more recent response has involved expanded deportation. As a recent study
concludes, there has been a prodigious rise in the use of deportation by liberal democratic states
in the last two decades. In the USA and the UK, developments in infrastructural capacity and
legal powers to deport, along with a new-found public and official enthusiasm for expulsion,
have seen a tripling and doubling, respectively, of the number of non-citizens who leave these
states under the threat of coercion. In the UK, deportations rose from 30,000 in 1997 to 67,000 in
2009 (the figure was 68,000 2008); in the US, they rose from 114,432 in 1997 to 400,000 in
2009 (Anderson, Gibney, and Paoletti 2011: 550).5 Many other countries, including Canada,
France, Germany, and the Netherlands, have also become more serious about using deportation
as a way of dealing with illegal migrants, failed asylum seekers, non-citizens convicted of
criminal offences, and those suspected of involvement in terrorism. It is no exaggeration to talk
of a deportation turn in the practices of Western states in their dealing with unwanted non-
citizens (Anderson, Gibney, and Paoletti 2011: 547).

Scholars have argued that these efforts amounted to an attempt to bring refugee and asylum
policy under the remit of military, security, and policing policy. Recent literature is replete with
4
M. Foucault, “Society Must be Defended”: Lectures at Collège de France, 1975-1976 (New York: Picador, 2003)
5
H. Arendt, The Origins of Totalitarianism (New York: Harcourt Press, 1951), p.230
arguments that states have ‘criminalized’, ‘securitized’, and ‘militarized’ asylum and
undocumented migration. As a recent review put it, ‘prisons or immigration removal centres are
singularly useful in the management of non-citizens because they enable society not only
physically to exclude this population, but also, symbolically to mark these figures out as
threatening and dangerous’ (Bosworth 2008: 207–8).

These arguments display a flare for the metaphor, but they confuse ends with means.
Governments have no a priori interest in criminalizing asylum seekers, not least because
restrictions on migration and asylum attract so much criticism from bien-pensant commentators.
Understanding such control measures requires taking them seriously as such: as measures
designed to reduce asylum pressures. The question for students of public policy is why
governments would adopt these measures rather than others, and this in turn requires reflecting
on the aim common to all of them. What unites airline check-in employees flicking through
passports and coast guards patrolling the seas is an effort to shift the border outwards. These and
other measures aim to remove the burden of securing the border from those guarding the
juridical line separating one country from another (Hansen and Papademetriou 2013). And states
have been compelled to shift the border outwards because the traditional mechanism of border
control has been undermined by the regular operation of the asylum system. States cannot simply
line the physical border with guards who deny entry to undesirable migrants, because migrants
acquire rights as soon as they reach the shores of a signatory state, and above all a liberal
democratic signatory state.6

(p. 260) For signatories of the UN Convention, an asylum application at the border triggers a
complex, lengthy, and often expensive adjudication process. An asylum hearing must be
arranged; lawyers must be appointed; a case and possibly an appeal must be heard; and, if
unsuccessful, return procedures have to be initiated. Within the European Union, states are
obligated to provide asylum seekers with minimum levels of housing and subsistence while their
case is being determined (though the generosity and quality of that support varies in practice
greatly across the Union). The average adjudication period in Europe in the late 1990s was six
months (Hatton and Williamson 2004: 10). At the end of it all, only a minority of asylum seekers
6
Das Gupta, M. 1997. What is Indian about you? A gendered, transnational approach to ethnicity. Gender and
Society, vol. 11, no. 5, pp. 570–83. Du Gay P., J. Evans and P. Redman. 2000. Identity: A reader. London: Sage
Publications.
were successful: the ‘dirty little secret’ of asylum applications, as the late Arthur C. Helton put it,
is that few asylum seekers are granted refugee status (Helton 2002: 169). By the most generous
measures, less than 50 per cent of asylum seekers receive either refugee or non-Convention
refugee status following the processing of their asylum applications. In most cases, the figure is
under 30 per cent. The majority of asylum seekers were and are not refugees as understood either
by the Convention itself or the principles underlying it (for instance, the idea that people
persecuted by non-state actors, though not strictly speaking refugees, deserve protection).

