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Rethinking Frameworks for Refugee Advocacy: An Analysis Grounded in Political and Democratic Institutions

Rethinking Frameworks for Refugee Advocacy: An Analysis Grounded in Political and Democratic... Abstract A human rights framework has become the default approach to framing advocacy for the rights of refugees. However, with the process of refugee resettlement expanding, there is a need for a framework that would help refugee advocates to conceptualize their relationship to the democratic institutions that facilitate and maintain rights-based approaches. Working through Chantal Mouffe’s distinction between liberal and democratic ideals, this article proposes a democratic framework that works as a supplement to a rights framework. The democratic framework orientates advocates towards working with other advocacy groups, media, politicians and the general public. This framework is illustrated through three key points in the efforts of New Zealand refugee advocates to achieve the first refugee quota increase in that country since 1987. Introduction The September 2016 meeting of the UN General Assembly and the side-meeting on refugees led to an announcement of if not exactly the doubled protection places, then certainly an increase in refugee protection. In the same context, many countries are also undermining the efficacy of asylum seeker law by either building fences, creating agreements with states that host large numbers of potential asylum seekers or patrolling international waters and preventing asylum claims being made. This article describes how refugee advocates and activists in countries with refugee-resettlement populations might conceive of a framework for increasing the number of refugee-resettlement places available by drawing on deepening democratic processes. The first half of the article uses the work of Chantal Mouffe to argue that rights-based approaches are of limited efficacy when attempting to convince governments in democratic countries to increase refugee quotas. The second half of the article uses examples from a campaign in Aotearoa/New Zealand that successfully led to an increase in the refugee quota as elaboration on how a framework based on democratic processes and institutions might offer hope in situations where rights-based approaches have become less effective. I will argue that a focus on a democratic framework drawn from the work of Chantal Mouffe will help advocates engage with the necessary politics of resettlement. I use Mouffe’s framing of the tension between democracy and liberalism to bring out a framework based on exclusions, inclusions and representation. This framework—drawing on the power of media, public representatives and advocates—is a case for engaging in the politics of refugee resettlement. Rather than framing politics as irredeemably corrupt or cynical, I argue that a reliance on the moral assertion of rights—particularly when refugees are not receiving adequate protection through asylum-based judicial processes—leaves the political realm to those very people who most oppose refugee rights. My argument is that a democratic framework is at once the bedrock upon which a rights-based framework develops, as well as that framework that protects rights from erosion. To illustrate what a democratic framework looks like, I describe three stages of the Doing Our Bit campaign to increase New Zealand’s refugee-resettlement quota. These stages highlight the interplay between media, other advocacy organizations, public representatives and the general public in coming to a collective understanding of whether New Zealand should do more. An engagement with the politics of refugee resettlement comes with no guarantees of success—as with all political matters, risk is inherent in the project. However, without a framework to orient refugee advocates towards the political processes at work in our communities and societies, we have already ceded the political contest. A Democratic Framework for Refugee Protection The tension between the universal claims of rights and the state mechanisms of enforcing and realizing these rights is one of the key political, legal and philosophical challenges for both scholars and activists. While nation states sign up to international laws on refugee protection that reflect the universal character of rights, in practice, these laws do not offer universal sanctuary. Instead, nation states focus on protecting borders as a security rather than rights issue, preventing those fleeing conflict from realizing their rights (Haddad 2008). Drawing on Shore (1993), Haddad notes how the securitization process is at once about genuine fears of terrorism in the post-Cold-War environment, but also about defining and shoring up the group identities of those inside the borders. In this article, I will focus on how democratic, rather than rights-based, forms of refugee advocacy can be deployed to create more protection places for those fleeing state persecution and war. I am not drawing out a new theory of the relationship between the refugee and the nation state, but offering a suggestion for how scholars who are also advocates might think about where and how to focus their attention. As Haddad (2008) asks, if nation states are actively compelled by their populaces towards internal issues, why do they continue to offer protection to refugees? She explains this tension by reference to a conflict in interpretation between the English School and a constructivist approach to understanding the nation-state system. Haddad draws out the reifying problematic of the English School as, with any descriptive system, it tends towards reification: the more people refer to and work through a state-centric approach, the more the state is legitimized as the recourse for all actions. She augments the English School approach with a constructivist approach that seeks to highlight the contingent and blurry nature of borders and those people living astride them. The refugee, in this approach, is the result not of an erroneously functioning nation state, but of the very system that forces hard borders across malleable peoples. Concluding on the way ahead, Haddad writes that ‘even while admitting that states are the root cause of the creation of refugees, we must seek responses within the boundaries of nation states’ (2008: 203). These responses, more often than not, focus on extending the rights of citizens to the refugees, even if those rights are temporary forms of protection. The main outlier noted by Haddad is the work of Gibney (2004), who argues for recognizing the structure of the modern state as one that can be influenced by democratic processes. He suggests extending resettlement quotas as a means to gaining more public acceptance of asylum seekers via a principle of humanitarianism. This article seeks to describe and expand upon the democratic processes within nations where similar protections might be reached, albeit via a different set of strategies and tactics. A focus on a democratic framework is not in stark contrast to a focus on expanding human rights and would essentially reach the same protection outcomes, albeit via a different strategy. The benefit of considering a democratic framework is two-fold. First, as with the constructivist approach, it offers a broad approach less open to legal expertise or the caprice of a state that is benevolent, if not representative. Second, a democratic framework is decentralized, recognizing the legitimacy and longevity of ideas as based on accepted norms by communities and nations that have shared common understanding on the need for refugee protection. While a democratic approach might draw on the rhetoric of universal rights, these rights are not necessarily relied on as first principles that must be accepted by all—instead they are one tool of argumentation among many. Refugee Protection in New Zealand Democratic processes can be contrasted with the more traditional rights-based approach that leads to asylum seekers being accepted for protection. The asylum-seeker determination procedure is the basis for the initial framework of rights for people seeking asylum. That procedure consists of the legal apparatus that deals with asylum claims and appeals answering to a state’s obligations under international law, specifically as signatories to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. In New Zealand, for example, the rights of those claiming asylum are to be assessed by the Refugee Status Branch of Immigration New Zealand with appeals going to the Immigration and Protection Tribunal. The apex of a rights-based system is this appeal to a judicial authority that weighs cases based not on the interests of the country, but on the law as it applies to a particular case. Additionally, it is reasonable to see why those same frameworks are imported into countries where asylum seekers have been accepted and refugees are resettled under a UNHCR (United Nations High Commission for Refugees) quota system: just because refugees are given residency and a path to citizenship, it does not mean that they are also given the same access to basic rights (see Marlowe et al. 2014). A rights-based framework has been developed in the last decade to help make up for the inadequacy of service provision in countries like New Zealand (see Marlow and Humpage 2016). For example, access to those services requires additional services such as interpretation or even the dissemination of basic information that allows resettled and accepted refugees to know what they are entitled to. As with international development and aid, the aim is to move from a discourse where the state is the benevolent entity that gifts welfare to one where the state is seen as an institution that has been developed through struggle for rights and those rights are then protected through legislation. The procedure for the protection of people as asylum seekers is dependent on their ability to cross an international border and make a claim on a signatory to the UN Convention. Some countries—such as New Zealand, Australia, Canada and the United States—find themselves removed by large bodies of water from the conflict zones that are the principle source of refugees. As such, even though refugees are offered protection if they make it to these geographically removed countries, they are prevented from doing so either by oceans or by the pre-screening requirements imposed on airlines. These geographic and pre-emptive travel restrictions mean that people cannot make a claim for protection despite the supposed universal reach of these rights. The creation of refugee-resettlement quotas is one means of allowing countries that are far removed from conflict zones to welcome a fair proportion of refugees. There are significant differences with the determination procedure for resettlement of refugees as opposed to that for asylum seekers. As potential resettlement refugees are outside of their country of origin, the UNHCR assesses them in the first country of asylum, though these countries have either not signed the UN Convention on Refugees or are unwilling or unable to integrate the refugees they currently host. The UNHCR decides whether they qualify first as refugees, and then they try to match the most vulnerable of these people with the requirements of resettlement countries. New Zealand, for example, takes the majority of its refugees from the Asia-Pacific region and will not resettle refugees currently in Africa and the Middle East unless they already have family in New Zealand or are part of a specific emergency quota outside of the general protection categories (Beaglehole 2015). From a legal perspective, at the time when refugees deemed needing resettlement are referred to a resettlement state, there are no requirements