Rapporteur: Juan Hernández Zubizarreta
Lecturer at the University of the Basque Country and researcher at the Observatory of Multinationals in Latin America (OMAL)
A terminological clarification
The concept of refugee and the legal framework set out in the Convention Relating to the Status of Refugees (1951) and its 1967 Protocol have obvious shortcomings.
Economic migration is assumed to be voluntary; however, this casts a veil over forced displacement. Moreover, millions of individuals and peoples who emigrate due to the climate or the heteropatriarchal and capitalist development projects and model are faced with a political, social, legal and human vacuum.
According to Raquel Celis and Xabier Aierdi:
“Forced displacement would consist of an involuntary change of a place of residence of a person or group of persons who are compelled to escape, to move away from their home, in order to protect their lives or integrity, whether or not this implies crossing the national state border. This may be due to: gross, sustained or systematic violation of human rights (including civil, political, economic, social and cultural rights); a massive violation of human rights; widespread violence; armed conflict; natural disasters or those caused by humans; and implementation of large-scale development projects.”
“Forced displacement shall also refer to that suffered by persons who have migrated for any other reason but would be at risk from becoming victims of torture, or inhumane or degrading treatment if they are returned to their countries of origin or third countries.”
Accordingly, it is necessary to look beyond the liberal approach to human rights, which restricts them to the civil and political spheres, and instead understand them as being universal, indivisible and interdependent. In other words, it is necessary to protect persons and peoples who are escaping and become forced migrants.
Looking beyond the statistics: pain and solidarity
It is estimated that there are some 1 billion migrants worldwide. Most involve domestic migration from the countryside to the cities. International migration entails in the region of 244 million persons, i.e., 3% of the world’s population.
In 2016 it was calculated that the number of forced migrants around the globe had reached almost 65.6 million. This equates, on average, to one person becoming a forced migrant every three seconds according to UNHCR’s Global Trends Report.
60% of migration in the world takes place between poor countries or between rich countries; however, North-South migration accounts for only one third of the total. Turkey, Pakistan and Lebanon continue to host the largest number of refugees in the world.
52% of all displaced persons on the planet are currently within their own borders due to violent conflict, persecution, practices of transnational corporations, natural disasters –flooding, heavy rains, etc.– and other environmental reasons. Colombia, Syria and Iraq are the biggest sources of internally displaced people.
Indeed, particularly noteworthy in this regard is the data from the Environmental Justice Atlas revealing that more than 2,100 active socio-environmental conflicts have been identified since 2012 all around the world. In addition, 260 cases have been identified in which environmental activists have been killed.
The largest proportion of refugees comes from Syria, Afghanistan and South Sudan. Substantial numbers also come from Somalia, Sudan, The Democratic Republic of the Congo, The Central African Republic, Myanmar and Eritrea.
During the first quarter of 2017, 1,200 migrants lost their lives, 664 of them in the Mediterranean in the period to 9 April. 90% of them died after attempting crossings in precarious dinghies. In 2016, five thousand people lost their lives in the Mediterranean: 2% on the southern border; 50% crossing the central Mediterranean route (to Sicily); and the remaining 48% crossing the eastern route (along the Greek coastline and the eastern coast of Italy).
More than 1.2 million asylum applications were made in the EU in 2016, 60% of them by women and children.
In this regard, Spain has only three months left to honour its pledge to take in 17,000 refugees and it has merely reached 7% of that target. Moreover, it ordered the deportation of 12,770 foreigners in 2016 and 2,252 in the first four months of 2017, indicative of the misalignment of the horror.
The Mediterranean Sea remains one of the deadliest routes having claimed over 14,000 victims since 2014. This data should not allow us to overlook the number of disappeared and dead persons on other routes, such as those that cross Mexico, for instance, in the Rio Bravo region, the Municipality of Esquipulas in Guatemala, the Sahara desert –it is nigh on impossible to determine the number of fatalities in the Sahara on account of its vast size and the difficulties entailed by tracking large areas in search of persons who are making the crossing–, the route crossing the capital of Eritrea and many others that turn the planet into routes plagued with stories of horror.
The many causes contained in the classification of forced displacement make it difficult to determine each and every one of the violated rights. It would not be over the top to state that the complete, absolute destruction of human dignity takes us back to ancient times when human rights did not form part of the everyday worldview. Violations of the right to life, the right to asylum, non-assistance of persons in danger, violations in child protection, failure to identify and protect victims of trafficking, slavery, starvation, deportation, climate change, war, systematic violence, torture, inhumane treatment, rape and harassment, etc. Moreover, the suffering of those who have lost their loved ones –with no record of those who have disappeared and no opportunity to honour them in a dignified manner– is not effectively protected by the law courts.
Nevertheless, these statistics should not allow us to lose sight of the emotional pain and destruction to millions of people’s lives when their only fault is trying to stay alive. How can so much suffering be measured? When we lose a loved one –just one person– we feel like time and space have taken on a new dimension; hence, under no circumstances do we want these statistics and analyses to cloud the true scale of what this indictment seeks to put before the PPT. It should be paramount to put a face and voice to these situations in this process; therefore, the testimonies of the refugees and migrants constitute the focal point of this indictment.
The Universal Declaration on the Rights of Peoples adopted in Algiers –a fundamental source of the PPT– stipulates that every people has a right to existence, and to respect of its national and cultural identity. Every people has the right to retain peaceful possession of its territory and to return to it if it is expelled. It also states that none shall be subjected, because of his national or cultural identity, to massacre, torture, persecution, deportation, expulsion or living conditions such as may compromise the identity or integrity of the people to which he belongs.