Until recently, only a minority of those whose asylum applications were rejected were deported.
Tracking down and deporting individuals was expensive; asylum seekers deliberately destroyed
documentation in order to inhibit return; source countries were reluctant to take them without
such documentation (and sometimes with it); and, as they could easily disappear in large cities,
the state simply could not find the majority of illegal migrants (Gibney and Hansen 2003). And
what this meant was that borders mattered both a great deal and very little. They mattered a great
deal because the asylum adjudication process was initiated by crossing them. Whatever
difficulties asylum seekers have in reaching a country that is a signatory to the 1951 UN
Convention, dodging hostile boats and even bullets, once they arrive and claim asylum they
enjoy rights: to the processing of the claim and, in Europe, to housing, social support, and legal
advice. But borders also mattered very little because once asylum seekers crossed borders return
became difficult, if not impossible.7

CONSOLIDATION OF THE NATION-STATE AND THE INTER-

NATIONAL ORDER
7
Y. Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago: University of
Chicago Press, 1994)
Traditional discourses of international relations often identify the Treaty of Westphalia (1648) as
the birth of the modern nation-state order. While the Treaty can certainly be seen as a defining
moment in the constitution of a new order in Europe, one based on the principles of territorial
sovereignty and integrity, and one in which states attempted to establish themselves as the sole
legitimate actors on the European stage, the modern inter-national order is far from the order
established by the Peace of Westphalia. It is far from this order not just, or even primarily
because of hegemony, internationalism, globalization, and the myriad other reasons for which
statehood and sovereignty are not absolute or equal, and interdependence and intervention are the
order of the day.

The contemporary international order is distinct precisely because it is an international and not
an inter-state order. The slippage between nation and state in much of the traditional discourse of
international relations not only reifies and de historicizes both the nation and the state, but also
obfuscates the ways in which movement is distinctly conceptualized and governed in era of the
nation-state and the national order of things. It is crucial, therefore, to reproduce, albeit vastly
abridged, a genealogy of the nation, to which some crucial instances in the history of migration
can be juxtaposed to illustrate the effect of the consolidation of a nation-state order on migration.

As has just been argued, the first emergence is in fact not the emergence of the nation-state, but
at best, the emergence of the order of states, and the coming into being of the discourses of
nation. That at this historical juncture the nation and state remain separate is crucial. In what is in
effect a genealogy of the nation, Michel Foucault argues that in this first, seventeenth century
emergence the discourse of nation emerges not from, or together with the state, but in fact, in
opposition to it, as a counter discourse of struggle that attempts to challenge the sovereignty of
royal power (or state) by writing its counter-history. In this counter-history, the sovereignty of
the king is neither divinely inspired, nor does it stem from the sovereign’s ancestry or heroism,
as discourse of state would claim.

It stems, in fact, from the injustices perpetrated by the sovereign against the ‘nation’. It is the
historical suffering and oppression of the nation that grounds and perpetuates the sovereignty of
the state. The discourse of the nation, therefore, emerges here as a counter discourse to the
discourse of the state, and a counter-history to the history the sovereign constructs for itself. At
this emergence, the discourse of nation pits the nation against the state and makes state the
nation’s principal enemy. 8

As the preeminent revolt of the nation against the state, the French Revolution marks not only
the culmination of this discourse, but also its (partial) resolution. The nation – whose discourse
has been building it up as a subject of history and object of analysis for nearly a century – waged
an open battle against the state, and won. It is to the French Revolution that we can thus trace the
nation’s second emergence, one during which the nation emerges as sovereign, or more
precisely, as that which legitimates the existence and sovereignty of a state.

Thus, in the period between by the turn of the nineteenth and twentieth century’s the state
emerges as the nation-state, as a state legitimated by and thus responsible to the nation to which
it belongs and gives expression. Attending precisely to this event, Hannah Arendt refers to it as
the nation’s conquest of the state, during which the state’s inherited function, ‘the protection of
all inhabitants in its territory’ is supplanted by the supposition that the state’s duty extends only
its nationals.9

Thus, ‘in the name of the will of the people the state was force to recognise only ‘nationals’ as
citizens, to grant full civil and political rights only to those who belonged to the national
community’, and as such, was ‘partly transformed from an instrument of the law into an
instrument of the nation’ .

