Regional Approaches to the Protection of Asylum Seekers

An International Legal Perspective

Ademola Abass, Francesca Ippolito, Francesca Ippolito

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317069157
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

This book presents a comprehensive assessment of regional responses to the crisis in the asylum/refugee system and critically examines how different regions tackle the problem. The chapters consider the fundamental challenges which undermine an effective asylum process as well as regional difficulties with the various circumstances surrounding asylum seekers. With contributions on Africa, Europe, Latin America, South Asia and the Middle East, and the Pacific, the collection strives to appreciate what informs each region's approach to the asylum process and asks if there are issues common to every region and if regions can learn from one another. The book seeks an understanding of the existing legal regime for the protection of asylum seekers and how regional institutions such as human rights commissions and regional courts enforce and adjudicate the law. The volume will be valuable to those interested in international law, migration and human rights.

1 Introduction – Regional Approaches to the Protection of Asylum Seekers: an International Legal Perspective

Ademola Abass and Francesca Ippolito

DOI: 10.4324/9781315604398-1

An Overview

Few issues have proved to be more contentious in academic and policy discourse than the protection of asylum seekers. Although the vast majority of States accept, as a matter of principle, that people fleeing persecutions in their own countries for various reasons deserve refuge in foreign lands, deciding who amongst the needy millions should be catered for, and according to whose regulations and for how long, has proved to be more daunting than rocket science.

Many domestic laws governing the protection of asylum seekers often clash with those emanating from such multilateral bodies as regional organizations to which almost every single State in the world belongs. For their own, regional organizations often adopt asylum-specific and general human rights treaties which regional adjudicatory bodies apply in a way that frequently create tension between the organizations and their Member States. International reactions to the asylum protection crisis have suffered as much from truculent politicization of facts and figures as they have from the absence of a genuine desire by States to establish coherent, systematized and standardized legal regimes for protecting asylum seekers. While some States regard the asylum issue as one which deserves a systematic and coherent development, the majority of States view the asylum problematique through the lens of security. Not only does such ‘securitization’ of the asylum theme routinely downgrade the humanitarian essence of asylum concerns, but also it renders policy consideration of asylum issues as a handmaid of more egregious security concerns of States.

Perhaps the politicization of the asylum crisis by States is only surpassed by the polarization of academic views on the crisis. Discussions and discourses on the asylum crisis, on whatever fora such are expressed, are often characterized by a perfunctory adumbration of the issues in bland, binary terms: developing countries are mainly responsible for generating asylum seekers while developed countries provide refuge to the greatest numbers of the world’s refugees; Western and rich States are at the forefront of developing effective legal and institutional frameworks for the protection of asylum seekers while developing and poor countries eternally grope for what to do; asylum is mostly a consequence of Third World countries’ interminable conflicts; the list of such entrenched commonalities is endless.

Not only have some conflicts, such as the one in Eritrea in the 1990s, punctured the assumed correlation between conflicts and refugee outflows, it will also be seen later that there is currently irrefutable evidence that the majority of the world’s refugees are catered for not by Western countries, but by their developing counterparts which, admittedly, generate the largest numbers of the world’s asylum seekers.

Academic treatment of the asylum subject is extensive, and whole libraries have been written on various issues concerning asylum. The vast majority of writers agree that the attitude of most States towards the asylum crisis has more been driven by security considerations rather than by any altruistic desire to pursue a genuine development of the subject matter. Even then the majority of existing studies on the asylum theme address their subject matter from a rather restrictive perspective, focusing principally on the causes and consequences of asylum or on the examination of States’ compliance with the various obligations they assume under international or regional regimes. Often, writers focus mainly on issues affecting asylum seekers within specific geographic areas. Some of the more recent works on the subject matter have tended to focus on the weaknesses and unintended consequences of the international and Europe-specific legal and policy frameworks on refugees and asylum, such as the 1951 UN Convention and the 1967 Geneva Protocol, the Dublin (I, II and III) Regulation and the ECHR (European Court of Human Rights) strategies inter alia.

While existing literature makes valuable contributions to our understanding of the asylum crisis, the issue of how different regions of the world deal with this crisis through regulatory frameworks remains grossly understudied. The asylum protection crisis is complex and multidimensional. While there are incontrovertible similarities in the problems affecting asylum seekers worldwide, multiple differences arising from cultural, regional and institutional idiosyncrasies also abound. This book provides an analysis of the asylum crisis with particular focus on the regional legal regimes for protecting asylum seekers in Africa, Europe, Latin America and the South Asia.

This book does not cover the problems faced by individual countries in these regions per se, except insofar as such a remit is indispensable to the study of the particular region. The book’s principal objective is to seek an understanding of what legal regime exists, at the level of regional organizations in each region, for the protection of asylum seekers, and how regional institutions such as human rights commissions and regional courts enforce and adjudicate the laws. Particular attention is thus paid to the African Union, the European Union, the Inter-American Organization, and the Association of the South East Asian (ASEAN) among others. This continental approach, it should be noted, is sometimes complemented by an examination of what happens at the sub-regional level where, for instance, sub-regional organizations are found to develop parallel legal regimes of their own even if such are complementary to the continental structures.