In times when millions of migrants move from one place to another worldwide, in the spirit of Algiers, why not put it to the PPT that they be deemed as subjects with full rights, as if they were a “new people” with transnational heterogeneous identities, a people that must be protected and endowed with rights and obligations regardless of where they live?
The reflection to which the issue raised leads us reveals a circumstance that must be taken into consideration in the PPT; namely, the fact that the Declaration of Algiers should be reinterpreted and realigned to fit in with the new transnational circumstances; and in no case should it leave forcibly displaced persons, who are ultimately the biggest losers in this neoliberal capitalist system.
- This indictment deems that the alternative use of the law is designed for all individuals who live in poverty in a world of wealth, human beings living in intolerance and discrimination, who are not considered citizens of a country, who live in an undignified manner in conditions of exploitation, extortion and abuse. It is also addressed to women and individuals in the LGTBIQ community who face the hardships of heteropatriarchal rules, male violence, work gender division, etc., boys and girls condemned and compelled to work, personas, elderly adults in circumstances involving social exclusion and precariousness, and millions of people who are unable to freely express themselves, move, eat, drink and, in short, live a dignified life. These are subjects without rights, holders of the “non-right”.
All these individuals, who are excluded from the hegemonic neoliberal project, need an alternative concept of law that overcomes hierarchies and borders, and is shaped within the general framework of trends supported by counter-hegemonic law or law from below.
- In its decision-making and in ruling in its judgments, the Tribunal bases itself on “international principles of the jus cogens as an expression of universal legal conscience” (Permanent Peoples’ Tribunal, 1979). There is thus recognition of the absolute precedence of international human rights law that is built through the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Optional Protocols thereto. This is in addition to all the declarations, conventions from the International Labour Organization, conventions, guidelines, observations and principles of international human rights law.
This indictment specifically seeks to highlight the Universal Declaration of Human Rights (1948), the Convention Relating to the Status of Refugees (1951), the Bangkok Principles of 1966, the Protocol Relating to the Status of Refugees (1967), the Convention by the Organisation of African Unity (OAU) of 1969, the Cartagena Declaration of 1984, the Guiding Principles on Internal Displacement of 1998, the Kampala Convention of 2009, the EU Charter of Fundamental Rights (2000) and the various EC directives. It is also important to underline the Convention on the Prevention and Punishment of the Crime of Genocide, the two conventions on slavery, the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, the Protocol to Punish Trafficking in Persons, especially Women and Children, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child.
- In any event, international human rights law sets out a host of principles that are solely rejected by corporate interests and re-construed to the benefit of transnational companies:
- Human rights, and the host of rules for the implementation thereof, are universal, indivisible and interdependent.
- International human rights law is underpinned by the Universal Declaration of Human Rights, along with the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and its Optional Protocols –that are part of the International Charter on Human Rights– as well as the declarations, guidelines, observations and principles adopted internationally.
- The system of sources of international law is set out in article 38 of the Statute of the International Court of Justice and is formed by general or specific international conventions, international custom, the general principles of law enshrined in the legal systems all over the globe as primary and founding sources of legal rules, and in the legal decisions and doctrine of the highest qualified jurists as ancillary sources and means for interpreting existing rules.
- In international law, custom carries the same legal weight as international treaties; indeed, customary international law is in force and is mandatory. The International Charter on Human Rights is part of it and constitutes a genuine imperative rule or jus cogens that enshrines and protects the vital interests of the international community. Moreover, according to article 53 of the Vienna Convention on the Law of Treaties, said charter stipulates that a peremptory norm is one from which no derogation is permitted and which can be modified only by a subsequent norm having the same character.
The forced displacement crisis is neither spontaneous nor circumstantial. It is linked to several structural causes that underpin the prevailing social and economic model; therefore, these causes need to be addressed at their core, otherwise the human tragedies that cause forced displacement will not be identified.
These causes are capitalism, heteropatriarchy and neocolonialism
We wish to briefly mention neocolonialism as an updated form of domination by rich countries over countries in the Global South. For the purposes of this indictment, it is pertinent to consider the fact that the prejudice faced by refugees and migrants, which –to a certain extent– forms the basis of xenophobia and racism, is founded on false statements, such as: “they take our jobs”, “they’re criminals and terrorists”, “they exploit our benefits systems”, “we’re being invaded”, etc. Among other issues, these statements fail to take into consideration current forms of neocolonialism.
The Global Financial Integrity (GFI) has calculated that if we look at all the financial resources transferred between rich countries and poor countries every year –including development cooperation funds, foreign investment, trade flows, non-financial transfers such as debt cancellation, unilateral transfers such as remittances by individuals in employment and undeclared capital outflow– they reveal an unquestionable equation: the flow of money from rich countries to poor countries is infinitely lower than that which takes place in the opposite direction. In other words, poor countries hand money over to rich countries: according to data from 2012, countries in the Global South sent 2 billion dollars more to the rest of the world than the amount they received. The GFI has calculated that between 1980 and 2012 poor countries lost a total of 13.4 billion dollars owing to capital outflow. In 2015, the 48 countries in Sub-Saharan Africa received 161.6 billion dollars from abroad and they sent 203 billion beyond their borders through repatriation of the profit of transnational companies or illegal money evasion beyond the continent.
