Introduction
When we think about the history of the international refugee regime, why is it that—with a few carefully delineated exceptions—there were no non-European ‘refugees’ until the end of the Second World War?Footnote 1 By refugee ‘regime’ I mean the collective ensemble of international agreements, conventions, and protocols as well as the institutions, policies, and practices that have appeared since the 1920s to define, address, and, ultimately, it is hoped by their creators, to resolve the problem of human displacement across national borders.Footnote 2 Viewed from a certain perspective, the question just posed does not arise. Refugees, we are told, are ‘“a side-effect” of the creation of separate, sovereign states’. According to this view, refugees are an ‘inevitable consequence of the . . . modern system of nation-states’, something that results when there is ‘a breakdown in the state-citizen relationship’.Footnote 3 I argue that this perspective is both incomplete and, in certain key respects, ahistorical because it fails to account for why some states were excluded from the international system to begin with and why some non-European nation-states, even though nominally sovereign, could not produce ‘refugees’ in the juridical sense that was reserved almost exclusively for European refugees in international law. As we shall see, in the course of the twentieth century assigning or withholding the ‘refugee’ label came to involve complex processes of inclusion and exclusion based on multiple legal, bureaucratic, and political calculations. Scholars have studied these processes of inclusion and exclusion from a number of perspectives, but so far not from the vantage point of global history.Footnote 4 I want to suggest that these processes of inclusion and exclusion cannot properly be understood by focusing exclusively on the evolution of refugee policies and practices, while taking concepts like the ‘modern system of nation-states’ and the ‘modern international system’ at face value as unproblematic, historical givens. Rather, as Mark Mazower has recently reminded us, we need to take seriously the ideological contexts in which the ‘modern international system’ and the ‘international community’ were imagined and constructed in the first place, and, especially, what their architects at the time believed they were doing.Footnote 5 In an effort to take up this challenge, this article pursues three main objectives. The first is to propose an outline for an alternative history of the international refugee regime, one in which the non-European and colonial worlds are not invisible or peripheral but rather central to the main narrative. The second objective is to ascertain what place Chinese migrants and those who used to be widely referred to as ‘Overseas Chinese’ might have in such an alternative, global history of human displacement and refugeedom. The third objective is to show how the period from 1945 to the early 1960s was an especially important one in the history of the international refugee regime, and why refugee movements both out of and into the People's Republic of China during this period are critical for understanding the kinds of tensions and contradictions that emerged when the international refugee regime was transposed from Europe onto colonial and post-colonial Asia.
Let us begin with two anecdotes from the early 1950s which I hope will illustrate the sorts of tensions and contradictions to which I am referring.
On a hot summer's evening in late June 1952, a crowd of more than a thousand assembled at the Municipal Sports Stadium in the southern Chinese port city of Guangzhou. They had gathered in order to take part in an official rally to denounce the persecution and atrocities allegedly committed by British colonial troops in Malaya against members of the Malayan Communist Party and their sympathizers. According to the rally's organizers, these included simulated drowning, electric shocks, sleep deprivation, the pulling out of fingernails with iron forceps, trussing up prisoners so that they were forced to walk on all fours, and hanging prisoners up naked in public places for hours at a time as a warning to others. The rally was organized by the city's recently established ‘Committee for Handling Returned Overseas Chinese Refugees’ (Guiguo nanqiao chuli weiyuanhui (归国难侨处理委员会)). Those in attendance included a large number of ethnic Chinese who had recently arrived in Guangzhou from Malaya.Footnote 6 They were among the thousands of Malayan Chinese who were ‘deported’ to China during the more than decade-long Malayan Emergency (1948–60) when British colonial authorities attempted to crush an insurrection led by the ethnic-Chinese dominated Malayan Communist Party. In the weeks and months following the 24 June rally, many of those in attendance would board ships bound for China's southernmost island of Hainan, where they were resettled on newly established ‘Overseas Chinese state farms’.
At exactly the same time as the Malayan Chinese refugees were demonstrating against British colonial aggression, another refugee crisis was unfolding 90 miles downriver from Guangzhou, in the British crown colony of Hong Kong. After the outbreak of civil war in China in 1947 and the establishment of the People's Republic of China in October 1949, Hong Kong's population had exploded, as hundreds of thousands of Chinese, mostly from neighbouring Guangdong province but including, as well, a sizeable contingent of Shanghainese, chose Hong Kong over an uncertain future in Mao's China. Unlike the Malayan Chinese refugees, the Chinese refugees in Hong Kong quickly captured the world's attention. They also attracted the interest of the office of the newly created United Nations High Commissioner for Refugees (UNHCR). It was not simply the sheer scale of the refugee crisis in Hong Kong and the threat it posed to order and stability in the colony that attracted international attention, however. It was also because the refugees in question were ‘escapees’ from communism—the preferred term used by the United States to describe those who had fled the Soviet Union and Eastern Europe, a term pointedly appropriated by the Republic of China's ambassador to the United Nations (UN) when he addressed the General Assembly over the question of Chinese refugees in Hong Kong. Why, the ambassador asked the Assembly in January 1952, was the UNHCR expending so much energy and so many resources to evacuate the remaining European refugees in China, while doing nothing to assist the exponentially greater number of Chinese ‘escapees’ in Hong Kong?Footnote 7 Over the succeeding months and years, the Chinese refugees in Hong Kong found themselves at the centre of a concerted international effort led by the United States and other actors to enlist them in the Cold War struggle to discredit communist China.Footnote 8 Yet the curious thing about the Chinese refugees in Hong Kong is that, as we shall see later in this article, when it came to efforts to resettle them overseas, there were hardly any countries willing to take them in.
