How ethical is it to displace people for reasons of development? A critical analysis of Peter Penz’s article “Development, displacement and international ethics”

Development[i] projects across the globe generally aim to enhance the quality of life for people worst off. Many such projects meet their goals, hence contributing towards sustainable development. However, there are also programs that, while doing good for some end up harming others. Displacement is one of such harms. Reviewing Peter Penz’s disputable article “Development, displacement and international ethics,” I argue that, while development-induced displacement can be made morally acceptable through measures of responsibility, the situation never ethical as such. Displacing people means harming them – acting unethically towards them - and labeling such action as inherently just under any conditions only helps us to evade responsibility.

Penz divides development-induced displacement into two categories: direct and indirect. The former is directly caused by development policies, while the latter is “mediated by processes not directly under the control of decision-makers.”[ii] Often development refugees are environmental refugees. While these categories may be useful in some contexts, the distinctions are not carved in stone. Frequently development-induced displacement evolves into a “multi-dimensional syndrome of displacement,” where development-caused population movements inflict other social crises that lead to further displacement. Thus, layering itself upon the destinies of various communities, a cycle of forced migration develops and distinguishing between direct and indirect causes becomes arbitrary. Due to this complexity, no evaluation and appropriation of responsibility should be built on rationalisations of causality. This is much what Penz attempts to do.

In spite of the obvious moral dilemmas, Penz argues that under certain conditions it is justifiable to displace people for the cause of development. In order to identify such conditions, he asks what is morally owed to victims of such displacement. In his answer, Penz uses a “middle-level analysis” of applied ethics which “focuses on generalisable principles [without] commit[ting] itself to [one] particular theory.” Dialectically, he thus engages “different theoretical perspectives in a ‘dialogue’ with each other” so as to “arrive at a more sophisticated mixed position.”

The perspectives involved are utilitarianism, libertarianism and egalitarianism. Penz does not much elaborate the characteristics these ideologies and his “dialogue” remains analytically thin. Effectively, what he does is to pick and choose some definitive strengths of each position and apply them to the question of development-induced displacement. The resulting argument is that, for a development project to be morally acceptable, its environmental decision-making should be community-controlled and possible resettlements a result of “negotiations and roughly consensual consent.” This does not, however, mean “an unqualified right to veto development projects…with displacement consequences.” Instead, Penz suggests that displacement can be justified by “public interest and distributive justice considerations.” Hence, if the benefits of development are calculated as outweighing “the costs of its side-effects, including displacement,” and if these benefits be justly distributed – e.g. by maximising the conditions of the worst-off – then displacement can be deemed morally acceptable. Moreover, in the management of displacement, “certain conditions” need be met, including “compensating those displaced, minimizing displacement in the selection of development options, and giving priority to poverty alleviation in determining development strategies.”

Regardless its analytical thin-ness, the argumentation makes sense: If ever development-induced displacement can be justified, these must be the minimal measures taken. Responsibility goes with agency, however, and to ensure that the requirements be respected throughout the project and beyond, morally responsible agents must be identified. Unfortunately, Penz’s attempt to do so only leads to a listing of excuses for certain actors to evade their liability.

In the latter half of his article, Penz evaluates foreign partners’ moral obligations towards people displaced by development. Here, two functionally different development partners are distinguished. These are: (1) business organisations, whose role is “to contribute to economic production…generally on the basis of [pursuing] profits”; and (2) “non-profit development organisations (NGOs)[iii] whose purpose is to advance the interests of people in development context.” Due to their functional differences, Penz sees businesses and non-profit organisations as operating on two different levels of responsibility - with the latter bearing the most moral obligations while the formers’ responsibility is kept minimum. This division becomes clear in the following quotations:

“Given the assumption of moral…states, foreign business[es] can reasonably be deemed to simply…obey laws…of the host state. It is the responsibility of the host state that productive activities…do not harm people in an unjustifiable manner. Thus, when businesses engage in logging, they need not worry about environmental and displacement effects; that is the concern of the state.”[iv]

“Since there are limits to what states can do to harness economic processes to promote…social justice, non-profit organisations have …an important role to pursue action and innovation beyond state policy…[W]ith respect to development-induced…displacement…they have to make the kind of broad [moral] assessment of the causal connections between development processes and their displacement consequences…that states ought to be making…[T]heir moral responsibilities go considerably beyond observing the host-state law.”[v]

What is disturbing in this line of thinking is that businesses - with their enormous financial resources and power - can reduce their responsibilities to the minimum, while charity based NGOs are expected to go beyond the ethical aspirations of both states and businesses. Non-profit organisations may have a pivotal role in the field, but when speaking about moral obligations in development projects, surely they cannot be the major actors responsible. For Penz they are. Adopting higher ethical standards is obligatory to businesses only when the host state fails to do so. Moreover, whenever displacement has “a range of causal agents,” businesses are accountable only for their particular damage, not for the displacement. Unable to envisage ethical responsibility as an indefinitely shareable good - that it arguably is - Penz thus frees businesses from obligations towards those they have “indirectly” displaced.

To conclude, Penz is right in arguing that NGOs should assess causalities between actions and their potential negative consequences, but so should all involved. Indeed, moral evaluation should be an incessant process within all development policies. Displacing people may never be ethical but, through acts of continuous, shared, inescapable and non-rational responsibility, all actors involved in such a process are obliged to make it morally acceptable. What we are talking about thus is more a question of how to be ethical in an inherently unethical situation – not how (un)ethical the situation is.

