Rights without borders
By Pascal Zamprelli
Sixty years have passed since McGill Law professor John Humphrey penned the first draft of the United Nations Universal Declaration of Human Rights. Since then, much progress has been made toward recognizing the human dignity inherent in all persons, regardless of where they happen to live. Yet much remains to be done. It is in this spirit that McGill welcomes François Crépeau, a leading expert on international human rights, refugee law and globalization, as the first Hans and Tamar Oppenheimer Chair in Public International Law.
Recently, Crépeau sat down with the McGill Reporter to talk about rights, responsibilities and how to change a system that would prefer it if everyone just stayed home.
What drew you to the study of international law?
In the early eighties, I started my doctoral thesis in Paris on the status of the asylum-seeker, who at the time was a very new character in the landscape.
The word had not been used before the early 1980s, when the number of refugee claims rose considerably.
In Canada it went from 600 in 1976 to 60,000 in 1986.
What’s been of interest to me ever since is the migrant. That’s what I like: migration. I
discovered that migrants had no access to social benefits and that there was no reasonable reason why they would or would not have access. That’s what got me interested in public international law.
What were the main issues related to migration at that time?
This was the time when most of the asylum-seekers didn’t come from the East, they came from the South. They didn’t come from the communist countries, which had been the main legitimacy line for welcoming refugees. They were freedom fighters fighting communism with us, so we welcomed them. Suddenly, you had 60,000 of them, and they came not because they were freedom fighters. They were people fleeing generalized violence, poverty, and so on. We were not as welcoming towards them.
So this was the way I came to migration and I’ve never changed. At the time it was bold to choose that for a subject and my colleagues couldn’t understand why I was choosing it. There were so many more interesting subjects, like war and peace, and things like that.
But you were on to something…
Twenty years later, I seem to have made a good choice. I’ve been proven right. This was a topic that was worth exploring. I’m quite happy to have made that choice.
It meant working with domestic law, that is constitutional law, human rights law and administrative law. It also meant exploring the international law dimension. International human rights law and international minorities law come into play. I like to make the connection between international human rights and migration.
Could you tell me more about that connection?
Human rights law was premised on the idea that people were in their own country, and that what international human rights law was doing was creating agreement between states that each would treat its own citizens correctly. Migrants were barely envisaged at the time. Migration has always been considered an anomaly – if things were right, people would not move – which I think is a misconception. People have always been moving, when things are right or wrong. You’ve probably been moving; I’ve been moving. We want to explore the world.
It’s as though the borders are the anomaly, not the fact people move through them.
Exactly. Three per cent of the world’s population is on the move, and this has been quite constant since the beginning of the 20th century. It’s a constant of civilization.
But it was not thought so in 1948, at the onset of the international human rights system. Citizenship was the key, and states were based on a stable population. The creators of the international human rights system never envisaged that migrants would actually call for their rights to be respected. The idea was that the migrants’ only right was to return home.
We are now coming to realize that migrants are human beings and that human rights are not premised on the idea that you’re part of a precise administrative category. Human rights are human rights because you’re human, wherever you are.
States, governments and public authorities still have to accept that these people are also “us” in the “us” and “them” debate. These people, in terms of rights, are “us.” They’re not “them.”
Someone who lives here, even irregularly, is someone who pays taxes, who contributes to the economy, whose kids may be Canadian. These people have rights, and we have to accept that. Our authorities have not yet accepted that.
So it’s a very current struggle.
This is how migrants are a test for our democracies at the moment – in the same way as industrial workers were legal outcasts 100 years ago, as women were legal outcasts 60 years ago, as Aboriginals were legal outcasts 30 years ago, and you can add detainees and gays and lesbians 10 to 15 years ago. In the same way, migrants are still not recognized as being holders of rights, as being covered by the rule of law, as being subjects and not simply objects.
Are you optimistic that migrants will eventually gain similar protection?
Oh yes. It’s coming slowly, but we’re getting somewhere. Even the U.S. Supreme Court has come down quite hard on Guantanamo, to give one crude example. Suddenly it’s changing its stance on Guantanamo. It has finally understood that migrants’ rights are human rights, that their rights are our rights. For good reason (there’s no bad reason to come to your senses), – and this shows that there is cause for optimism. People are coming to think that you can’t do whatever you like just because the person is a foreigner.
What about Canada using national security as justification for the use of Security Certificates?
Again, the main idea behind it is that we can treat foreigners differently than we would treat Canadians in the same circumstances. Now, security doesn’t require that. If you have a security problem with a Canadian, and you have the same security problem with a foreigner, why should the second one be treated much more harshly than the first? Why should the second one have fewer of his or her rights recognized than the first one?
If it’s a security problem, you deal with it through measures that will enhance your security, and there’s no reason that they should be different for a Canadian than for a foreigner. Or, if you decide that it’s an immigration issue you treat it as an immigration issue. But that’s precisely the point. Immigration issues should not be used for treating security issues.
These people don’t have the right to stay in Canada because they’re foreigners. That is still the rule and will remain the rule as long as there are countries. This doesn’t mean that we can do whatever we like with them.
Will you continue to focus on these issues as Chair?
Yes. Briefly stated, it’s the constant interaction between domestic law and international law, which is precisely the subject matter of the Oppenheimer Chair. I’ve been doing this for almost 19 years. I’m not being asked to do anything different than what I’m doing now. I’m only asked to do it better.
December marked the 60th anniversary of the UN Universal Declaration of Human Rights. Have we made progress since then?
I think we’re much farther than people ever thought would be possible when we signed the declaration in 1948. But if we thought that we would solve human-rights issues through enacting declarations and conventions and covenants, we were badly mistaken, because the fight for human rights is a political struggle.
Legal instruments and mechanisms are important, but they are only one tool in the struggle. The struggle requires political mobilization on the part of communities, non-governmental organizations, lawyers. And the battle is never over.
How do we bridge the gap between legal and political progress?
They work in concert because what the legal tools have done is create a culture of human rights. This has spread and people more often know that they have rights and that maybe there’s someone who can do something about it. That culture of human rights is probably the greatest legacy of the Universal Declaration.