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The European Union after 9/11: The Demise of a Liberal Democratic Asylum Regime?1

Published online by Cambridge University Press:  28 March 2014

Carl Levy
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Abstract

This article examines the domestic and international pressures since 11 September 2001 on the liberal democratic asylum regime practised within the European Union. It looks at three areas of confrontation. The pressures exerted upon national governments by anti-immigrant and anti-asylum seeker/refugee far right populist parties. It examines the attempts by the European Union and its member states to arrive at a Common European Asylum System in light of policy developments over the past 20 years, and places these long-standing processes within the events of 11 September 2001. It discusses whether or not the liberal democratic tradition of asylum embodied in the Geneva Convention of 1951 been sacrificed to the dual pressures of the electoral victories of the far right in Europe and a new form of terrorism that threatens European societies.

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Articles
Information
Government and Opposition , Volume 40 , Issue 1 , 2005 , pp. 26 - 59
Copyright
Copyright © The Author(s) 2005.

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Footnotes

1

This is a much revised version of a paper given at the 53rd Annual Conference of the Political Studies Association (PSA), held at Leicester, UK (14–16 April 2003). I would like to thank Professor Michael Moran and two anonymous referees for their encouragement and suggestions.

References

2 C. Levy, ‘European Refugee and Asylum Policy after the Treaty of Amsterdam: The Birth of a New Regime?’, in A. Bloch and C. Levy (eds), Refugees, Citizenship and Social Policy in Europe, Basingstoke, Macmillan, 1999, pp. 12–50; A. Geddes, Immigration and European Integration. Towards Fortress Europe?, Manchester, Manchester University Press, 2000; S. Lavenex, The Europeanisation of Refugee Policies. Between Human Rights and Internal Security, Aldershot, Ashgate, 2001.

3 M. Bright, ‘Asylum Crisis Hyped in Europe, Says UN’, Observer, 2 June 2002, p. 5.

4 Article 33 of the 1951 Geneva Convention prohibits the return (refoulement) of a refugee ‘to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’.

5 The ‘Area of Freedom, Security and Justice’ was original discussed in Articles 2 and 29 of the Treaty on European Union (the Maastricht Treaty) but was amended and given much greater prominence in the Treaty of Amsterdam. This is an ambitious project of the member states of the European Union in the area of justice and home affairs ( JHA). ‘Security’ includes areas of mutual concern in fighting crime and terrorism. ‘Justice’ includes joint cooperation in enforcement of criminal and civil judgements, extradition and the defence of equal access to justice. ‘Freedom’ deals with the free movement of persons, human rights and anti-discrimination policies. Most directly relevant for this article, ‘freedom’ also deals with cooperation and joint European legislation in the fields of asylum and immigration. The European Council at Tampere in 1999 launched a project to create a Common European Asylum System (CEAS) with a uniform method of determining asylum within the member states and a uniform status valid for refugees throughout the European Union. European legislation has slowly been grappling with this project but the results so far have usually been pitched at the lowest common denominator.

6 For the period up to 2000 see C. Levy, ‘European Refugee and Asylum Policy’, op. cit. Also see the excellent surveys by A. Geddes, Immigration and European Integration, op. cit.; S. Lavenex, The Europeanisation of Refugee Policies, op. cit. Contrasts between American and (West) European models of International Protection Regimes and attitudes towards human rights in the period after 1945 are discussed in two important new works, see B. Cronin, Institutions of the Common Good. International Protection Regimes in International Society, Cambridge, Cambridge University Press, 2004, and Mazower, M., ‘The Strange Triumph of Human Rights, 1933–50’, Historical Journal, 47: 2 (2004), pp. 379–98.CrossRefGoogle Scholar For a good survey of the period 1999 to 2003 see V. Guiraudon, ‘Immigration and Asylum: A Politics Agenda’, in M. G. Cowles and D. Dinan (eds), Developments in the European Union 2, Basingstoke, Palgrave Macmillan, 2003, pp. 160–80.

7 For the question of burden-sharing see, Thielemann, E. R., ‘Between Interests and Norms: Explaining Burden-Sharing in the European Union’, Journal of Refugee Studies, 16: 3, 2003, pp. 253–73CrossRefGoogle Scholar, the special issue of Journal of Refugee Studies on ‘European Burden-Sharing and Forced Migration’ edited by E. R. Thielemann.