8
Y. Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago: University of
Chicago Press, 1994)
9
Abbeville Press: Lewis Hine in Europe: The Lost Photographs. New York: Abbeville Press, 1988.
 THE ROLE OF MIGRATION IN THE CONSTITUTION OF THE INTER-
NATIONAL ORDER

It is this last emergence that continues to structure inter-national migration and the field of
possibilities in which it migration takes places. Yet before discussing the manner in which it does
so, it is also crucial to acknowledge the role that migration has played in the material constitution
or actualization of this world order. As Arendt’s narrative of the nation’s conquest of the state
itself implies, non-national state formations preceded the emergence and subsequent
entrenchment of the nation-state and the inter-national order.

The national order of things, in fact, replaced the order of empires, the most multi-ethnic, multi-
cultural and multi-religious of which, the Ottoman Empire, took its final breath on 29 October
1923 with the declaration of the Republic of Turkey. 10

For the order of nation-states to emerge from an order of empires, nations 11 had to be produced,
and claims to statehood made and recognised. As the above section implies, the discursive
production of racialised (i.e. natural, authentic) nations, and by extension, the naturalization of
the national order of things (or the inter-national order) involved a series of struggles, the
outcomes of which were never determined in advance, and the victors of which were never
secure in their victories.

The inherent contingency and insecurity of dominant discursive formations aside, they were
effective only in so far as they materialised as empirical realities, as homogenous, unified nation-
states within an inter-national order of things. For such an order to actualise from the ashes of the
order of empires, nations (and corresponding states) had to be forged from among populations
who often did not think of themselves in national terms.

As Bruce Clark poignantly, albeit rather romantically observes in relation to the population
exchange that produced modern Greece and Turkey, ‘the children of the population exchange
grew up in a world where cultural identities were rich, complex and ambivalent. They were
forced to adapt to one where national affiliation was simpler and more strictly enforced, and
10
UNHCR: “UNHCR viewpoint: ‘Refugee’ or ‘migrant’ – Which is
right?“, http://www.unhcr.org/news/latest/2016/7/55df0e556/unhcr-viewpoint-refugee-migrant-right.html.
11
Anderson, B., Gibney, M. J., and Paoletti, E. (2011) ‘Citizenship, Deportation and the Boundaries of
Belonging’. Citizenship Studies 15(5): 547–63
there was a high price for questioning this simplicity’. While an interrogation of the production
of national consciousness is beyond the scope of this paper, the population exchange between
Greece and Turkey and many similar exchanges and transfers are not, as it is through them that
the national order of things was actually forged. Migration in the broadest sense of the term28
was, in other words, a pivotal (and often violent) technology through which nation-state and the
national order of things materialised.

On 30 January 1923, with the support, and in the presence of the nascent inter-national
community the Government of the Grand National Assembly 12 of Turkey and the Government of
Greece signed the Convention Concerning the Exchange of Greek and Turkish Populations,
which in conjunction with the Treaty of Lausanne, signed by the Turkish, Greek, British, Italian,
and Japanese governments on 24 July 1923 established the legal framework of the most
monumental of the population exchanges that defined the era of the consolidation of the nation
state and the national order of things. As a result, and in order to nationalize the polities of the
fledgling Greek and Turkish states, some one and a half million Greeks were sent to Greece in
exchange for approximately 400,000 Turks.

Exempt from this forced population exchange were only the Greek residents of the Islands of
Imbros and Tenedos and the city of Istanbul, and the Muslims of Western Thrace. The ambiguity
regarding the subjects of the exchange aside, the forced migration of close to two million people
constituted ‘the modern societies of Turkey and Greece’. Commenting on the desirability of this
mandatory population transfer, one of its architects, Fridtjof Nansen argued that, ‘persons of
Greek race domiciled in Turkey will very probably desire to transfer to Greek territory… A great
number of persons of Turkish race domiciled in Greece will very probably desire to transfer to
Turkish territory’. 13