In situations of displacement, related with the massive violence and military actions, the important dilemma for me is one stressed in the article of Dr. By Ranabir Samaddar – the division of responsibility between the state - recipient and those authorities/states which actually exiled people. The right to return to the homes/ places of habitual residences envisaged in international law, is questioned in many cases by subjective orders, decrees and documents issues by local authorities in postconflict zones. The clear indication about full responsibility of national authorities for the destiny and well being of IDPs is given in the Guiding Principles of Internal Displacement. Even the Guiding Principles are not the legally binding document, such as Convention or Covenant, there belong to the ‘Soft law’ instruments, ‘thus occupying the grey zone between law and politics’ (David Fisher, in the book ‘Internal Displacement in South Asia’).

The Government of Georgia adopted the Guiding Principles, however often it infringes rights stated in the Guiding Principles, and interprets the ‘responsibility’ of national authorities by such way, which allows it to manipulate the IDPs, including for the political reasons. Thus for many years IDPs had continued to stay in limbo, nor permitted to return by de facto authorities, neither – fully to integrate, and their desperate living and socio-economic conditions had been used as an argument in political negotiations, however, the IDP s themselves for years were kept under the same conditions ‘not to lose motivation to return’.

There are several dilemmas facing now by the IDP community – the first is the dilemma of return to habitual residences/homes vs integration.

As it was noted by the UN Secretary General Special Representative on IDP Human Rights Dr. Walter Kalin in his Statement concerning the situation of IDPs in Georgia (December 2005), the local integration in current places of living should not affect the right to return.

Certainly, the right to return is n inherent right. From more than quarter of million of internally displaced in Georgia, about 50 m- 60 thousands are seasonably migrating across the de facto borders – to work their lands and to collect their harvest. It happens only in the Gali district, located near de facto border. The territories of this spontaneous return are not under jurisdiction nor of central Government, neither de facto authorities, that creates the deficit of power, lack of security and absence of rule of law.

Unclear situation of these returnees leads to the lack of clear definition of their status (they still are called the IDPs as there is no security, they don’t stay permanently and don’t rehabilitate their houses due to fear of being robbed or kidnapped). They cannot be called spontaneous returnees in full scale, as they are forced to return by miserable socio-economic conditions in the place of temporary living, may be they can be called presumed, even they physically temporarily are there. As no physical, psychological, informational and material security cannot be ensured and no power (nor governmental, neither international organisations) take responsibility for IDPs security, the IDPs status cannot be removed from them.

The central Government (Government of Georgia) have very limited possibilities to care about those IDPs who are living in the postconflict zone and to express to them sympathy and support – mainly through small assistance in education and health programmes. The de facto authorities prevent the involvement of Georgia central Government in solving of problems of IDP population.

At the same time, often some officials express mistrust towards those who lives in postconflict zones and announce them as betrayers of own people. It created additional fears and tension for IDPs living in Gali district – they afraid to leave the postconflict zone and stay in Georgia proper constantly as in such case they cannot ensure enough food for their families, and they are frightened by local de facto authorities and criminals acting in the Gali district, at the same time, they cannot fully rely on protection from the central Government, because they did not control situation and sometimes have double standards toward spontaneous returnees.

According to the cease fire agreement, signed by the sides (Georgia and Abkhazia with the mediation of Russia and UNHCR) in 1994, persons from Georgian side, who participated in military actions, have no immunity in case of return, thus, could not return also if the procedure of repatriation will start. This agreement did not differentiate persons, who were protected lives of their families, from those who were involved in the war crimes. Using in this case all sentiments, humanitarian and also community approach, it is possible to advocate for changing of this statement and creating of community based mechanisms, similar to Reconciliation and Justice and Truth Commissions, which will deal in case of return case by case and will assist to ex-combatants, if they were not involved in cruel actions and crimes against humanity, to return.

Absence of such article psychologically deprives many of IDPs from even theoretical chance to return, as members of families of ex-combatants also will be not able to return and leave behind their husbands, brothers and sons. Till now, the opportunity to return is accessible only for small number of IDPs – former inhabitants of border Gali region, for others this opportunity did not exist even virtually. This makes IDPs more vulnerable and dependent on assistance, provided by the Government, society members and international organizations.

The difference between caring about IDP community as a whole (including provision of state allowances, medical insurance certificates, provision of temporary shelter) and covering of needs of individual IDPs is very visible at community level. In beginning of displacement, ordinary citizens from local community tried to provide assistance and care for those displaced. Till now, more than 55% of IDPs continue to live with the relatives, friends and known people, who provide for them shelter. Other 45 % are looked after by the Government. Such phenomena supports in IDP community syndrome of dependency, and creates sometimes the local population attitude to IDPs as to fully vulnerable community.

To overcome these obstacles, including isolation and non-inclusion of IDPs, lack of social capital and dependency syndrome, in 2006 the Government of Georgia announced creation of IDP State Strategy, which should serve two main purposes: preparation for return and the improvement of socio-economic and living conditions of IDPs. It is expected that such Strategy can contribute to raising of civil conciseness among IDPs, from one hand, and, from another hand, will increase the responsibility of national authorities, support psychologically and empower the IDPs for giving them chance for dignified lives bothm in case of return and integration.

Importance of Ethics and Justice in Rehabilitation and Care of Refugees

by Magdalena Sikora

“...recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”[i]

The purpose of this review note is to elaborate the importance of ethics and justice in rehabilitation and care of refugees. This note is based on the relevant sections of “International Refugee Law: A Reader” of B.S. Chimni.

There is no doubt in the statement that refugee flow has become one of the most pressing humanitarian, human rights and security problems confronting the international community.

The causes of refugee displacement can be internal and international. Therefore, the refugee phenomenon is an element of the complex group of international relations among states which present the growing reciprocal interdependence and necessity of taking common steps for general interest of international community. This kind of global solidarity sets up the co-responsibility for both the causes of refugee flows and the solutions dealing with the rehabilitation and care of this group of displaced people. The international co-responsibility should be based on ethics[ii] and international justice[iii] which is guaranteed for every human being. In the context of refugee displacement the question arises what importance the action of international community following the assumption of ethics and international justice has for the protection, rehabilitation and care of refugees.