8 It was predicted in May 2003, before the fiasco of the Constitutional Convention, that ‘there is little doubt that the outstanding texts on immigration and asylum will be adopted by the end of the first semester of next year, when Ireland will hold the EU presidency. The principle to which the EU member states appear to adhere is that approval for a poorly-worded text is better than no approval at all’, Migration News Sheet, May 2003, p. 12. It has also been suggested that only the European Union's non-binding, voluntary system of moral persuasion, known as the ‘open method of coordination’ will be successful, see Caviedes, A., ‘The Open Method of Co-ordination in Immigration Policy: A Tool for Prying Open Fortress Europe’, Journal of European Public Policy, 11: 2 (2004), p. 306.CrossRefGoogle Scholar For the possible move towards QMV in April 2005, see: R. Minder and J. Burns, ‘EU dilutes commitment to common asylum policy’, Financial Times, 26 October 2004, p. 2; D. Gow and M. White, ‘Blunkett claims EU victory on asylum’, Guardian, 26 October 2004, p. 2. For the Hague Programme see, The Hague Programme. Strengthening Freedom, Security and Justice in the European Union, Brussels, Council of the European Union, 15 October 2004 and S. Peers, Statewatch Briefing, Vetoes, Opt-Onts and EU Immigration and Asylum Law, 8 November 2004.

9 Peers, S., ‘Key Legislative Developments on Migration in the European Union’, European Journal of Migration and Law, 5 (2003), p. 387.CrossRefGoogle Scholar For earlier surveys of progress see, Peers, S., ‘Key Legislative Developments on Migration in the European Union’, European Journal of Migration and Law, 5 (2003), pp. 85–126 CrossRefGoogle Scholar; Peers, S., ‘Key Legislative Developments on Migration in the European Union’, European Journal of Migration and Law, 4 (2002), pp. 339–67CrossRefGoogle Scholar. Also see, Kerber, K., ‘The Temporary Protection Directive’, European Journal of Migration and Law, 4 (2002), pp. 193–214 CrossRefGoogle Scholar; Rogers, N., ‘Minimum Standards for Reception’, European Journal of Migration and Law, 4 (2002), pp. 215–30CrossRefGoogle Scholar.

10 A. Wahlrab, ‘The Case of Austria: Policing Democratic Values in the Global North’, Workshop 4, 30th Joint Sessions of Workshops, European Consortium for Political Research (ECPR), Edinburgh, UK, 28 March–2 April 2003.

11 C. Levy, ‘Harmonisation or Power Politics? EU Asylum and Refugee Policy Five Years After Amsterdam’, ECPR Workshop 23, ‘Immigration Politics: Between Centre and Periphery, National States and the EU’, ECPR 29th Joint Sessions of Workshops, Turin, 22–7 March 2002. For a good account of debates about multi-level governance in the European Union see, M. A. Pollack, The Engines of European Integration. Delegation, Agency, and Agenda Setting in the EU, Oxford, Oxford University Press, 2003. For excellent studies that apply this approach to the European Union's and the member states’ policies on asylum seekers, refugees and immigration see Guiraudon, V., ‘The Constitution of a European Immigration Domain: A Political Sociology Approach’, Journal of European Public Policy, 10: 2 (2003), pp. 263–82CrossRefGoogle Scholar; A. Geddes, ‘Still Beyond Fortress Europe: Patterns and Pathways in EU Migration Policy’, PSA Annual Conference, University of Leicester, 14–16 April 2003.

12 Joanne van Selm has argued European asylum and refugee policy has been predicated on the belief (until recently) that Europe is not a continent of immigration and needs to protect its welfare state from abuse. Thus she writes: ‘European concerns about numbers and the protection of society explain the restrictive use of admission criteria and the limitation of immigration to asylum and family unity – both of which reflect the fundamental understanding of Europe as a cradle of human rights.’ J. van Selm, ‘Refugee Protection Policies And Security Issues’, in E. Newman and J. van Selm (eds), Refugees and Forced Displacement: International Security, Human Vulnerability and the State, Tokyo, United Nations Press, 2003, p. 87.