Many did not, and their forced ‘repatriation’33 to ‘homelands’ many had never seen was both
physically and symbolically violent. This was neither the first nor the last among population
transfers, exchanges, and displacements that functioned to homogenise the populations of
various states. Among them: the numerous exchange, transfer and resettlement agreements of the
Balkan Wars, which between 1912 and 1914 resulted in the ‘ethnic unmixing’ of nearly 900,000

12
Betts, A., ed. (2011) Global Governance Migration. Oxford: Oxford University Press.
13
Brubaker, R. (1992) Citizenship and Nationhood in France and Germany. Cambridge, MA: Harvard University
people, including the mandatory Greek-Bulgarian population transfer on which subsequent ones
were modeled;

The massacres and expulsions (since called a Genocide) of somewhere between one and one and
a half million Armenians during, and in the aftermath of the First World War35, an event
irrevocably linked to the formation of the Turkish republic; the 1924-1945 policy of
'Italianisation', which attempted to compelled Slovene, Croat, German, Greek, Turkish and
Jewish populations to ‘Italianise’ or leave Italian territory; the countless forced migrations36,
expulsions, transfers, deportations and annihilations of populations during the Second World
War;

the exchange of some 100,000 Romanians for 65,000 Bulgarians mandated by the 1940 Treaty of
Craiova; the post-World War Two displacement of anywhere from 13.5 to 16.5 million Germans
(and the death of at least 500,000) from across central and eastern Europe; and the transfer of
Ukrainians from Poland to the Ukraine, and Poles from Ukraine to Poland between 1944 and
1947. During this period, more than two-thirds of the Ukrainian population of pre-war Poland
was ‘transferred’ to what was at the time the Ukrainian Soviet Socialist Republic, part of the,
‘final and general solution of the Ukrainian problem’.
 ASYLUM CHALLENGES TO THE NATION STATE

The contemporary asylum system challenges the very state system on which it depends. It does
so for three reasons: first, because it is one of the few areas in which sovereignty is meaningfully
restricted; second, because most Convention signatory states or their courts have articulated
complex and lengthy legal procedures that make full asylum processing and subsequent appeals
time consuming and expensive; and third, because deportation is extremely difficult. In the last,
legal, moral, and financial limits mean that traditionally only a minority of those whose asylum
cases were rejected were in fact deported. This fact led nation states to erect a wide variety of
institutional and legal barriers designed to keep asylum seekers away from their borders: visa
requirements, safe country of origin and safe third country rules, carrier sanctions, interdiction at
sea, and the declaration of airports international zones (more on these below). These actions, in
turn, threaten the institution of asylum itself. States and borders both sustain and undermine the
asylum system.14

(p. 255) Borders and Citizenship

As a horizontal status, citizenship requires limits. It is, as Rogers Brubaker famously noted,
‘internally inclusive’ and ‘externally exclusive’ (Brubaker 1992: 21). For most people and in
most cases, the limits of the borders are the limits of citizenship. Put another way, one can only
be fully a citizen when resident in the state of one’s citizenship. Even dual citizens, a naturally
privileged category, enjoy no diplomatic protection when in the state of their other citizenship(s)
and often find they have fewer social and political rights (to health care, to lower postsecondary
education fees, or even to vote) when they do not reside in the state granting their citizenship.

Borders and Refugees in Historical Context

Borders are basic to the construction and creation of refugee movements in both historical and
contemporary contexts. In the former, nation states have been built through mass flight and mass

