The hard-won
institution of asylum is under threat. States around the world have shut
their borders in response to the COVID-19 pandemic. It’s now near
impossible for most asylum seekers to travel in order to access protection and
there is a real risk that this may become the new normal.
The 1951
Convention Relating to the Status of Refugees was drafted in response to the
failure of states to provide refuge to people fleeing persecution at the hands
of Nazi Germany. The cornerstone of the Convention is the protection against refoulement
(or forced return), which prevents states from returning asylum seekers to
locations where they would face certain forms of persecution. This, along with
similar obligations set out in subsequent human rights treaties, laid the
foundations for the modern institution of asylum – the idea that a refugee can
spontaneously arrive in a country and be protected from removal while they
apply for protection.
Governments
began turning their backs on this idea long before the COVID-19 pandemic. Border
walls were erected, asylum seeker boats were intercepted
and returned at sea, and visa regimes
and carrier sanctions were used to stop asylum seekers from travelling by
air. As I document in Refuge
Lost: Asylum Law in Interdependent World, these policies are
fuelled by a sense of competition. Government’s fear that they may face an
influx of asylum seekers if they do not match or outdo restrictive policies in
other jurisdictions. This has given rise to a race to the bottom, with states
copying and adapting restrictive policies from abroad. In Refuge Lost, I
predicted that the logical endpoint of this competition would be the end of
asylum and that people in immediate danger would have nowhere to flee.
Unfortunately,
this prediction has come true quicker than I could have imagined. The border
closures implemented in response to the COVID-19 pandemic have effectively
suspended the right of people to seek asylum in many countries around the
world. Asylum seekers are being turned away at land and sea borders. This has
left people trapped in conflict
zones and in precarious situations in transit countries — often in conditions that are the perfect breading
grounds for COVID-19 outbreaks. The United States has not only refused
asylum seekers entry at the border, but has also carried out summary
deportations of asylum seekers already in its territory, including
children. In the Mediterranean, Greece has copied Australia’s policy of using
lifeboats in push-back operations to Turkey, while Malta is using private
vessels to warehouse
asylum seekers at sea, or return
them to Libya. In the Andaman sea, Rohingya asylum seekers are starving to death as
states refuse their disembarkation.
While there are
legitimate public health concerns at play, the pushbacks, blanket border
closures and summary deportations are almost certainly a breach
of international law. But so were many of the deterrent and deflection
measures that states adopted prior to the pandemic. The danger is that once
politicians realise they can get away with shutting their borders to asylum
seekers, they may never look back.
The protections set out for refugees in international treaties are only words. Their effectiveness in the real world is shaped by state practice. The implementation of international law into state practice requires leadership— it needs states to set an example to convince other states to adhere to protection norms. The question is will any state rise up to this challenge in the post-pandemic world? Or are we witnessing the end of asylum?
Refuge Lost: Asylum Law in an Interdependent World By Daniel Ghezelbash
Daniel Ghezelbash is Associate Professor at Macquarie Law School, Sydney, Australia, where he teaches and researches in the areas of refugee and immigration law, human rights and administrative law. He is a practicing refugee lawyer and the director and founder of the Macquarie University Social Justice Law Clinic....
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