13 The Dublin Convention was signed in 1990 but took seven years of haggling amongst the signatories to come into force. The inter-governmental Dublin Convention was incorporated into the (inter-governmental) Third Pillar ( Justice and Home Affairs) of the European Union under the Treaty of Amsterdam in 1999. According to the Dublin Convention a claim for asylum must be examined by the first member state of the European Union which an asylum seeker reaches, unless there is good cause otherwise. The aim was to prevent multiple or serial applications to member states by asylum seekers. But in practice it has been very difficult to establish the route of many asylum seekers because they may have few if any travel documents with them. And solidarity and cooperation between member states was not very strong in any case. The controversy several years ago between France and the UK over refugees housed near the Channel Tunnel is a case in point. Entry-point member states such as Greece, Italy or Spain felt increased pressure due to this Convention. Recently the Dublin Convention has been replaced by so-called ‘Dublin 2’. Under the Danish presidency of the EU in the autumn of 2002 a new system was agreed that came into operation in 2003. This has clarified the procedures for the transfer of an asylum seeker to the first European Union country he or she entered (readmission) and uses the now functional Eurodac computerized finger-print system to identify asylum seekers anywhere in the European Union even if they lack documents. It remains to be seen if the member states will have the political will to operate the new system efficiently and fairly. See A. Hurwitz, ‘The 1990 Dublin Convention: A Comprehensive Assessment’, International Journal of Refugee Law, 11: 4 (1999), pp. 646–77; N. Blake, ‘The Dublin Convention and the Rights of Asylum Seekers in the European Union’, in E. Guild and C. Harlow (eds), Implementing Amsterdam: Immigration Rights in EC Law, Oxford, Hart Publishing, 2001, pp. 90–120; Migration News Sheet, January 2003, pp. 10–12; N. Scutari, ‘The Dublin Convention and the Effects on Asylum Seekers in Europe’, Migration, 36/37/38 (2002), pp. 39–69; Migration News Sheet, February 2003, p. 8.

14 C. Levy, ‘The Geneva Convention and the European Union: A Fraught Relationship’, in J. van Selm, K. Kamanga, J. Morrison, A Nadig, S. Spoljar Vrzina and L. van Willigen (eds), The Refugee Convention at 50: A View from Forced Migration Studies, Lanham, MD, Lexington Books, 2003 pp. 129–44.

15 C. Boswell, European Migration Policies in Flux. Changing Patterns of Inclusion and Exclusion, London, Royal Institute of International Affairs, Blackwell, 2003; L. Schuster, The Use and Abuse of Political Asylum in Britain and Germany, London, Frank Cass, 2003.

16 Boswell, European Migration Policies in Flux, op. cit., pp. 5–6; 67.

17 See the incisive remarks in Favell, A. and Hansen, R., ‘Markets Against Politics: Migration, EU Enlargement and the Idea of Europe’, Journal of Ethnic and Migration Studies, 28: 4 (2002), pp. 581–601.CrossRefGoogle Scholar

18 COM (2000) 757 final, ‘Communication from the Commission to the Council and the European Parliament on a Community Immigration Policy’, Brussels, 22 November 2000.

19 Ibid., p. 2.

20 Ibid., p. 3.

21 Ibid., p. 21.

22 Kostakopoulou, T., ‘“Integrating” Non-EU Migrants in the European Union: Amibivalent Legacies and Mutating Paradigms’, Columbia Journal of European Law, 8: 2 (Spring 2002), pp. 194, 195, 197–8.Google Scholar Also see Kostakopoulou, T., ‘“The Protective Union”: Change and Continuity in Migration Law and Policy in Post-Amsterdam Europe’, Journal of Common Market Studies, 38: 3 (2000), pp. 497–518 CrossRefGoogle Scholar.

23 SN 3926/6/01, ‘Conclusions Adopted by the Justice and Home Affairs Council’, Brussels, 20 September 2001, Conclusion 29.

24 COM (2001) 743 final, ‘The Relationship Between Safeguarding Internal Security and Complying with International Protection Obligations and Instruments’, Commission Working Document, Brussels, 5 December 2001, p. 6.

25 2001/931/CFSP, ‘Council Common Position of 27 December 2001 on Combating Terrorism’, Article 16.

26 For an analysis of this policy tradition see Huysman, J., ‘The European Union and the Securitization of Migration’, Journal of Common Market Studies, 38: 5 (2000), pp. 751–77.CrossRefGoogle Scholar For policy since 11 September see T. Faist, ‘Extension du domaine de la lutte: International Migration and Security before and after 11 September 2001’, International Migration Review, 36: 1 (2002), pp. 7–8; G. Karyotis, ‘European Immigration Policy in the Aftermath of September 11: Reinvigorating the Securitisation Discourse’, UACES Annual Conference, Queen's University Belfast, 2–4 September 2002; J. van Selm, ‘Refugee Protection in Europe and the U.S. after 9/11’, in N. Steiner, M. Gibney and G. Loescher (eds), Problems of Protection. The UNHCR, Refugees and Human Rights, London, Routledge, 2003, pp. 237–62.