Forced displacement has a direct association with the statistics mentioned. Can the highly patent, explicit economic asymmetry be answered by borders that divide civilisation and barbarism? Which one is which? Who owes who?
Moreover, capitalism is structurally more violent and seeks to grab “huge sums” in a very “short space of time”. Also, a very small number of people have built up astonishing wealth while poverty has spread among a large sector of the population. This is the driving force that “justifies” forced displacement.
The neoliberal capitalist model encounters huge difficulty in maintaining the expansion and reproduction of capital and embarking on a new stage of growth and this situation leads to a vicious circle of productivity, yield, investment, employment and consumption, wherein it is highly complicated to reproduce the enormous influx of surplus generated by a financialised system. In addition, as a result of the environmental crisis caused by global warming we are faced with an ecological meltdown of epic proportions. According to Tanuro, it is a silent disaster caused by climate change and the fact that the three types of fossil fuels on which the pattern of development has been based since World War II –namely, oil, gas and coal– are running out. As a result, we are faced with a diminishing material foundation on which to operate our global society and, accordingly, a major transformation of our hegemonic systems of production, consumption and social organisation.
Likewise, violence and the crisis of democracy are intrinsic to capitalism and heteropatriarchy; therefore, the power of transnational companies destroys people’s sovereignty and entraps countries and regions as if they were part of the internal organisational structure of the major corporations.
Transnational companies strive to run new forums of power and to privatise or co-opt democratic institutions. Although during the 1990s neoliberalism sought to reduce the size of the State and give markets free rein, now it champions powerful States that guarantee the profits of the transnational firms. The State is essential when accumulating capital wealth and in directing and reforming society to work for the benefit of the major corporations.
Although there are challenges in ensuring the “cake” continues to rise, and capital still wants to hold on to its avaricious rate of return, it will need to exhaust the systems for appropriating individual and collective assets.
In this context, the mechanisms used by capital to grab capital gains and maintain its profit rates escalate, extending to exploitation, expulsion by dispossession and necropolitics.
The traditional capital mechanism used to grab capital gains is still exploitation of the workforce, which takes place on both the formal and the informal markets, maintaining and heightening work gender division, global care chains and reproductive work performed by women free of charge and which –currently to a large extent in countries in the Global North– are incumbent on immigrant women. Unemployment, diminishing purchasing power from salaries, from pensions, etc., are permanent effects of the neoliberal model that places precariousness at the heart of labour relations. Similarly, this exploitation is coupled with emerging phenomena, such as job insecurity, in terms of both workers’ rights and salaries, an occurrence that is commonplace in Latin America and Africa, although to date has been less widely observed in Europe.
The global rights index of the International Trade Union Confederation of 2016 confirms the abysmal circumstances in terms of workers’ rights. Let us examine some statistics: in terms of fundamental rights at work, the Middle East region and North Africa still rank the worst in the world. In Gulf countries, most workers, and specifically migrants, are excluded from the basic protections afforded by labour laws according to the report.
According to the index, workers are excluded from the right to freedom of association in 58% of countries and they are unable to exercise their right to strike in 68% of them. One simple example is that 3000 workers were fired in Indonesia a number of weeks ago by the US company Freeport-McMoRan at Grasberg copper and gold mine in West Papua. The reason put forward by the company was that they had exercised their right to strike.
In the European Union (EU), more than 119 million people are at risk of poverty and internal migration between member countries of the EU rests on labour and social dumping. In other words, poor employment conditions are established as an essential element to competitiveness between companies and countries in the EU. This practice is widespread in sectors such as construction, transportation, the meat industry, social care and domestic work. This is at least backed up by the community directive on the posting of female workers on the context of service provision, which legalises exploitation of internal migration among workers in the EU.
Another example to illustrate our point is the multinational company IKEA. It subcontracts transportation companies to distribute its products throughout Europe and, in most cases, these companies are located in eastern countries which, in turn, hire the services of female workers from Romania, Moldova, Bulgaria, etc. While they are performing their duties, these individuals eat, sleep and live in the lorries for salaries in the region of 150 euros a month. 21st century slavery also becomes institutionalised in internal migration and is embedded within the EU.
Refugees and migrants serve a useful function for the capitalist system, as they become one of its guiding principles. They serve as a formal or informal, cheap workforce accepting insecure conditions, whose careers are formalised on a downward path with regard to workers’ rights. In addition, this workforce constitutes a symbol expressive of and heightening the war between poor people.
Expulsion by dispossession
Capitalism uses expulsion as a means of maintaining the profit rate on capital. It is what Harvey refers to as dispossession or accumulation by dispossession. Transnational companies seize natural resources and land as a business and commodification asset. It provides another way of generating capital gains and maintaining the build-up of capital. Peoples and persons are expelled from their homes and their lands in order to generate profits in agribusiness, mining, oil companies, electricity firms, etc. The large-scale acquisition of land by transnational corporations ruins local economies, destroys the region and redefines huge swathes of land as places for mining and business, leading to denationalised zones where the inhabitants are ultimately expelled.
This situation does not affect men and women to the same extent. As most women do not have legal ownership of the land –despite being the ones who work on it– they are typically excluded from decision-making forums and financial compensation which, if applicable, is paid through settlements received for being expelled from their lands. Moreover, expulsion triggers a severance from their ways of life and displacement dashes wisdom about the land and the region.
The colonial root of European policies fosters extractivism and the build-up of lands and –in European territory– it encourages commodification of life leading to expulsion from the job market, poverty and social exclusion, evictions and energy poverty. Expulsion by dispossession also rears its head in Europe. It is a global corporate logic that is spreading across the globe at varying paces and with differing effects.