14
G. Hewitt, “The row over the Roma,” BBC: Gavin Hewitt’s Europe, 16 September 2010; O. Lungescu, “EU vice
president sees red and attacks France on Roma,” BBC News Europe, 14 September 2010; V. Reding, “Statement on
the latest development on the Roma situation,” European Commission Midday Briefing, 14 September 2010 21 S.
al-Natour, “The Legal Status of Palestinians in Lebanon,” Journal of Refugee Studies, 10, no.3 (1997): 360- 377; S.
Haddad, The Palestinian Impasse in Lebanon: The Politics of Refugee Integration (Brighton: Sussex Academic
Press, 2003)
expulsions. In this sense, Europe’s interwar period, in which there was a valiant and failed effort
to match borders to people, was the exception. Both before and after the 1919–39 period, the
norm was to match, through expulsion and murder, people to borders (Weinberg 2005: 895).
Though often presented as an exceptional case, the expulsion of approximately 750,000
Palestinian Arabs from what is now Israel between November 1947 and September 1949 (Chatty
and Farah 2005; Lentin 2005) is part of a broader pattern of displacement and dispossession that
underpins the constitution of nation states. As discussed in more detail in Akram’s chapter (this
volume) on the establishment of the United Nations Relief and Works Agency for Palestinian
refugees, the Zionist leadership from at least the 1890s privately floated the idea of transferring
Arab populations out of Palestine (Morris 2004: 41–3). Liberal moral qualms, however,
constrained the proposal until the 1930s (Morris 2004: 43). From then, partly in reaction to
waves of Arab anti-Jewish violence in Palestine, these checks fell away (Morris 2004: 43–4).
From the 1930s, onwards, a consensus, with some British support, emerged in favour of
transferring Arabs from Palestine in order to make room for Jews and in order to prevent the
emergence of a fifth column within the Jewish state (Morris 2004: 47–52). What the Zionists
needed was the opportunity to implement that transfer; war provided it.

Rejecting UN General Assembly Resolution 181 of November 1947 on the Partition of Palestine,
first Palestinians and, from May 1948, neighbouring Arab states attacked Israel, thereby
providing the opportunity for the Jewish leadership to expel 400,000 Arabs from the new Jewish
state (Morris 2008: chapter 3). As Arab attacks on Israeli positions intensified and as Jewish
casualties mounted, attitudes hardened, and on 10 (p. 256) December 1947, Israeli tactics
switched from one of attacks restricted to military targets. ‘Aggressive defence’, in which each
attack would be followed by an aggressive counter-attack, reprisals, and the permanent seizure of
Palestinian positions, became official policy (Morris 2004: 73; Chatty and Farah 2005: 468). By
the end of the war, through a combination of flight and expulsion—the latter organized
spontaneously by Israeli army units—750,000 Palestinians had fled their homes. Although there
had been no overall plan and coordinated strategy for expulsion (hence 150,000 Arabs
remained), preventing the return of those Arabs who had left became official Israeli policy, one
‘[g]enerally applied with resolution and, often, with brutality’ (Morris 2004, 588–9).15

B. Isyar, Invention of the Turk: A Genealogy of the Nation (Unpublished Ph.D. Thesis, Department of Sociology,
15

York University, Canada, 2007)

It is often suggested that Israel was born with an original sin that blights, as original sin does, all
that Israel has done since (Pappé 1992). What is less remarked on is that most moments of nation
building occur against the background of ethnic cleansing.16 A few examples illustrate this point.
The creation of the American republic led to the subsequent mass transfer and murder of large
numbers of Native Americans as well as to the flight or expulsion of some 60,000 Americans
loyal to Britain (Jasanoff 2012: 357). By 1850, most Native Americans east of the Mississippi
had been transferred west to ‘Indian territory’, and a massacre of California natives (aboriginals)
living near goldfields occurred following the 1848 discovery of gold in the state (Grinde 2001:
374). Back in Europe, Turkey’s emergence after the First World War from the ashes of the
Ottoman Empire followed the expulsion of 1.5 million Armenians, of whom some 750,000 died
(Pattie 2005: 15).

The 1941–51 period provided a particularly vivid illustration of the nation-building/refugee-

production nexus. The creation of India and Pakistan led to the flight or expulsion of 8 million
people. Poland and Czechoslovakia, among other East European countries, consolidated their
post-1945 nations through the expulsion of their ethnic German populations (across Eastern
Europe, 12 million Germans were expelled). Huge numbers of Poles had themselves been
expelled as Stalin incorporated eastern Poland into the Soviet Union. More broadly, even after
mass returns from war-torn Europe, there were after World War II 1.2 million displaced persons
unwilling or unable to return to their homelands, including 400,000 Polish POWs and forced
labourers; 150,000–200,000 Estonian, Lithuanian, and Latvian Wehrmacht and SS soldiers, slave
labourers, and civilians fleeing the Soviets; 100,000–150,000 ethnic Ukrainians; and 250,000
Jewish refugees, including a small group who had survived the death camps and death marches
(Cohen 2012: 5-6).

