Daniel Mekonnen, Head of Advocacy at Cohere and Geneva-based Independent Consultant for International Human Rights Law
Externalisation of asylum and its related concept of “asylum ban” are some of the clearest manifestations of a retreat by Global North countries from their own “celebrated” commitment to international human rights standards. They are the most potent challenges to the modern conception of human rights, originating from least suspected quarters that claim to have proven credentials in the promotion of human rights. Forced displacement, one of the most important defining features of our present global politico-legal order, is laying bare the hypocrisy of a Western conception of human rights, underscoring the necessity of re-conceptualising international human rights law.
Introduction
In this contribution, I share some critical observations on how externalisation of asylum and its related concept of “asylum ban” can be articulated as the most potent challenges to the modern concept of human rights. The phrase “asylum ban” is borrowed from a 2023 UNHCR statement,[1] issued in response to a controversial UK law that intended to literally extinguish the right to seek asylum. I characterise this new development as one of the clearest manifestations of a retreat by Global North countries from their own “celebrated,” and at times self-congratulatory, achievements in the promotion of international human rights standards.
Human rights is used as a major framework of reference, because the right to seek asylum is one of the most important fundamental rights and freedoms guaranteed by what is generally known as the broad corpus of international human rights law (for example, by Article 14 of the Universal Declaration of Human Rights). I note that international human rights law and international refugee law are closely linked, albeit being two separate branches of international law. Thus, by showing the regress some Global North countries have made over the past two decades in terms of their commitment to respect the right to seek asylum, I contend that the concept of human rights, as we know it since the immediate aftermath of WWII, is facing a new and unprecedented challenge. This time, the challenge originates from least suspected actors, manifesting itself as an attack from within. I also note that externalisation of asylum and “asylum ban” exacerbate the long-held criticism of human rights as largely Western ideological constructs, which makes a central feature of the “relativism-universalism”[2] debate. Lately, criticism of similar nature has also been targeted at international refugee law itself, which is said to be suffering from shortcomings attributable to its apparent “colonial roots.”[3]
My views are partly informed by my lived experience of forced displacement and more than two decades of work in grassroots human rights activism, production of academic and non-academic work in the field,[4] including substantive engagement with Geneva-based human rights monitoring bodies of the UN. As such, my observations may have traits of phenomenological reflections, as I try to do this in the form of the scrutiny and/or “the study of things as they appear in our lived experiences.”[5] I aim at extrapolating some generalisable lessons, as would be relevant to on-going debates on the future of human rights. Drawing on some recent observations on related issues,[6] I argue that a better understanding of the impact of externalisation of asylum and “asylum ban” on the future of human rights is to be gained by examining the modern history of human rights. In doing so, I rely on the theoretical construct of critical junctures, which is part of the literature on historical institutionalism.[7] I thus argue that certain episodes in the historical trajectory of the concept of human rights are significant enough to be taken as critical junctures that can shape the future trajectory of this concept. I identify five critical junctures in which context I consider the problem of externalisation of asylum and “asylum ban” as the most potent challenges for the future of human rights.
A brief historical trajectory of human rights
The second half of the 1940s represents the most important historical episode in that it was during this time that two of the most important developments in the modern history of human rights, whose importance is still prevalent, have taken place. These are the establishment of the United Nations in 1945 (via the adoption of the United Nations Charter) and the adoption of the Universal Declaration of Human Rights in 1948 (the Declaration). This is the first critical juncture in the modern history of human rights, the so-called post-WWII era. The adoption of the Declaration in particular is widely regarded as the most important development in the modern history of human rights.
The establishment of the North Atlantic Treaty Organisation (NATO) in 1949, and that of its rival, the Warsaw Pact in 1955, marks the opening of the second critical juncture in the modern history of human rights. Commonly known as the Cold War era and thus far the longest critical juncture, it represented a myriad of global developments, too broad to be sufficiently discussed here. It saw prolonged stalemate between the two military alliances, during which the concept of human rights was fiercely contested in the context of what is generally known as the “relativism-universalism” debate.
The end of the Cold War, starting from the late 1980s, represents the third critical juncture. This period saw renewed international cooperation in the area of human rights, including proliferation of international criminal tribunals and courts. The progress was short lived. Following the “September 11” attacks in the United States in 2001, the world saw a global decline in the protection of human rights, primarily exacerbated by the “war on terror” policy of the American government.[8] This represents the fourth critical juncture. This was followed by the fifth and the present critical juncture, notably linked to major developments in Europe, such as the so-called “European migration crisis.” Oftentimes this is associated with the arrival of growing numbers of refugees to Europe over the past decade or so, but it traces its origins to “the ‘Australian model’ of offshore processing,” which started in 2001.[9] It is in this context that the most potent challenge to human rights is emerging in the form of externalisation of asylum and “asylum ban,” as further discussed below.