People flee, move and travel within their borders and between states and continents because corporate logic and commodification of life demands displacement and expulsion. This creates new forms of slavery (for instance, on monoculture plantations in Central America and Mexico), child labour in value chains, people trafficking for sexual or labour exploitation, and many more profiles without rights.
People move because they have no other choice and some make it to our countries to find a place to live. If only migration truly involved free movement; however, the reality is that only a small number of people are able to travel freely. In addition, the impairment of the environment is triggering forced displacement due to a lack of farmland, a shortage of drinking water, flooding, bare and dead ground with no air or water, etc., caused by climate change.
This is the third decisive direction chosen by the capitalist economic system which not only involves exploitation and expulsion; it also leaves people to die. In the Mediterranean Sea people are being left to perish offshore, and in the Sahara and Sonoran deserts they are left until they die of dehydration or starvation. These are routes where there is a systematic violation of the right to protection. We cannot believe that the military and border security systems are unable to spot boats drifting secretly. This is called necropolitics: leaving someone to die due to lack of care for people who are malnourished or failing to rescue those drowning in the sea. We have sufficient arguments to corroborate that in these “non-right” areas, true crimes are being committed against humanity. People fleeing war are being left to die in supposedly peaceful regions, such as the Mediterranean Sea, which is close to a new classification of what we may refer to as “peace crimes”. The alleged lack of coordination between the Italian and Maltese coast guards led to the deaths of 268 people including 60 children; this is necropolitics, and the blocking off of immigrants offshore by the Spanish coast guard, sending them back to Morocco, led to a high number of deaths and missing people: 388 (122 children between September 2015 and December 2016); this is also necropolitics.
It is also necropolitics that a total of 44 migrants died from dehydration in the middle of the Sahara desert when they were being taken from Niger to Libya, not to mention the murders on Tarajal beach on the southern border. The deaths and disappearances of refugees and migrants in the Mediterranean Sea and the Sahara desert are well into the thousands; bodies of migrants torn apart by necropolitics. In addition, security protocols rather than victim protocols are applied to those who survive the crossings and capsized vessels; as such, they are treated as criminals instead of being granted the protection they need and deserve.
What is more, genuine international crimes are taking place due to a horrific alliance between the criminal economy and the legal economy; between the mafia economy that launders its money on the legal economy. The leaders of environmental, feminist, LGTBIQ, farmers and indigenous movements are murdered for heading up responses in defence of their lands against the big megaprojects, but people are also being wiped out solely because they are individuals that are surplus to the requirements of the capitalist economic system. Persons who are unable to consume or produce are a nuisance to the capitalist system and become human waste, as indeed Z. Bauman maintains.
Migration and the human rights crisis
The fact that the capitalist system no longer needs so many people does not mean that it is not going to continue to rely on a migrant workforce. However, this is a workforce whose rights will not be regulated on the grounds of justice, equity and equality. In certain sectors, such as construction, hospitality, domestic work and care work, migrants –cheap labour with insecure conditions– will still be relied upon in order to drive down wages and working conditions. This will unfold in a capital-induced process at the behest of governments to cause confrontation between the exploited people and poor people; between poor nationals and poor foreigners. It is a “conflict” that favours capitalism and feeds racism and xenophobia.
Furthermore, the system will keep people located in regions of “non-rights”, as is the case for instance with peddling, mule women on the southern border or prostitution. In Europe rights-free arenas having been gaining traction, such as the immigration detention centres –which entail interment of individuals who have not committed any crime–, racist raids, deportation flights, expulsions, fences and borders of horror, extra-territorial borders, people with expulsion orders, refugee camps, children abandoned in the streets, etc. These are situations of legal limbo that can involve both European nationals –in domestic exclusion processes– and individuals from other places. Prisons are a prime example of this: in the Spanish State, 120 companies employ thousands of people in circumstances of confinement with barely any workers’ rights. Another example can be found in Spanish women who are victims of male violence who often lack pertinent institutional protection, thereby making them “internal refugees” who wander their own countries fleeing violence without any rights whatsoever and left at the hands of a patently heteropatriarchal legal system, as María Naredo maintains.
European governments and EC institutions are not only doing away with and suspending rights, they are also re-shaping the profiles of those who are subjects of those rights and those who fall outside the category of human beings. This is triggering a new era in the deregulation of the international human rights system.
Miguel Urbán and Gonzalo Donaire opine that in the EU two concepts of identity are being constructed: “…identity understood in an essentialist manner, as an ethno-cultural trait divorced from history associated with a people; or identity as a civil and political characteristic which is nevertheless deemed an original, exclusive upshot of European and national tradition.” This gives rise to clear restrictions when it comes to who belongs to the European community, leading to exclusions from rights for individuals considered “non-European nationals” and it paves the way for legal exclusion, laying the programmatic foundations of xenophobia.
Lastly, we should not overlook the refugee camps, which are centres for the purposes of identification, control and expulsion. Women suffer sexual assault, rape or sexual violence at the hands of their partners, relatives, neighbours, employees of NGOs for development, and the government and security forces. These camps are arenas that are held up on the border as a worldview of war. Borders form the line separating order from barbarism, good from evil, the border that renders things invisible so that European citizens’ minds are not aware of what is happening with other human beings, with our peers.