The two anecdotes just described—one involving ethnic Chinese who were persecuted by a colonial state and ended up in revolutionary China, and the other involving Chinese who fled a communist state and sought sanctuary in a British colony—are significant because they highlight the difficulty of accounting for forced migration into and out of the People's Republic of China in terms of conventional refugee narratives. Throughout the Cold War, conventional wisdom in the West was that communist states produced refugees and Western states provided sanctuary to those fleeing communist persecution; some have even suggested that the persecution-centred definition of refugee status in the 1951 UN Convention Relating to the Status of Refugees was crafted specifically to stigmatize communist states.Footnote 9 Yet in the former instance the roles were curiously reversed. The source of persecution was not communist totalitarianism but a European colonial state employing armed force and terror against its own subjects. The refugees who found themselves in China were not moving towards ‘freedom’, at least not in the conventional sense in which that term is generally understood in the West. And they were welcomed not only as ‘refugees’ (nanmin 难民) in need of succour, but as ‘patriotic Overseas Chinese’ (aiguo huaqiao 爱国华侨) who were ‘returning’ to their motherland—even if it was a motherland that many of them had never before seen or experienced.Footnote 10 Likewise, the conventional narrative cannot account for the fact that the mainland Chinese refugees in Hong Kong found the doors of nearly every Western democratic state closed to them. Their determined shunning of refugees from communism in China even led the head of the UNHCR Survey Mission charged with investigating the Hong Kong refugee problem to observe that the failure to assist the Chinese refugees in Hong Kong was ‘inconsistent with the large measure of international interest in other groups of political refugees’.Footnote 11 However, if we forsake the conventional narrative for an approach in which histories of empire and colonialism figure as prominently as Cold War politics, then the two anecdotes just described begin to make more sense.Footnote 12
Writing the history of the international refugee regime
Scholars have approached the history of the international refugee regime from several angles. Here I identify what I consider to be two main approaches. One sees the origins and development of the international refugee regime in terms of a humanitarian response to displacement. The other views the international refugee regime as an intergovernmental response to the disruptive effects that refugees pose for established modes of territorial governance. After briefly outlining each of these perspectives, I will propose an alternative approach, one which sees the international refugee regime as involving elements of both of the above, but which is also deeply informed by histories of colonialism, racial exclusion, and Western constructions of non-European ‘Others’.
Early histories of the international refugee regime tended to approach the subject in terms of an unfolding story of humanitarian response.Footnote 13 Emphasizing the humanitarian imperative as a key ‘driver’ of refugee policy is a perspective that emerges readily from the sources produced by refugee agencies themselves and their implementing partners ‘on the ground’. Observing the 60th anniversary of the UNHCR on 14 December 2010, its website observed that the organization was not about to wind up operations anytime soon because ‘humanitarian needs are unlikely to disappear’.Footnote 14 When viewed from this perspective, the history of coordinated international action on behalf of refugees is almost invariably framed in terms of a narrative of gradual progress and improvement. Starting with the creation in 1921 of the League of Nations High Commissioner of Refugees as a temporary agency whose mandate initially was restricted to assisting Russian refugees; through the halting and uneven responses to racial persecution and the escalating refugee crises of the Second World War in Europe; continuing with the establishment in 1950 of yet another temporary agency—the UNHCR—whose original three-year mandate was supposed to be confined to mopping up the final remnants of the refugee problem in Europe; to what the UNHCR has become today: the world's ‘rapid response unit’ for people displaced by conflict, with an annual budget in 2012 of $3.59 billion—the largest of any UN agency—and a scale of operations that is genuinely global in scope.
The role of humanitarian action in refugee history is indeed a central one. However, as Nevzat Soguk has recently argued, it is not the only one and, according to him, not the most historically significant one, either. For Soguk, the international refugee regime came into existence not only to provide succour to the displaced but, more importantly in his view, as a disciplined legal and political response to the political and social dangers posed by forcibly uprooted populations who had become detached from the sovereign state—‘citizens of nowhere’, in Debi Goodwin's compelling phrase.Footnote 15 Soguk's argument is that, whereas displacement may be as old as humankind itself, its configuration as a specific ‘refugee’ problem is a relatively recent development, dating back only to the early part of the twentieth century.Footnote 16 Moreover, the birth of the ‘refugee’ as a subject of intergovernmental statecraft and international law is not only historically specific but is also rooted in a specific geographical and political terrain: that of post-First World War central and Eastern Europe.