for the resettlement country to accept the people put forward by the UNHCR. This lack of obligation makes for a gap in the efficacy of rights-based frameworks to offer protection: at this point in the process, there are no legal entities to appeal to or that would function as a state that would provide the economic, social or cultural rights as identified by Geiringer and Palmer (2007), even though the country of first origin is still required to protect some basic freedoms from persecution. In addition to this particular lack of a legal entity to claim against (as it applies to refugees deemed legitimate by the UNHCR but not yet accepted by a resettlement state) as states decide on the quantity of resettlement places that they will offer, there is also a more general lack in the ability of a rights framework to respond to changing international circumstances such as a significant rise in refugee numbers. For example, while the number of asylum-seeker claims for protection via a rights-based framework is determined by the number of displaced people who have crossed an international border (even if a state has not signed the 1951 Convention, there is still the potential for a rights-based claim based on the asylum seekers’ presence in the country), the number of refugees resettled under the UNHCR quota programme lacks the same kind of responsiveness. The problem with the current approach is not simply that there are both general and particular lacks of the rights-based framework. Instead, states that do not have a strong institutional commitment to the protection of refugees within their democracy actively seek to create the conditions whereby these lacks are fissures whereby they can avoid responsibility for non-citizens. If, in contrast to the current system, states were interested in providing protection to refugees, then we would see far fewer restrictions on travel for citizens from refugee-producing countries. The aim of including a democratic framework is not to require asylum-seeker cases to be determined by election or majority, as per Gray’s (2016) analysis of Ancient Greece, where individual cases for asylum would be decided upon by the demos. The democratic framework is a supplement to the rights-based framework that would continue to use legal institutions to determine asylum cases. One of the most appealing aspects of a rights-based approach is that the judiciary acts as a final and decisive authority that can discard frivolous or weak cases out of hand, thus leaving the public forums for what they deem genuine cases to be. I would argue that such a system is fine for the instrumental aspects of an asylum-seeker determination process. The democratic framework is more about shoring up the public legitimacy that guarantees these legal institutions will not have the laws that they are based on suddenly changed or rescinded. The aim of invoking democratic institutions is to focus on collective meaning making through deliberation and disagreement rather than as nation states reduced to the play-off of predetermined interests. Hathaway (1991) has described the challenge of bringing international law and practice on refugees together and, though his approach stresses working with nation states’ self-interest, he ultimately describes this process as reframing the legalistic side of international law in a human rights framework. My approach sees less self-interest at the heart of the nation state and stronger commitment to liberal ideals, which are the very category Hathaway sought to strengthen. Concomitantly, I also focus more on the creation of support within the nation state for increased refugee protection in contrast to Hathaway’s conclusions on reformulating international organizations for refugee resettlement. In highlighting this democratic framework for refugee advocacy, I do not intend to contest the basis of the rights-based approach to either international law on the rights of asylum or the function of that framework within either the juridical sphere or more broadly as a liberal ideal. The aim of introducing a democratic framework is to highlight a gap that occurs if rights frameworks alone are considered for refugees without an investigation into the multifarious ways in which democracies legitimate the ideas that sustain rights. A democratic framework is particularly important where refugee issues are linked to institutionalized quotas rather than as a juridical response to the agency of an individual or family that is seeking asylum. By contrast, both Gibney (2004) and, as a response to Gibney’s book, Betts (2005) discuss asylum and democracy, giving attention to how liberalism and democracy function for resettled populations rather than on how democratic institutions can lead to an expansion of resettlement places and protection. Caloz-Tschopp (1997) shows how the reverse of this article is also true: without a strong rights-based judiciary, citizens’ own democratic rights can come under fire. As New Zealanders recently experienced with their own imprisonment alongside asylum seekers on Australia’s Christmas Island, the detention of asylum seekers is the canary down the mine of an expansion of a securitized military-prison complex that will also, in turn, undermine and erode citizens’ rights (see Barnett 2015). As observers of the Asia-Pacific region have seen in the diminution of the Australian Government’s protection of asylum seekers who arrive by boat, in some cases, even when a human rights framework exists, it sometimes cannot guarantee even the minimal legal standards (as described by Ife and Fiske 2003) when contrasted with the power of the state to make law. Even if a breach of rights can be challenged in courts, the government has the executive power to make retroactive legislation that makes what was illegal legal (see e.g. Australia’s Migration Amendment (Regional Processing Arrangements) Act 2015). While some might argue that a government that pays so little heed to the rights of people will soon be voted out by the people it is said to represent, the continued governance of the Australian Liberal Party from their 2016 re-election shows just how precarious those arguments are. If we instead highlight the irrational and complex character of popular sovereignty, derived not just from the irrational and complex character of populations, but also from the range of argumentative strategies that legitimate particular worldviews, then we are able to engage with democratic frameworks without seeing the loss of an election by an established power as the outcome of breaches of rights. In the current context, much of Europe appears to be attempting to create an artificial distance from conflict zones in the same manner as the ocean works for the countries of North America and Australasia. By blocking the borders between Turkey, Greece and South-Eastern Europe, while simultaneously arguing for the establishment of quotas, these European nations are pre-emptively weakening the ability of asylum seekers to make a claim under the UN Convention in the same way as restriction as to who can get on aeroplanes restrict refugees from North America and Australasia. The weakening of the ability to make those claims also weakens the rights-based framework as an overarching principle, whether it is the first one or part of series of principles that would create a more robust framework. Chantal Mouffe and a Democratic Framework for Refugee Protection Before discussing how a democratic framework might function when put into practice, I want to situate the human-rights-based framework as part of a broader political philosophy of liberalism, and in the tensions between that liberalism and democracy in the work of Chantal Mouffe. Mouffe (2000) frames The Democratic Paradox as an inquiry into the nature of modern democracy (p. 1). Her enquiry takes the form of contrasting democracy as a form of governance based on popular sovereignty against the symbolic framework within which this governance is exercised. The importance of highlighting the symbolic framework that exists around democracy is that it highlights the impossibility of providing a definitive guarantee for the legitimacy of democratic rule, in keeping with critiques of the potential for a transcendental authority. Democracy is, in short, only as strong as the ideas that it coalesces around. The symbolic framework that Mouffe sees as structuring modern democracy is that of liberalism, hence what she described as the current hegemony of liberal-democracy. She writes: The novelty of modem democracy, what makes it properly ‘modem’, is that, with the advent of the ‘democratic revolution’, the old democratic principle that ‘power should be exercised by the people’ emerges again, but this time within a symbolic framework informed by the liberal discourse, with its strong emphasis on the value of individual liberty and on human rights (Mouffe 2000: 2). Modern democracies are liberal in so much as they are hyphenated in an alliance that is contingent on the political development of the West. Ancient Greece, as the birthplace of democracy, for example, existed without the liberal values that pervade modern democracies. Those liberal values are expanded upon a page later to include ‘the rule of law, the defense of human rights and the respect of individual liberty’ (Mouffe 2000: 3). In contrast to liberal values, the values of a democratic framework are ‘equality, identity between governed and governing, and popular sovereignty’ (Mouffe 2000: 3). Mouffe notes that many modern conceptions of democracy tend to dissolve the role of popular sovereignty—that is, the rule of the people by the people—in favour of seeing the state as the form that passes and enforces laws in the name of human rights. For Mouffe, the lack of focus on popular sovereignty in conceptions of democracy leads to a deficit whereby allegiance to democratic institutions is eroded—a concern similar to that expressed by Geiringer and Palmer (2007) in their discussion of a rights-based framework in New Zealand. Specifically, Mouffe (2000) is discussing the kinds of austerity politics favoured by neo-liberal thinkers that—under the guise of need—undermine the institutions that preserve and expand democracy. One such institution would be the university, which Mouffe would suggest is being changed from an institution that might focus on the creation of critically engaged citizens to one that trains employees for the jobs that might or might not await them. We might also consider reductions to services as diverse as public broadcasting, libraries and mental health services. Mouffe describes the fraught history of partisans of both liberal and democratic theory and how they have sought to define the other in terms of their own agenda. In contrast to the pull to enjoin liberalism and democracy as a sort of historically necessary liberal-democracy, Mouffe shows how the concepts rely on antagonistic relationships of inclusion and exclusion. ‘Democratic logics,’ she notes, with reference to Carl Schmitt, ‘always entail drawing a frontier between “us” and “them”’ (Mouffe 2000: 4). This necessity for a frontier is based on articulating those who are part of the demos and those who are outside of it. Democracies do not just exist as the boundary between places, but their function is made concrete through institutions: people can go to school, vote or work only if they are a citizen or permanent resident. Though these democratic institutions include the central decision-making powers of the nation state, they also seem to extend to all institutions of a nation from government departments to schools and health providers. Though Mouffe never really goes into great detail on whether any of these institutions are more important than others, she does make the claim that the present age is one