The patriarchy is developing this trend. The welfare state has reduced the highly precarious public policies of support for reproductive work and for care work. This collapse once again impacts on women. In addition, as Silvia Federicci points out, the capitalist patriarchy offers women’s bodies to men as a substitute for the dispossession and loss of power the model creates. According to the author, during the period of primitive accumulation of capital, capitalism offered women to men as a valuable consideration for giving up land. The femicides in Juárez, Mexico City… follow this rationale.
Likewise, it is paramount to condemn the sexual violence suffered by women and children at the hands of the men they encounter on their journeys: travel companions, police officers, mafia members, etc., as well as forced marriage, genital mutilation, forced prostitution and persecution owing to sexual identity or orientation.
The architecture of impunity that strengthens the hand of major transnational corporations and the world’s rich
We are faced with a context where deals, and investment and trade agreements, are being negotiated in order to shore up the business of multinational corporations while money and items of value are confiscated from people seeking asylum and migrants who reach Europe in order to escape war, starvation and precariousness. The international human rights system and the European system for protecting it are re-construed and misrepresented, stripping them of all effectiveness in the face of the immediate, full effectiveness of investment and trade agreements and rules. Far greater protection is granted to the rights of major companies than the rights of refugees and migrants. This is the true European Union.
Equality within the framework of corporate rules: regulatory asymmetry
The lex mercatoria rests on a highly unusual interpretation of the principle of equality: transnational corporations should be treated on an equal footing to national companies; all benefits granted to domestic investors should also be extended to foreign investors. In other words, national investors cannot receive any support from the State as this would constitute quashing the principle of national treatment that has already been incorporated into most investment and “free trade” agreements and deals. However, in many cases that is essentially discriminatory and means that asymmetrical relations of power are placed at the heart of legal techniques. Indeed, an interpretation founded on equity entails treating peers equally and treating unequal parties in an unequal fashion: a major multinational company cannot be treated in the same fashion as a cooperative from a solidarity-based economy. In actual fact, clauses for positive action that favour these small enterprises are the ones that are best aligned to the principle of equality.
The same is true of displaced persons: instead of complying with EC and international regulations, a host of repressive actions and measures of containment are applied to them, preventing any kind of positive action being extended to the most disadvantaged people. This is the prevailing view of the standing that human rights should have in the world market: utmost protection for European transnational companies no matter what they do and wherever they operate –relations with dictatorships, sales of arms, plundering of energy resources and raw materials, etc.– coupled with maximum control, powerful repression and expulsion of refugees and migrants, even if they are fleeing war, starvation or environmental disasters. This is asymmetry of regulations in its purest form.
To name one example, European multinationals conducting their operations in Bolivia must be treated in the same way as Bolivian companies. This ensures that the major corporations cannot be “discriminated against”. However, refugees and migrants that come to Europe are left to die, expelled, rejected or despised. Why is it not possible for the same principle that applies to European companies to apply to them and for them to be treated in the same way as Europeans? Transnational companies unquestionably benefit from countless more rights than refugees and migrants.
Corporate legal protection and legal protection for forcibly displaced persons
On the context of the lex mercatoria, the notion of “legal security” has at its core the protection of contracts and the defence of the commercial interests of multinationals. It is a conception in which reference is made solely to global corporate law, specifically defined in the thousands of bilateral, multilateral and regional treaties, agreements and rules that have been enacted in recent decades by EC institutions and agencies, such as the World Bank, the International Monetary Fund and the World Trade Organization. Even so, legal security is an international principle that is not solely tied in with economic appraisals: genuine legal security is that which places international human rights law above global corporate law. What is happening with legal security for migrants and refugees?
Instead of complying with the Universal Declaration of Human Rights (1948), the Convention Relating to the Status of Refugees (1951), the Protocol Relating to the Status of Refugees (1967), the EU Charter of Fundamental Rights (2000) and the various EC directives, the authorities of the European Union and of the Member States discuss the fact that there is a “humanitarian crisis” and they fail to meet their international obligations. In actual fact, they are repeatedly breaking the law and engaging in practices that could be classified as international crimes.
Corporate justice for rich and poor
Trade deals and investment protection agreements offer protection for transnational companies from potentially being “expelled” from a country. This is justice for the rich which we were able to witness when, for instance, the renationalisation of the Argentinean subsidiary of Repsol began in 2012. When the Government of Argentina ordered the nationalisation of YPF, the oil company immediately engaged in a campaign of impunity: it brought legal actions to the national courts, it lodged a lawsuit against the Argentine Republic to a court in New York, it lodged another case in Madrid, it appealed to the International Centre for Settlement of Investment Disputes (ICSID) –an arbitration institution that is part of the World Bank– and, what is more, it benefitted from pressure exerted on all levels by Spain and the European Union. On the other hand, in what court can the violations of the rights of refugees and migrants be challenged? How effective would such complaints be? Why does the international human rights system afford them such weak protection? And, in Spain, what is happening in immigration detention centres? This is what justice for the poor looks like.
Transnational companies and forced displacement
Major European companies benefit from diplomatic, economic, political, legal and media support. In the Spanish case mentioned, they even managed to come up with their own Spain brand. Migrants, refugees and asylum seekers, however, meet a response from EC administration and the authorities of the Member States whereby they are stopped by fences, walls and wire; their houses are painted red and they are required to wear red wristbands if they want to be fed; they are confined in “concentration camps”; they are expelled and deported; their belongings are taken away; the assistance provided by certain solidarity organisations and people is criminalised; and there is a failure to protect children fleeing from war, starvation and climate change, a failure to protect LGTBIQ people, and a failure to protect women prisoners from all manner of sexual violence. This is a legal asymmetry of horror.