Externalisation of asylum and “asylum ban” as potent challenges to human rights
In the aftermath of the so-called “migration crisis” in Europe, Global North countries became increasingly hostile towards newly arriving asylum seekers and refugees. The twin terms of migration and “migrant integration” have now become some of the most contested issues of public policy and debate in the West.[10] This has led, among other things, to the adoption of regressive migration policies by the EU and several of its Member States, which are “incompatible with European and international law”[11] standards. In the case of the UK, the anomaly reached an exceptional level of absurdity in that it aimed to extinguish the right to seek asylum as we know it under international refugee law. The UN Refugee Agency (UNHCR) characterised this as an instance of attempted “asylum ban,”[12] noting its grave concerns as follows: “The legislation, if passed, would amount to an asylum ban – extinguishing the right to seek refugee protection in the United Kingdom for those who arrive irregularly, no matter how genuine and compelling their claim may be, and with no consideration of their individual circumstances.”[13]
The law in question, formally known as the Illegal Migration Bill, aspired to “change the law so that those who arrive in the UK illegally will not be able to stay [there] and will instead be detained and then promptly removed, either to their home country or a safe third country.”[14] According to the Refugee Law Initiative, a project of the University of London, practices of this nature are not compliant with applicable international law rules on the right to seek asylum and the obligation of States to fulfil this.[15] The UK experience is a classic example for two reasons. Firstly, it involves both elements of externalisation of asylum and the more drastic potential consequence of “asylum ban.” Secondly, it is a practice emanating from a country that prides itself as one of the “liberal-democratic societies in which human rights have been typically considered most secure.”[16] Therefore, it is not an overstatement to say that this new development can be regarded as the most potent threat to the post-WWII history of human rights. This needs to be seen in contrast to another historical challenge, notably the challenge of “relativism,” which is associated with countries of the Global South. The gravity of the new challenge is thus apparent in the fact that it manifests in the form “of having the courage for an attack on one’s convictions.”[17]
With the election of a new UK government in July 2024, there might be hope for a change of course. The extent to which future governments will not revisit the idea of “asylum ban” is to be seen with time. Overall, however, it needs to be seen as part of a new Global North trend that is posing a unique and unprecedented challenge to human rights. While the UK experience has definitely some unique features, the overall trend of this abhorrent practice is gaining momentum in several other countries, notably, within the EU as a continental block, in individual Member States of the EU, and in the United States (all of which are broadly known as Global North countries). The cumulative effect is a retreat from human rights. Seen in particular against the “celebrated” conception of human rights as “universal,” there are unsettling elements of this development. It sends a message to the following effect. The lives of refugees no longer weigh up equally in the configuration of so-called “universal” human rights. Thus, their human rights are expendable.
What is transpiring in the context of externalisation and “asylum ban” is reminiscent of an Orwellian “doublespeak,” wherein some human beings are more equal than others. For instance, the manner in which European countries responded to the plight of Ukrainian refugees, in comparison to how they responded to other situations of forced displacement, notably the situation in Gaza and Sudan (at the time of writing this contribution),[18] is illustrative. The question here is not as to why a certain group of refugees receive a certain type of support. The question is rather why all situations of forced displacement are not treated with the same eye of “universalism.” Some tendencies of “double standards” displayed by Global North countries, in relation to some of the most recent situations of forced displacement, have compelled mindful observers (such as one Member of the European Parliament), to lament as follows: “Human rights have a skin colour, and the darker you are the less human rights you have.”[19] This cannot be seen in isolation from what has been lately transpiring in the form of growing hostility towards the right to seek asylum, one of the central features of international human rights law, which now seems to be under persistent and unprecedented attack from within Global North countries.
