Daniel Ghezelbash

The 1951 Refugee Convention was drafted in response to the failure of states to provide refuge to people fleeing persecution at the hands of the Nazi Germany. Like the 937 mostly Jewish passengers of the SS St Louis, who departed from Hamburg in May 1939. They headed to Cuba, where they all had landing documents permitting entry, but upon arrival, Cuba refused to honour those documents. They then attempted to reach the United States but were intercepted by the US Coast Guard. Although close enough to Miami to see its lights, they were blocked from entering port. With nowhere to go, they returned to Europe, where they were disembarked in Great Britain, Belgium, Netherlands and France. Some of these countries later fell to the Nazis and it is estimated that around a quarter of the passengers of the St Louis ultimately lost their lives in concentration camps. Part of the impetus for the Refugee Convention was to prevent a repeat of incidents like this. The cornerstone of the Convention is the protection against refoulement, which prevents states from returning asylum seekers to a location where they would face persecution on a Convention ground.

But around the world, countries are turning their backs on the protections set out in the Refugee Convention. States continue to pay lip service to their obligations, but are implementing measures aimed at deterring and blocking asylum seekers from accessing those protections. This has been described as the deterrence paradigm— a climate which provides fertile ground for the diffusion of restrictive policies. States are carefully observing and copying deterrence policies implemented in other jurisdictions. Learning of this type occurs in all areas of policy making. But there are a number of characteristics of asylum policy that make it particularly prone to such behaviour.

States essentially have the same goal: to keep unwanted irregular migrants and asylum seekers away from their territories. They also share a common constraint to achieving this goal: the obligations set out in the Refugee Convention. When a state develops a policy, which meets the policy goal, while ostensibly not falling foul of the Refugee Convention, then the innovation can spread like wild fire across other states working within that same paradigm.

Another factor that makes asylum policy particularly prone to diffusion is that states policy settings are interdependent. That is to say that changes in the policy settings of one state, have ramifications for other states. At the most direct level, when an asylum seeker is blocked from entering a country, they are pushed back into another state. At a more indirect level, the implementation of a restrictive asylum policy in one state, may lead to an increase in asylum flows in another state. In this competitive environment, governments keep a close eye on what other states are doing, and adjust the stringency of their policies accordingly.

Australia’s asylum policies provide an example of how this can play out in practice. The main elements of Australia’s border protection regime all come directly from the US government playbook. Australia’s mandatory detention regime, introduced in the early 1990s, was modelled on US mandatory detention policies implemented in response to Haitian boat arrivals in the early 1980s. Australia’s maritime interdiction and boat push-back policy is based on the US Migrant Interdiction program, which has also been operating since the early 1980s. The program was initially developed to target Haitian arrivals, but was expanded over the years to target boats from other countries, including Cuba, China and Ecuador. The policy of offshore processing  in Nauru and, until recently, Papua New Guinea, is modelled on the US practice of extraterritorial processing of asylum claims in Guantanamo Bay, and a number of its Caribbean neighbours.

The US has used Guantanamo Bay as a location for holding asylum seekers intercepted at sea since 1991. Guantanamo’s special status means that asylum seekers cannot access the legal protections they would be afforded if transferred to the US mainland. It was exactly this rationale that later led to Guantanamo being used as the location to hold enemy combatants. It’s also the same rationale that underpins Australia’s use of offshore processing sites on Nauru and Manus Island. Australia did not have a territory equivalent to Guantanamo, so it enlisted the cooperation of its Pacific neighbours. This type of third country processing has also been used in the US. In 1994, the US sought to supplement capacity at the Guantanamo facility by processing asylum claims aboard a Navy vessel anchored in Kingston Harbour in Jamaica.

Australia introduced offshore processing and boat turn-backs in 2001 in response to the MV Tampa incident. The Howard government prevented the Norwegian freighter from disembarking 433 asylum seekers rescued at sea at Australia’s territory of Christmas Island. The crew and asylum seekers were held at sea by Australian authorities, while the government scrambled to find a solution that would prevent their entry into Australia. It is in these moments when an urgent policy solution is required where the temptation to borrow from abroad is at its highest. Australia sought advice from a retired senior US policy maker who was one of the chief architects of the US offshore processing system. This source confirmed to me in an interview that they furnished detailed policy advice about the US experience to senior Australian officials. And it appears this advice was very influential in shaping the response of the Australian government.

Now there are growing calls for Europe to adopt the ‘Australian Model’. The irony of course, is that it should more accurately be referred to as the US model. Politicians in the UK, France, Holland, Denmark, Austria and Belgium have advocated for an Australian-style approach aimed at blocking asylum seekers from accessing Europe. But there are a few reasons Europe should be wary of following this lead. I’m going to put the issues relating to human and financial cost of deterrence measures to one side. These are well documented elsewhere. My focus here is on the risks of the diffusion process itself.

The competitive nature of the transfer process poses serious dangers. The risk is that we will see a race to the bottom, as countries compete to deter asylum seekers. This competitive approach creates a vicious cycle in which governments seek to outdo each other by implementing progressively more restrictive policies. When devising asylum policies, governments weigh up their competitiveness in deterring unwanted irregular immigration against the value of abiding by their obligations under international law. As more states opt for deterrence over protection, this places pressure on other states to do the same. This scenario has – and will continue to have – a devastating impact on the ability of those in danger to reach safety.

The protections set out in the Refugee Convention and other human rights treaties are only words. Their effectiveness in the real world is shaped by the actions of states. Implementing international law requires leadership – it needs states to lead by example to persuade other states to protect refugees.

This role has traditionally been carried out by wealthy liberal democracies, which have had the resources and legitimacy required for the task. The harsh policies introduced in the US and Australia mean these nations now lack the credibility to take on this leadership role. All eyes are now on European states.

If Europe goes down the same path as the United States and Australia, it will be inflicting a mortal wound on the universal principle of asylum and the international refugee protection regime more broadly. What this means in practice, is that more asylum seekers will be placed in the same predicament as those aboard the St Louis, adrift at sea, with nowhere to seek refuge.

This article canvasses issues as published in Daniel’s new book, Refuge Lost: Asylum Law in an Interdependent World.