Analyzing ethics and global justice in the concept of refugee rehabilitation and care, it is clearly demonstrated that they propagate first and foremost the equality of all human beings with no difference of their actual status. There is no ethical and philosophical justification for a nation to employ different standards for the treatment of its own citizens and those from other countries. It does not mean that state should always treat non-nationals in the same manner as its own citizens, but the evaluation criteria of its actions must be the same.[iv]

In addition, as Beyani argues according to Principle 1 of the International Law Association’s Declaration of Principles of International Law on Compensation to Refugees, the responsibility for caring for the world’s refugees rests ultimately upon countries that directly or indirectly force their own citizens to flee/or remain abroad as refugees. The discharge of such responsibility by countries of asylum, international organizations and donors shall not relieve the countries of origin of their basic responsibility. The Inter-American Court of Human Rights has elaborated upon this doctrine in the context of human rights. In its view, the State has the right and duty to guarantee its security without question, but its power is not unlimited. Nor may a State resort to any means to attain its ends; the State is subject to law and morality, and disregard for human dignity cannot serve as a basis of any State action.[v] However, as Singer states, we persist in thinking of foreign aid as a „charity”, which means that we do well if we give it, but we are not subject to blame or reproach if we do not. We see ourselves as under no obligation to save the starving of Africa or Asia, even if doing so would entail not real sacrifices at all.[vi]

However, it should be emphasized that it has been already developed the complex system of the legal and institutional tools which deal with the displacement of refugees, their rehabilitation and care, i.e. the 1951 Convention relating to the Status of Refugees and the United Nations High Commissioner for Refugees (UNHCR). However, in many circumstances when they present the essential gaps in proposing the adequate solution for the protection of refugees, the international community should follow the assumptions of ethics and justice. It must be also added that the national migration policy may be good on some level, but from the ethics and justice perspective it is very often seen as a destructive direction. First and foremost, when it concerns rigorous asylum procedures, closing of borders, refoulment etc.

Based on this concise review and following the opinion of Peter and Renata Singer, we can conclude that it would not be difficult for the nations of the developed world to move closer to fulfilling their moral obligations to refugees. There is no objective evidence to show that doubling their refugee intake would cause them any harm whatsoever. Much present evidence, as well as past experience, points the other way, suggesting that they and their present population would probably benefit.[vii] The international refugee law includes some gaps and obscurity which can often be solved by referring to the extralegal, ethical arguments. The best way to manage the problem of refugee flows seems to be taking a common effort and stimulating an international cooperation based not only on legal and political instruments, but on ethics and global justice as well. There are liberal conceptions of universal rights and international justice to justify the claims of refugees. And as the United Nations Universal Declaration of Human Rights states: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood." And the refugees are not an exception.

[i] Preamble to the Universal Declaration of Human Rights, 1948.

[ii] Ethics seen as the study of values and customs of a person or group. It covers the analysis and employment of concepts such as right and wrong, good and evil, and responsibility.

[iii] Justice seen as the proper ordering of things and persons within a society.

[iv] In practice, however, there is a frequent conflict between refugee rights and national interests and instead of application of universal rights, it exists the phenomenon of avoiding the obligations to non-nationals.

[v] A. Chaloka Beyani, “State Responsibility for the Prevention and Resolution of Forced Population Displacements in International Law”, International Journal of Refugee Law (Special Issue, 1995), p. 131-37.

[vi] Singer Peter, „Famine, Affluence and Morality”, Philosophy and Public Affairs, 1972, p. 229-243.

[vii] Singer Peter and Renata, „The Ethics of Refugee Policy”, in „Open Borders? Closed Societies? The Ethical and Political Issues”, edited by Mark Gibney, 1988, p. 121.

Review relevant sections on ‘ethics’ and ‘justice’ in B.S.Chimni’s ‘International Refugee Law: A reader’ and comment on the importance of these two issues in the rehabilitation and care of refugees.

by Marini de Livera

The ethics and justice sections of the reader speak of Human Rights and duties of the refugees. The reader also sets out landmark cases where key words such as ‘refugee’, ‘well-founded fear’ and ‘persecution’ are judicially interpreted.

However, with regard to the actual rehabilitation and care of the refugees it is difficult to affirm that these concepts are translated into practical terms.

The reader opens with an indication of the importance of the definition of the refugee. The ordinary meaning of he word’ refugee’ is contrasted with the clear cut international law definition of refugee. Also a distinction is drawn between ‘a refugee’ and an ‘internally displaced person. When determining what is morally acceptable, ethical and fair it is necessary to begin by asking ‘who exactly a refugee is’. Chimni’s reader succinctly defines the term and analyses the key words included in the definition. Vital phrases such as ‘well founded fear’ and ‘systematic persecution’ are examined in depth. International and Domestic Law makers are generally ‘gender blind’. Although the criteria for determining refugee status set out in the 1951 Convention ignores gender, the reader has included erudite articles such as that written by Jacqueline Great batch, on the Feminist critiques of the refugee discourse. The article highlights the favorable attitude of the European Parliament and the UNHCR to the voices of the Feminists critics to the fact that women who face ‘harsh and inhuman treatment’ are utterly bereft.

The third Chapter of the reader deals with the Rights and Duties of Refugees. The extract from Robin Nedham’s article on ‘Refugee participation’ is very realistic and practical. As a social worker who was involved in the rehabilitation and care of Tsunami affected Sri Lankans I would wholeheartedly agree with every word written by him.

