Reviewed by Catherine Lane West-Newman, Department of Sociology, University of Auckland, New Zealand. Email: l.westnewman [at] auckland.ac.nz.
This is an interesting and quite ambitiously framed book that perhaps works best as a thought provoking set of insights and information on four jurisdictions (Australia, Canada, the United Kingdom and the United States) with some passing references to a fifth (New Zealand). The opening and closing chapters define the volume’s unifying project as an evaluation of the policy towards and treatment of asylum seekers and refugees in the four countries in terms in relation to respect for ‘the rule of law’. Given that this last term encapsulates such a frequently interpreted and often contested concept this approach, understandably, turns out to work best as critique at a quite high level of generality. This is in contrast to the very degree of specificity that makes the individual substantive chapters so useful and interesting but also tends to undermine or at least confuse their integration into a neat overall analytical scheme.
Each of the contributors here is concerned with the effect of an apparently inescapable contradiction between human rights and national sovereignty on the plight of asylum seekers and refugees. As Hannah Arendt observed in the 1950s drawing on her own experience: “No paradox of contemporary politics is filled with more poignant irony than the discrepancy between the efforts of well-meaning idealists who stubbornly insist on regarding as ‘inalienable’ those human rights, which are enjoyed only by citizens of the most prosperous and civilized countries, and the situation of the rightless themselves” (2004, p.355). On an institutional level there is a significant disjunction between the rights of refugees that have been defined in international law, including under the 1951 Convention Relating to the State of Refugees, and the wide discretion available to individual states both in respect of the incorporation of international rights instruments into national legal systems and of the mode of their implementation or non-implementation. Susan Kneebone, who as well as editing the collection is also the principal contributor, points out early on that the present day world characterised by rising populism, racist and anti-foreigner campaigns, illegal migration, and fear of terrorist attacks creates a context for a quite new and particular challenge to the ‘integrity’ of the rule of law.
In Chapter 1 Kneebone sets up a theoretical position on the rule of law that is to form a bench mark for evaluating the behaviour of the states under review. Drawing on Dworkin’s idea of ‘law as integrity,’ an aspirational [*672] “‘thick’ or substantive vision [that] embodies values and norms,” (p.35) she poses a set of questions about the structures and processes for addressing refugee issues which includes:
- are courts respecting human rights obligations when they interpret international treaty obligations?
- do asylum seekers and refugees experience procedural fairness?
- are courts giving (possibly undue) deference to executive policy?
- is decisional independence guaranteed by the administrative structure?
- do asylum seekers and refugees receive the same level of respectful treatment as nationals?
- is law making used too hastily to achieve policy objectives and does this legislation incorporate human rights obligations?
Each of the substantive chapters goes some way toward answering these questions although the degree of detail and level of emphasis varies considerably. And in each jurisdiction there is some indication that legislative and administrative provision and practice are coloured by the perceived status of ‘alien’ that is now commonly attached to asylum seekers in the developed world. This is particularly so in the USA and in Australia where policies that seek to contain the problem of ‘illegal immigrants’ by controlling national borders “run counter to the rights of asylum seekers” (p.65). But in all the jurisdictions considered, “refugees are consistently defined in state or national policy by exclusion, that is, as persons outside the legal system” or in other words “are defined by way of ‘exclusionary inclusion,’ as non-citizens” (p.67). Thus state laws define the status of asylum seekers and refugees to exclude them from both the national territory and the state legal system. Ideally, then, it is argued, judges have a role to play in protecting the rights of refugees, but for a variety of reasons this does not necessarily happen.
In her analysis of the Canadian situation Audrey Macklin acknowledges Canada’s respect for international law and its reputation for generosity toward refugees, but argues that there are administrative weaknesses nevertheless. She constructs her critique around the notion of the asylum seeker’s right to be heard through the mechanism of procedural fairness, proposing two strong normative claims in support. First, the instrumental value of having the subject of the decision voice their own evidence and argument to produce better outcomes and decisions that will be perceived as legitimate and second the demonstration of respect for the dignity of individuals by allowing them full participation. She allows that in the face of differences in culture, class, language, and personal experience including the degree of trauma present in the individual concerned this is not easily achieved but emphasized that it should nevertheless be a goal. Macklin identifies a frustrating difficulty in the quality of people appointed to the Immigration and Refugee Board though a long standing policy of political appointments “to reward the party faithful and repay political debts” (p.95) rather than on merit. And she notes also that a procedural change operating since 2003 which requires that the refugee be initially questioned by the decision maker rather than, as previously, being allowed to first make their case, now [*673] makes a previously investigative process more formal and adversarial than it is supposed to be.
