Beyond the deterrence paradigm in global refugee policy.

• Author: Gammeltoft-Hansen, Thomas
• Position: Symposium on the Refugee Crisis

1. INTRODUCTION

   The right to seek and enjoy asylum is at the heart of the international refugee protection regime and constitutes a key exception to state sovereignty to regulate the entry of non-citizens as a matter of international law. (2) International refugee law, however, only indirectly governs access to asylum. The 1951 Convention Relating to the Status of Refugees does not provide a right to be granted asylum in the sense of permission to enter and remain on the state's territory. (3)

   Instead, the non-refoulement principle enshrined in Article 33 prohibits states from exposing refugees to the risk of being persecuted for a Convention reason. Short of a positive right to be granted asylum, the guarantee that no refugee will be sent back to a place where he or she will be persecuted constitutes the strongest commitment that the international community of states has been willing to make to those who are no longer able to avail themselves of the protection of their own government.

   Today, however, refugees face serious obstacles in their efforts to access asylum processes. Some of these obstacles are inherent to irregular migration, including dangerous border crossings and the vulnerability to exploitation. Yet, refugees are also routinely denied access to asylum as a result of increasingly sophisticated migration control and deterrent mechanisms enacted by developed states.

   Over recent decades an increasing number of measures have been taken to extend controls along every step of prospective refugees' journey. To this end, developed states have enlisted the help of both private companies and authorities in origin and transit countries. (4) Moreover, several countries have responded to the Syrian refugee crisis by introducing domestic deterrent mechanisms, including reduced forms of international protection short of full refugee status, mandatory detention policies and denying access to family reunification.

   As a result, asylum policy in the developed world today is best characterised as a deterrence paradigm, wherein policymakers employ a wide array of non-entree measures in response to asylum-seekers arriving in developed states. (5) The 'deterrence paradigm' can be understood as a particular instantiation of the global refugee protection regime. It shows how deterrence policies have come to dominate responses to asylum-seekers arriving in developed states, and how such policies have continued to develop in response to changes in migration patterns as well as legal impositions. This also explains the continued reliance on deterrence as a response to the most recent 'crisis', despite continued calls from scholars and civil society for a more protection-oriented and sustainable response.

   This essay argues that we may be seeing the beginning of the end of the deterrence paradigm. Deterrence policies are being increasingly challenged, and recent events forcefully under score that the present approach is not sustainable. More than a crisis in terms of refugee numbers and global protection capacity, the present situation should be seen as a crisis in terms of the institutionalized responses so far pursued by states, as non-entree policies face heightened challenges from multiple angles. The article explains the rise of the deterrence paradigm, before highlighting the current legal, systemic and effectiveness challenges facing the deterrence paradigm. Finally, the paper briefly points the way forward in terms of three principles fundamental to achieving a sustainable paradigm shift in global refugee policy.

2. THE RISE OF THE DETERRENCE PARADIGM

   The cornerstone of the current refugee regime, the 1951 Convention Relating to the Status of Refugees, emerged in the aftermath of WWII. It established a legal regime that, despite its obvious shortcomings, (6) extended a core set of individual rights for political refugees. During the Cold War, international refugee law came to play a crucial role in legitimizing the politics of the West. (7) In the 1950s and 1960s refugee flows were primarily conceived as an East to West movement and granting asylum to defectors consequently entailed scoring ideological points. This Euro-centric approach was gradually abandoned, however, paving the way for regional instruments and the 1967 Protocol lifting the geographical limitation of the 1951 Refugee Convention. Subsequent developments in legal interpretation have further helped expand the reach and scope of the Convention, (8) while broader notions of subsidiary protection have developed as a matter of general international human rights law. (9)

   The last three decades, however, have seen an increased politicization of asylum across both traditional and new asylum countries. From the 1970s, the welcoming labor immigration schemes of several European countries were abandoned. Following the end of the Cold War, receiving refugees no longer served an ideological agenda. The proxy wars of the 1980s further created large-scale displacement across several regions in the Global South. (10) At the same time, globalization has made both knowledge of faraway destinations and transcontinental transportation more readily available. And rather than conforming to the traditional image of the singular bona fide asylum-seeker, refugees are increasingly caught up in mixed flows of irregular migrants, often facilitated by human smugglers specialized in avoiding traditional forms of border control. (11)

   As a result, the past thirty years have seen developed states introduce a range of policies to deter or prevent migrants and refugees from arriving at their territory or accessing their asylum systems. (12) Some measures implement procedural barriers to access asylum procedures on state territory, while others more directly sought to prevent the asylum seeker ever arriving. (13) Recent scholarship has sought to classify and characterise these various non-entree measures, which often expand on existing policies, opening a range of challenging legal questions. (14)

   These developments and the wide range of deterrence measures implemented today may collectively be understood as a dominant paradigm for international refugee policy. (15) A policy paradigm can be defined as a set of shared beliefs, taxonomies and language among a community of policymakers that determine how they perceive, analyse and respond to a given policy issue. In relation to deterrence policies, the community is that of traditional asylum states and also the number of collaborating transit countries. The underlying belief of the deterrence paradigm is that developed states can successfully insulate themselves from taking on a substantive and proportional responsibility in regard to refugee protection. (16) It allows wealthy states to have their cake and eat it too: maintaining a formal commitment to international refugee law, while at the same time...