The Balkan wars of 1912–13 followed by the First World War and the subsequent dismantling of the great multi-ethnic and multi-religious empires of central and southeastern Europe resulted in a series of human displacements on a scale previously unknown in Europe. By the early 1920s, 20 million Europeans had been uprooted. The most important cause of this massive displacement, however, was not war itself but rather the triumph of nationalism and its corollary: the rise of the minority as the central problem in Europe's interwar politics. The Versailles Treaty granted 65 million people a state of their own and turned another 25 million into minorities.Footnote 17 Whereas the old Austro-Hungarian and Ottoman empires had claimed legitimacy on the basis of dynastic loyalty, not ethnicity, the nation-state principle that was championed by the peacemakers at Versailles embraced the putative link between blood and territory. But superimposing the nation-state system onto the infinitely varied and complicated ethnic terrain of central and Eastern Europe soon proved to be a recipe for rapidly escalating ethnic and religious tension. Various means were attempted to overcome the tensions. These included forcible efforts at national ‘purification’, as in the attempted genocide of Armenians by Turkish nationalists, as well as the compulsory ‘transfer’ and ‘exchange’ of ethnic minorities, as carried out by the Greek and Turkish states in 1922–23 (and which was then followed by similar population ‘exchanges’ involving Hungary and Romania, Greece and Bulgaria, and Bulgaria and Turkey.) Meanwhile, the British, French, and American architects of the Versailles Treaty adopted a different approach, trying to balance their ‘love affair with the nation-state’ with elaborate schemes to maintain ethnic minorities in their countries of residence by granting them protection in international law.Footnote 18 The latter was to be accomplished by imposing minority rights treaties as a condition of nation-statehood, to be overseen by the newly established League of Nations. The treaties, however, were unenforceable. Some nation-states forcibly expelled their unwanted minorities, while others passed citizenship laws excluding immigrants who were not of the right ethnic, racial or religious stock. By the early 1920s, a seething cauldron of resentment directed at ‘outsiders’ was giving rise to mounting assaults on minorities and a rapidly escalating refugee crisis in the heart of Europe.
It was against this background of increasing displacement and ethnic tension that the world's first ‘international’ refugee organization was created. In 1921 the League of Nations established the High Commissioner for Refugees. It was conceived of as a temporary institution for assisting Russian refugees (by granting them an official legal status, encouraging their employment, and facilitating their eventual repatriation). The mandate was subsequently expanded to include Armenian, Turkish, and Assyrian refugees, until the organization was superseded in 1930 by a new body, the Nansen International Office for Refugees.
The creation of the High Commissioner for Refugees in 1921 is often regarded as marking the origin of the modern international refugee regime. For some, its establishments signalled the beginning of the world's first coordinated international humanitarian response to human displacement. For Soguk, however, the significance of the High Commissioner for Refugees lay not so much in its international humanitarian coordinating functions but in its role as an ‘instrument of statecraft’. The High Commissioner for Refugees was founded ‘to open an intergovernmental, legal field of activity . . . to enable the regimentation of the transverse effects’ of displaced populations. The sudden appearance of millions of displaced and stateless people represented, in Soguk's words, nothing less than a crisis in ‘sovereign territorial governance’, which threatened to undermine the ‘all encompassing hierarchy of citizen/nation/state’. The function of the High Commissioner for Refugees was not merely to assist refugees but, more importantly, to ‘produce, stabilize, and empower contingent images, identities, subjectivities, relations, and institutions of sovereign statehood’ and ultimately to ‘restore the normal hierarchy’ of citizen/nation/state.Footnote 19 The international refugee regime was the means by which refugee movements and the people who populated them were to be brought under control through a series of legal manoeuvres in the form of international conventions, protocols, and procedures agreed by sovereign states and overseen by the world's first genuinely international organization, the League of Nations. Thus, the focus of this emerging regime centred on such statist concerns as the legal definition and protection of refugees; their registration and documentation; their confinement within certain prescribed sites and spaces (the institution of the ‘refugee camp’); their relief and ‘rehabilitation’; and their eventual return to the ‘normal’ status of citizens of a sovereign state, whether the previous sovereign (through repatriation) or a new one (through local integration or third country resettlement).
Soguk's view of the international refugee regime as a statist response to the politically disruptive effects of human displacement complicates our understanding of displacement and represents a significant advance over previous approaches that narrate the evolution of the international refugee regime in terms of an ever-widening realm of humanitarian intervention, or which see the international refugee regime as a politically neutral institution whose existence was dictated simply by the objective necessity of interstate collaboration to assist refugees. However, a significant problem with both the humanitarian and the statist approaches is that neither provides a basis for conceiving a history of displacement that takes full account the world beyond Europe. From the humanitarian perspective, the world beyond Europe comes into view only insofar as well-intentioned Western actors and institutions—churches, missionary societies, and non-governmental organizations—gradually succeed in their efforts to broaden the field of humanitarian action. Likewise, in Soguk's argument, the underlying telos is the gradual spread of sovereignty and its corollary, the nation-state system, from Europe to the rest of the world. As formerly colonized countries acquire sovereignty and join the ‘family of nations’, so they become eligible for membership in the institutions created to maintain order among sovereign states including, among other things, the international refugee regime.