Global corporate law fuses deregulation of the obligations imposed on transnational companies with the re-regulation of their own rights. That is to say, while the rights of social majorities are deregulated when it comes to all material that is likely to be purchased or sold, the rights of transnational firms are protected with the utmost efficiency. In the case of refugees and migrants, EU administrations and the authorities of Member States “deregulate” their rights and also confine them to refugee camps and immigration detention centres, they are left to die in treacherous crossings and the international human rights system only resorts to mere soundbites calling for a solution to the “humanitarian crisis”. States are weak when controlling the abuses of transnational companies and imposing penalties upon them, but they toughen up when it comes to men, women and children who are fleeing from war and starvation.
Nowadays, in the European Union the rule of law has been replaced by the rule of capital, and the rights and lives of refugees and migrants are worth far less than the Spain brand.
Likewise, the responsibility of transnational companies is inseparable from that of the governing State, that of the host State and the rules imposed by financial economic institutions.
Transnational corporations capitalise on a system of impunity, of inequality, of asymmetry between rights. Transnational firms protect their rights by means of an entire chain of impunity that operates on a global scale: investment and trade agreements and deals; provisions, plans and rules from the International Monetary Fund, the World Bank and the World Trade Organization; operating contracts; and arbitration institutions. In other words, they have a highly complex system that shores up the rights of transnational firms lending them immunity. The questions we ask ourselves are the following: Where are the obligations of transnational firms? Who controls them? What does the Spanish government propose doing to tackle the violation of rights by companies on the IBEX 35? Are they not at all liable for the Rana Plaza collapse in Bangladesh where 1,200 people died? And what liability do the textile sector firms Mango and El Corte Inglés have? It is clear that there are alliances between governments and transnational firms; hence, international human rights law cannot compete with trade and investment law. We only have to look at the example of the immense pressure that was exerted on the Greek government to meet its debt repayment targets, completely ignoring the will of the people expressed in a referendum and compare that to the permissive stance adopted in response to the Hungarian government and the country’s referendum decision to slam the door on the tiny share of refugees assigned to the country.
The system of impunity is a direct cause of the forced displacement of people and it subordinates human rights to the rights of transnational corporations.
A number of specific references to corporate practices with regard to displaced persons in the context of the Mediterranean Sea
Military conflicts and wars: who wins and who loses?
The fight to control natural resources is essential to ensure the continued build-up of capital. The appropriation of oil, of the various ranges of minerals, gas, land, water, the construction of pipelines, etc., are significant causes in gaining an acquaintance of the reasons why millions of people flee conflict. Indeed, it is necessary to add other reasons, such as geostrategic, religious, social and economic causes, the interests of major powers, struggles against local dictatorships, etc., and it is important to bear in mind that depending on the conflict some causes carry greater weight than others.
The EU and the governments of Member States should be held accountable for the wars they have caused and assess why they intervened militarily, who benefitted from the war and who their allies are, etc.
This indictment has established two clear issues: the first is that human rights, and the rights of peoples, have not benefitted from conflict and those affected by these wars are the Kurdish people, the Palestinians, the Syrians, the Afghans, the Iraqis, the Yemenis, the Libyans, the Sudanese, etc., who are the actual losers of so much indiscriminate violence. Moreover, the cruelty with which they are received in EU countries closes the vicious circle of structural violence.
The other issue we wish to highlight is this: what do we know about military companies and the banks that fund them? The companies that are involved in the deadly bombings in Syria, Afghanistan, South Sudan, Yemen, Libya, etc., are the same companies that are capitalising on business at the borders and the fences, and who are taking part in the reconstruction of the countries they themselves have destroyed. This is a trade of horror and destruction. Many of these are European capital companies and according to the report Externalización de Fronteras (externalisation of borders) it emerges that 13 European companies are involved. It is also essential to shed light on collusion from the financial sector with the arms business in the form of shareholding, funding for exports, the issue of bonds and notes, investment funds and the granting of credit and loans to arms dealers.
Moreover, governments engage in alliances with the aforementioned companies; indeed, the Spanish government exports arms to Iraq, Saudi Arabia, Israel, Turkey, Bahrain, and so on, nurturing the war business. In addition, world military expenditure rose by 0.4% compared to last year and it accounts for 2.2% of world GDP.
The USA is still the world’s biggest spender on the military according to a report published by Stockholm International Peace Research Institute, and President Donald Trump has announced a 9.27% increase in the USA’s military budget for 2018, an injection of 54 billion dollars, the biggest increase since the 9/11 attacks 15 years ago.
The war industry has virtually limitless power: the Near East and Africa, the arms races in Asia –the region is home to six of the ten biggest arms importers–, support from the EU –particularly from France, the UK, Germany–, Russia, Saudi Arabia, etc., and the shrinking of legal and political hurdles that formerly restricted the sale of arms to enemy countries are the reasons behind the business triumph of such a destructive industry. On 7 June 2017 the Commission approved the European Defence Fund through which it expects to allocate 500 million euros to research and development of the military industry, which by 2021 will rise by 1.5 billion euros per year.
The conclusion is twofold: firstly, we demand that the international agreements be adhered to and for people fleeing war, such as refugees, to be welcomed; secondly, we demand that accountability be sought for intervening in military conflict and that controls be exerted on the business of the military industry in all dimensions.