in which these institutions are not flourishing. These democratic institutions need protection, she notes, before their reach can be extended, or returned to levels before neo-liberal demands of modernization, flexibility and individual responsibility. In contrast to the containment of democracies to a people, liberalism is based on a universalism—for example, human rights are rights that extend to all people and cannot, at a normative level, be limited to a people or an institution of state. Within liberal theory, neo-liberal economic policies are an example that claim universality: capital, and—if the particular neo-liberal author is particularly wedded to ideological consistency—people, should be free to flow across borders and any laws against those movements are seen as unjust. Mouffe notes that, in the present day, the neo-liberal economic form of liberalism has become ascendant while the liberalism of human rights and the free movement of people lag. In a move that might foreshadow how a democratic framework for refugees might be theorized as interacting with a rights framework, Mouffe describes the democratic and the liberal as systems that are contaminated with one another. Contamination, she stresses, means ‘that once the articulation of the two principles has been effectuated—even if in a precarious way—each of them changes the identity of the other’ (Mouffe 2000: 10). In other words, neither liberalism or democracy remains a pure theoretical construct but, in practice, both assume forms that may seem to run against the core notions of either category. This interplay of liberal-democracy, she asserts, is today’s status quo. Liberal-democracies have been naturalized and are seen by the majority as simply the way things are, without any valid alternatives. This was the case at least in 2000, when The Democratic Paradox was published: an age characterized by a third way that she describes as ‘no more than the justification by social democrats of their capitulation to a neo-liberal hegemony whose power relations they will not challenge’ (Mouffe 2000: 5). From this productive tension between democratic and liberal impulses comes a focus on two other aspects of political frameworks that can help in understanding how rights-based and democratic frameworks might also coexist. The first aspect is how Mouffe discusses antagonism as the basis of politics that cannot be dissolved. Where people insist on consensus or conformity, there will simply be more resistance that coalesces around those who feel excluded from the process of seeking agreement. The best that we can hope for in political relationships is an agonistic relationship, where groups first accept the right of alternative views to exist, all the while pushing strongly for that which they believe to be the best view (Mouffe 2005,, 2013). The role of agonistic pluralism in Mouffe forms a similar synthesis of positions under a democratic framework to refugee resettlement. For example, in Mouffe’s work, agonistic pluralism is a theoretical response to the shortcoming of the exclusions created from attempts to push for a genuinely deliberative form of democracy; but the deliberative form of democracy, in turn, came about as a normative response to interest-based forms of politics where a plurality of groups argued for their position without the richer democratic form of a search for shared interests and common solutions. The second aspect of Mouffe’s framing that will help mediate the relationship between rights and democratic frameworks is her emphasis on paradox. In the foreword to The Democratic Paradox, she explains that she highlighted the idea of a paradox because this was the part of her work that rationalist thinkers of politics and first principles struggled with the most. She writes: It was while reading these texts again for publication that I realized that, albeit in different ways, all of them [rationalist political theorists] were highlighting the paradoxical nature of modern liberal democracy. Since the distaste for paradoxes is widespread among the rationalist thinkers with whom I am arguing, I decided that this was the aspect of my current work worth emphasizing (Mouffe 2000: xii). Paradox, contradictions and tensions are all hallmarks of the kind of thinking broadly termed post-structuralism and which Mouffe’s work broadly fits into, albeit with a commitment to post-Marxist political philosophy. Mouffe’s commitment to drawing out the paradox hidden in the hyphen connecting liberal-democracy is an example of some of the more productive aspects of a poststructuralist reading of a text. The point of finding these paradoxes is not just an intellectual game, but to illustrate the limits of the language and concepts that we regularly deploy as if they will never change. Highlighting these tensions is useful to show the shortcoming of reductive, rationalist arguments on how politics does or should function. Indeed, I doubt many people would argue that the current world response to immigration, refugees and national borders is proceeding along rational lines. Contrasting the universality of liberal commitments to human rights-based frameworks with the popular sovereignty of a democratic framework does not undermine the rights-based framework, but emboldens it by connecting it to the broader context that is ultimately required to legitimate human rights. That contrasting is not in search of a first principle, but has learned the lessons of how a search for first principles can tend towards the construction of grand theoretical edifices. Those theoretical edifices, like the high language of protecting the rights of the displaced, often have little relation to the everyday, popular positioning of ideas-in-conflict that go towards determining the messiness of a representative democracy. A Democratic Framework for Refugee Advocacy The most banal reading of the concept of democracy sees it as the outcome of a popular vote, stripped of the institutions of media, advocacy or any form of education or communication. A democratic framework emphasizes these broad institutions of civil society, from public schools that are tied to government funding, through to economically independent media and advocacy campaigns as well as the public spaces that prefigure the possibility of future grassroots democratic movements. Mouffe (2000) argues that, in the present neo-liberal situation, the strategic task for those interested in democracy and liberal values is to defend democratic institutions rather than push for the extension of those institutions into wider spheres. Though Mouffe does not go into a lot of depth naming or limiting what these democratic institutions are, the framework I advance will draw from four types of organization: pro-refugee advocates, media, politicians and a general public. I link these organizational types together in a chain of advocacy that expresses the longest possible route to securing the protection of refugees within a democratic framework. That chain runs as follows: (i) pro-refugee advocates (ii) need to use media (iii) to convince a general public (iv) to convince public representatives (v) to increase refugee-resettlement places. One can imagine the shortest route possible where a public representative simply increase the refugee-resettlement places as a country’s population or capacity to help grows. What makes these cited institutions democratic is not that they function in a more or less democratic manner—via popular sovereignty or representation, for example—but that they participate in the process of creating and sustaining meaning over public space. A democracy in this sense is as much about communication and education as it is about voting. Descriptions of these democratic institutions should not surprise pro-refugee advocates, as many are already active in working with most, if not all, of these groups. The point of highlighting a democratic framework is not that refugee advocates are not already busy advocating for refugees with and against these institutions. Instead, the point of the framework is to highlight work with these institutions as part of an overarching framework rather than as something that happens with the vague intention of bolstering refugee rights. While rights-based approaches are normative and even aspirational, it is because they are theorized in relation to duty and law that they cannot offer a theory of how change occurs via democratic institutions any more complex than a demand for rights. That demand for rights is an important narrative for making claims on democratic institutions, but they cannot subsume those claims: when public representatives ignore the narrative of rights that must be recognized, advocates need a range of other techniques to offer more protection places for refugees. I will use the New Zealand situation to describe how the democratic framework for refugee resettlement could function to push for equitable resettlement outcomes. In New Zealand, a campaign was started in 2013 to achieve the first increase in New Zealand’s refugee quota since it was established in 1987 (see Beaglehole (2013) for more depth on the specifics of the quota, its history, regional makeup and other background). The campaign operated through the lens of a democratic framework with particular emphasis on a communication strategy that would link my work with the four groups (i) to (iv) above, with the intention of achieving (v). The stated goal of the campaign was to double the refugee quota: at the beginning of the campaign, this aim seemed ambitious, though justified; today, the aim has been adopted by many major political parties and has been described as the ‘bare minimum’ (Edwards 2016) that should be done. To bring this framework to life—outlining the conflicts and contingencies—I offer three readings of particular points in the campaign to double New Zealand’s refugee quota where this framework of democratic institutions was useful. Before beginning, it is worth reconsidering Ife (2001) notion that a rights-based approach provides a minimum of protection, but not the optimal amount. I would like to extend that comparison to an analysis of the current refugee-resettlement work as described by Elliott and Yusuf (2014), who use the concept of social capital to describe the network or relationships that allow successful resettlement, invoking neighbourhoods, schools and religious institutions as the sites where an atmosphere of successful integration can be developed. In contrast, a democratic framework also seeks to develop social capital, but not at the level of one community—like the Somalian one studied by Elliott and Yusuf (2014)—but in terms of the broader public opinion as formed by an intersection of media, activists and advocates as well as politicians, and even celebrities and artists. I begin with the plan from the first month of the campaign, then move to the first pressure point of the 2014 election and finally to the 2016 quota review. June 2013: In the First Month The Doing Our Bit campaign to double New Zealand’s refugee quota began in June 2013. Starting with no funds and no established media presence, the campaign had little in the way of bargaining power. At this point, the campaign was functioning as a way to do justice to people featured in the Anjirak Afghan Archive—a collection of abandoned photographs of refugees in Iran that I had found on my travels some years before. I saw the campaign as a long overdue correction to New Zealand’s back-pedalling quota that was sure to be righted once the relevant authorities knew about it. In terms of the democratic framework noted above, I formed (i) a pro-refugee advocacy organization called Doing Our Bit to use the (iii) public exhibition as a way to achieve (ii) media coverage that could also discuss the quota level