27 P. Tuitt, False Images. Law's Construction of the Refugee, London, Pluto Press, 1996, p. 2.

28 N. Soguk, States and Strangers. Refugees and the Displacement of Statecraft, Minneapolis, University of Minneapolis Press, 1999; Haddad, E., ‘The Refugee: Forging National Identities’, Studies in Ethnicity and Nationalism, 2: 2 (2002), pp. 23–38; I. Ward, ‘Identifying the European Other’, International Journal of Refugee Law, 14: 2 (2002), pp. 219–37.CrossRefGoogle Scholar

29 Okafor, O. Chinedu and Okoronkwo, P. Lekwuwa, ‘Re-configuring Non-refoulement? The Suresh Decision. “Security Relativism”, and the International Human Rights Imperative’, International Journal of Refugee Law, 15: 1 (2003), pp. 30–67.CrossRefGoogle Scholar

30 The boundaries between forced migration and economic migration and their effects on politics of liberal democracy is interestingly discussed in a new overview, see B. Jordan and F. Düvell, Migration. The Boundaries of Equality and Justice, Cambridge, Polity, 2003:

Migration illustrates the precarious balance between the power of global and regional regimes and that of nation states. Freedom of movement for the purposes of business, study and tourism has become established throughout the world under rules sustained through international agreements. There is an international convention on rights to humanitarian protection for victims of war and oppression. But rules on who can work, who can settle and who can become a citizen are still the province of national governments. The tension between these three systems, existing side by side, is reflected in periodic ‘moral panics’ about immigration, asylum seeking, race relations and the cultural basis for political communities in First World countries (p. 17).

31 H. Simonian and H. Williamson, ‘SPD seeks partners after Hamburg upset’, Financial Times, 25 September 2001, p. 12.

32 Mudde, C., ‘The Pink Populist: Pim Fortuyn for Beginners’, E-Extreme, Electronic Newsletter of the ECPR-SG on Extremism & Democracy, 3: 2 (2002), pp. 3–6 Google Scholar; Van Selm, ‘Refugee Protection in Europe and the U.S.’, op. cit.; J. J. M. Van Holsteyn, G. A. Irwin and J. M. Den Ridder, ‘In the Eye of the Beholder. The Perception of the List Pim Fortuyn and the Parliamentary Elections of May 2002’, Acta Politica, 38: 1 (2003). In fact Geddes argues that the themes Fortuyn exploited had been percolating beneath the surface of Dutch politics since the early 1990s. See A. Geddes, The Politics of Migration and Immigration in Europe, London, Sage, 2003, pp. 157–60; 178.

33 Bell, D. S., ‘The Election of Extremes’, E-Extreme, Electronic Newsletter of the ECPR-SG on Extremism & Democracy, 3: 2 (2002), pp. 1–3.Google Scholar

34 J. Henley, ‘Swiss Reject Harsh Asylum Laws – Just’, Guardian, 25 November 2002, p. 15.

35 For the most recent overviews of the far or populist right see C. Mudde, The Ideology of the Extreme Right, Manchester, Manchester University Press, 2002; P. Ignazi, Extreme Right Parties in Western Europe, Oxford, Oxford University Press, 2003; P. H. Merkl and L. Weinberg (eds), Right-Wing Extremism in the Twenty-First Century, London, Frank Cass, 2003; R. Eatwell and C. Mudde (eds), Western Democracies and the New Extreme Right Challenge, London, Routledge, 2004; C. Levy, ‘ “There is Something Nasty in the Woodshed”. The Far Right and Conservatives in Consensual and Consociational Democracies: A Comparative Analysis of the Far Right in Scandinavia, the Low Countries and Central Europe, 1970s to 2003’, unpublished paper, 2004.