Defining ‘Asylum Crisis'

The phrase ‘asylum protection crisis’ or ‘asylum crisis’, which is the subject of this book, has come to represent different things to different users. Sometimes it is used to depict the state of confusion and uncertainty that characterize the processes and procedures through which governments decide to accept or reject foreigners who seek refuge in their countries. Often, the term is used to describe disastrous humanitarianism, implying, inter alia, the shabby and unpalatable treatment of asylum seekers by their host States, governmental entities or even by ordinary citizens. The phrase has also been used sometimes to refer to the absence of appropriate legal and policy instruments to anchor a decisive and effective asylum regime. In this book, we use ‘asylum protection crisis’ or ‘asylum crisis’ interchangeably as connoting the crisis affecting the legal protection of asylum seekers.

The real crisis with asylum protection is not necessarily due to the absence of the relevant laws or policies, or the lack of international and national regulatory mechanisms for ensuring that the passage of those genuinely fleeing death and other life-threatening situations is not made any more excoriating than is absolutely necessary. The heart of the matter, so to speak, lies squarely in the interplay of several variables – laws, cultures and norms – that shape how the fate of asylum seekers is determined by their host States. By the law and policies of most States, asylum seekers are expected to convince their putative host State of their plights through stories expected to be told with brutal consistency and accuracy, and with solid conformity to the dialectics and cultural imperatives of that State, regardless, in most times, of the peculiarities of the applicant’s own experiences or cultural existence which might make such expectations unrealistic.

Both at the international and the national level, States assume various obligations towards asylum seekers. However, the performance of these obligations, almost invariably, is a function of how sensitive and aware the host States are of the circumstances of asylum seekers, as well as of the situations in the countries that produce them. Although these conditions might appear rather simplistic and banal, and come across as the minimum qualities that host States should expectedly possess in dealing with asylum seekers, the reality is different and humbling. With disturbing alacrity, many host States continue to make dangerous assumptions both about the asylum seekers and their States of origin with devastating consequences. From the moment an asylum seeker steps onto the shore of a potential host country, a game of cat-and-mouse ensues between the asylum seeker and the myriad governmental agencies assembled to ‘process’ him/her into a potential ‘refugee’. However, unlike the mouse in the familiar anecdote – where the chase is enacted in a level playing ground – the mouse in the asylum game is often blindfolded by different layers of disorientating laws and documentations, and many convoluted interview processes largely designed to catch it out, often on the most trivial slipup that inevitably lands it on the wrong side of the eagle-eyed cat – the host State.

Thus, the notion of ‘asylum crisis’ as used in this book is much wider than the generalized issues of confusion and uncertainty – which are, in any case, incontrovertible. It encompasses the consistent misunderstanding of the asylum seeker’s cultural and personal idiosyncrasies, which often directly impact on their attitude and response to the process that aims at transposing them from their countries of origin to their new States. These idiosyncrasies are many and, as will be seen later, range from the personal to the cultural, from the social to the political. But regardless of the varied dynamics of these factors, an acute understanding of them will go a long way in enhancing how regional systems deal with refugees and asylum seekers in particular which, in turn, should substantially address the various deficits in the asylum process.

The Asylum Crisis: Facts, Figures and Myths

The polarized nature of the academic and policy discourse of the asylum-crisis theme is incorrigibly conducive to the distillation of myths and the bandying of ‘facts’ and ‘figures’ that are more products of exuberant imagination than being evidences of veritable research. It is commonplace, for instance, to read, especially in the media, that the sub-Saharan Africa generates the highest number of refugees worldwide, and that Western States, especially in Europe, play host to the largest portions of refugees at any given time. Moreover, the picture is perpetually painted of continuous and unabating outflows of refugees from Africa and other developing parts of the world to the West with little or no recognition of efforts made by such regions towards alleviating or sharing the asylum burden.

Apart from implicitly correcting pervasive erroneous assumptions about facts and figures concerning the current state of asylum and refugee in the world today, available statistics also controvert some of the most eagerly promoted myths about the origin of refugees and responsibility bearing for asylum: that Europe, for instance, produces fewer refugees but shoulders a disproportionate responsibility for refugees and asylum seekers than other regions of the world. As will be seen later, the hosting of refugees generated in Africa within Africa is important to the examination of how Africa, as a region (rather than the African Union or African regional organizations), deals and copes with the scourge of asylum seekers and refugees compared to Europe. Also noticeable in the statistics is the rarely acknowledged fact that the poorest countries of the world do actually shoulder a heavier financial burden for refugees per capita compared to their Western counterparts. For instance,

At the end of 2009, Pakistan was hosting the highest number of refugees compared to its national economy. As such, it hosted 745 refugees per 1 USD GDP (PPP) per capita. The Democratic Republic of Congo was second with 592 refugees per 1 USD GDP (PPP) per capita, followed by Zimbabwe (527), the Syrian Arab Republic (244), and Kenya (237). The first developed country was Germany at 26th place with 17 refugees per USD GDP (PPP) per capita. ¹

1UNHCR Global Trend 2011, available at http://www.unhcr.org/4fd6f87f9.pdf [last accessed 04/6/2013].