which, I hoped, would (iv) lead to politicians (v) increasing the refugee quota. That approach was the best-case, shortest of all possible routes approach to a democratic framework, which would rely more on the goodwill of political actors than could be reasonably assumed given the quota had not increased since 1987. It was with the fury that only a novice activist can muster that I greeted—a month into the campaign—a press release from the Immigration Minister that informed us they were pleased to announce the refugee quota would stay at the same level (Woodhouse 2013). September 2014: Election A year into the campaign, it became very clear that the government did not intend to simply listen to pro-refugee advocates and increase the quota on their own steam. The 2014 general election meant that media were looking for stories to run and questions to ask politicians. As an exercise in representative democracy, it is also the chance for voters to hold politicians to account through the simplest means possible: voting them out of power. As I have been at pains to stress, the democratic framework is not intended to function at such a singular level of voting, but is intended to harness the power of the democratic institutions that surround party politics. As such, the 2014 election offered a possibility to achieve new policy from the government, as well as opposition parties, and to make the refugee quota an issue that was part of the national dialogue. The 15 months between the start of the campaign and the 2014 election saw a change in the campaign’s approach to the democratic framework. While Doing Our Bit remained (i) the only pro-refugee advocacy group campaigning for a higher quota, we had (ii) published commentary in alternative media independently of the exhibition as well as built our social media presence up to 2,000 Facebook likes and Twitter followers. This presence validated the campaign and led to both of New Zealand’s two largest newspapers also accepting opinion editorial content from the campaign. Though no (iii) surveys had been conducted at that point on public sentiment towards refugees, we had (iv) succeeded in meeting with six opposition members of parliament from both the Green and Labour Parties, as well as using a scandal about rich businessmen paying for access to cabinet ministers to pressure the Immigration Minister into meeting with the campaign. While the ruling National Party (v) did not offer to increase the refugee-resettlement intake at that point, the opposition and second largest party, Labour, announced that, if elected, the quota would grow to 1,000 places. That policy matched the policies of the Green Party and United Future. The result of the election saw the ruling National Government returned to power. June 2016: Triennial Resettlement Quota Review After the 2014 election, it appeared that there would not be any points to pressure the government before the June 2016 triennial quota review. Our initial strategy was to reduce campaigning to a few social media posts to keep up our engagement while waiting until October 2015 to start pressing for an increase at the review that would be announced nine months later. However, during 2015, there were two big changes to the advocacy for a larger refugee quota, both dealing with (i) the number of pro-refugee advocacy groups supporting the quota being doubled. First, Amnesty International Aotearoa New Zealand and ActionStation joined the campaign in February 2015. When Amnesty joined the call to double the quota, we also joined their campaign for a one-off emergency intake of Syrians above the quota. In September 2015, as a result of the movement of people into Europe that northern hemisphere summer and the publicity around the drowning of Aylan Kurdi, many more groups including mayors of every major city, our largest non-governmental organizations (NGOs), celebrities and opinion shapers from the media joined the ask to double the refugee quota. This led to (ii) a surge in media coverage that was not only connected to the problems in Europe, but also about New Zealand’s inaction on the quota. There were (iii) also planned and spontaneous protests and vigils that, along with polling in July, showed a majority of the public sympathetic to at least a small refugee quota increase. Finally, with (iv) the opposition Labour Party suggesting they would increase their quota to 1,250, the government (v) offered 600 additional places over three years. The pressure from 2015 led me to (i) turn Doing Our Bit into a charitable trust that received funding, allowing me to work full time on the campaign for six months. In that time, the organization paid for a range of advertising material and I travelled the country holding public meetings on the quota. By the review in June 2016, there was a sense of (ii) media saturation around the quota that led to UNICEF suggesting that there had been too much focus on the quota and not enough on aid to countries hosting refugees around Syria. At this point, we had also grown our Facebook audience to 10,000 while maintaining high engagement. In a Research NZ survey in October 2015, the (iii) public had shown that they were in favour of the one-off emergency increase and wanted another larger intake. A 20,000-strong petition to double the quota was collected by ActionStation in partnership with Doing Our Bit and Avaaz. Even though the government did not consult any organizations on the quota review, the public and advocacy groups were organized through an Amnesty International mock select committee hearing (iv) sponsored at parliament by one of the government’s support partners, United Future. In June 2016, (v) the refugee quota was increased to 1,000, with opposition parties Labour and the Greens creating policy to take it to a minimum of 1,500 if elected at the 2017 general election, with public discourses of tripling and quadrupling the quota becoming more common with both political commentators and civil society (see Mau 2016). Commentary The campaign to double New Zealand’s refugee-resettlement quota outlines the many interconnected parts of a democratic framework to understand advocating for greater refugee protection. This overview offers a much-needed parallel framework that acts to both augment and buttress a rights-based approach. Where the rights-based approach is useful for the protection of asylum seekers and to advocate for resettled refugees access to services in their new countries, its reliance on the normative discourse of rights highlights a moral dimension to the detriment of a political dimension. That political dimension key to the democratic framework is defined by the antagonism of politicization. This antagonism can only be avoided by a quietude that cedes public discourse to the opponents of human rights and democracy. The political dimension needs to be oriented towards a discussion of both fair and optimal intake of resettled refugees in addition to the protection of the minimum standards offered in a rights-based approach. If these aims seem overly ambitious, then it is worth considering whether that is because a commitment to rights is only defensible among educated liberal elites or whether any political struggle seems ambitious at the outset. Without attempting to achieve collective gains in refugee protection by considering the potential of a democratic framework, then we will never know just how far concept of hospitality and protection might extend with the public, especially when linked to a rigorous determination procedure for asylum seekers. Where a rights-based approach functions through drawing on the power of the judiciary, law and moral suasion, the democratic framework draws on advocacy organizations, media and public representatives to participate in the messy and antagonistic political sphere. While it might be possible for the protection of refugees to be advanced, simply leaving the democratic institutions to function without advocacy, the same could be said of the rights-based approach. Why should democratic or liberal spaces be devoid of conflict when, as per Kenny (2010) and Ife and Fiske (2006), these conflicts are how non-elite, civilian actors can access justice? Both Mouffe’s theory and the New Zealand example show the importance of advocacy groups to take up the challenge of representing fairness and human rights and engage with all democratic institutions. While human rights are a part of the liberal worldview as per Mouffe’s analysis, their defence requires institutions value these views. As Geiringer and Palmer noted, if the work is not done to ensure the democratic legitimacy of these values, then the basis for the values to be claimed as a right will be lost. The task of pro-refugee media, politicians and advocates is clear: continue to advocate for greater protection of refugees through the oft-vexing task of struggling for better representations of refugees and fairer refugee protection. The task for those who work with refugees—especially those funded by public monies—and who have mostly relied upon a rights-based framework is perhaps harder. Their participation in a democratic framework requires that they protect their access to the funding that allows them to exist without allowing the potential threat to that funding to stop them from publicly advocating for both the rights of refugees already here as well as those yet to come. If the New Zealand example has given us any insights into that precarious situation, it is that the stronger and more numerous pro-refugee advocates are who are pushing for higher quotas and more public acceptance, the easier it is for refugee service providers to come out as a moderate voice that nonetheless backs the calls of pro-refugee advocates. References BARNETT T. ( 2015 ) ‘NZ Blind to Aussie Detention “Gulags”’, NZ Herald, http://www.nzherald.co.nz/opinion/news/article.cfm?c_id=466&objectid=11522014 (accessed November 2017). BEAGLEHOLE A. ( 2013 ) Refuge New Zealand . Dunedin : Otago University Press . BEAGLEHOLE A. ( 2015 ) ‘New Zealand Has Long Had a Mixed Record on Refugees’, Dominion Post, http://www.stuff.co.nz/dominion-post/comment/71803691/new-zealand-has-long-had-a-mixed-record-on-refugees (accessed April 2017). BETTS A. ( 2005 ) ‘Book Reviews: The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees’ . Journal of Refugee Studies 18 ( 4 ): 492 – 494 . Google Scholar Crossref Search ADS CALOZ-TSCHOPP M. ( 1997 ) ‘On the Detention of Aliens: The Impact on Democratic Rights’ . Journal of Refugee Studies 10 ( 2 ): 165 – 180 . Google Scholar Crossref Search ADS EDWARDS B. ( 2016 ) ‘Political Roundup: Increasing the Refugee Quota to 60,000’, NZ Herald, http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11657794 (November 2017). ELLIOTT S. , YUSUF I. ( 2014 ) ‘‘Yes, we can; but together’: social capital and refugee resettlement’ . Kōtuitui: New Zealand Journal of Social Sciences 9 ( 2 ): 101 – 110 . Google Scholar Crossref Search ADS GEIRINGER C. , PALMER M. ( 2007 ) ‘Human Rights and Social Policy in New Zealand’ . Social Policy Journal of New Zealand 30 : 12 – 41 . GIBNEY M. ( 2004 ) The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees . Cambridge : Cambridge University Press . GRAY B. ( 2016 ) ‘Exile, Refuge and the Greek Polis: Between Justice and Humanity’ . Journal of Refugee Studies 4 ( 2 ): 1 – 30 . HADDAD E. ( 2008 ) The Refugee in International Society: Between Sovereigns . Cambridge : Cambridge University Press . HATHAWAY J. ( 1991 ) ‘Reconceiving Refugee Law as Human Rights Protection’ . Journal of Refugee Studies 4 ( 2 ): 113 – 131 . Google Scholar Crossref Search ADS IFE J. ( 2001 ) ‘Local and Global Practice: Relocating Social Work as a Human Rights Profession in the New Global Order’, Eileen Younghusband Memorial Lecture, IFSW/IASSW Biennial Conference, Montreal. IFE J. , FISKE L. ( 2003 ) ‘Institutional and Residual Conceptions of Human Rights’, presented at the Activating Human Rights and Diversity Conference Byron Bay, NSW. IFE J. , FISKE L. ( 2006 ) ‘Human Rights and Community Work: Complementary Theories and Practices’ . International Social Work 49 ( 3 ): 297 – 308 . Google Scholar Crossref Search ADS KENNY S. ( 2010 ) ‘Towards Unsettling Community Development’ . Community Development Journal 46 ( 1 ): i7 – i19 . MARLOWE J. , BARTLEY A. , HIBTIT A. ( 2014 ) ‘The New Zealand Refugee Resettlement Strategy: implications for identity, acculturation and civic participation’ . Kotuitui 9 ( 2 ): 60 – 69 . MARLOWE J. , HUMPAGE L. ( 2016 ) ‘Policy Responses to Refugees in Aotearoa New Zealand: A Rights-Based Analysis’. In Maidment J. , Beddoe L. (eds) Social Policy for Social Work and Human Services in Aotearoa New Zealand: Diverse Perspectives . Christchurch : Canterbury University Press , pp. 150 – 163 . MAU A. ( 2016 ) ‘Forget Doubling the Refugee Quota, We Should Triple or Quadruple It’, http://www.radiolive.co.nz/ALISON-MAU-Forget-doubling-the-refugee-quota-we-should-triple-or-quadruple-it/tabid/615/articleID/117916/Default.aspx (accessed November 2017). MOUFFE C. ( 2000 ) The Democratic Paradox . London : Verso . MOUFFE C. ( 2005 ) The Return of the Political . London : Verso . MOUFFE C. ( 2013 ) Agonistics: Thinking the World Politically . London : Verso . SHORE C. ( 1993 ) ‘Inventing the “People’s Europe”: Critical Approaches to European Community “Cultural Policy”’ . Man 28 ( 4 ): 779 – 800 . Google Scholar Crossref Search ADS WOODHOUSE M. ( 2013 ) ‘Govt Confirms Commitment to Refugee Quota’, https://www.beehive.govt.nz/release/govt-confirms-commitment-refugee-quota (accessed November 2017). © The Author 2017. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Refugee Studies Oxford University Press

Rethinking Frameworks for Refugee Advocacy: An Analysis Grounded in Political and Democratic Institutions

Stephens,, Murdoch
Journal of Refugee Studies , Volume 31 (4) – Dec 1, 2018
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Oxford University Press
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© The Author 2017. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com
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0951-6328
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1471-6925
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10.1093/jrs/fex041
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Abstract

Abstract A human rights framework has become the default approach to framing advocacy for the rights of refugees. However, with the process of refugee resettlement expanding, there is a need for a framework that would help refugee advocates to conceptualize their relationship to the democratic institutions that facilitate and maintain rights-based approaches. Working through Chantal Mouffe’s distinction between liberal and democratic ideals, this article proposes a democratic framework that works as a supplement to a rights framework. The democratic framework orientates advocates towards working with other advocacy groups, media, politicians and the general public. This framework is illustrated through three key points in the efforts of New Zealand refugee advocates to achieve the first refugee quota increase in that country since 1987. Introduction The September 2016 meeting of the UN General Assembly and the side-meeting on refugees led to an announcement of if not exactly the doubled protection places, then certainly an increase in refugee protection. In the same context, many countries are also undermining the efficacy of asylum seeker law by either building fences, creating agreements with states that host large numbers of potential asylum seekers or patrolling international waters and preventing asylum claims being made. This article describes how refugee advocates and activists in countries with refugee-resettlement populations might conceive of a framework for increasing the number of refugee-resettlement places available by drawing on deepening democratic processes. The first half of the article uses the work of Chantal Mouffe to argue that rights-based approaches are of limited efficacy when attempting to convince governments in democratic countries to increase refugee quotas. The second half of the article uses examples from a campaign in Aotearoa/New Zealand that successfully led to an increase in the refugee quota as elaboration on how a framework based on democratic processes and institutions might offer hope in situations where rights-based approaches have become less effective. I will argue that a focus on a democratic framework drawn from the work of Chantal Mouffe will help advocates engage with the necessary politics of resettlement. I use Mouffe’s framing of the tension between democracy and liberalism to bring out a framework based on exclusions, inclusions and representation. This framework—drawing on the power of media, public representatives and advocates—is a case for engaging in the politics of refugee resettlement. Rather than framing politics as irredeemably corrupt or cynical, I argue that a reliance on the moral assertion of rights—particularly when refugees are not receiving adequate protection through asylum-based judicial processes—leaves the political realm to those very people who most oppose refugee rights. My argument is that a democratic framework is at once the bedrock upon which a rights-based framework develops, as well as that framework that protects rights from erosion. To illustrate what a democratic framework looks like, I describe three stages of the Doing Our Bit campaign to increase New Zealand’s refugee-resettlement quota. These stages highlight the interplay between media, other advocacy organizations, public representatives and the general public in coming to a collective understanding of whether New Zealand should do more. An engagement with the politics of refugee resettlement comes with no guarantees of success—as with all political matters, risk is inherent in the project. However, without a framework to orient refugee advocates towards the political processes at work in our communities and societies, we have already ceded the political contest. A Democratic Framework for Refugee Protection The tension between the universal claims of rights and the state mechanisms of enforcing and realizing these rights is one of the key political, legal and philosophical challenges for both scholars and activists. While nation states sign up to international laws on refugee protection that reflect the universal character of rights, in practice, these laws do not offer universal sanctuary. Instead, nation states focus on protecting borders as a security rather than rights issue, preventing those fleeing conflict from realizing their rights (Haddad 2008). Drawing on Shore (1993), Haddad notes how the securitization process is at once about genuine fears of terrorism in the post-Cold-War environment, but also about defining and shoring up the group identities of those inside the borders. In this article, I will focus on how democratic, rather than rights-based, forms of refugee advocacy can be deployed to create more protection places for those fleeing state persecution and war. I am not drawing out a new theory of the relationship between the refugee and the nation state, but offering a suggestion for how scholars who are also advocates might think about where and how to focus their attention. As Haddad (2008) asks, if nation states are actively compelled by their populaces towards internal issues, why do they continue to offer protection to refugees? She explains this tension by reference to a conflict in interpretation between the English School and a constructivist approach to understanding the nation-state system. Haddad draws out the reifying problematic of the English School as, with any descriptive system, it tends towards reification: the more people refer to and work through a state-centric approach, the more the state is legitimized as the recourse for all actions. She augments the English School approach with a constructivist approach that seeks to highlight the contingent and blurry nature of borders and those people living astride them. The refugee, in this approach, is the result not of an erroneously functioning nation state, but of the very system that forces hard borders across malleable peoples. Concluding on the way ahead, Haddad writes that ‘even while admitting that states are the root cause of the creation of refugees, we must seek responses within the boundaries of nation states’ (2008: 203). These responses, more often than not, focus on extending the rights of citizens to the refugees, even if those rights are temporary forms of protection. The main outlier noted by Haddad is the work of Gibney (2004), who argues for recognizing the structure of the modern state as one that can be influenced by democratic processes. He suggests extending resettlement quotas as a means to gaining more public acceptance of asylum seekers via a principle of humanitarianism. This article seeks to describe and expand upon the democratic processes within nations where similar protections might be reached, albeit via a different set of strategies and tactics. A focus on a democratic framework is not in stark contrast to a focus on expanding human rights and would essentially reach the same protection outcomes, albeit via a different strategy. The benefit of considering a democratic framework is two-fold. First, as with the constructivist approach, it offers a broad approach less open to legal expertise or the caprice of a state that is benevolent, if not representative. Second, a democratic framework is decentralized, recognizing the legitimacy and longevity of ideas as based on accepted norms by communities and nations that have shared common understanding on the need for refugee protection. While a democratic approach might draw on the rhetoric of universal rights, these rights are not necessarily relied on as first principles that must be accepted by all—instead they are one tool of argumentation among many. Refugee Protection in New Zealand Democratic processes can be contrasted with the more traditional rights-based approach that leads to asylum seekers being accepted for protection. The asylum-seeker determination procedure is the basis for the initial framework of rights for people seeking asylum. That procedure consists of the legal apparatus that deals with asylum claims and appeals answering to a state’s obligations under international law, specifically as signatories to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. In New Zealand, for example, the rights of those claiming asylum are to be assessed by the Refugee Status Branch of Immigration New Zealand with appeals going to the Immigration and Protection Tribunal. The apex of a rights-based system is this appeal to a judicial authority that weighs cases based not on the interests of the country, but on the law as it applies to a particular case. Additionally, it is reasonable to see why those same frameworks are imported into countries where asylum seekers have been accepted and refugees are resettled under a UNHCR (United Nations High Commission for Refugees) quota system: just because refugees are given residency and a path to citizenship, it does not mean that they are also given the same access to basic rights (see Marlowe et al. 2014). A rights-based framework has been developed in the last decade to help make up for the inadequacy of service provision in countries like New Zealand (see Marlow and Humpage 2016). For example, access to those services requires additional services such as interpretation or even the dissemination of basic information that allows resettled and accepted refugees to know what they