While China remained nominally sovereign, in reality it had been reduced to a kind of ‘semi-colonial’ status by a series of ‘unequal treaties’ imposed by the European powers and Japan since the mid-nineteenth century. A ‘rights recovery movement’ was launched in the first decade of the twentieth century and continued under the Nationalist government (1927–49). The latter pursued a strategy of international negotiation and treaty revision to restore Chinese sovereignty in areas like tariff autonomy and extra-territoriality and achieved some successes, notably in its negotiations with smaller European countries.Footnote 20 However, the Second World War marked a turning point in China's international status.Footnote 21 As a leading member of the Allied Powers and a key player in the war effort, China's international status rose significantly during the war. As a result, as we shall see below, Chinese delegates were at the table when the early post-war UN agencies were created, including the UN Relief and Rehabilitation Administration and its successor, the International Refugee Organization. However, this is a history that is just beginning to be written, and which has thus far had very little impact on the historiography of international refugee efforts. Most existing histories of the international refugee regime remain profoundly Eurocentric. Typically, they begin with the religious persecution and expulsion of the Huguenots from France in 1685 (when the English-language term ‘refugees’ was first popularized); proceed to the French Revolution (whose refugees were more frequently known as ‘émigrés’ and ‘exiles’); and then consider the implications of the rise of nationalism and the nation-state system in Europe.Footnote 22 Is an alternative approach possible? Is there a way to bring the non-Western world into the history of the international refugee regime other than through the telos of humanitarian activism or of the nation-state system? What would a genuinely global history of human displacement and refugees look like? How would the historical experiences of Chinese migrants fit into such a history? Or is it simply the case that, when it comes to histories of human displacement, before the Second World War non-Europeans are fated to remain, in Eric Wolf's still poignant phrase, ‘the people without history’?Footnote 23
An alternative history
In attempting to think through these issues, I have found especially helpful the work of legal scholar, Antony Anghie. Anghie is concerned with uncovering what he describes as ‘the colonial origins of international law’. According to conventional understanding, the field of international law—of which refugee law is a central domain—developed in response to the problem of how to create and maintain order among sovereign states.Footnote 24 However, Anghie disputes this conventional wisdom, pointing out that ‘a focus on the problem of order among sovereign states cannot illuminate the prior question of how certain states were excluded from sovereignty in the first place’.Footnote 25 Instead, he argues, we need to recognize that colonialism played a central role in the origins and subsequent development of international law, and especially its key concept of sovereignty. From its inception, international law was concerned not only with relations among states but also, and more importantly, according to Anghie, with the imperial project of governing non-European peoples.Footnote 26 Sovereignty doctrine was not something that was developed in Europe and then simply transferred to the non-West at some point in the mid-twentieth century as a consequence of decolonization; rather, sovereignty doctrine was forged in the context of the colonial confrontation itself: in the legal, political, intellectual, and military project of extending domination over non-European peoples.Footnote 27
This project entailed a series of complex intellectual and legal manoeuvres. As Laura Benton points out, the history of international law ‘has tended to be narrated as a shift from natural to positive law, beginning with the arguments of jurists in the sixteenth and seventeenth centuries about the centrality of natural law principles in regulating inter-imperial relations and leading to the emergence, in the long nineteenth century, of a concept of international order based on law formed through the agreements of separate sovereign polities’.Footnote 28 But, as Benton has shown, conceptions of imperial sovereignty were more complex than this formulation allows. In particular, the dominant position of colonial state law, which in Benton's view was not achieved until the mid-nineteenth century, was not something that resulted from the simple imposition of a ‘Western model of governance’. Rather, it was the product of a long and fraught historical process of negotiation and contestation over jurisdictional authority. This was because, in the several centuries of imperial expansion prior to 1800, Europeans often imagined imperial space in terms of ‘networks of corridors and enclaves’ rather than the formal imposition of sovereign power over other polities. As a result, the history of imperial expansion gave rise to ‘patterns of legal variation’ which included areas of partial, overlapping, and contested sovereignty as well as ‘anomalous zones’ in which established legal norms were suspended (some examples of which, like Guantanamo Bay, persist to this day).Footnote 29
The most important source of this variation derived, according to Benton, from ‘local legal politics’. Colonial officials might have quoted the Bible and invoked Roman law when selectively applying elements of metropolitan law in local circumstances, but there were compelling economic and strategic advantages to be gained from ruling through, alongside, and in-between indigenous legal systems and practices. Legal pluralism, in other words, was an integral feature of imperial authority long before Frederick Lugard elevated the notion of ‘indirect rule’ to that of a governing ideology in his 1922 book, The Dual Mandate in British Tropical Africa.Footnote 30 Indeed, it is not difficult to find instances of legal pluralism arising from European imperialism in China: the preservation of indigenous ‘manners and customs’ in the New Territories of Hong Kong; extra-territoriality and its manifestations, such as the Shanghai Mixed Court.Footnote 31 Moreover, the notion of hybrid legal orders was not unfamiliar in China, both because the Qing imperium was itself based on a kind of legal pluralism that regarded Manchus and their Han subjects differently, and also because the Chinese tributary system, which had formed the basis for China's inter-state relations prior to the mid-nineteenth century, functioned within an Asian political universe defined by fluid, overlapping, and multiple sovereignties. Here the control of territory was often less important than claims over people and their labour.Footnote 32
In addition, however, European imperial discourses and practices of legal pluralism—like those of the Qing imperium and the tributary system—were also rooted in particular understandings of ‘culture’ and ‘difference’. As Benton explains, the (European) plural legal order had both a ‘structural dimension’ (which shaped the possibilities and limits of political and economic interaction) as well as a crucial ‘discursive’ dimension. The latter was characterized by a near ‘continual struggle over definitions and markers of cultural difference’.Footnote 33 The very notion of plurality required a prior understanding of difference. In Benton's view, it was the ongoing referencing of multiple sources of legal authority and resulting conflicts over jurisdiction, together with the culturalist arguments that were often invoked to settle these conflicts, that resulted, by the mid-1800s, in ‘a shift toward a hierarchical understanding of the legal order and a recognition of the dominance of [imperial] state law’.Footnote 34
Culturalist arguments about difference were also informing new trends in international law, as the renewed wave of colonial expansion in the late nineteenth century gave rise to emerging models of global governance and definitions of international community.Footnote 35 After the mid-nineteenth century, under the influence of legal positivism, European juridical discussions of the bases of international law coalesced around the notion of a ‘standard of civilization’ as the basis for an international community made up of states that were deemed as ‘civilized’ by European states who already regarded themselves as such.Footnote 36 Crucially—and paradoxically—the notion of a ‘standard of civilization’ was constructed within the larger context of a growing emphasis upon the sovereignty and equality of states as the ideological basis of the emerging international system. As Adam McKeown observes, the ‘standard of civilization’ argument ‘amounted to a reformulation of difference away from the idea of Christian law to one that could reinforce inequalities across the borders of the family of nations even as it emphasized the idea of equality between nations’.Footnote 37 Confronted with the absence of a supranational sovereign authority, nineteenth-century legal positivists turned instead to the notion of a ‘family’, ‘community’ or ‘society’ as the legitimating basis for international law: a compact made up of members who agreed to abide by a common set of rules. This was a crucial shift because ‘implicit in the idea of society is membership’: only certain states were to be accepted into the international ‘family’ of nations. What, then, were the criteria for membership?