Also of vital importance are the observations and conclusions of the participants of the tenth Round Table on Current Problems of International Humanitarian Law.

Chimni also focuses on Refugee Children by reminding the readers that refugee children too are covered by the Rights of the Child Convention.

As the great Mahatma Gandhi wrote in a letter to Julian Huxley who then the Director- General of UNESCO, at the time of the preparation by the United Nations of the Universal Declaration of Human Rights, “I learnt” he wrote,” from my illiterate by wise mother that all rights to be deserved and preserved came from duty well done.”

Similarly B.S. Chimni has not relegated duties to the background. The duties of refugees too are enumerated under the heading duties and fundamental rights.

Now, it is interesting to see how the principles on ethics and justice can be integrated into the rehabilitation and care of refugees.

The gap between reality and the ideal is very wide.

For ethics and justice to be integrated into the process of rehabilitation and the care of refugees it is assumed that those working on rehabilitation and involved in the care of refugees are armed with adequate knowledge of internationally accepted norms relating to this. Also states dealing with refugees should have a clear policy with regard to the right to choose on where they would like to live. To be effective the rehabilitation programmes should include efficient community services, education, sanitation and legal assistance. Trade, physical mobility and development work should be carried out unrestricted in the rehabilitated areas. It is also essential that there is a channel of communication between the affected people and the government. Also machinery should be in place to empower the affected group to participate in decision-making at village level. The government agencies, NGOs, community-based organizations and civil society should network and coordinate in the relief and rehabilitation effort.

Further, accurate statistical information relating to the refugees should be made available. A clear and coherent strategy with regard to the rehabilitation and the care of refugees should be drawn up.

The existing domestic legislation should be reviewed focusing on possible inconsistencies and a comprehensive analysis of Human rights and humanitarian law should be taken into account, identifying mechanisms and measures to rectify them.

Attention should be paid to rights of disabled refugees, to protection, to liberty and to the security of the person, to humanitarian assistance and to their resettlement and integration into society.

Where refugees are unable to register as voters and do not have any voting rights; the government should take the necessary steps to rectify this issue.

It is important to protect existing development assets whether in the form of infrastructure or social and economic processes. There exists a close link between relief work, rehabilitation and development. Humanitarian work must be conducted in a manner that does not create dependencies or frustrate future rehabilitation efforts.

In the interest of transparency and accountability, an independent humanitarian ombudsman system should be established to channel complaints and grievances from beneficiaries, from affected community-based organizations and from the public and from agencies dealing with relief, rehabilitation and the care of refugees.

Also the different needs of women and children have to be taken into account along the lines set out in Chimni’s reader.

In order to eradicate discrimination there should be a change in outlook and thinking. Government, Civil society and all those who are involved in the care and rehabilitation of refugees must understand the plight of these people and must not show partiality and discrimination in any form.

Critically analyse Peter Penz’s article on “Development, Displacement and international Ethics”, and comment how ethical it is to displace people for reasons of development?

by Ishita Dey

In this essay, I want to analyse Peter Penz’s theoretical construct of “cosmopolitan ethics” and whether or not “cosmopolitanism” approach can determine the moral obligation of the foreign participants in the development process. Peter Penz argues that the foreign participants in the localized development process should be bound to follow the rules of the state. While Penz is not blind to the internationalized production process in what he calls “the increasing economic, cultural and political integration of the world”; he should also recognize that there exists a hierarchy within this production process itself.

The hierarchy is reproduced in the very notion of development that considers displacement as an integral component and assumes that the “state” should be responsible for “environmental and displacement effects” and “foreign business organizations” should have the responsibility to obey the laws of the state. The “host state” like Penz rightly points out often acts as the “mediator between the foreign actor and the state citizens”. The host state is not exclusive of the overarching global politics. The third world has been the testing ground of a top-down approach to development which has led to enormous displacement. The displaced in most of the cases have not enjoyed the fruits of development and it is against this background that the ethics of displacement for reasons of development should be analysed.

Those displaced due to construction of Bhakra Nangal dam have been forced to resettle in areas where they do not enjoy basic drinking water facility. Bhakra is one of the many cases in a country which has been witness to many a policy exercises of resettlement and rehabilitation. The recent NRP 2006 which primarily addresses the issue of development induced displacement speaks of people’s involvement in the R&R process post land acquisition and not when the land is been acquired which reflects the accountability of the state. It is only when the state will be accountable towards its citizens can we talk of the “moral responsibility” of the foreign business houses as Penz proposes. In case of resistance movements against the recent move to acquire land for SEZ in Bengal, Maharashtra and Orissa one of the primary concerns of the protesters was the question of alternative livelihood, home and land. In case of mining projects it is the tribals who are the worst affected. Kudremukh Mining project made it to the news when the Government decided to extend the lease to KIOCL despite the repeated protests by the environmental groups and locals. The tribals are reportedly being killed under the garb of the Naxalites. These instances are some food for thought to reflect on whether or not it is ethical to displace people for reasons of development. Most of the cases of recently proposed land acquisitions in Orissa be it by POSCO or Vedanta the nation- state to attract FDI has chosen to take sides of the foreign actors. Under such conditions one is quite skeptical regarding the “cosmopolitan approach” as it is finally through the “language of rights” that one can “empower the local/ host communities” to redefine their nature of “hospitality and shelter”[i] which opens up another dimension as far as the “ethics” of moral responsibility is concerned.