are entitled to. As with international development and aid, the aim is to move from a discourse where the state is the benevolent entity that gifts welfare to one where the state is seen as an institution that has been developed through struggle for rights and those rights are then protected through legislation. The procedure for the protection of people as asylum seekers is dependent on their ability to cross an international border and make a claim on a signatory to the UN Convention. Some countries—such as New Zealand, Australia, Canada and the United States—find themselves removed by large bodies of water from the conflict zones that are the principle source of refugees. As such, even though refugees are offered protection if they make it to these geographically removed countries, they are prevented from doing so either by oceans or by the pre-screening requirements imposed on airlines. These geographic and pre-emptive travel restrictions mean that people cannot make a claim for protection despite the supposed universal reach of these rights. The creation of refugee-resettlement quotas is one means of allowing countries that are far removed from conflict zones to welcome a fair proportion of refugees. There are significant differences with the determination procedure for resettlement of refugees as opposed to that for asylum seekers. As potential resettlement refugees are outside of their country of origin, the UNHCR assesses them in the first country of asylum, though these countries have either not signed the UN Convention on Refugees or are unwilling or unable to integrate the refugees they currently host. The UNHCR decides whether they qualify first as refugees, and then they try to match the most vulnerable of these people with the requirements of resettlement countries. New Zealand, for example, takes the majority of its refugees from the Asia-Pacific region and will not resettle refugees currently in Africa and the Middle East unless they already have family in New Zealand or are part of a specific emergency quota outside of the general protection categories (Beaglehole 2015). From a legal perspective, at the time when refugees deemed needing resettlement are referred to a resettlement state, there are no requirements for the resettlement country to accept the people put forward by the UNHCR. This lack of obligation makes for a gap in the efficacy of rights-based frameworks to offer protection: at this point in the process, there are no legal entities to appeal to or that would function as a state that would provide the economic, social or cultural rights as identified by Geiringer and Palmer (2007), even though the country of first origin is still required to protect some basic freedoms from persecution. In addition to this particular lack of a legal entity to claim against (as it applies to refugees deemed legitimate by the UNHCR but not yet accepted by a resettlement state) as states decide on the quantity of resettlement places that they will offer, there is also a more general lack in the ability of a rights framework to respond to changing international circumstances such as a significant rise in refugee numbers. For example, while the number of asylum-seeker claims for protection via a rights-based framework is determined by the number of displaced people who have crossed an international border (even if a state has not signed the 1951 Convention, there is still the potential for a rights-based claim based on the asylum seekers’ presence in the country), the number of refugees resettled under the UNHCR quota programme lacks the same kind of responsiveness. The problem with the current approach is not simply that there are both general and particular lacks of the rights-based framework. Instead, states that do not have a strong institutional commitment to the protection of refugees within their democracy actively seek to create the conditions whereby these lacks are fissures whereby they can avoid responsibility for non-citizens. If, in contrast to the current system, states were interested in providing protection to refugees, then we would see far fewer restrictions on travel for citizens from refugee-producing countries. The aim of including a democratic framework is not to require asylum-seeker cases to be determined by election or majority, as per Gray’s (2016) analysis of Ancient Greece, where individual cases for asylum would be decided upon by the demos. The democratic framework is a supplement to the rights-based framework that would continue to use legal institutions to determine asylum cases. One of the most appealing aspects of a rights-based approach is that the judiciary acts as a final and decisive authority that can discard frivolous or weak cases out of hand, thus leaving the public forums for what they deem genuine cases to be. I would argue that such a system is fine for the instrumental aspects of an asylum-seeker determination process. The democratic framework is more about shoring up the public legitimacy that guarantees these legal institutions will not have the laws that they are based on suddenly changed or rescinded. The aim of invoking democratic institutions is to focus on collective meaning making through deliberation and disagreement rather than as nation states reduced to the play-off of predetermined interests. Hathaway (1991) has described the challenge of bringing international law and practice on refugees together and, though his approach stresses working with nation states’ self-interest, he ultimately describes this process as reframing the legalistic side of international law in a human rights framework. My approach sees less self-interest at the heart of the nation state and stronger commitment to liberal ideals, which are the very category Hathaway sought to strengthen. Concomitantly, I also focus more on the creation of support within the nation state for increased refugee protection in contrast to Hathaway’s conclusions on reformulating international organizations for refugee resettlement. In highlighting this democratic framework for refugee advocacy, I do not intend to contest the basis of the rights-based approach to either international law on the rights of asylum or the function of that framework within either the juridical sphere or more broadly as a liberal ideal. The aim of introducing a democratic framework is to highlight a gap that occurs if rights frameworks alone are considered for refugees without an investigation into the multifarious ways in which democracies legitimate the ideas that sustain rights. A democratic framework is particularly important where refugee issues are linked to institutionalized quotas rather than as a juridical response to the agency of an individual or family that is seeking asylum. By contrast, both Gibney (2004) and, as a response to Gibney’s book, Betts (2005) discuss asylum and democracy, giving attention to how liberalism and democracy function for resettled populations rather than on how democratic institutions can lead to an expansion of resettlement places and protection. Caloz-Tschopp (1997) shows how the reverse of this article is also true: without a strong rights-based judiciary, citizens’ own democratic rights can come under fire. As New Zealanders recently experienced with their own imprisonment alongside asylum seekers on Australia’s Christmas Island, the detention of asylum seekers is the canary down the mine of an expansion of a securitized military-prison complex that will also, in turn, undermine and erode citizens’ rights (see Barnett 2015). As observers of the Asia-Pacific region have seen in the diminution of the Australian Government’s protection of asylum seekers who arrive by boat, in some cases, even when a human rights framework exists, it sometimes cannot guarantee even the minimal legal standards (as described by Ife and Fiske 2003) when contrasted with the power of the state to make law. Even if a breach of rights can be challenged in courts, the government has the executive power to make retroactive legislation that makes what was illegal legal (see e.g. Australia’s Migration Amendment (Regional Processing Arrangements) Act 2015). While some might argue that a government that pays so little heed to the rights of people will soon be voted out by the people it is said to represent, the continued governance of the Australian Liberal Party from their 2016 re-election shows just how precarious those arguments are. If we instead highlight the irrational and complex character of popular sovereignty, derived not just from the irrational and complex character of populations, but also from the range of argumentative strategies that legitimate particular worldviews, then we are able to engage with democratic frameworks without seeing the loss of an election by an established power as the outcome of breaches of rights. In the current context, much of Europe appears to be attempting to create an artificial distance from conflict zones in the same manner as the ocean works for the countries of North America and Australasia. By blocking the borders between Turkey, Greece and South-Eastern Europe, while simultaneously arguing for the establishment of quotas, these European nations are pre-emptively weakening the ability of asylum seekers to make a claim under the UN Convention in the same way as restriction as to who can get on aeroplanes restrict refugees from North America and Australasia. The weakening of the ability to make those claims also weakens the rights-based framework as an overarching principle, whether it is the first one or part of series of principles that would create a more robust framework. Chantal Mouffe and a Democratic Framework for Refugee Protection Before discussing how a democratic framework might function when put into practice, I want to situate the human-rights-based framework as part of a broader political philosophy of liberalism, and in the tensions between that liberalism and democracy in the work of Chantal Mouffe. Mouffe (2000) frames The Democratic Paradox as an inquiry into the nature of modern democracy (p. 1). Her enquiry takes the form of contrasting democracy as a form of governance based on popular sovereignty against the symbolic framework within which this governance is exercised. The importance of highlighting the symbolic framework that exists around democracy is that it highlights the impossibility of providing a definitive guarantee for the legitimacy of democratic rule, in keeping with critiques of the potential for a transcendental authority. Democracy is, in short, only as strong as the ideas that it coalesces around. The symbolic framework that Mouffe sees as structuring modern democracy is that of liberalism, hence what she described as the current hegemony of liberal-democracy. She writes: The novelty of modem democracy, what makes it properly ‘modem’, is that, with the advent of the ‘democratic revolution’, the old democratic principle that ‘power should be exercised by the people’ emerges again, but this time within a symbolic framework informed by the liberal discourse, with its strong emphasis on the value of individual liberty and on human rights (Mouffe 2000: 2). Modern democracies are liberal in so much as they are hyphenated in an alliance that is contingent on the political development of the West. Ancient Greece, as the birthplace of democracy, for example, existed without the liberal values that pervade modern democracies. Those liberal values are expanded upon a page later to include ‘the rule of law, the defense of human rights and the respect of individual liberty’ (Mouffe 2000: 3). In contrast to liberal values, the values of a democratic framework are ‘equality, identity between governed and governing, and popular sovereignty’ (Mouffe 2000: 3). Mouffe notes that many modern conceptions of democracy tend to