As Anghie observes, the concept of an (international) ‘society’ and the range of ideas associated with it enabled jurists to link legal status with cultural distinctions. The key cultural distinction drawn by legal positivism was between ‘civilized’ and ‘uncivilized’ states. Once the distinction was made, ‘completely different standards could be applied to the two categories of people’. Anghie quotes Henry Wheaton, whose 1866 book, Elements of International Law, is one of the foundational texts of modern international law: ‘Is there a uniform law of nations? There certainly is not the same one for all the nations and states of the world. The public law, with slight exceptions, has always been, and still is, limited to the civilized and Christian people of Europe or to those of European origin.’Footnote 38 In this way, a particular sociological vision rooted in notions of cultural difference and the binary categories of ‘civilized’ versus ‘uncivilized’ became the basis for international law, rather than sovereignty per se. By positing a gap, understood primarily in cultural terms, between the ‘civilized’ European and ‘uncivilized’ non-European worlds, nineteenth-century legal theorists established a basis both for excluding the non-European world from the realms of sovereignty and international law—including refugee law—and for legitimizing the ‘grand redeeming project’ of bridging this gap by civilizing the uncivilized.Footnote 39
Where did China fit into this scheme? When nineteenth-century jurists drew distinctions between ‘civilized’ and ‘uncivilized’ states and then used these distinctions as the legal basis for excluding colonized territories from the realm of sovereignty, they were also forced to confront the reality that some non-European states, such as China, Persia, and Turkey, not only controlled their own territory but had highly developed political and legal systems of their own, and that European states had in the past interacted with them on the basis of sovereignty, even entering into international treaties with them. Were they to be considered fully fledged and sovereign members of ‘international society’, even though by European cultural standards they remained uncivilized? Jurists could only resolve the dilemma by resorting once again to the primacy of cultural difference: while Asiatic states like China might be formally ‘sovereign’, they could only be admitted to the ‘family of nations’ and be entitled to the same range of powers and privileges enjoyed by European sovereigns if they ‘met and conformed to the European standard of civilization’.Footnote 40 One of Anghie's key arguments is that non-European states can never fully realize this equality of status. The reason, according to Anghie, is because the ‘dynamic of difference’—that which distinguishes the civilized from the uncivilized—is constantly being regenerated and reinscribed under different historical circumstances.Footnote 41 The effect of this ongoing inscription and reinscription of difference has been to justify the continuation of the civilizing mission under vastly differing historical conditions. Thus, the civilizing mission was written into the founding covenant of the League of Nations, with the concept of a ‘sacred trust of civilization’ serving as the principal rationale for ‘mandating’ control of former Ottoman and German colonial territories by European powers, until such time as these territories were judged ‘able to stand alone’, that is, seen to be fit for sovereignty.
What do the colonial origins of international law and its role in generating the ‘dynamic of difference’ mean for writing a global history of human displacement? Anghie's argument is that the dynamic of difference between the civilized West and the uncivilized non-West ‘animated the development of many of the central institutions of international law’.Footnote 42 Did it also animate the development of international refugee law and the representation of displacement in non-Western contexts? A first observation is that, in the colonial archive, instances of forced migration and displacement, including what would otherwise be regarded as refugee-producing events, tend to be either erased from the historical record or, as was often the case, registered under different signs: as instances of mutiny, rebellion, hiding, absconding, banishment, deportation, unauthorized flight, and various forms of illicit residence and unauthorized movement.Footnote 43 A second observation is that ethnic Chinese migrants overseas often occupied particularly complicated subject positions. Chinese migrants historically were deeply familiar with the experiences of mass expulsion, legalized discrimination, and persecution on racial and ethnic grounds, even organized pogroms. News of such events circulated globally via qiaokan (侨刊 hometown magazines) and the global Chinese-language press, and would have been considered essential knowledge for migrants negotiating the perils and opportunities of transnational mobility. During the republican era, for instance, the popular Shanghai-based news and current affairs magazine Dongfang zazhi (Eastern Miscellany) reported regularly on instances of ‘paihua’ (排华) or ‘Chinese exclusion’—a term that could refer both to border exclusions as well as forced expulsions, as in the case of Mexico.Footnote 44 However, these events took place off the radar and beyond the pale of international refugee law. If we want to understand why this was so, we have to consider the nature of the constrained world within which Chinese migrants moved for much of the twentieth century.