36 For analysis of the new populism see Y. Mény and Y. Surel, Par le peuple, pour le peuple, Paris, Librairie Arthème Fayard, 2000. Also worth looking at is DeAngelis, R. A., ‘A Rising Tide for Jean-Marie, Jörg and Pauline? Xenophobic Populism in Comparative Perspective’, Australian Journal of Politics and History, 49: 1 (2003), pp. 75–92.CrossRefGoogle Scholar Gallya Lahav's recent monograph demonstrates a congruence between support for populist restrictive arguments amongst the public and political elites in Europe, especially a correlation between Eurosceptical opinion and anti-immigrant/ asylum seeker sentiment, see Immigration and Politics in the New Europe. Reinventing Borders, Cambridge, Cambridge University Press, 2004.

37 A recent good survey can be found in John Lloyd's ‘Europe's New Politics. No to Brussels, No to Immigration: How Rightwing Populism Entered the Mainstream’, Financial Times, 28 November 2002, p. 21, and John Lloyd, ‘The Closing of the European Gates? The New Populist Parties of Europe’, in S. Spencer (ed.), The Politics of Migration. Managing Opportunity, Conflict and Change, Oxford, Blackwell, 2003, pp. 88–99.

38 Kjær, K. J., ‘The Abolition of the Danish de facto Concept’, International Journal of Refugee Law, 15: 1 (2003), pp. 254–75.CrossRefGoogle Scholar For a good discussion of the Danish People's Party, see J. Rydgren, ‘Explaining the Emergence of Extreme Right-Wing Populism: The Case of Denmark’, West European Politics, 27: 3 (2004), pp. 474–502.

39 L. Morris, Managing Migration. Civic Stratification and Migrants’ Rights, Cambridge, Cambridge University Press, 2002, pp. 53–79; G. Zincone, ‘Immigration Policy-Making in Italy: An Eclectic Interpretative Approach’, ECPR Workshop 23, ‘Immigration Policies: Between Centre and Periphery, National States and the EU’, ECPR Joint Sessions of Workshops, Turin, 22–7 March 2002; Geddes, The Politics of Migration and Immigration, op. cit., pp. 157–60.

40 Boswell, European Migration Policies in Flux, op. cit., pp. 49–50.

41 Ibid., p. 4.

42 Van Selm, ‘Refugee Protection in Europe and the U.S.’, op. cit., p. 255.

43 J. Lloyd. ‘Europe's New Politics’, Financial Times, 29 November 2002, p. 17. For constitutional reasons the proposed law is still delayed in its passage into law. In any case, commentators were surprised in 2002 by the failure of the far right antiimmigrant parties in the general elections and a general lack of interest in the question of immigration by the electorate during the electoral campaign. See Boswell, European Migration Policies in Flux, op. cit., p. 44.

44 Schuster, L., ‘A Comparative Analysis of Asylum Policy of Seven European Governments’, Journal of Refugee Studies, 13: 1 (2000), pp. 1–15.CrossRefGoogle Scholar For a discussion of the effects of party politics on the generally increasing restrictive nature of asylum and refugee policy in Europe from the 1980s to the late 1990s see Boswell, European Migration Policies in Flux, pp. 15–23 and Schuster, The Use and Abuse of Political Asylum, op. cit.

45 G. Loescher, The UNHCR and World Politics. A Perilous Path, Oxford, Oxford University Press, 2001, pp. 176, 183, 185. Cronin, Institutions of the Common Good, op. cit., places the West European commitment to the Geneva Convention regime in historical context:

The strongest supporters of a United Nations based international order were also those promoting the broadest and most liberal protection system for refugees. Specifically, France, Belgium, the Netherlands and Britain all fought for an open-ended regime that would protect refugees from anywhere in the world anytime. On the other hand, after the United States shifted its support from a UN-based international order towards regional and ad hoc institutions in 1950, it became the primary advocate of a highly restricted protection system with a short life and a limited mandate (p. 191).

46 N. Steiner, Arguing about Asylum. The Complexity of Refugee Debates in Europe, Basingstoke, Palgrave, 2001, p. 149. Also see Schuster, The Use and Abuse of Political Asylum, op. cit., for the German case:

It would therefore be very difficult for any state to decide, for example, to abolish asylum and still plausibly claim to be a liberal or democratic state. Even the most outspoken opponents of Germany's relatively liberal asylum regime, while advocating draconian restrictions, do not demand that asylum cease to be granted at all. Not only was there no popular mandate for such an action, but the idea of abolishing it would have been outside their own normative vocabulary (p. 55).