The “ethics” of “moral responsibility” is best put into practice when the concerns of those displaced are seen within the purview of the “language of rights” or “right to life” rather than as a notion of “moral responsibility” without any legal binding. More than “moral justification” as Peter Penz argues in the first half of the essay that underlies displacement one could read the “justifications” behind displacement as three approaches to development. When one tries to delineate “justification of displacement” it considers displacement as inevitable and it is there the dialectical nature of displacement and development regarding its ethical character gets far more explicit. The three perspectives are public- interest perspective, self -determination perspective which treats freedom and choice as central and equal-sharing perspective which sees development as reducing inequalities. Self -determination perspective and equal-sharing perspective treats the rights of individual and community as central and it is this prioritization that creates a unique approach to development which will minimize displacement and provide adequate resettlement and rehabilitation to those displaced.

Recognition of rights will inevitably change the “power” game that underlies the very decision of “moral responsibility” and specifically the first concern of Peter Penz as to what do we morally owe to the potential and actual victims of displacement? What we morally owe to those affected should be decided by the “language of rights” as our experience with the past and the resistance movements against proposed land acquisitions for development in Maharashtra, Orissa, Andhra Pradesh and Uttar Pradesh have shown.

[i] Ranabir Samaddar in the ‘Introduction’ to the Refugees and the State: Practices of Asylum and Care in India, 1947-2000 argues that one of the challenges to cosmopolitanism is to make sentiments meaning (tolerance, democracy and nationalism) relevant for the host communities in response to guests from near abroad. He argues that the language of rights should be the overarching state discourse towards refugees rather than of tolerance and sentiments.

A critical discussion of “fear” as a factor in the displacement of vulnerable groups

by Sriram Haridass

The problems of the world’s displaced are among the most complicated issues before the international community today. Much discussion is taking place at the global, regional and national levels as we continue to search for more effective ways to protect and assist these particularly vulnerable groups.

While some call for increased levels of cooperation and coordination among relief agencies, others point to gaps in international legislation and appeal for further standard setting in this area. In this debate some facts remain beyond dispute. To begin with while some mass displacements may be preventable, none are voluntary. No one likes or chooses to be a displaced. In some instances being a displaced means more than being an alien. It means living in exile and depending on others for such basic needs as food, clothing and shelter.

Why would then some one leave his or her home in favor of an uncertain life elsewhere in a foreign land? In 2004, Moore and Shellman tried to answer this question by studying a global sample of countries over more than forty years. Their findings indicated that violent behavior resulting in “fear” has a substantially larger impact on displacement and forced migration of vulnerable groups than any other factor.

The concept of “well founded fear” also plays an important role in the refugee definition. But unfortunately the linguistic ambiguity in the refugee definition’s requirement of “well-founded fear” of being persecuted has given rise to a wide range of interpretations and over the years the concept has been a subject of debate among refugee advocates and national refugee determination bodies.

There is general agreement that a fear is “well-founded” only if the refugee claimant faces an actual, forward-looking risk of being persecuted in her country of origin (the “objective element”). But it is less clear whether the well-founded “fear” standard also requires a showing that the applicant is not only genuinely at risk, but also stands in trepidation of being persecuted (Hathaway & Hicks, 2005). In 2004, the University of Michigan Law School engaged in sustained collaborative study and reflection on the doctrinal and jurisprudential foundations of the well-founded fear standard. They concluded that continued reference to distinct “subjective” and “objective” elements of the well-founded fear standard risks distortion of the process of refugee status determination. As Ranabir Samaddar points out the current international refugee protection regime leaves a great burden on jurisprudence and enormous freedom to the state in interpreting the “well founded fear” concept. This argument is also supported by Hathaway (1991) who states that the approach of states to the concept of well founded of fear is neither historically defensible nor practically meaningful. As a result of this enormous freedom enjoyed by states in interpreting the concept of “fear”, many of the modern day displaced persons are not seen to fall within the definition contained in 1951 convention.

In 1951, when the refugee convention was adopted, most of the refugees originated from Europe. The situation has changed and the majority of today’s refugees are from Africa and Asia. Current refugee movements unlike those of the past increasingly take the form of mass exoduses rather than individual flights and majority of today’s refugees are women and children. The causes of exodus have also multiplied and now include natural/ecological disasters and extreme poverty which are not accepted as valid reasons for displacement by the international protection regime and the 1951 convention.

Refugee law scholars like Ranabir Samaddar feel that the contemporary humanitarian refugee regime has got institutionalized and the 1951 convention has failed to negotiate the population flow of the world today. The UNHCR’s protection Chief Erika Feller agrees. According to her “UNHCR’s perception is that refugee protection stands at a crossroads. Its most important tool—the 1951 Convention—sets out a basic framework that remains directly relevant to many, but not to all, displacement situations.”

Refugee protection today is confronted by a number of major challenges and experts agree that the refugee protection regime needs an immediate transformation. There are repeated calls nowadays to revisit and revise the 1951 convention so that the population flow could be better managed. On the other hand some refugee scholars fear that if the convention is put in any way into discussion, we may end up with a convention and a protection regime of much more limited rights. Refugee advocates White and Rowman (2007) argue that states are also keen on amending the 1951 convention partly in response to the rise in criminal trafficking across borders, and partly in an attempt to better balance the refugee’s well founded fear of persecution with the demands for increased security aftermath the 9/11 incident.

However fearing negative consequences and not revising the current refugee protection set up and 1951 convention might not be the right way to go about. The need for change in the refugee protection regime is being felt more than ever and reforming processes are essential to resolve or mitigate the factors/causes resulting in forced migration and displacement, and especially to end protracted displacement situations. It is now or never for the international protection regime and if they continue to prolong the change process we will be really “seeing the last act in an opera on the death of emotions”.

References

Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991), 69-97

Hathaway & Hicks, ’Is There a Subjective Element in the Refugee Convention’s Requirement of Well-Founded Fear?’ (2005) 26 Michigan Journal of International Law 505.