Overseas Chinese and the international refugee regime
Histories of Chinese labour migration and racial exclusion are critical for understanding the ways in which individual states and the ‘international community’ as a whole viewed and responded to Chinese forced migration. As McKeown has shown, the basic principles of modern immigration control were developed in the late nineteenth century through a process of excluding Asians from white ‘settler’ nations.Footnote 45 A kind of ‘administrative cordon’ was erected for the purpose of restricting or excluding Asian, and often specifically Chinese, migration to white settler countries positioned around the Pacific Rim. As McKeown puts it, race-based exclusion laws gave a physical presence not only to national borders but to the ‘cultural macro categories that divided the world into East and West, civilized and uncivilized’. They did so because the white settler nations that enacted exclusionary immigration laws aimed at Asians also regarded themselves as pioneers of such nineteenth-century liberal values as self-government, democracy, freedom, and the sanctity of the individual. The self-image of white settler nations as paragons of freedom and democracy was constructed in relation not only to the despotic traditions of the ‘Old World’ (Europe) but also, and more forcefully, in relation to the exclusion of ‘uncivilized’ Asians from within their borders. In this way, the political and legal justifications underlying modern immigration policy developed through a process of ‘isolating particular peoples from participation in the modern world’.Footnote 46
What is critical to bear in mind is that these practices and the ideological justifications undergirding them were still firmly in place until after the end of the Second World War and, in some cases, well into the 1960s and beyond.Footnote 47 Instead, Asian migrations, mainly Chinese and Indian, took place mainly within the global circuits of European empires for the purpose of supplying cheap and captive labour for rapidly expanding extractive and plantation economies in non-settler colonies in Asia, Africa, and the Pacific.Footnote 48 By the 1930s, some influential theorists were even calling for the ‘international community’ to oversee the global organization of Asian labour migration, for the betterment of mankind. An example is the fascinating 1936 study by the Indian economist and philosopher, Radhalkamal Mukerjee, whose book Asian Migrations: A Problem in World Population, caught the attention of the Italian Committee for the Study of Population Problems in fascist Italy. This organization published Mukerjee's study, with an introduction by the country's leading population theorist, Corrado Gini, entitled ‘The Problem of the International Distribution of Population and Raw Materials’.Footnote 49 Mukerjee called for the creation of what he termed an ‘international migratory code’, to be overseen by the League of Nations, whose main function would be to establish ‘universally compulsory standards of selection’ to respond to the ‘diverse economic needs’ of countries populated or controlled by ‘whites’ with a seemingly unlimited supply of Asian labour. By adopting such an international migratory code, Mukerjee argued, ‘Oriental labour’ would ‘inaugurate a new era of production’ in which ‘vast areas which are now empty or barren or where agriculture is at a low ebb will be brought into line with the trend of the world's progress’. The end result, he claimed, would be nothing less than the ‘agricultural transformation of vast untenanted parts of the globe’.Footnote 50 Mukerjee's proposal never saw the light of day, but it stands as a particularly revealing example of how Asian migration was viewed, internationally, in the 1930s and also, as we shall see below, beyond.
In fact, Mukerjee belonged to a rising chorus of demographers and population experts in the 1920s and 1930s who were calling for new ways to address a perceived global problem of overpopulation and ‘surplus populations’. Tying overpopulation to the concept of ‘virgin land’ gave rise to a ‘logic of population redistribution’ that demographers worried about the threat of overpopulation eagerly seized upon.Footnote 51 Linkages between international migration patterns and the relative densities of population in different regions and countries were studied and catalogued, and international ‘population transfer’ was identified as a key solution to the problem of overpopulation (along with birth control and eugenics). It is important to recognize that the proponents of such schemes often regarded themselves as being at the forefront of progressive change by seeking to employ the multilateral institutions of a nascent ‘international community’, embodied by the League of Nations and its affiliated bodies like the International Labour Organization, to improve the world.Footnote 52 These are the vital historical contexts for grasping how international relief and refugee organizations understood the world in the early and middle decades of the twentieth century. When organizations such as the UN Relief and Rehabilitation Administration and the International Refugee Organization were created at the end of the Second World War, they naturally sought solutions to refugee and migration problems in terms of the prevailing concepts of ‘surplus populations’ and global labour provisioning.Footnote 53 It was in precisely these terms, combined with the specific legacies of Chinese labour migration and exclusion, and the status and meanings ascribed to ‘Overseas Chinese’, that the international refugee regime approached the problem of Chinese refugees.
Chinese refugees entered the radar of an international refugee organization for the first time in 1943 with the establishment of the UN Relief and Rehabilitation Administration, the American-led organization that was created to provide emergency aid and economic assistance to areas liberated from the Axis powers.Footnote 54 The total number of refugees in wartime China may have reached 95 million, according to some estimates. However, only a relatively small proportion of China's wartime refugees crossed borders; most were displaced internally, within the vast continental landmass of China.Footnote 55 China was the chief beneficiary of assistance from the UN Relief and Rehabilitation Administration outside of Europe.Footnote 56 As Meredith Oyen shows in her article in this Forum, the UN Relief and Rehabilitation Administration's involvement in China had much to do with the give-and-take politics and negotiations surrounding China's status as a wartime and post-war ally, and with the fact that the Republic of China was both a founding member of the UN and a member of the UN Relief and Rehabilitation Administration's central committee. Following the end of the war in 1945, this organization repatriated up to seven million refugees and displaced persons in Europe. In China, besides supporting health programmes and various economic rehabilitation projects, the UN Relief and Rehabilitation Administration assumed responsibility for the repatriation of approximately 12,000 people who had been designated as ‘Overseas Chinese’.Footnote 57 When it ceased operations in 1947, its successor organization, the International Refugee Organization, of which the Republic of China was also a founding member, assumed responsibility for the continued repatriation of these ‘Overseas Chinese refugees’.Footnote 58
The inclusion by the UN Relief and Rehabilitation Administration and the International Refugee Organization of approximately 12,000 ‘Overseas Chinese refugees’ in their mandate for repatriation is especially interesting. It is not clear that either the organizations themselves or the scholars who subsequently documented their activities possessed any detailed understanding of exactly what the category ‘Overseas Chinese’ meant in a legal or political sense, or on what basis they were determined to be ‘refugees’. In her magisterial survey of the International Refugee Organization, Louise Holborn remarked on the fact that in China, Overseas Chinese ‘curiously enough enjoyed refugee status in their own country’.Footnote 59 Indeed, under the terms of the Republic of China's 1929 Nationality Law (which renewed the previous Qing dynasty's 1909 Nationality Law) ‘Overseas Chinese’ were citizens of China (both laws upheld the principle of jus sanguinis or ‘right of blood’) and were therefore under the protection of their own government. To make things even more complicated, whereas some of these ‘Overseas Chinese’ had fled to China during the Japanese occupation of China, a significant proportion of those slated for repatriation had actually made their way to China voluntarily, for patriotic reasons, in order to contribute to the anti-Japanese war effort. They were included in the International Refugee Organization mandate by virtue of a clause in its constitution which stated that war refugees would cease to be of concern to the International Refugee Organization once they returned to the countries of their nationality ‘unless their former residence to which they wish to return is outside their country of nationality’. The clause had been inserted into the International Refugee Organization constitution at the insistence of the Chinese delegate to the International Refugee Organization, specifically to address the situation of the Overseas Chinese.Footnote 60 But when the International Refugee Organization attempted to repatriate those Overseas Chinese who were under its care, it quickly met with ‘considerable difficulties’, owing to the reluctance and outright refusal of several governments in their countries of pre-war residence to allow them back.Footnote 61 The refusal to allow Overseas Chinese refugees to return to their pre-war homes in Southeast Asia was a portent of things to come.
