Sara Yacoub, Étudiante en droit
Immigration has been a topic of debate amongst politicians for the last decade, transforming into a matter of national security. In the last few years, tensions rising in Third World countries have led to waves of mass immigration, which causes rifts in public opinion as to whether the people who are fleeing war have the right to enter Canada, and if so, under which conditions.
While the Western World takes into consideration the risks associated with asylum seekers entering the country, we would rather shift the focus and tackle immigration with a decolonial lens, aiming to understand how colonization still affects Canada’s immigration policy as well as the international system’s immigration laws. To do so, we will first define the term “Third World” and offer alternatives to this obsolete term. Then, we will explain what constitutes a Third World Approach in International Law (TWAIL) and why it is important to consider such an analysis when discussing immigration law. After, we will highlight some of the discrepancies in Canada’s position regarding immigration, as well as how international immigration law propagates colonial ideas and continues to fuel the tensions in the Global South.
1. Key concepts
1.1 How to define “The Others”?
Originally, the term “Third World” was used to describe the countries that did not join a camp during the Cold War, and thus were exploited, either by the United States of America or the Soviet Union, to gain hegemony on the international stage. Although that term is officially outdated, since the Berlin Wall fell on November 9, 1989, which was then followed by the Dissolution of the Soviet Union on December 25, 1991, and there has not officially been a second Cold War or an international event of the sort reported by historians, the term continues to be used in our daily basis. However, certain thinkers have reclaimed the term “Third World” to invoke a political reality, a direct attack on the Western hegemony of the globe.
Some prefer the term “Developing countries” vs “Developed countries” to point out the economic inequalities between the both and reflecting-war world. However, that term has also been deemed problematic by several authors: the term “developing” implies that the non-European and North American countries are lacking in economics, are less “smart”, and that this is the result of interior political choices, rather than centuries of colonization, genocide, and systemic violence brought on by the so-called “Developed countries”. Furthermore, what counts as “development”? While Western Countries might be richer than developing countries, they got these resources by invading and stealing from the latter. Is it realistic to compare two countries based on their economic development, if one of them colonized the other? The World Bank also classifies the world’s economies based on gross national income per capita using the Atlas method, but once again, using those statistics without taking into consideration the violent history that accompanies these numbers just whitewashes reality.
Finally, a term accepted nowadays is Global North and Global South. This term was created to highlight the similarities between countries that have previously been colonized to create some solidarity between them.
Throughout this text, the terms used will be either “Third World” or “Global South”, because they represent today’s political climate.
1.2 What is TWAIL?
The Third-World Approach to International Law was developed after the Second World War when countries of the Global South were liberated from direct European colonial rule. At the time, the United Nations Organization was developed: TWAIL thinkers see it as an extension of the imperial powers and another way to influence the developing countries into enforcing Western values. By establishing the UN, the Western powers were proposing a fake neutrality that would uphold Western values. Different economic organs under the UN would implement neoliberal policies and force developing countries into adopting them as a one-size-fits-all policy, even though in reality it was not the case. The Global South countries that were submitted to these trade agreements would then be economically dependent on the Western states and institutions, which renewed a cycle of exploitation not unlike the ones created during the late nineteenth century.
The TWAIL approach has three objectives: to deconstruct the uses of international law as a medium for the proliferation of a hierarchy of international norms that place the Europeans on top of the non-Europeans; to present an alternative for the current international system; and to eradicate the current socio-economic underdevelopment present in the Global South.
According to the TWAIL approach, international law is based on European values and norms. Europe is seen as the center of the world, Christianity as the basis for civilization, capitalism as innate in humans, and imperialism as a necessity. International law, more specifically the concept of sovereignty, developed through the treaty of Westphalia in 1648, was a crucial part of colonization and imperialism. European countries justified their invasion of the Global South by claiming that the people living in these areas needed to be introduced to “civilization”, which includes Christianity, capitalism, and white supremacy.
TWAIL is an anti-hierarchical, counterhegemonic movement, that aims to decentralize the Western world and its ideologies when discussing international problems. It fights to create a coalition between like-minded movements in all societies and avoids universalities.
2 Decolonizing the Law
2.1 Canadian Law
Canada prides itself on the international level as a haven for newcomers from their unstable homes. Hundreds of thousands of migrants travel to seek asylum in Canada every year. Yet, the very existence of Canada and its immigration policies seems contradictory upon closer inspection of the country’s history: Canada was founded by the genocide of its indigenous populations.
Genocide is defined as a “coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves.” Even though its legal definition wasn’t added until the end of the Second World War, the different Indigenous groups were, from the 18th century, victims of genocide perpetrated by British colonizers, and its effects are still felt to this day.
Moreover, though settlers did negotiate with the Indigenous people to own parts of the land in Canada through treaties, certain parts that aren’t populated with Indigenous groups are unceded, meaning that the Canadian government stole the land from Indigenous groups. It is hypocritical for the government to apply rigid measures as to who can enter this country when standing on stolen land, especially when its indigenous population is living in deplorable conditions, like lack of drinking water.