One of the consequences of ventilating myths about refugees and asylum, aside from pandering to Far-rightism in Europe and elsewhere, is feeding the citizens’ frenzy and imagination that bedlam is the inevitable consequence of asylum-friendly policies. Precipitously, many European countries have devised methods and processes, which are arguably deliberately geared towards ensuring that asylum seekers are prevented from setting their foot within their shores, at which point it may be a little too late for such States to prevent the application of international legal and policy frameworks. So draconian have some of these processes and treatments of asylum seekers become in Europe that the United Nations High Commissioner for Refugees (UNHCR) observes that

The conditions for asylum-seekers in Greece, which is among the principal entry points to the EU, are notoriously difficult. Most asylum-seekers receive no assistance. Many live on streets, including women and children. The refugee status determination system does not operate properly and as a result, persons needing international protection are not identified as such. This is a humanitarian crisis situation which should not exist in the European Union. ²

2UNHCR spokesperson Adrian Edwards at the press briefing on 21 September 2010 at the Palais des Nations in Geneva, available at http://www.unhcr.org/4c98a0ac9.html [last accessed 04/6/2013]. See also Commissioner for Human Rights of the Council of Europe, CommDH (2009) 6 February 2009, available at http://cmr.jur.ru.nl/cmr/docs/CHR.2009.greece.pdf [last accessed 04/6/2013].

Such debilitating developments have also been condemned by two principal judicial bodies: the European Court of Human Rights and the Court of Justice of the European Union respectively in M.S.S. v Belgium and Greece ³and N.S. and M.E. ⁴Irrefutable evidence also reveals that Latin American countries host a total of more than 400,000 refugees, asylum seekers and others in need of international protection. Since the adoption of the Mexico Plan of Action in 2004 (see below), the legal framework for the protection of refugees in the region has improved. With the addition of Colombia and Chile, a total of 14 Latin American countries have now included the broader definition of refugee, contained in the 1984 Cartagena Declaration on Refugees, in their domestic legal systems. One of the aims of this work is therefore not only to recognize the important contribution of Latin America and the Inter-American System to the international protection of asylum seekers through the Cartagena Declaration, but to also seek to understand such progress through the compendium of principles, norms and jurisprudence of the Inter-American Commission and the Inter-American Court of Human Rights, as well as consider the impact of the Brasilia Declaration on the protection of asylum seekers.

3ECtHR, M.S.S. v Belgium and Greece (App no 30696/09) 21 January 2011. 4CJEU, Joined cases C-411/10 e C-493/10, N.S. and M.E., judgment of 21 December 2011, not yet reported.

The population movements in the Asia-Pacific region are no less complex and multi-layered with people coming into, as well as moving within, the region for a variety of reasons. Therefore, an exploration of how regionally consistent and coherent processes and practices have been established in the Asia-Pacific is crucial in order for States to better determine, in practical ways, where the responsibility for the processing of individual cases under these arrangements lie. Thus the book considers the role ASEAN plays in promoting ‘neighbourliness’ and human rights in Southeast Asia, especially considering that it is currently developing a Charter on Human Rights. This development follows on from the enshrining of refugee rights in the Southeast Asia Final Text of the Asian African Legal Consultative Organization (AALCO) and the 1966 Bangkok Principles on Status and Treatment of Refugees (2001).

The Scope of this Book

This book has two main remits. First, it inquires into the various factors that make the objectives sought by both asylum-producing and asylum-receiving States, such as speedy and fair processing of asylum seekers’ applications, among others, almost impossible to achieve. In particular the book considers cogent issues undermining an effective asylum process in Europe, Africa, Asia and Latin America. The book tackles why most European asylum-receiving States have difficulties dealing with the various circumstances concerning African asylum seekers. The book probes into the relatively unexplored but fundamental challenges that constantly undermine international efforts at dealing with the asylum crisis. Such issues include, but are not limited to, the evolution and implications of the ‘push-back’ strategy adopted by certain European States to curtail international legal obligations; the impact of State/society interrelation on asylum-seeking; and the hindrance constituted by importunate and flawed assumptions about asylum seekers and their States of origin by the receiving States.

Secondly, the book discusses the nature of the regional protection of asylum seekers within the existing regional systems and asks what shapes individual regional experiences and how regional institutions deal with the crisis. Europ...