Externalization and the erosion of refugee protection
In 1992, Australian Immigration Minister Gerry Hand stated that "the government is determined that a clear signal be sent that migration to Australia may not be achieved by simply arriving in this country and expecting to be allowed into the community." Nine years later, the practical outcome of that policy became clear, when Prime Minister John Howard blocked the Norwegian freighter MV Tampa from entering the country after it had rescued 433 asylum seekers at sea.
Following days of uncertainty about their fate, the passengers, many of them Afghans, were forced onto an Australian naval vessel and transported to the small island state of Nauru, where they were to be detained and their asylum claims processed. They were later joined by hundreds of other asylum seekers who had attempted to reach Australia by boat.
As Australia’s so-called ‘Pacific Solution’ evolved, it also became much harsher. While some of the asylum seekers on board the Tampa were eventually allowed to settle in Australia, later arrivals were not, even if they were recognized as refugees. As current Prime Minister Scott Morrison has said, “they must return to the countries they have fled from or spend a very, very long time in detention.”
Australia’s refugee policy is emblematic of an approach that has becoming increasingly popular amongst the industrialized states, and which is encapsulated in the notion of ‘externalization’. For the purposes of this article, that concept will be defined as ‘measures taken by states in locations beyond their territorial borders to obstruct, deter or otherwise avert the arrival of refugees, asylum seekers and other migrants who do not have prior authorization to enter their intended country of destination’.
The interception of people travelling by boat, followed by their detention and processing in offshore locations, is perhaps the most common form of externalization. But this strategy has also been manifested in a number of other ways. These include information and deterrence campaigns in countries of origin and transit; the use of visa controls, carrier sanctions and the outposting of immigration officers at foreign airports to prevent the embarkation of unwanted passengers; and deals with developing countries in which financial aid and other incentives are offered, in return for their cooperation in stemming the onward movement of people.
There is nothing particularly new about externalization. In the 1930s, for example, a number of maritime interceptions were undertaken by states to prevent the flight and arrival of Jews escaping from the Nazi regime. And in the 1980s, the USA introduced interdiction and offshore processing for asylum seekers from Cuba and Haiti, some of whom had their refugee claims assessed aboard coastguard vessels, and others who were held at the US base of Guantanamo Bay on the island of Cuba.
In subsequent decades, EU countries became increasingly attracted to the strategy of externalization, and spent a considerable amount of effort trying to work out how it might be adapted to the European context. Those efforts finally bore fruit in 2016, when Turkey agreed to obstruct the onward movement of Syrian and other refugees, in exchange for financial support and other rewards from the EU.
More recently, the EU and its member states have provided funding, training and other assets to the Libyan Coastguard, allowing it to intercept, return and detain asylum seekers trying to cross the Mediterranean. In October 2019 this was coupled with a programme to release some of those who had been placed in detention and to evacuate them to Rwanda, where their eligibility for refugee status will be assessed.
At the same time, the Trump administration has enthusiastically joined the externalization bandwagon, refusing admission to asylum seekers at the USA’s southern border and obliging them to remain in Mexico or return to Central American countries where they are at serious risk of human rights violations. And to impose this strategy on its southern neighbours, the USA has exerted all of the economic and diplomatic might at its disposal, including the withdrawal of aid and the threat of trade sanctions.
The industrialized states have generally justified the externalization process by arguing that their primary intention is to save lives at sea, to prevent people from undertaking difficult and dangerous journey from one country and continent to another, thereby introducing what they often describe as ‘effective migration management’. At the same time, they have suggested that the most rational and efficient means of responding to the movement of refugees is to support them within their own region, where the costs of assistance are lower, the culture is familiar to the new arrivals and where it is easier to organize repatriation once peace has returned to their country of origin.
In reality, a number of other (and less altruistic) considerations have contributed to the externalization process amongst the industrialized states, including a concern that the arrival of asylum seekers represents a serious threat to their sovereignty, security and public services, as well as a xenophobic fear that the admission of such people might undermine national identity and social harmony.
Most fundamentally, however, externalization is the product of a determination by governments in the Global North to avoid the obligations have they have agreed to accept as signatories to the 1951 UN Refugee Convention and other human rights instruments.
In simple terms, if an asylum seeker arrives on the territory of a signatory state, there is a duty on the authorities of that country to consider their asylum request, to support them while their refugee claim is examined, to facilitate their integration if they are successful in their application, and to find an alternative solution for them if their claim is refused. In this context, many of the industrialized states appear to have concluded that it is far more convenient to obstruct the arrival of such people in the first place by confining them to countries in the Global South.
More convenient perhaps, but at what cost to the laws, principles and ethics of the international refugee regime? As seen in relation to the policies pursued by Australia, the EU and US, the externalization process has prevented people from exercising their right to seek asylum in another state, subjecting them to many human rights violations in the process and causing them serious physical and psychological harm.
By closing down borders, externalization has actually encouraged refugees to undertake risky journeys involving human smugglers, traffickers, fraudsters and corrupt government officials.
It has also has placed even greater responsibilities on developing countries, where some 85 per cent of the world’s exiles are already to be found. And it has encouraged refugees to be used as bargaining chips in inter-state relations, leading countries in the Global South to extract funding and other concessions from the Global North in exchange for restrictions on refugee mobility.
Looking to the future, a number of questions can be posed with respect to this issue. Can externalization practices such as interception and detention be subject to legal challenges, and to what extent would such challenges attract the support of UNHCR? Are there other advocacy strategies could be used to oppose the erosion of refugee protection associated with the externalization process, and what role might civil society play in that process? And could externalization be implemented in ways that respect human rights and which build the protection capacity of countries in the Global South?
Dr Jeff Crisp has held senior positions with UNHCR (Head of Policy Development and Evaluation), Refugees International (Senior Director for Policy and Advocacy) and the Global Commission on International Migration (Director of Policy and Research). He has also worked for the Independent Commission on International Humanitarian Issues, the British Refugee Council and Coventry University. Jeff has first-hand experience of humanitarian operations throughout the world and has published and lectured widely on refugee and migration issues. He has a Masters degree and PhD in African Studies from the University of Birmingham. He is currently an Associate Fellow in International Law at Chatham House.