Frontier Justice: The Global Refugee Crisis and What to Do About It

By Andy Lamey

(Doubleday Canada, 416 pp., $39.95)

Since the end of World War II, there hasn’t been a time when refugees and asylum seekers didn’t factor into national politics. First, there were Jewish refugees escaping the Nazis. Then there were those fleeing the totalitarianism of the Iron Curtain.  The 1970’s saw Vietnamese taking to boats and Cambodians braving the killing fields. In the 1980’s and after, conflicts in Africa, Latin America, and Southeast Asia made refugees out of millions. And now Iraqi refugees are scattered around the Middle East and boatloads of Tunisians, Libyans and sub-Saharan Africans are packing themselves onto rickety boats and risking a four-day journey to reach a very unhappy Europe.

There have certainly been other times when careful thinking about the roots of and reasons for human rights would have been appropriate. But Andy Lamey’s Frontier Justice: The Global Refugee Crisis and What to Do About It was released at a time when politicians and citizens of the West would do well to consider not only Lamey’s suggestion for resolving the global refugee crisis but his explanation for how it came about.

Lamey achieves his most moving and best-articulated writing when he’s telling stories. And initially he tells many: Hannah Arendt’s experience of broken promises during her family’s escape from Nazi Germany; Harold Koh’s fight together with his Yale Law students to win a just resolution to Haitian interdiction and detention at Guantánamo; refugee Mohammad Al Ghazzi’s harrowing journey from Iraq to Syria to Malaysia to Australia and the deeply sad events that followed. Lamey also attempts to correct a decade of popular misunderstanding surrounding the life of Ahmed Ressam, the would-be Millenium Bomber who was stopped on the US side of the Canadian border on his way to LAX with a homemade bomb in his trunk. These stories and others are what make Frontier Justice a compelling read.

The more technical and philosophical sections, which occupy the bulk of the book, would benefit from the clarity Lamey exercises in his storytelling. To his credit, Lamey is attempting to summarize and organize 500 years of political theory on sovereignty, the constitutional failures and successes of a handful of European and North American countries, Arendt’s pessimism regarding human rights, and the fluid notion of what it means to belong. In addition, Lamey defends the right of those fleeing persecution to seek safe haven and attempts to convince readers that the current state of global travel prevents refugees from exercising this right. Throughout all of this, Lamey struggles to win hope back from Arendt’s conclusion that ‘there are many rights for citizens but few for human beings’ (Lamey’s paraphrase).  Lamey’s challenge is to present these varied and nuanced areas of political, historical and philosophical thought while engaging a reader who may not have much depth of knowledge, interest or experience in any area beyond a general concern for refugees.

While his success is debatable, the importance and timeliness of his topic is not. Even before the hope of the Arab Spring turned into a floating humanitarian crisis, boats carrying asylum seekers and economic migrants were leaving Tunisia and Libya for Europe. In 2009, Italy cut a deal with Qadhafi, which allowed the Italian coast guard to return boats of African migrants to Libya without interviewing or screening them. Such interdiction practices are noted by Lamey, with special attention paid to those of the Americans intercepting Haitians and the Australians forcing the return of boats leaving from Malaysia.

Now with Qadhafi nearly deposed and with boats landing daily on the tiny island of Lampedusa, Italy is forced to look elsewhere for help in dealing with the 27,000+ migrants that have arrived since January. After the EU failed to give Italy the assistance it requested, Italy began issuing six-month residence visas. Under the Schengen agreement, these visas allow free travel within the European Union. Italy understands that with this visa, most Tunisians, who represent the majority of arrivals, will quickly leave the country to join family and friends already living in France.