dissolve the role of popular sovereignty—that is, the rule of the people by the people—in favour of seeing the state as the form that passes and enforces laws in the name of human rights. For Mouffe, the lack of focus on popular sovereignty in conceptions of democracy leads to a deficit whereby allegiance to democratic institutions is eroded—a concern similar to that expressed by Geiringer and Palmer (2007) in their discussion of a rights-based framework in New Zealand. Specifically, Mouffe (2000) is discussing the kinds of austerity politics favoured by neo-liberal thinkers that—under the guise of need—undermine the institutions that preserve and expand democracy. One such institution would be the university, which Mouffe would suggest is being changed from an institution that might focus on the creation of critically engaged citizens to one that trains employees for the jobs that might or might not await them. We might also consider reductions to services as diverse as public broadcasting, libraries and mental health services. Mouffe describes the fraught history of partisans of both liberal and democratic theory and how they have sought to define the other in terms of their own agenda. In contrast to the pull to enjoin liberalism and democracy as a sort of historically necessary liberal-democracy, Mouffe shows how the concepts rely on antagonistic relationships of inclusion and exclusion. ‘Democratic logics,’ she notes, with reference to Carl Schmitt, ‘always entail drawing a frontier between “us” and “them”’ (Mouffe 2000: 4). This necessity for a frontier is based on articulating those who are part of the demos and those who are outside of it. Democracies do not just exist as the boundary between places, but their function is made concrete through institutions: people can go to school, vote or work only if they are a citizen or permanent resident. Though these democratic institutions include the central decision-making powers of the nation state, they also seem to extend to all institutions of a nation from government departments to schools and health providers. Though Mouffe never really goes into great detail on whether any of these institutions are more important than others, she does make the claim that the present age is one in which these institutions are not flourishing. These democratic institutions need protection, she notes, before their reach can be extended, or returned to levels before neo-liberal demands of modernization, flexibility and individual responsibility. In contrast to the containment of democracies to a people, liberalism is based on a universalism—for example, human rights are rights that extend to all people and cannot, at a normative level, be limited to a people or an institution of state. Within liberal theory, neo-liberal economic policies are an example that claim universality: capital, and—if the particular neo-liberal author is particularly wedded to ideological consistency—people, should be free to flow across borders and any laws against those movements are seen as unjust. Mouffe notes that, in the present day, the neo-liberal economic form of liberalism has become ascendant while the liberalism of human rights and the free movement of people lag. In a move that might foreshadow how a democratic framework for refugees might be theorized as interacting with a rights framework, Mouffe describes the democratic and the liberal as systems that are contaminated with one another. Contamination, she stresses, means ‘that once the articulation of the two principles has been effectuated—even if in a precarious way—each of them changes the identity of the other’ (Mouffe 2000: 10). In other words, neither liberalism or democracy remains a pure theoretical construct but, in practice, both assume forms that may seem to run against the core notions of either category. This interplay of liberal-democracy, she asserts, is today’s status quo. Liberal-democracies have been naturalized and are seen by the majority as simply the way things are, without any valid alternatives. This was the case at least in 2000, when The Democratic Paradox was published: an age characterized by a third way that she describes as ‘no more than the justification by social democrats of their capitulation to a neo-liberal hegemony whose power relations they will not challenge’ (Mouffe 2000: 5). From this productive tension between democratic and liberal impulses comes a focus on two other aspects of political frameworks that can help in understanding how rights-based and democratic frameworks might also coexist. The first aspect is how Mouffe discusses antagonism as the basis of politics that cannot be dissolved. Where people insist on consensus or conformity, there will simply be more resistance that coalesces around those who feel excluded from the process of seeking agreement. The best that we can hope for in political relationships is an agonistic relationship, where groups first accept the right of alternative views to exist, all the while pushing strongly for that which they believe to be the best view (Mouffe 2005,, 2013). The role of agonistic pluralism in Mouffe forms a similar synthesis of positions under a democratic framework to refugee resettlement. For example, in Mouffe’s work, agonistic pluralism is a theoretical response to the shortcoming of the exclusions created from attempts to push for a genuinely deliberative form of democracy; but the deliberative form of democracy, in turn, came about as a normative response to interest-based forms of politics where a plurality of groups argued for their position without the richer democratic form of a search for shared interests and common solutions. The second aspect of Mouffe’s framing that will help mediate the relationship between rights and democratic frameworks is her emphasis on paradox. In the foreword to The Democratic Paradox, she explains that she highlighted the idea of a paradox because this was the part of her work that rationalist thinkers of politics and first principles struggled with the most. She writes: It was while reading these texts again for publication that I realized that, albeit in different ways, all of them [rationalist political theorists] were highlighting the paradoxical nature of modern liberal democracy. Since the distaste for paradoxes is widespread among the rationalist thinkers with whom I am arguing, I decided that this was the aspect of my current work worth emphasizing (Mouffe 2000: xii). Paradox, contradictions and tensions are all hallmarks of the kind of thinking broadly termed post-structuralism and which Mouffe’s work broadly fits into, albeit with a commitment to post-Marxist political philosophy. Mouffe’s commitment to drawing out the paradox hidden in the hyphen connecting liberal-democracy is an example of some of the more productive aspects of a poststructuralist reading of a text. The point of finding these paradoxes is not just an intellectual game, but to illustrate the limits of the language and concepts that we regularly deploy as if they will never change. Highlighting these tensions is useful to show the shortcoming of reductive, rationalist arguments on how politics does or should function. Indeed, I doubt many people would argue that the current world response to immigration, refugees and national borders is proceeding along rational lines. Contrasting the universality of liberal commitments to human rights-based frameworks with the popular sovereignty of a democratic framework does not undermine the rights-based framework, but emboldens it by connecting it to the broader context that is ultimately required to legitimate human rights. That contrasting is not in search of a first principle, but has learned the lessons of how a search for first principles can tend towards the construction of grand theoretical edifices. Those theoretical edifices, like the high language of protecting the rights of the displaced, often have little relation to the everyday, popular positioning of ideas-in-conflict that go towards determining the messiness of a representative democracy. A Democratic Framework for Refugee Advocacy The most banal reading of the concept of democracy sees it as the outcome of a popular vote, stripped of the institutions of media, advocacy or any form of education or communication. A democratic framework emphasizes these broad institutions of civil society, from public schools that are tied to government funding, through to economically independent media and advocacy campaigns as well as the public spaces that prefigure the possibility of future grassroots democratic movements. Mouffe (2000) argues that, in the present neo-liberal situation, the strategic task for those interested in democracy and liberal values is to defend democratic institutions rather than push for the extension of those institutions into wider spheres. Though Mouffe does not go into a lot of depth naming or limiting what these democratic institutions are, the framework I advance will draw from four types of organization: pro-refugee advocates, media, politicians and a general public. I link these organizational types together in a chain of advocacy that expresses the longest possible route to securing the protection of refugees within a democratic framework. That chain runs as follows: (i) pro-refugee advocates (ii) need to use media (iii) to convince a general public (iv) to convince public representatives (v) to increase refugee-resettlement places. One can imagine the shortest route possible where a public representative simply increase the refugee-resettlement places as a country’s population or capacity to help grows. What makes these cited institutions democratic is not that they function in a more or less democratic manner—via popular sovereignty or representation, for example—but that they participate in the process of creating and sustaining meaning over public space. A democracy in this sense is as much about communication and education as it is about voting. Descriptions of these democratic institutions should not surprise pro-refugee advocates, as many are already active in working with most, if not all, of these groups. The point of highlighting a democratic framework is not that refugee advocates are not already busy advocating for refugees with and against these institutions. Instead, the point of the framework is to highlight work with these institutions as part of an overarching framework rather than as something that happens with the vague intention of bolstering refugee rights. While rights-based approaches are normative and even aspirational, it is because they are theorized in relation to duty and law that they cannot offer a theory of how change occurs via democratic institutions any more complex than a demand for rights. That demand for rights is an important narrative for making claims on democratic institutions, but they cannot subsume those claims: when public representatives ignore the narrative of rights that must be recognized, advocates need a range of other techniques to offer more protection places for refugees. I will use the New Zealand situation to describe how the democratic framework for refugee resettlement could function to push for equitable resettlement outcomes. In New Zealand, a campaign was started in 2013 to achieve the first increase in New Zealand’s refugee quota since it was established in 1987 (see Beaglehole (2013) for more depth on the specifics of the quota, its history, regional makeup and other background). The campaign operated through the lens of a democratic framework with particular emphasis on a communication strategy that would link my work with the four groups (i) to (iv) above, with the intention of achieving (v). The stated goal of the campaign was to double the refugee quota: at the beginning of the campaign, this aim seemed ambitious, though