The way forward and other attendant matters
I conclude by highlighting some other important points related to the most potent challenge to human rights, which makes part of what some African scholars call the “crisis of legitimacy of the human rights system.”[20] My first point is that of concurring with Adel-Naim Reyhani, who notes that the international legal order has foundational deficiencies that perpetuate a tendency towards categorisation of refugees as “rightless” human beings.[21] Overall, forced displacement, as one of the most defining features of our present global political order, has laid bare the limits of human rights, casting a lot of doubt on whether they can still serve as some of the most important “combustible mix of ideas”[22] in inspiring transformational change. In that sense, I underscore the “illusion” of human rights as “universal” values. I lament that the concept of human rights is, rather sadly, premised on a flawed international legal order, so called “juridical prism of ‘equal rights’ that posits equality where none exists.”[23]
Perhaps, it is also about time to come to terms with the realisation that “the centre of geopolitical power has shifted from West to East”[24] and that “the once unipolar vision of an irreversible liberal tide and new world order”[25] seems to be skydiving in a pace and magnitude never imagined before. Countries like China are emerging as the most important role players in our global politico-legal order. Their views on the decades-old conception of human rights is widely divergent. So, what is to be done?
It is, therefore, apt to ask follow up questions of the following nature and engage ourselves in finding mutually (and hopefully) agreeable answers: how far can we go by the modalities of a global politico-legal order, whose fundamental features were designed based on the exigencies of the most immediate aftermath of WWII,[26] and some of its essential features are colonial by nature? This also requires a reckoning with the well-known call of Third World Approaches to International Law (TWAIL) that characterises “the regime of international law” as “a predatory system that legitimises, reproduces and sustains the plunder and subordination of the Third World by the West.”[27] In that sense, how critically aware are we of the extent to which international human rights law can actually serve, in light of what we are witnessing in responses to forced displacement, “as a medium for the creation and perpetuation of a racialized hierarchy of international norms and institutions that subordinate non-Europeans to Europeans.”[28] So, then, what would be the way forward? The answer is crystal clear, as articulated by TWAIL scholars, which is “to construct and present an alternative normative legal edifice for international governance.”[29] This shall include “[making] real the promise of international law to transform itself into a system based, not on power, but justice.”[30]
Last but not least, it is also important to note that issues of the above nature are very much related to the question of knowledge production in the study of forced displacement. It is true that much of this is predominantly done under the so-called field of “migration studies.” Leaving the broader debate on “voluntary” and “involuntary” types of migration for another follow-up contribution, herein I contend that the study of forced displacement (as a separate discipline or as a sub-set) must be done in a way that promotes egalitarian processes of knowledge production. It must be spearheaded, at minimum, by equal representation of “lived” and “learned” experiences of forced displacement. In that process, people with lived experience of forced experience should not be used as mere sources of raw data but as active agents that can generate scientific knowledge relevant for the study of forced displacement.[31] Over the past few years, there have been various promising initiatives, including those spearheaded by refugee-led organisations (RLOs). The agenda should go to its next level of meaningfully democratising the knowledge production process. Instances of doing this shall include, but are not limited to, launching a specialised peer reviewed journal on the study of forced displacement (not on “migration studies”), primarily led by people with a lived experience of forced displacement – complemented as well by the perspective of “learned” experience. In conclusion, I align my observations with a recent call that goes as follows: “Academic migration research should make knowledge production an essential part of its research agenda if it wants to remain relevant in the transnational field of migration research.”[32]
Acknowledgement
Initial research work for this contribution was conducted in 2023 during a three-month visiting fellowship at the Center for Human Rights Erlangen-Nuremberg, conducted in the context of the “FFVT Fellowship Programme.” The institutional and financial support of all sponsoring entities is thankfully acknowledged. The usual disclaimer applies.
Footnotes
[1] UNHCR UK, “Statement on UK Asylum Bill,” 07 March 2023, https://www.unhcr.org/uk/news/press/2023/3/6407794e4/statement-on-uk-asylum-bill.html#:~:text=The%20legislation%2C%20if%20passed%2C%20would,consideration%20of%20their%20individual%20circumstances.
[2] See, for example, Jack Donnelly, “Cultural Relativism and Universal Human Rights,” Human Rights Quarterly (1984) 6(4), 400-419.
[3] Ulrike Krause, “Colonial Roots of the 1951 Refugee Convention and Its Effects on the Global Refugee Regime,” Journal of International Relations and Development (2021) 24, 599–626.
[4] Such as, Daniel Mekonnen, “The Tension between Militarisation of Maritime Borders and the Human Rights of Migrants at Sea,” The Broken Rifle, 11 August 2015, https://wri-irg.org/en/story/2015/tension-between-militarisation-maritime-borders-and-human-rights-migrants-sea.
[5] Robert Desjarlais & Jason Throop, “Phenomenological Approaches in Anthropology,” Annual Review of Anthropology (2011), 40, 88.