And: ‘In the case studies of Britain and Germany the analysis of the debates found that when asylum was discussed, the granting of asylum was indeed spoken as a defining characteristic of a liberal state’ (p. 263). For an excellent discussion of the ethics of asylum within liberal democratic society, see Matthew J. Gibney's recent monograph, The Ethics and Politics of Asylum. Liberal Responses to Refugees, Cambridge, Cambridge University Press, 2004. But this ‘constitutive part’ of liberal society is shaped by the imperatives of the state system and the constraints of domestic politics, see ibid., pp. 212–13.

47 Boswell, C., ‘European Values and the Asylum Crisis’, International Affairs, 76: 3 (2000), pp. 537.CrossRefGoogle Scholar

48 Migration News Sheet, October 1999, p. 1. For a discussion of Tampere see I. Boccardi, Europe and Refugees: Towards an EU Asylum Policy, The Hague, Kluwer Law International, 2002, pp. 175–80.

49 A recent analysis of the root-cause approach can be found in C. Boswell, ‘Preventing the Causes of Migration and Refugee Flows: Towards a EU Policy Framework’, New Issues in Refugee Research, Geneva, UNHCR, 2002.

50 Boswell, European Migration Policies in Flux, op. cit., p. 106.

51 For a general discussion of the externalization of EU asylum and refugee policy see Boswell, C., ‘The “External Dimension” of the EU Immigration and Asylum Policy’, International Affairs, 79 (2003), pp. 619–38.CrossRefGoogle Scholar

52 Koser, K. and Black, R., ‘Limits to Harmonisation: The “Temporary Protection” of Refugees in the European Union’, International Migration, 37: 3 (1999), pp. 521–43.CrossRefGoogle Scholar

53 E. Roxström and M. Gibney, ‘The Legal and Ethical Obligations of UNHCR. The Case of Temporary Protection in Western Europe’, in Steiner, Gibney and Loescher, Problems of Protection, op. cit., pp. 56–7.

54 J. Straw, ‘Towards a Common Asylum Procedure’, European Conference on Asylum, Lisbon, 16 June 2000.

55 For detailed discussion of the British paper see, Noll, G., ‘Visions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres and Protection Zones’, European Journal of Migration and Law, 5 (2003), pp. 303–41.CrossRefGoogle Scholar

56 Loescher, G. and Milner, J., ‘The Missing Link: the Need for Comprehensive Engagement in Regions of Refugee Origin’, International Affairs, 79 (2003), pp. 583–617.CrossRefGoogle Scholar

57 For an excellent comparison of Australian, EU and US migration policies see Van Selm, ‘Refugee Protection Policies’, op. cit., pp. 66–92. For detailed analyses of Australia's policies that seem to violate the spirit and the law of the Geneva Convention and other international laws see Schloenhardt, A., ‘To Deter, Detain and Deny: Protection of Onshore Asylum Seekers in Australia’, International Journal of Refugee Law, 14: 3 (2002), pp. 302–28CrossRefGoogle Scholar; C. Marie-Jeanne Bostock, ‘The International Legal Obligations Owed to the Asylum Seekers on the MV Tampa’, International Journal of Refugee Law, 14: 3 (2002), pp. 279–301; A. Edwards, ‘Tampering with Refugee Protection: The Case of Australia’, International Journal of Refugee Law, 15: 2 (2003), pp. 193–211; T. Magner, ‘A Less than “Pacific” Solution for Asylum Seekers in Australia’, International Journal of Refugee Law, 16: 1 (2004), pp. 53–90. Gibney notes the uniqueness of the Australian case in the willingness of Australian officials and politicians to admit that all unauthorized ‘entrants are unwelcome, regardless of whether or not they are refugees. This is honesty, albeit at its most brutal.’ (The Ethics and Politcs of Asylum, op. cit., p. 193).

58 Migration News Sheet, July, 2003, p. 13.

59 The Swedes and Germans seemed to object to the British plan on principled grounds. The Swedish minister for immigration, Jan O. Karlsson, declared, ‘We are against any sort of system that would deny people the right to apply for asylum in the country that they have sought refuge in’. (Migration News Sheet, July 2003, p. 13). But one report of the meeting implied that Otto Schily objected to the plan because it would reduce the distance that asylum seekers would have to travel and thereby increase the total number of asylum seekers that the European Union would have to process. See, D. Dombey, ‘UK Asylum Proposals Draw Mixed Response’, Financial Times, 29 March 2003, p. 12.