Stephen Legomsky describes a strong United States emphasis on criminal justice and law enforcement in its current approach to asylum seekers in a socio-political context where such people are now routinely associated in the public and political mind with the ongoing problems of illegal immigration. He points out widespread concern that asylum seekers abuse or manipulate the system in precisely the same way “they worry about other non-citizens entering the county clandestinely, overstaying their visas, or otherwise violating the immigration laws”(p.141). In other words, no special status in terms of need or human rights protection is given to asylum seekers and refugees and deterrence is a primary law and policy driver. This is signaled quite clearly by the policy of interdiction on the high seas, the Supreme Court’s interpretation of the Refugee Convention as non-self-executing (SALE v. HAITIAN CENTRES COUNCIL, INC.), and the US implementing legislation as inoperative on the high seas. Legomsky also looks critically at the skills and work habits of some of those on the Board of Immigration Appeals who adjudicate asylum claims and notes the lack of decisional independence for members of such tribunals (which are housed in the Department of Justice).
In the most strongly critical of all the individual country commentaries Susan Kneebone argues that the Australian government has gone to “extraordinary and persistent lengths... to keep asylum seekers beyond the reach of the rule of law” (p.226) through the strategic use of legislation and litigation. She tells a story of mandatory detention, excising Australian territory, offshore processing and attempts to deny access to the legal system, all in blatant disregard of the international rule of law. As in the case of Aboriginal land rights, legislation has been used to overturn undesired judicial rulings and in the case of refugees ‘personal unreviewable discretions” (p.226) have been granted through legislation. Kneebone concludes that Australia has codified the Refugee Convention definition in a way that “has watered down a human rights approach to interpretation of the convention and cast Australian jurisprudence adrift from international refugee law” (p.227).
In respect of the United Kingdom, Maria O’Sullivan notes several crosscutting tendencies whose existence is at least in part due to the relationship between that country and Europe in general and in particular to membership of the European Union. Having, like the US, at least a claim to some past generosity towards those fleeing inhospitable homelands (particularly during the cold war), the United Kingdom no longer welcomes the homeless. In recent years it has tried to reduce the flow of asylum seekers and refugees through a number of strategies that include frequent changes in legislation aimed at deterring would be arrivals, restrictions on the possibilities of appeal, and the use of expedited removals. Here, as elsewhere, concerns about national security have been a key influence on policy. Where international refugee law still retains a presence it is more through the European Convention on Human Rights than directly from the Refugee Convention. The change is a result of moves to [*674] harmonize asylum laws within the European Union. That process is seen to have had contradictory effects with some advances in UK refugee law but also the introduction of certain more restrictive principles such as ‘safe third country of origin.. However although O’Sullivan notes a push to increase the numbers removed as ‘failed asylum seekers’ from British territory, she also notes cases where the judiciary has been “openly and highly critical of the actions of the Home Office” (p.246) and at times constrained unlawful executive action. Overall, the UK has manifested a conflicted response to asylum issues through policies and planning that are “patchwork and reactive” (p.238)
The concluding chapter returns to the project to measure the extent to which, in terms of Dworkin’s theory, law makers make morally coherent ‘sets of laws’ and those who apply such laws interpret them in accordance with “coherent community goals and policies which are moral and fair” (p.286). However, the factual material presented in the individual chapters makes it quite difficult to ascertain just which community’s interests are actually represented at any particular point. This probably points to a broader flaw in Dworkin’s somewhat Durkheimian conception of community that seems to assume that any nation state in the present day world could be said to constitute a singular ‘community.’ In fact, Kneebone finds the record on coherent legislative principle patchy and characterised by both hasty and prolific legislation as a ‘panicked response’ and the conferring of broad legislative discretions upon individual officials with little or no opportunity for challenge. For example, in the UK and in Australia parliaments have made, or attempted to make laws to overturn judicial decisions in this field. Under such circumstances she concludes that “the most important indicator of respect for the Refugee Convention is the level of its incorporation into national laws, rather than differences in constitutional frameworks” (pp.208-9). The other key index of the health of the rule of law in this area is found to be the extent to which the various countries can provide, at the administrative level, appropriately competent, fair and neutral hearings. In short, justice for asylum seekers and refugees will only come from seeing them not as dubious migrants but as bearers of specific enforceable rights under the Refugee Convention: non-refoulement (Art 33), no discrimination as to ‘race, religion or country of origin’ (Art 3), no penalization for movement to seek asylum (Art 31) and free access to courts of law within the arrival state.
I like and recommend this book for several reasons. It makes a quite passionate argument for an appropriately human rights driven approach to the legal, social, and political issues that are currently evidenced in the behaviour of some affluent and influential nations toward those unfortunate enough to be in need of asylum and who aspire to refugee status. At the same time there is a quantity of useful information on specific human rights instruments and also the history, legislation, case law, and administrative policies and practices in four destinations that consistently attract large numbers of suppliant arrivals. The book, therefore, rather unusually, offers itself as both valuable reference source and thoughtful socio-legal critique. [*675]
Arendt, Hannah. 2004. THE ORIGINS OF TOTALITARIANISM. New York: Schocken Books.
SALE v. HAITIAN CENTRES COUNCIL, INC. 509 US 155 (1993).
© Copyright 2010 by the author, Catherine Lane West-Newman.