Let us return now to the two examples with which we began this article. The British practice of deporting ethnic Chinese troublemakers—whom colonial authorities referred to disparagingly as ‘banishees’—had a long history in Malaya. The first Banishment Act was introduced in 1864. As Yong Ching-fatt has argued, until the 1930s, banishment, in combination with various labour ordinances, served as a kind of ‘makeshift immigration control’ employed by the British to deport those whom colonial legal authorities labelled as criminals, secret society members, and political activists.Footnote 62 Banishment of political ‘subversives’ increased in the 1920s with the rise of Kuomintang and Chinese Communist Party activity in Malaya and the imposition of legislation designed to assert greater colonial government control over the establishment and curriculum of Chinese-language schools. The practice increased exponentially during the ‘Emergency’ when more than 10,000 ethnic Chinese were deported to China in 1950–51 alone, according to Chinese sources.Footnote 63 Upon their arrival in China the ‘banishees’ were regarded by the People's Republic of China government as ‘Overseas Chinese refugees’ (难桥) who had ‘returned’ (归) to their ancestral motherland. Like the more than 100,000 Indonesian Chinese refugees who followed them between 1959 and 1961, they do not appear in any of the existing English-language histories of the modern refugee. Colonial states, whatever they did, did not produce ‘refugees’ in international law.
Or to put it another way, refugee law was unable to prevail against the alternative identities ascribed to Chinese migrants.Footnote 64 The real driving identity ascribed to the Chinese (and the indentured Indians) was that of economic actor-labourer (hence labour migrations and Mukerjee's proposals) and security threat (hence expulsions in the case of the British and exclusion in the case of the United States and other white settler societies). These were powerful and enduring narratives, whose strength was further reinforced by the assumption that colonial states could do as they wished to the people under their control.Footnote 65 British expulsion of the Chinese from Malaya could not be taken into account by the international refugee regime because of the prevailing view that Chinese migrants were primarily economic actors-labourers and the assumption that whatever the British did was justified. Underlying all of this was the assumption and acceptance of British authority to simply add and subtract ‘lesser breeds’ of migrants to their colonial possessions based on economic and security calculations. So if what the British did was inherently permissible, then the Chinese were inherently incapable of being ‘refugees’.
The problem was compounded by the Chinese approach and the idea of a ‘trans-territorial’ nation-state based on the principle of jus sanguinis, in which ethnic Chinese abroad possessed something akin to a permanent ‘right of return’ to their ancestral motherland (although this concept was undergoing important revision in the People's Republic of China during the 1950s).Footnote 66 Hence, there was the further complication presented by an entirely different idea of the nation-state, which challenged the refugee regime's legal structures in a different way. Indeed, the very concept of ‘sovereignty’, which in Europe had been historically closely linked to the idea of territoriality and the confinement of feudatory obligations within territorial boundaries, had very different historical meanings in Asia.Footnote 67 Finally, according to the Cold War logic of the times, communist states were in the business of producing refugees, not sheltering them. For a long time, we knew very little about the subsequent fate and life experiences of Malayan and Indonesian Chinese refugees who ended up in the People's Republic of China in the 1950s and 1960s, although recent oral histories have begun to illuminate their predicaments.Footnote 68
In stark contrast to the ethnic Chinese who were expelled and fled from Malaya and Indonesia, the UNHCR took a keen interest in the Chinese refugees who streamed into Hong Kong from the communist mainland in the early 1950s. The UNHCR Survey Mission that was dispatched to investigate their plight showed a readiness to recognize them as bona fide ‘refugees’ in a ‘social’ as well as in a ‘humanitarian’ sense, though not in the strict legal sense as defined by the 1951 UN Convention on the status of refugees.Footnote 69 But if Cold War politics helps us understand the UNHCR's readiness to recognize a refugee crisis in Hong Kong, the organization's largely failed attempts to promote the refugees’ resettlement overseas can only be explained in relation to the lingering histories of colonialism and race-based exclusion. When Edvard Hambro, head of the UNHCR Survey Mission in Hong Kong, contemplated the prospects for resettling the refugees overseas, he quickly came to the conclusion that there were few available options. Countries that had demonstrated a ready willingness to receive European refugees in large numbers, such as Canada, Australia, the United States, and some South American countries, simply refused to admit the Chinese in significant numbers or, in many cases, at all. Observing matter-of-factly that race-based immigration and citizenship policies, often aimed specifically at the Chinese, were still firmly in place in countries such as Australia, Canada, New Zealand, and the Unites States, and that numerous post-colonial states in Southeast Asia had recently begun to enact their own restrictive policies aimed specifically at the Chinese, Hambro admitted there was a ‘very great reluctance to accept Chinese immigrants anywhere in the world’.Footnote 70