THICKENING BORDERS

It was this dual dynamic—the initiation of the asylum process by touching the soil of a signatory
country, and the generation by the liberal democratic polity of severe constraints on deportation
—that led states to adopt measures designed to extend the border outwards and to remove

A note of caution is necessary regarding the relationship between racialisation and racism. Racism is a technology
16

made possible by and grounded in the process of racialisation, where racialisation is understood as a process through
which societies, peoples and nations are defined in racial terms, and as such, their existence as a group is naturalised.
Racism is thus a chapter in the history of racialisation.
through deportation failed asylum seekers residing within them. The former were so heavy
handed in part because the rights enjoyed by asylum seekers who did reach liberal democratic
soil were so robust. As Matthew Gibney noted in an important piece, there is a direct relationship
between illiberalism outside the border and liberalism within it (Gibney 2003).17

In the same vein, the American and British governments expanded deportation measures once it
was clear that traditional mechanisms for border control—asylum (p. 261) processes in Europe
distinguishing legitimate from illegitimate refugees, and the border itself in the United States—
failed. Once the press politicized the issue by drawing attention to the gaps, literal and
metaphorical, in British and American policy, both countries took measures that sharply
increased deportation.

The last point takes us on to motivation. In much of the literature, scholars seeking to explain
refugee policy adopt an implicit state autonomy model—a view of the state as an actor that
governs the asylum process independently of wider political currents. On such views,
governments, seemingly without reference to the publics that elect them, construct asylum as a
problem.

In doing so they generate public hostility to asylum seekers whom they would otherwise
welcome or at least not notice, and then use this generated opposition as an excuse to implement
restrictions (Hassan 2000; Abu-Laban and Garber 2005; Warner 2005–6; Nickels 2007). Such
constructivist interpretations both give anti-migrant publics an undeserved pass and reflect a poor
understanding of politics and the political process. It is only under the most ideal and unusual of
conditions that politicians are masters of events; in almost all cases, they are reacting to them.
They have no interest in stirring up political controversy.18

Indeed, the most desirable situation from a government’s point of view is one in which the
economy hums along, producing high employment and low inflation; there are no riots or
demonstrations to disturb social peace; and international affairs are characterized by calm,
cordial relations among affluent states producing no migrants. The first two conditions rarely
obtain (and governments are almost guaranteed re-election when the first does); the last never
17
Note by the Secretary-General respecting the Question of Exchange of Populations between Turkey and Greece
and Report by Dr. Nansen, FO/286/806- E.13089.10524.44
18
S. Totten, P.R. Bartrop and S. Jacobs, Dictionary of Genocide (Westport, Conn.: Greenwood Press, 2008)
does. It would be a foolish government that sought to generate an immigration crisis, replete as
such crises are with negative public opinion, street demonstrations, activist and some degree of
press hostility, and in the worst case anti-migrant violence. 19

These crises, rather, are generated by those who profit from the government’s discomfort. They
can be opposition politicians, such as Anne Widdecombe, the British Shadow Home Secretary
from 1999 to 2001 who savaged the Labour government over its supposed failure to control
asylum, or Tom Tancredo, a Republican member of the US House of Representatives from
Colorado who led a bitter campaign against illegal migration in the mid-2000s.

These instigating actors can also be the press. In the UK, the Daily Mail whips up anti-asylum
sentiment through lurid stories of asylum seekers abusing social benefits, enriching themselves
through begging, or making shameless and unfounded appeals to sovereignty-destroying
European courts; in the United States, CNN (under Lou Dobbs) and Fox News made ‘broken
borders’ a consistent theme in US politics throughout the first decade of the millennium. But
even these sparks require fuel: all these campaigns occurred against a backdrop of sharply rising
migration: asylum applications in Britain and sharply rising undocumented migration to the
United States.20

Chronology bears these points out. In both Germany and the United Kingdom, efforts to reduce
asylum applications through externalizing the border occurred after (a) a great upsurge in asylum
seekers and (b) the politicization of asylum by extra-governmental actors. In the UK, the latter
was provoked by the tabloid press; in Germany, it was federal states (which bear the costs of
asylum seekers), far-right parties, and, most brutally and (p. 262) tragically, neo-Nazis who
murdered first asylum seekers and then Turkish-Germans in the early 1990s.