justified; today, the aim has been adopted by many major political parties and has been described as the ‘bare minimum’ (Edwards 2016) that should be done. To bring this framework to life—outlining the conflicts and contingencies—I offer three readings of particular points in the campaign to double New Zealand’s refugee quota where this framework of democratic institutions was useful. Before beginning, it is worth reconsidering Ife (2001) notion that a rights-based approach provides a minimum of protection, but not the optimal amount. I would like to extend that comparison to an analysis of the current refugee-resettlement work as described by Elliott and Yusuf (2014), who use the concept of social capital to describe the network or relationships that allow successful resettlement, invoking neighbourhoods, schools and religious institutions as the sites where an atmosphere of successful integration can be developed. In contrast, a democratic framework also seeks to develop social capital, but not at the level of one community—like the Somalian one studied by Elliott and Yusuf (2014)—but in terms of the broader public opinion as formed by an intersection of media, activists and advocates as well as politicians, and even celebrities and artists. I begin with the plan from the first month of the campaign, then move to the first pressure point of the 2014 election and finally to the 2016 quota review. June 2013: In the First Month The Doing Our Bit campaign to double New Zealand’s refugee quota began in June 2013. Starting with no funds and no established media presence, the campaign had little in the way of bargaining power. At this point, the campaign was functioning as a way to do justice to people featured in the Anjirak Afghan Archive—a collection of abandoned photographs of refugees in Iran that I had found on my travels some years before. I saw the campaign as a long overdue correction to New Zealand’s back-pedalling quota that was sure to be righted once the relevant authorities knew about it. In terms of the democratic framework noted above, I formed (i) a pro-refugee advocacy organization called Doing Our Bit to use the (iii) public exhibition as a way to achieve (ii) media coverage that could also discuss the quota level which, I hoped, would (iv) lead to politicians (v) increasing the refugee quota. That approach was the best-case, shortest of all possible routes approach to a democratic framework, which would rely more on the goodwill of political actors than could be reasonably assumed given the quota had not increased since 1987. It was with the fury that only a novice activist can muster that I greeted—a month into the campaign—a press release from the Immigration Minister that informed us they were pleased to announce the refugee quota would stay at the same level (Woodhouse 2013). September 2014: Election A year into the campaign, it became very clear that the government did not intend to simply listen to pro-refugee advocates and increase the quota on their own steam. The 2014 general election meant that media were looking for stories to run and questions to ask politicians. As an exercise in representative democracy, it is also the chance for voters to hold politicians to account through the simplest means possible: voting them out of power. As I have been at pains to stress, the democratic framework is not intended to function at such a singular level of voting, but is intended to harness the power of the democratic institutions that surround party politics. As such, the 2014 election offered a possibility to achieve new policy from the government, as well as opposition parties, and to make the refugee quota an issue that was part of the national dialogue. The 15 months between the start of the campaign and the 2014 election saw a change in the campaign’s approach to the democratic framework. While Doing Our Bit remained (i) the only pro-refugee advocacy group campaigning for a higher quota, we had (ii) published commentary in alternative media independently of the exhibition as well as built our social media presence up to 2,000 Facebook likes and Twitter followers. This presence validated the campaign and led to both of New Zealand’s two largest newspapers also accepting opinion editorial content from the campaign. Though no (iii) surveys had been conducted at that point on public sentiment towards refugees, we had (iv) succeeded in meeting with six opposition members of parliament from both the Green and Labour Parties, as well as using a scandal about rich businessmen paying for access to cabinet ministers to pressure the Immigration Minister into meeting with the campaign. While the ruling National Party (v) did not offer to increase the refugee-resettlement intake at that point, the opposition and second largest party, Labour, announced that, if elected, the quota would grow to 1,000 places. That policy matched the policies of the Green Party and United Future. The result of the election saw the ruling National Government returned to power. June 2016: Triennial Resettlement Quota Review After the 2014 election, it appeared that there would not be any points to pressure the government before the June 2016 triennial quota review. Our initial strategy was to reduce campaigning to a few social media posts to keep up our engagement while waiting until October 2015 to start pressing for an increase at the review that would be announced nine months later. However, during 2015, there were two big changes to the advocacy for a larger refugee quota, both dealing with (i) the number of pro-refugee advocacy groups supporting the quota being doubled. First, Amnesty International Aotearoa New Zealand and ActionStation joined the campaign in February 2015. When Amnesty joined the call to double the quota, we also joined their campaign for a one-off emergency intake of Syrians above the quota. In September 2015, as a result of the movement of people into Europe that northern hemisphere summer and the publicity around the drowning of Aylan Kurdi, many more groups including mayors of every major city, our largest non-governmental organizations (NGOs), celebrities and opinion shapers from the media joined the ask to double the refugee quota. This led to (ii) a surge in media coverage that was not only connected to the problems in Europe, but also about New Zealand’s inaction on the quota. There were (iii) also planned and spontaneous protests and vigils that, along with polling in July, showed a majority of the public sympathetic to at least a small refugee quota increase. Finally, with (iv) the opposition Labour Party suggesting they would increase their quota to 1,250, the government (v) offered 600 additional places over three years. The pressure from 2015 led me to (i) turn Doing Our Bit into a charitable trust that received funding, allowing me to work full time on the campaign for six months. In that time, the organization paid for a range of advertising material and I travelled the country holding public meetings on the quota. By the review in June 2016, there was a sense of (ii) media saturation around the quota that led to UNICEF suggesting that there had been too much focus on the quota and not enough on aid to countries hosting refugees around Syria. At this point, we had also grown our Facebook audience to 10,000 while maintaining high engagement. In a Research NZ survey in October 2015, the (iii) public had shown that they were in favour of the one-off emergency increase and wanted another larger intake. A 20,000-strong petition to double the quota was collected by ActionStation in partnership with Doing Our Bit and Avaaz. Even though the government did not consult any organizations on the quota review, the public and advocacy groups were organized through an Amnesty International mock select committee hearing (iv) sponsored at parliament by one of the government’s support partners, United Future. In June 2016, (v) the refugee quota was increased to 1,000, with opposition parties Labour and the Greens creating policy to take it to a minimum of 1,500 if elected at the 2017 general election, with public discourses of tripling and quadrupling the quota becoming more common with both political commentators and civil society (see Mau 2016). Commentary The campaign to double New Zealand’s refugee-resettlement quota outlines the many interconnected parts of a democratic framework to understand advocating for greater refugee protection. This overview offers a much-needed parallel framework that acts to both augment and buttress a rights-based approach. Where the rights-based approach is useful for the protection of asylum seekers and to advocate for resettled refugees access to services in their new countries, its reliance on the normative discourse of rights highlights a moral dimension to the detriment of a political dimension. That political dimension key to the democratic framework is defined by the antagonism of politicization. This antagonism can only be avoided by a quietude that cedes public discourse to the opponents of human rights and democracy. The political dimension needs to be oriented towards a discussion of both fair and optimal intake of resettled refugees in addition to the protection of the minimum standards offered in a rights-based approach. If these aims seem overly ambitious, then it is worth considering whether that is because a commitment to rights is only defensible among educated liberal elites or whether any political struggle seems ambitious at the outset. Without attempting to achieve collective gains in refugee protection by considering the potential of a democratic framework, then we will never know just how far concept of hospitality and protection might extend with the public, especially when linked to a rigorous determination procedure for asylum seekers. Where a rights-based approach functions through drawing on the power of the judiciary, law and moral suasion, the democratic framework draws on advocacy organizations, media and public representatives to participate in the messy and antagonistic political sphere. While it might be possible for the protection of refugees to be advanced, simply leaving the democratic institutions to function without advocacy, the same could be said of the rights-based approach. Why should democratic or liberal spaces be devoid of conflict when, as per Kenny (2010) and Ife and Fiske (2006), these conflicts are how non-elite, civilian actors can access justice? Both Mouffe’s theory and the New Zealand example show the importance of advocacy groups to take up the challenge of representing fairness and human rights and engage with all democratic institutions. While human rights are a part of the liberal worldview as per Mouffe’s analysis, their defence requires institutions value these views. As Geiringer and Palmer noted, if the work is not done to ensure the democratic legitimacy of these values, then the basis for the values to be claimed as a right will be lost. The task of pro-refugee media, politicians and advocates is clear: continue to advocate for greater protection of refugees through the oft-vexing task of struggling for better representations of refugees and fairer refugee protection. The task for those who work with refugees—especially those funded by public monies—and who have mostly relied upon a rights-based framework is perhaps harder. Their participation in a democratic framework requires that they protect their access to the funding that allows them to exist without allowing the potential threat to that funding to stop them from publicly advocating for both the rights of refugees already here as well as those yet to come. 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Journal of Refugee Studies – Oxford University Press

Published: Dec 1, 2018

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