In addition, it is crucial to point out Canada’s involvement in several international conflicts in the Middle East, causing instability in the region and a rise in immigration in the Western world. Even though it sanctioned Bill C-47 in 2018, which added several criteria for the obtainment of a permit to export arms, and adhered to the Arms Trade Treaty in 2019, which would increase “the rigor and transparency of its export control regime”, its behavior has still not improved.
For example, Canada, in 2022, exported $1, 151 billion in military equipment to Saudi Arabia, making it its largest non-US export destination. Saudi Arabia is involved in many conflicts in the Middle East and is one of its richest countries. Political regimes in the Middle East tend to form alliances between them, usually based on each other’s affiliation with a religious group. For example, Iran and Saudi Arabia are often butting heads, either fighting each other directly or with proxy conflicts. Saudi Arabia sees itself as the dominating force for Sunni Muslims, and Iran sees itself as the leader of Shia Muslims. Therefore, when Sunni and Shia Muslims are fighting each other in different countries, Saudi Arabia backs the Sunnis, and Iran backs the Shias. Saudi Arabia intervened in Yemen in 2015, and its repercussions have caused a humanitarian crisis. Exporting arms to Saudi Arabia further destabilizes the country, which causes populations to flee to survive.
Saudi Arabia isn’t Canada’s only Middle Eastern export destination for arms. Canada also exports arms to Israel. In 2022, Canada exported over $21 million of military goods and technology and utilized 315 permits. This data is alarming: Israel has, since its creation, been a catalyst for a lot of conflicts in the Middle East. In 1948, shortly after the country was put in place, the Israeli government displaced over 700,000 Palestinians from their land and has been terrorizing, dispossessing, and committing atrocities on its Indigenous population. Furthermore, Israel has also annexed the Golan Heights in Syria, causing massive unrest in the region. Once again, faced with fear, families have no choice but to flee their homes in search of a better life.
Canada accepted 68% of its asylum applications in 2022, a higher number than we initially thought. However, once we take into consideration its involvement in the unrest in the Middle East, it seems hypocritical to make refugee claimants go through a process and determine whether they are eligible for asylum in Canada when the host country is partially to blame for the instability in their home country. We will even claim that Canada has a duty to accept all migrants from these countries because of their implication in said country.
2.2 International Law
To exist, international law requires sovereignty. What guides international law is the will of the sovereign states to be bound by some supranational power, while still not losing their internal power. As stated previously, the modern state was created through the Treaty of Westphalia. By using the terra nullius argument, which states that sovereign countries are allowed to claim any land that doesn’t belong to another state, European countries were able to invade, colonize, and strip indigenous groups of their culture. This justified the atrocities committed by Western nations since they weren’t committing them against what was considered at the time “legitimate states”.
International law is based on Western ideas about land ownership, which don’t coincide with many different Indigenous groups’ relationship with the land. The latter do not believe in possession of land but see themselves as an inseparable part of the earth, and so have a relationship based on reciprocity and respect with the land. Therefore, Indigenous people do not believe in conquering the earth, which is in direct contradiction with the basic principles of international law.
In addition, another important concept in international law, as well as immigration law, is borders. Borders can be physical – such as the wall between Mexico and the United States. Most borders in Third World countries are man-made modifications that occurred during the colonization of these regions as a political maneuver to separate communities and cause tensions in the area, which would make it easier to conquer. For example, the Scramble for Africa, which occurred after the Berlin Conference of 1884-1885, was made by different colonial powers to claim land on the continent without causing a war between the European countries. This caused a lot of economic disadvantages in different African countries, too small to develop a viable economic market when it finally became independent, as well as civil wars.
The international system is used as an instrument legitimization of states, which can erase history – and reality. Some Arab states dispute the very existence of Israel, claiming that it is a settler state created by Western powers to keep an eye on the Middle East. Nonetheless, Israel still has a seat as a state in the United Nations and goes further to contest the existence of Palestine and the right of Palestinians to self-determination. Giving Israel that seat includes them in the international system, and normalizes their occupation of Palestinian land, as well as their practices, described as apartheid and genocide. History shows that Palestine has always existed as a region, and Palestinians are indigenous to the land. Once again, international law enables settlers to attack indigenous communities.
International immigration law is based on colonial concepts of land, demonstrating remnants of imperialism. How can we determine whether someone is allowed to cross a border and remain on a piece of land when borders are manmade?
Conclusion
By instilling the international system, the Western powers can keep their hegemony on the rest of the world and maintain their hold on countries in the Third World. The system currently in place is upheld to spread Western norms across the globe. The Westphalian concepts of international law and the modern state is just one example: by pushing out this narrative, Western States are claiming that their point of view is the “right” one, and the only one, thus invalidating any other perspectives and epistemologies, such as several Indigenous groups’ relationship with the land. On an internal level, Canada plays the part of a welcoming nation; however, not only does it share a portion of the blame for the reason why so many people in the Global South are currently fleeing their homes, but its history shows that they got ownership of the land by committing horrific acts on its indigenous population for centuries, with effects still felt to this day. This brings us to ask the following question: can Canada determine who is illegal on stolen land?