Climate change, the extraction-based agri-food model, development cooperation and forced displacement
UNHCR deems that within 50 years, between 250 million and 1 billion people will need to leave their lands and homes owing to displacement triggered by climate change. The International Committee of the Red Cross points out that there are currently more than 200 million people directly or indirectly impacted by environmental damage. Both institutions affirm that climate change is leading to barren lands, flooding, lack of farmland and drinking water, drought, shrinking of lakes –Lake Chad has already lost 90% of its area–, shrinking of physical areas to live, etc.
The report from the Spanish Ministry of the Environment warns that 80% of the country is at risk from becoming desert this century owing to climate change. The third report on climate change in Catalonia released in late 2016 and prepared by forty scientists paints an alarming snapshot looking ahead to 2040: “everyone born this century is at risk.” “Temperatures will rise by at least 2ºC owing to a build-up of greenhouse gases. There will be 20% less water available. Droughts will be longer and more regular. There will be huge fires, although the ‘Great Fire’ will be in the Pre-Pyrenees. The sea level will rise. The Ter, Llobregat and Ebro deltas are under threat. Biodiversity will shrink. Pollution in major cities will become an epidemic problem. New diseases will emerge.”
The International Organization for Migration reports that in the past thirty years, instances of flooding and droughts worldwide have increased threefold, causing more displaced people than all armed conflicts combined. Norman Myers, a professor at the University of Oxford, predicts that “When global warming takes hold, there could be as many as 200 million people [displaced] overtaken by sea-level rise and coastal flooding, by disruptions of monsoon systems and other rainfall regimes, and by droughts of unprecedented severity and duration.” Of the 50 countries most affected by climate change, 36 are in Africa.
The capitalist economic model is causing millions of people to need to flee their homes and lands due to it being physically impossible to survive. They are poor and they have nowhere to go. Climate change affects women especially because in general they are the ones farming the land. According to data from the UN (2008) women and children are 14 times more likely to die during an emergency or disaster than men.
In other words, there are peoples and persons who suffer forced displacement that is sometimes temporary and caused by storms, flooding, hurricanes, etc; while others emigrate because environmental destruction ruins their way of life; and in some cases people are displaced owing to the complete destruction of their “traditional habitat” due to the gradual decline in natural resources.
Nevertheless, with regard to persons displaced owing to causes linked to climate change, there is a risk of diluting responsibility for these causes: “they are problems associated with the climate”; as a result, it is advisable to plainly realise that it is highly difficult to separate the various causes –war, climate change, extraction-based agro-industrial model, practices by transnational companies at the behest of governments, land grabs, food speculation, etc.– which cause environmental displacement. Changes to the climate are not unrelated to a capitalism that exerts pressure on ecosystems, water and land, and appropriates natural resources, energy, minerals, etc., causing irreparable damage to people. Two clear facts emerge from the complexity of what is described: firstly, international human rights law establishes and formally regulates protection of outsiders; secondly, the social and economic model encompasses stakeholders who are accountable for the events described and such accountability falls within the structure of impunity addressed in section three.
Extraction-based agri-food model
Climate change is not unrelated to extraction-based, pollutant and agro-industrial projects that directly expel thousands of people, forcing them to emigrate and, in many cases, leading to their deaths. In the opposite direction, as ecologist Yayo Herrero maintains, if countries in the Global South closed their borders to EU countries blocking the inflow of natural resources and the outflow of waste, European citizens would very shortly be immersed in a civil breakdown.
The UN warns of mass deaths caused by famine in the Horn of Africa, Nigeria and Yemen, the Sahel crisis, etc., that are a response to the rationale of a distant industrial civilisation unrelated to the people who live there. Food speculation, marginalisation of rural and indigenous farming in the region, grabbing of the best land by foreign capitalists, the imposition of crops for export, etc., are just some of the highly specific causes for so much forced displacement. Over the past decade, between 60 and 80 million hectares of fertile land has found itself in the hands of very few individuals, transnational companies, oligarchies, investment funds, pension funds, etc. This grabbing of land entails grabbing of water, preventing thousands of farmers from having access to it as the corporate projects are located at the sources or at strategic points on the river flows.
As Gustavo Duch maintains, seeds for intensive production, land for intensive production, water for intensive irrigation is in the hands of a few investment funds and, we shall add, transnational companies in order to intensively build-up capital and cause intensive poverty, desperation and displacement of people.
Living conditions for many African peoples are worsened, far beyond a number of violent conflicts and wars brought about by the economic powers and by the aggressive nature of agro-industrial policies promoted by African governments, foreign stakeholders and transnational companies.
The report “Honest Accounts 2017: How the world profits from Africa’s wealth” sets out the fact that the natural resources of the continent are under the control of private foreign companies that transfer most of the profits obtained out of the continent, and that those who control tax havens are allowing this theft of Africa’s wealth.
All in all, much forced displacement is directly linked to climate change and the system of impunity that protects the practices of transnational companies and both issues are embedded in the patriarchal and capitalist model.
Development cooperation should be geared to fighting poverty and inequality. At present, its exploitation for the purposes of externalisation of borders, containment of refugees and migrants, and strengthening of military systems is an evident example of malpractice that has a bearing on the very essence of cooperation policies. The EU Emergency Trust Fund for Africa approved by the European Commission at the Valetta Summit in November 2015 is a prime example of the siphoning of development cooperation: it consists of a host of actions where institutional development, economic cooperation, management of migratory flows and the diplomatic offensive on all levels meet with the primary aim of controlling the movement of people. Moreover, certain donors cut back their development programmes because they use their Official Development Assistance (ODA) budgets to cover expenditure on refugees.