White & Rowman , ‘Fear of Persecution: Global Human Rights, International Law, and Human Well-Being’, Littlefield Publishers, Inc., 2007.

Will H. Moore & Stephen M. Shellman, ‘Fear of Persecution: Forced Migration, 1952-95’ Journal of Conflict Resolution, October 2004, 48(5):723-745

Review relevant section on ethics and justice in B.S. Chimni’s International Refugee Law: A Reader and comment on the importance of these two issues in rehabilitation and care of refugees.

by James Ward Khakshi

Introduction

For refugee study, ethics and justice are two important terms always more relevant than that of other cases. Because here identifying refugees, providing justice, rehabilitation and care to them all are firstly dependent on the ethics of the state liable for origin and states relevant for creating or caring the refugees. B.S. Chimni in his edited book International Refugee Law: A Reader has unconsciously drawn the analytical form of this matter in the different sections of the book.

International Refugee Law: A Reader edited by B.S. Chimni has been divided into eight chapters. Identifying refugee, UNHCR, causes of refugee flow, exemplified durable solutions through legal and ethical point of view and means, discussion on Internally Displaced People and the legal condition of refugees in India are the structural division of the book. Here he collected the laws relating to refugees and their analysis with relevant reference. In every chapter of the book, the discussion of ethics and justice very often in rehabilitation and care has got notice in conscious or unconscious.

Relevant sections on ethics and justice

Ethics and justice in caring refugees are very important concepts. B.S. Chimni in the first chapter shows the general tendency of states and international bodies to set the refugee status within a strictly defined legal context, seeking to portray the phenomenon of refugee hood as reducible to a legal definition. Much rests upon their interpretation of the 1951 Geneva Convention relating to the status of refugees. States interpret who are refugees and who are suitable for protection and care. Chapter two discusses how asylum of refugees, their protection and care depends on the whimsical interpretation of refugees by states. Chapter five shows multidimensional causes of refugee flow and the law of state responsibility in this regard. It very rightly accommodates political, economic environmental, ethnic, human rights abuse and the inter-related link as a cause of refugee flow. In most cases, the ethical orientation of the state, the security pretext of the state and the regional and international link get the priority concern as a cause of refugee flaw. Chapter six discusses the different approaches of repatriation for durable solution of refugee issue. Chapter seven comprises laws relating to the internally displaced persons and its multidimensional analysis. UNHCR is being active to draw the issue. Every state know the causes of the internally displaced persons. Solution thus largely depends on the good governance of the state and the ethical orientation of the state concerned.

Importance of ethics and justice in rehabilitation and care of refugees

Statist ethics involves two levels or stages of moral consideration. One is that of intra-state ethics and the other is that of inter-state ethics. The statist ethics (both levels) determines who is their citizen and who would not be their citizen and thus will be alienated and refugees will be created. The ethics and the justice system of a state is the moral basis of the political system of a state and determinant how it will behave to refugees originated from or come to the state. Chapter two discusses the principle of Non-refoulement while chapter six is on different repatriation options. Here the issue of rehabilitation is discussed where it is also noticed that ethics and justice system (neutral and effective or not) of the states are the curtained issue to success the rehabilitation process.

Conclusion

To ensure rehabilitation and care for refugees, the necessary condition is not only the ethic of care, kindness, and hospitality, but also an added ethic, that of responsibility. Responsibility has two implications - responsibility of the state and of the international community. The word, responsibility, carries two senses also - responsibility of the host and that of the expelling state. Justice system of a state is closely determined by the ethics and political system of the state. So dealing with the rehabilitation and care of refugees, the ethics and justice is very important. B.S. Chimni in his book did not intensify the matter. But it could be easily identified by critical biased study of the book.

For refugee issue, we finally have to understand that no amount of diplomacy or international safeguards will be succeed in preventing population displacement if a state based on majoritarianism is determined to violate the rights of the people. To compromise the hegemonic mentality of majority, the (liberal) legal provision and neutral policy among many conditions are crucially important. But in all cases the internal matter affecting the decision and policy of the states is the ethics and justice (system) of the states (statist ethics). The editor did not purposely discuss the ethical orientation of the states to discuss the legal provision affecting the refugees of the world. But this was felt in the successive chapters of the book.

Review of Peter Penz essay on Development, Displacement and International Ethics

by Francis Adaikalan

Peter Penz tries to distinguish between direct and indirect displacement. He suggests that it is very difficult to compartmentalize in some circumstances, like environmental refugees. But majority of the displacement in today’s world increasingly becoming complex in which one cannot distinguish between direct or indirect displacement. In those circumstances the state conveniently stays away or sheds away its responsibilities by terming such a displacement as indirect. For example, displacement due to industrial policy and by announcing a particular corridor as industrial belt brings forceful displacement for many. As penz points out straight jacketing or compartmentalizing between voluntary and forced migration will result in more insensitive way of dealing with people. Because in present circumstances the choices are limited since most of the displacement are coerced. For example, even though there is resistance from the people against Koodumkulam atomic power station in Tamilnadu, the state went ahead with its plan. So how can one justify the displacement due to development since it is morally objectionable as author puts it?

Penz argued that it is difficult to address the issue of displacement from theoretical per se since there are internal conflicts among the theoreticians. The policy makers in his opinion show less interest such philosophical differences. But he failed to explain the phenomenon that most of the time their actions are based on some ideological position. Secondly he said that contextual specific focus too misleads the communities and only dominant views are heard. So the author suggested third way called as middle level analysis. He says that instead of addressing the problem from theoretical angle or providing issue based solution one can have ‘generalized principles at work in the ethical analysis’ through a form of dialogue. But in dialogue someone decides on what basis or principle the dialogue can happen and how to have a dialogue. So the dialogue in my opinion is determined by unequal position of the actors which is not explained well by Penz.