France initially agreed to honor the visa but has recently begun denying entry to Tunisians even though they have the appropriate documentation. The EU is not just facing a crisis of North African arrivals, it is facing a sovereignty crisis. When countries join the EU, they forfeit some sovereignty in exchange for other benefits, such as a strong currency or free movement and trade within the EU. With the EU failing to adequately assist Italy in facing the influx of migrants, Italy passing its problems on to member countries, and France refusing to honor valid visas, the European Union will most probably move toward reinstating national borders. This means that each country will be in charge of who it allows in for and for how long rather than be subjected to the open border policies of Schengen.  This will allow France to refuse Tunisians without breaking EU agreements and force Italy to come up with another solution.

Lamey’s answer to such crises comes in Chapter Seven, “The Right to Have Rights.”  He finds his solution in the Canadian Supreme Court case Singh vs. Minister of Employment and Immigration.  The case began in response to Canada’s wholesale rejection of Sikh asylum cases based on nothing more than the religion and nationality of those filing petitions. The case did not argue that the government overturn its decisions, only that it issue them after providing petitioners with an oral hearing – something which is constitutionally guaranteed to Canadians seeking any kind of legal decision. The question was whether the ‘everybody’ referred to in the constitution covered only Canadian citizens or whether it applied to anyone on Canadian soil. The case eventually found that ‘everybody’ means everybody in Canada and that asylum seekers are guaranteed an oral hearing.

This is a big deal because constitutional rights are rarely extended by any country to asylum seekers. Lamey goes on to argue that Singh will also prevent the creation of rights-free zones like Guantánamo or deadlines for the submission of asylum claims. (Turkey gives no deadline for European asylum seekers but non-Europeans must make their claims no more than five days after arrival. After the deadline, claims are automatically rejected).  The real strength of Singh, Lamey argues, is that it allows Canada, through the use of countries deemed to be safe and respectful of human rights, to make the right to an oral hearing portable. This means that Canada doesn’t have to be the country to hear the asylum claim. Canada can send an asylum seeker to another country or have the case heard by an entity, such as the United Nations High Commissioner for Refugees, as long as there is an assurance that the claim will be heard.  Lamey seeks two additional rights in order to ensure justice for asylum seekers: the right to be represented by legal counsel and the right not to be detained while awaiting a decision.

For Italy to meet its constitutional and international obligations under Lamey’s proposal, other EU countries would have to agree to hear cases and process them accordingly. A number of those arriving at Lampedusa will fail to meet the criteria for asylum and are instead economic migrants or seeking family reunification. If those who fail in their asylum cases are not promptly deported, Lamey argues that the system will fail as countries will still feel the burden of an increase in welfare recipients. Italy will also have to work to build a network of immigration attorneys to represent asylum seekers and find alternatives to detention, none of which can be done overnight.

It is not entirely clear that Singh solves the global refugee crisis as the book’s sub-title suggests, as Lamey’s solution seems most workable in wealthy Western countries with robust judicial systems.  To be fair, Frontier Justice doesn’t try to demonstrate how countries like Chad or Central African Republic will manage to similarly process tens of thousands of refugees currently warehoused in remote and often unstable corners of their countries, but I wish it did. I guess I’ll have to wait for Part II.

That said, Lamey’s proposal certainly makes the asylum process much more humane. To that end, his most provocative suggestion is not that asylum seekers deserve an oral hearing or a lawyer or to live outside of prison-like detention centers. It is that the immigrants who evolve into extremists like the Millenium Bomber or even the 9/11 hijackers often don’t arrive as such. Those who enter through legal means are not radicalized prior to arrival, but find themselves attracted to extremism in the course of experiencing displacement and alienation.

This isn’t a perfect answer, as most displaced and alienated people don’t become terrorists. But it does dovetail nicely with new research that finds refugees resettling in the UK are best integrated when they perceive the local people to be friendly. Things are not, of course, so simple as that, but they’re not so complicated either. So, to Lamey’s three proposed rights – oral hearing, attorney, no detention – I add the benefit that countries observant of these three rights will foster a more humane environment for asylum seekers specifically and immigrants in general, which might lead to a friendlier reception from the rest of society. And that friendliness might make all the difference. Maybe it is as simple as that.