Faced with this reluctance, Hambro and his associates began to consider alternative resettlement possibilities. It was the nature of these alternative resettlement schemes envisioned by Hambro and others that seem to be particularly revealing. One of the resettlement possibilities Hambro identified, and the one that he appears to have regarded as having the greatest potential, involved what he described as ‘contractual immigration to various British territories’.Footnote 71 The proposal is important because it suggests the extent to which Chinese refugee resettlement was viewed in terms of older colonial strategies involving the use of contract labour and the mandated relocation of ‘surplus populations’ to serve the needs of distant economies. In Hambro's view, ‘from a purely economic point of view’ it made the most sense to resettle the Chinese refugees in the ‘more sparsely populated areas’ of Asia, Oceania, and the Americas, where there was an abundance of natural resources combined with a shortage of available labour.Footnote 72 It was an idea that harked directly back to Mukerjee's proposal to deploy ‘Oriental labour’ to transform the ‘vast untenanted areas of the globe’.Footnote 73 Thus, one of the resettlement possibilities that Hambro actively pursued involved a proposal to resettle some 7,000 Chinese refugees in British North Borneo, which Hambro described as one of the few remaining colonies with a ‘shortage of manpower’. In fact, the recruitment of Chinese contract labour for British North Borneo had a history stretching back to the late nineteenth century. In the 1880s, shortly after the British North Borneo Chartered Company (a private firm headed by a former British consular official in China, Sir Rutherford Alcock) was granted a licence to settle and administer the sparsely populated territory on the northeastern tip of Borneo, the Company entered into an agreement with Christian missionaries in South China to recruit Chinese peasants for the colony's fledgling rubber and tobacco plantations.Footnote 74 In June 1954 Hambro requested permission from the British authorities to visit North Borneo in order to investigate its potential as a resettlement destination for Chinese refugees. However, the Colonial Office declined his proposal on the grounds that the influx would disturb the existing ‘balance of population’ in the territory and because it feared the presence of communist infiltrators among the refugees.Footnote 75
The British North Borneo scheme was but one of several similar proposals to resettle Chinese refugees on a contract labour basis, a few of which even came to fruition.Footnote 76 By far the most striking plan was the one advanced by British Treasury Department economist, Jack Downie. In 1959 Downie proposed utilizing Chinese refugee labour in Hong Kong to revive the flagging plantation economy of the British Honduras (present-day Belize) by boosting the colony's population from 90,000 to over 300,000 in the space of a few years. Like British North Borneo, British Honduras was a sparsely populated colony, in which most of the best agricultural land was held by a private British firm (in this case, the London-based British Honduras Company). The Company had previously attempted, with only limited success, to develop sugarcane, coffee, and cocoa plantations in the colony by relying on indentured Chinese and Indian labour. The government of British Honduras was firmly behind Downie's plan, which was even the focus of a London conference. In the end, the proposal never got past the drawing board. Had it gone ahead, however, it is likely to have represented the world's final attempt to build a plantation economy on the backs of imported Asian labour.Footnote 77 It is important to recognize that schemes such as the ones just described were not mere oddities or exceptions. Rather, they were deeply embedded in the historical contexts that continued to shape how Chinese refugees and other victims of forced migration were alternately seen and ignored by the international community in the early post-war era.
Finally, in closing we might turn to the words uttered in an authoritative 1962 United States Congressional report on the Chinese refugee problem in Hong Kong, in order to remind ourselves of just how durable these conceptions could be. After observing that the Chinese refugees in Hong Kong constituted ‘the single largest concentration of anti-communist refugees anywhere in the world’, the report went on to note that many Chinese refugees in Hong Kong were commonly regarded as ‘rice refugees’ (a twist on the older ‘rice Christian’ moniker) rather than genuine political ‘escapees’. The report then proceeded to make the following claim: ‘This is not to say that political persecution does not exist to a large degree in Red China, but simply to illustrate that the same standards and classifications which have been adopted for European and Western refugees cannot automatically be applied in the Far East. Indeed, the average Chinese refugee, if approached and asked why he left Red China, would not be able in an intellectual sense to answer questions about Communist oppression. He would state that he did not like the kind of life he had been forced to live and in this he would have particular reference to the economic and personal restrictions placed upon him. But coming for the most part from an oriental peasant background, he would not state that he had fled in order to escape political persecution’ (emphasis added).Footnote 78 The report as a whole can be read as a justification for opening the door a crack and allowing a slightly greater number of displaced Chinese into the United States in the aftermath of China's Great Leap Forward famine and another escalating refugee crisis in Hong Kong. However, it also reminds us directly and poignantly that the ‘dynamic of difference’ separating Westerners from Others is not only something that is constantly regenerated under changing historical circumstances, as Anghie observed, but that this difference can be seen to dwell in the universal figure of the refugee as well. Does it still?