The author used three normative principles such as utilitarianism, libertarianism and egalitarianism and states that we need to have interaction of all the three in evaluating the project. But he fails to understand innate nature of technology being socially constructed while describing libertarianism. Also the much talked about equal sharing perspective in Tsunami context did not bring benefits to the have nots. So Rawlsian principle of maximizing the condition of the worst off is still a mirage in Indian condition.

He also positioned the state and non-state especially the Non Governmental Organisation while dealing with displacement. He noted that state should act as a moderator between foreign actors through other state and its own citizens since it has moral obligation to its own people. Experience shows that state becomes party to the oppression rather than protecting its own citizens. So shouldering the entire responsibility on them would undermine the cosmopolitan ethic. Or is it possible to practice such a model if the state itself is the promoter of many displacements.

As the author points out is it possible to make the state and non-state to have a moral responsibility for its action. Can we engage the state in a more critical manner by applying ethical principles and what are the mechanisms to check or to make state accountable if it compromises the ethical principle. This should have been the core argument of the article. But the author could not show any concrete mechanism to implement the cosmopolitism based ethics. If we want to engage the state and non-state what would be the role of International Ethics? Here, the question of Sovereignty becomes important. Can the state allow it to be questioned for its action? If so, at what level and in what means? Who can engage the state in a critical way? How about the repressive state? Can Cosmopolitan ethics be practiced in such circumstances? How about the state in partnership with other state and colludes with non-state actors to ensure displacement. The article in my opinion fails to analyze the historicity of displacement starting with colonialism and to neo colonialism. In today’s world the credibility of UN itself questioned. So how far cosmopolitan ethic is practically possible is a question mark.

“Fear” as a factor in the displacement of vulnerable Groups

by Sh. M.S. Yadav

Introduction More than 80% of the world refugees consist of vulnerable groups of the society, particularly the women, children, the minority groups. In this note, I am going to discuss the fear factor in the displacement of vulnerable groups, how fear contributes in their displacement, what are other factors which indirectly contributes in this regard.

Displacement When ever a person is compelled by the prevailing circumstances to leave his place of living for seeking safety, shelter and other requirements of survival. This displacement may be within the state and out of the state. There are number of factors internal and external which create the situation for a person to leave his home. The situations like - war, internal disturbance, state oppression, communal violence, terrorism, development projects, attacks on culture & ideology etc. Such displaced person can be either given shelter / food etc. in the refugee camp or can be repatriated. In all the situations mentioned above, the most sufferers are the vulnerable groups.

Discussion on “Fear” as a factor in the displacement of vulnerable Group

Convention of 1951 Speaks of “well founded fear” on the ground of determination of refugees / of displaced person. The punishment experienced, pain and suffering faced by the individual on his own body, his family members, the group of his society and substantial risks involved to their existence. The quantum of fear for future dangers can also be the ground of seeking shelter.

However, if fear is well founded, it must match up with the language of law, justice and the judge. If the refugee is inarticulate is not in fear. The outcome of this translation of fear into knowledge and then reason, is the extreme in justice to one who is in fear and has sought shelter. The extreme form of justice where on one hand fear may not lead to care as it was inadequate to be deserving of care when measured legally.

The correct measurement of fear and danger to vulnerable groups is also sometime not fully explained to the shelter provider or measured by them. It needs institutionalized and careful consideration, otherwise it will double the suffering of displaced person.

The another fear factor contributing for displacement of vulnerable group , is that when the Govt suppress the mass movement by use of security forces, the male family members are put behind the bar and under fear of cruel treatment and sexual exploitation by the State representative, the female members with children flee from the region for a destination by crossing the borders.

Though they crossed the border under fear to save them from atrocities of the particular group or State Authorities yet they remain under fear of deportation as they did not face the trauma and had flee in anticipation of repressive actions. They do not travel with relevant document of citizenship etc. and it becomes difficult to justify their demand for the grant of status of refuges.

Whenever, there is a communal clash in one part of the country or the religious fundamentalist comes to power, the minority groups in particular area are targeted and the fear again compels them to flee for safety and shelter, as reportedly happened in Bangladesh where Hindu were targeted.

Examining the international community’s progress in implementing security regulation (1325) on women, on peace and society, two independent experts appointed by UNIFEN found that women are effective agent of peace but still they have little excess to power and peace negotiation. At the same time, they are sufferer of the atrocities of perpetrators. The fear of rape / sexual exploitation always contributes to their displacement.

In the area dominated by terrorists, the young people are forced to join their cadre, the ladies / girls are sexually exploited. The families who do not allow their young children / male person to join terrorist cadre, such family has to face their brutal repercussions. Fear of such actions also causes ladies to leave such area with their other family members. When the terrorist groups recruits ladies in their cadres, the receiving state hesitates and sometime declares no entry zone. When Sh. Rajiv Gandhi was assassinated by a women suicide bomber, the female refugees were subjected to intensive scrutiny.

The hardship of eviction and resettlement are always not shared equally. In case of Tehri Dam Project in India, compensation payments have been mostly paid to the male heads. The National Commission for Women conducted a survey on displaced in the Tehri Dam Project and found that terms of rehabilitation were extremely modest, even then it was not fully implemented. The fear of insecurity among the women still exists as the share of property is not in the name of female.

The fear of not getting the refugees status for want of justified grounds and legal papers, the displaced vulnerable groups prefers to live outside the refugee camps and has to face the deprival of all benefits of such camps and has to live in further displaced condition.