In the UK and the US, the ‘turn to deportation’ occurred after the British press and Conservative
opposition got wind of the gap between asylum rejections and returns and after the
CNN/Fox/Tancredo campaign against illegal (Latino) migrants (Anderson, Gibney, and Paoletti
2013).21
19
Twentieth Century British History, 17, no.2 (2006): 230-256
20
J. Schechtman, “Postwar Population Transfers in Europe: A Survey,” The Review of Politics, 15, no.2 (1953):
151-178
21
B. Morris, The Birth of the Palestinian Refugee Problem, 1947-1949 (New York: Cambridge University Press,
2004)
 CONCLUSION

This project has argued that borders are fundamental to the nation state; that borders are basic to
the international system as they trigger the rights available under the UN Convention; that the
nation state is the anchor of the international refugee system; and that, paradoxically, the asylum
determination system threatens borders, the state, and the international refugee system itself. The
account points to the importance of both structures and actors.22

Structurally, borders, rights-respecting states, and asylum seekers on the move interact in a
manner that generates restrictive pressures that harm refugee protection internationally. Asylum
seekers, both genuine refugees and those who use asylum when there are no other migratory
entry points, activate robust rights when they cross borders and apply for asylum.

These rights impose costs and obligations on states, and they militate against the deportation of
failed asylum seekers in a manner that encourages states to determine and implement restrictions
designed to keep asylum seekers from reaching the border and to deport those who have crossed.
These restrictions, particularly those that ‘thicken’ the border, inevitably prevent genuine
refugees from reaching the borders of 1951 Convention signatory states. And this means, equally
inevitably, that states’ defence of their borders risks undermining, and perhaps has in large
measure already done so, the international refugee system.23

Overly structuralist accounts should be viewed with suspicion, as they imply politics and policy
without actors. This cannot be. None of the dynamics highlighted above can be initiated without
actors who transform asylum into a political issue that threatens the government of the day. Such
actors are diverse: opposition politicians, (often conservative) journalists, local officials, far-right
parties, and, of course, avowed racist extremists. But this too only points to a further
contradiction: liberal democracy, the values of which underpin the refugee system, generates
through the normal operation of liberal democratic politics pressures that threaten that very
system.

The refugee as a legal and moral concept has also a geopolitical dimension which is closely
associated with developments in Eastern and Southeastern Europe. Tara Zahra, in her new book
“The Great Departure”, draws a close link between concepts of freedom and the politics of
emigration. During the Cold War the right to leave became an emblematic aspect of freedom,
enshrined in the 1948 Universal Declaration of Human Rights. The lack of it in the socialist

22
Black, Richard. 1997. "The Politics of Counting Refugees: Uses and Abuses of Data." Paper presented at the
National Research Council/National Academy of Sciences (NRC/NAS) meeting, Washington DC, November.
23
J. Schechtman, “Postwar Population Transfers in Europe: A Survey,” The Review of Politics, 15, no.2 (1953):
151-178
countries was used by the West as a powerful argument against communist repression. Asylum
seekers from the Eastern Bloc were gladly accepted in the West – they served a valuable
propaganda purpose and their numbers were modest (bar few instances of mass desertion, such
as in Hungry 1956 or Poland 1981).24

BIBLIOGRAPHY

A. Primary sources
1. Climate Change, Forced Migration, and International Law Book by Jane McAdam

24
Anker, Deborah, and Kate Tweedy McGrath. 1988. "The New Battleground of Asylum Eligibility.
2. The International Law of Migrant Smuggling (English, Fiona David Anne T Gallagher
David Gallagher)
3. Refugees: Why Seeking Asylum Is Legal and Australia's Policies Are Not Book by Fiona
Chong and Jane McAdam
4. Environmental Regulation Book by A.A.N. Mathieu
5. Complementary Protection in International Refugee Law Book by Jane McAdam

B. Secondary sources

1. https://definitions.uslegal.com/
2. http://shodhganga.inflibnet.ac.in/

3. https://indiacomlaw.wordpress.com/
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