[6] Oğuz Kaan Pehli̇van, “End of ‘End of Human Rights’ Debate: Critical Junctures and Incremental Change of Human Rights,” Law & Justice Review (2024) 15(28), 77-93; Christopher Sabatini “Human Rights: From Evolution to Devolution,” in Christopher Sabatini (ed.), Reclaiming Human Rights in A Changing World Order (Chatham House, 2022), 11-30.
[7] See, in general, Kathleen Thelen, “Historical Institutionalism in Comparative Politics,” Annual Review of Political Science (1999); John Hogan, “Remoulding the Critical Junctures Approach,” Canadian Journal of Political Science, (2006) 39(3);
[8] Gareth Evans, “Revitalising the Struggle for Human Rights,” 9 December 2022, https://www.project-syndicate.org/onpoint/human-rights-principles-to-revitalize-the-struggle-by-gareth-evans-2022-12.
[9] Madeline Gleeson & Natasha Yacoub, “Cruel, costly and ineffective: The failure of offshore processing in Australia,” Kaldor Centre for International Refugee Law, Policy Brief 11, August 2021, https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/Policy_Brief_11_Offshore_Processing.pdf; see also Jeff Crisp, “What is Externalization and Why is it a Threat to Refugees?,” 5 March 2021, https://www.chathamhouse.org/2020/10/what-externalization-and-why-it-threat-refugees.
[10] William Schinkel, “Against ‘Immigrant Integration’: For an End to Neocolonial Knowledge Production,” Comparative Migration Studies (2018) 6(31), 1-17.
[11] “Joint Statement: The Future EU Must Uphold the Right to Asylum in Europe,” 09 July 2024, https://pro.drc.ngo/media/ddkig41e/joint-statement-asylum-externalisation-tuesday-9-july-2024.pdf (a joint statement by numerous European and non-European civil society organisations working the area of refugee rights).
[12] UNHCR 2023, note 1 above.
[13] Ibid.
[14] Ibid. The law in question is available here https://www.gov.uk/government/collections/illegal-migration-bill#:~:text=The%20Illegal%20Migration%20Bill%20will,or%20a%20safe%20third%20country, as published on the official website of the UK government on 20 July 2023.
[15] Refugee Law Initiative, “Declaration on Externalisation and Asylum,” International Journal of Refugee Law, 2022 34(1), 114-119.
[16] Andrew Fagan, “The Gentrification of Human Rights,” Human Rights Quarterly (2019) 41(2), 283-308.
[17] Borrowed from Fagan’s usage of a citation from Nietzsche’s The Antichrist, 1895, ibid.
[18] At the time of writing, Sudan is the largest humanitarian crisis in the world. See, for example, Norwegian Refugee Council (NRC), “Sudan Crisis: People Are Dying of Hunger,” 15 July 2024, https://shorturl.at/6G6r3.
[19] Middle East Monitor (MEMO), YouTube Video Clip, Displaying the Statement of Abir Al-Sahlani, 29 February 2024, https://www.youtube.com/watch?v=_avLTKRgIVk&t=1s.
[20] Solomon Dersso, “Caught between Geopolitics, Democratic Regression, and the ‘Sovereign Backlash’: The African Human Rights System,” in Christopher Sabatini (ed.), Reclaiming Human Rights in A Changing World Order (Chatham House, 2022), 287.
[21] Adel-Naim Reyhani, “Externalization and the Rightlessness of Refugees: An Analytical Framework,” 30 June 2024, https://externalizingasylum.info/externalization-and-the-rightlessness-of-refugees/.
[22] Evans 2022, note 8 above.
[23] Adam Hanieh, Lineages of Revolt: Issues of Contemporary Capitalism in the Middle East (Haymarket Books, 2013), 8.
[24] Evans 2022, note 8 above.
[25] Sabatini 2023, note 6 above, 26.
[26] The nomenclature about these so-called “world wars” by itself is controversial (whether they were truly “world wars”?), which requires its own separate treatment.
[27] Makau Mutua & Antony Anghie, “What Is TWAIL?,” Proceedings of the Annual Meeting (American Society of International Law)
(2000) 94, 31.
[28] Ibid.
[29] Ibid.
[30] Ibid, 40.
[31] See, for example, Haqqi Bahram, “Towards a Stateless Standpoint Epistemology,” The Statelessness & Citizenship Review (2021) 3(1), 113-119.
[32] Nina Amelung et al, “Reinventing the Politics of Knowledge Production in Migration Studies: Introduction to the Special Issue,” Journal of Ethnic and Migration Studies (2024) 50(9), 2163.