This indictment deems that forced displacement cannot be approached by overlooking investment and trade policies, development cooperation policies and the military policies of the EU and the governments of the Member States, as well as the practices of European transnational companies, investment funds, etc.
The separation between forced migration and voluntary migration lost essence some time ago
Under this heading, we do not seek to claim that the causes that lead to either of the above legal categories are similar; however, the solution cannot seek to create such diverse categories that serve to open or close borders in such a random fashion. This is especially the case if the interpretations made by governments and EC institutions opt to do the opposite, i.e., if there is a de facto effort to do away with the rules protecting refugees, and migration is generalised as displacement falling outside the scope of the Geneva Convention.
Economic migration is assumed to be voluntary; however, this casts a veil over forced displacement. It is as if the current patriarchal and capitalist development model caused no “fleeing” effect, and what is highly patent is that “persecution”, as shaped from the standpoint of the EU and the governments of the Member States, is tied to a highly formal, static construal of norms and regulations, which does not make it possible to protect, or even offer an explanation for, the suffering of millions of people.
Despite acknowledging that it is a complex issue, we understand that the PPT very effectively handles the forums and timeframes for intervention; as a result, we have made a clear determination on the petition for proposals in the short-term, which address the immediate day-to-day practical needs of refugees and migrants, as well as the strategic needs, putting forward amendments to regulation systems.
From the standpoint of the legal response, changes should be demanded in the European system and in member countries in relation to the refugee, and it is necessary to call for the system to be aligned stringently to international human rights law, with the approval and incorporation into the Geneva Convention of a specific protocol on environmental refugees. Developments must be made in defining environmental refugees and the agent of persecution –State of origin, transnational companies, financial/economic institutions and governing States– that triggers people to flee owing to environmental reasons. Sweden and Finland have already recognised the figure of environmental migrants. In terms of persecution owing to gender, it is essential to re-conceptualise international refugee law, as Carmen Miguel Juan states. The five reasons envisaged in the Geneva Convention should be interpreted from the standpoint of gender.
Furthermore, rules concerning national and EC migration, such as the Spanish Immigration Act, should be radically overhauled and suited to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which is a UN treaty that seeks to protect the rights of migrant workers. As it happens, it is a convention that has not been ratified by any European country or the USA, to mention a few.
However, the most significant challenge stems from how to seek an alternative conception of law that allows all persons excluded from the neoliberal model to be fully fledged subjects in law irrespective of borders and hierarchies. This calls for a new legal instrument that would take into consideration international rules on refuge, on migration, on climate change and on control over transnational companies, entailing major amendments to the current regulatory system.
What is unacceptable is that there is still a classification of refugees into the first and second categories stated with regard to the fact that those who are persecuted owing to ethnic origin, religion, nationality, etc., deserve greater protection –at least formally– than those who are fleeing starvation, the practices of transnational companies, food speculation, the effects of investment and trade agreements and deals, extraction-based agro-industry projects, land grabbing, the policies of economic/financial institutions, etc., as they are causes that are not divorced from forced displacement. This is one of the central matters that the PPT should address.
We also call on the PPT to act on the causes that trigger forced displacement
- It is essential to modernise an international agreement in relation to which issues form part of competitive advantages among companies and which do not. Human, labour and environmental rights should not be intertwined with competitiveness, and the build-up of capital should not be at the expense of human rights.
- The alleged fragmentation of international law into separate, supposedly independent spheres enables transnational companies and corporate powers to impose the economic and political rules observed by big business on social majorities. Accordingly, the international rules are re-construed to the benefit of the dominant sectors. It is a pressing issue that we should turn the international legal pyramid on its head and we need a new code of regulations that clearly stipulates that international human rights law –including international labour law and international environmental law– is hierarchically superior to the national and international rules governing trade and investment on account of its imperative nature and as obligations erga omnes, i.e., of and for the entire international community.
We therefore demand the following:
- For the military industry to be gradually phased out, and for it to be stringently aligned to human rights.
- For the EU and Member States to control and require transnational companies, investment funds and other speculative corporations to submit their activity to stringent compliance with international human rights law.
- For investment and trade agreements and deals to adhere to international human rights law, international labour law and international environmental law, the sovereignty of peoples and the rights of farmers.
- For development cooperation policies to be aligned to international human rights law and not the “security of the States”.
- For the policies of the EU and member countries to establish as their top priority endeavouring to control climate change on a local, national, regional and global scale.
Criminalisation of international solidarity
Council Directive 2002/90/EC, of 28 November 2002, defining the facilitation of unauthorised entry, transit and residence grants Member States scope to define various crimes. This indictment does not consider that a context where people from civil society can be prosecuted for assisting refugees and migrants throughout the European continent is in fact in the spirit of international human rights law. What is more, we consider that providing assistance to those who need it, regardless of their administrative circumstances, is perfectly aligned with the philosophy of international human rights law. Helping migrants to cross borders in the current climate of repeated failure on the part of institutions and an absence of policies promoting human rights is entirely legitimate, above and beyond the legality of European and corporate powers. The Princess of Asturias Award of Concord 2017 granted to the European Union is legal and, is it legitimate?
As Emmeline Pankhurst stated in 1908 to the jury presiding over her case: “We are here, not because we are law-breakers; we are here in our efforts to become law-makers.”
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