Conclusion

On the basis of above discussion, it can be safely presumed that vulnerable groups i.e. women, children and ethenic minorities are the most sufferer of the wars, internal disturbances, ethenic violence, group clashes, state repressions, terrorist actions and fundamentalism. The women who are soft target for sexual exploitation, discrimination in all spheres of life and hold the responsibility of children, are the most sufferers. The fear of insecurity and the responsibility of looking after the children compel them to flee for a safer place in above conditions.

However, the quantum of fear and suffering faced by the individual should not be the main criteria for recognizing the refugee’s status of an individual. The UNHCR and State Authorities should also consider the anticipated potential threats to the person who is seeking the asylum particularly the vulnerable groups. The provisions for providing protection and relief to the displaced person needs to be Institutionalized and Synchronized with the legal provisions. However, in no way it should be allowed as a base camp for waging a war against a democratic secular state in the name of independence or ideological values. The anticipated fear to the displaced groups should be gauged on the basis ground realities and measures should be adopted to prevent the exploitation within the camps from any angle.

Critically analyse Peter Penz’s article on “Development, Displacement and International Ethics,” and comment how ethical it is to displace people for reasons of development?

by Sanam Roohi

There is an urgent need to comprehend the significant issue of ethics of care and justice in the context of migration and displacement. The perception of caregiver, be it the state or the humanitarian agencies or the NGO’s, differ among themselves, so does the perception differs in the eye of the recipient of this care. The victims of displacement due to developmental projects, (either directly or indirectly, sometimes forced, sometimes apparently a consciously decided act) requires not just relief and compensation but rehabilitation. There is a need to understand that what these displaced persons get, are not charity but it is their right to have a life of dignity. Though there is a need for the universality of the ethical language of care and justice, there is no unilinear approach on what the ethical principles and practices should be. To develop this ethical language, there is a need for a dialogical understanding between the giver and the recipient of this care.

Peter Penz’s article argues for a ‘cosmopolitan approach to determining the moral obligations of foreign participants in the development process’, thereby legitimising the neo-liberal model of development. Talking on Forced Migration on account of developmental and environmental projects, he argues that such migrations are ‘objectionable’ as they make the displaced people ‘worse off’. Questioning whether displacement can at all be justified, he identifies three methodologies in applied ethics and identifies the principle of middle level ‘generalised principled approach’ as ‘attractive’ analysis on the basis of which he explores the causes of justification of displacement. Marrying the three normative perspectives of the utilitarian cost benefit analysis, the self determination perspective of libertarians as well as communitarians and finally the egalitarian perspective, he finds a comprehensive ethical approach to this issue.

But in case of a third world country like India, we had seen how, during the Nehruvian era, people were ready to undertake the sacrifices for industrial development, eager to pay the price for the nation as a whole. The cases of Bhakra Nangal or the Hirakud or any other dams that stoked nationalistic fervour and asked the people to sacrifice there homes and livelihood for the nation, have seen them paying the price of their sacrifice, generations later. Today, in a globalised neoliberalised economy, where the wealth concentration is only twenty percent among the world’s eighty percent of the population, we not only see that sometimes the cost benefit analysis is so calculated to benefit the investors (mostly foreign) or the donor countries or other non-state actors. Consent is not only produced but often forced, and the egalitarian and democratic nature of the projects which aim to benefit ‘all’ is a complete misnomer. It renders the displaced in a vicious cycle of deprivation and suffering. In the past few months, certain Indian states like Orissa, West Bengal and Andhra Pradesh (which have attracted huge FDI’s and private investments that require huge amount of land acquisition, frequently agrarian and forest land), has led to many resistances, often leading to violence, against such misconstrued acquisitions.

People no longer are ready to rise up to the nationalistic demands on issues that are responsible in producing situations and conditions that have push settled life to an unsettling experience of homelessness. In India, as elsewhere in South Asia, the process of displacement without the consent of the affected persons can result in their marginalisation, which goes ‘beyond material impoverishment to the deprivation of the social, cultural and psychological infrastructure that has sustained the communities.’ The manner in which they are deprived of their sustenance and its source, largely without their consent usually render them incapable of taking their own decisions. This aspect is important to bear in mind because around 80 percent of the DP/PAPs belong to subaltern communities such as tribals, Dalits and the poorest among the backwards[i].

Penz rightly sees the development projects of the third world as not ‘strictly national’ but involving foreign actors. Denouncing the role of state, which often acts against its own citizen, he situates the moral obligation with ‘foreign participants in development’. But in reality, often the state and the foreign actors collude to engage in projects, which blindly displace people, giving them compensation by taking away their land, which is often their source of livelihood. In practice, as we still live very much under an era of ‘sovereigntism’, the moral obligation does lie with the state as with the business firms and other non-state actors responsible for causing displacement.

Ranabir Samaddar in his article ‘Power, Fear, Ethics’ has pointed out how power structure in democracies makes groups of people as its victim, which can include the displaced people. He terms it as a question of ‘democratic deficit’. States like India make pledges at the international level to recognise, protect and enforce, fundamental human rights, including right to life which has been interpreted by the Supreme Court as right to life with dignity. So states also have to fulfil these obligations that may arise with any developmental project. But even though the state’s international credibility with organisations like U.N and World Bank might be at risk if these human rights are violated; yet such human rights of individuals and groups can only be claimed from the states. Therefore, there is a need to redefine state’s role and responsibility in rehabilitating the victims of developmental and environmental projects. Since international organisations have no legal authority to enforce the state to observe the human rights, this democratic deficit translates into humanitarian deficit too. We need to have a more comprehensive approach which combines the rights based approach and the humanitarian approach to rehabilitate the victims of displacement and more decisively control such rampant displacements across the developing world from becoming an endemic human disaster.

[i] Fernandes, Walter. 2007. “Singur and the Displacement Scenario,” Economic and Political Weekly, 42 (n. 3, Jan. 20-26, pp. 203-206.