60 The Danish government (under the influence of the Danish People's Party) has suggested that the forthcoming Commission directive on the definition of refugee/subsidiary protection includes a clause in which all new successful applicants for refugee or subsidiary protection have their cases reviewed regularly in order to have their status terminated as soon as possible. This would be a grave blow to the Geneva Convention. But it remains to be seen if this will pass (Guardian, 11 December 2002). Indeed the British ‘vision’ was originally advanced by the Danish government under its presidency in the autumn of 2002, but it was diplomatically astute to allow the British to go public in the spring of 2003 and take the heat. See, Noll, ‘Visions of the Exceptional’, op. cit., p. 305.

61 An excellent analysis of the shift in British policy is found in Boswell, European Migration in Flux, op. cit., pp. 37–41.

62 Geddes, The Politics of Migration and Immigration, op. cit., pp. 143–4.

63 Van Selm, ‘Refugee Protection in Europe and the U.S.’, op. cit.

64 JCWI Bulletin (Autumn/Winter 2001); JCWI Bulletin (Spring/Summer 2002); JCWI Bulletin (Winter 2003).

65 P. Cruz, ‘United Kingdom: Withdrawing from the International Human Rights Standards’, in E. Brouwer, P. Catz and E. Guild et al. (eds), Immigration, Asylum and Terrorism: A Changing Dynamic in European Law, Nijmegen, Instiuut voor Rechtssoglie/ Centrum voor Migratiericht, 2003, p. 83.

66 N. Blake and R. Husain, Immigration, Asylum and Human Rights, Oxford, Oxford University Press, 2003, p. 344. Blake and Husain's analysis is masterful, see pp. 336–45. Noll places the concept of ‘the protection zone’ in a broader historical context in ‘Securitizing Sovereignty? States, Refugees and the Regionalization of International Law’, in Newman and Van Selm, Refugees and Forced Displacement, op. cit., pp. 277–303.

67 Ibid.

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69 Cruz, ‘United Kingdom: Withdrawing from the International Human Rights Standards’, op. cit., p. 85.

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72 Gorman, R., ‘Rushing to Judgement: The Unintended Consequences of the USA PATRIOT Act for Bona Fide Refugees’, Georgetown Immigration Law Journal, 16: 2 (2002), pp. 505–31Google Scholar; P. Buchanan, ‘Immigration Law Developments in the United States since September 11, 2001’, in Brouwer, Catz and Guild, Immigration, Asylum and Terrorism, op. cit., pp. 149–68.

73 ‘Guantanamo Bay Detainees Legal Updates’, http://www.globalsecurity.org/miliary/facility/guantanamo-bay_legal.htm (accessed 17 September 2004); ‘Guantanamo Prisoner Incorrectly Detained’, 8 September 2004, http://www.reuters.co.uk (accessed 17 September 2004). For the context of the Supreme Court cases see A. Lewis, ‘Bush and the Lesser Evil’, New York Review of Books, 27 May 2004, pp. 9–11.

74 E. Brouwer and P. Cruz, ‘Concluding Remarks: The Fight Against Terrorism and the Protection of Human Rights’, in Brouwer, Catz and Guild, Immigration, Asylum and Terrorism, op. cit., pp. 169–70.

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80 For the most recent summary see, Boswell, ‘The “External Dimension” ’, op. cit.

81 J. Van Selm-Thorburn (ed.), Kosovo's Refugees in the European Union, London, Pinter, 2000.

82 Grabbe, H., ‘The Sharp Edges of Europe: Extending Schengen Eastwards’, International Affairs, 76: 3 (2000), pp. 519–36; S. Lavenex, ‘Migration and the EU's New Eastern Border: Between Realism and Liberalism’, Journal of European Public Policy, 8: 1 (2001), pp. 24–42; S. Lavenex, ‘EU Enlargement and the Challenge of Policy Transfer: the Case of Refugee Policy’, Journal of Ethnic and Migration Studies, 28: 4 (2002), pp. 701–21.CrossRefGoogle Scholar

83 J. Morrison and B. Crosland, The Trafficking and Smuggling of Refugees: The End Game in European Asylum?, Geneva, UNHCR, 2000; Boswell, European Migration Policies in Flux, op. cit., pp. 61–2; K. Koser, ‘Reconciling Control and Compassion? Human Smuggling and the Right of Asylum’, in Newman and Van Selm, Refugees and Forced Displacement, op. cit., pp. 181–94.

84 G. S. Goodwin-Gill, ‘The Individual Refugee, the 1951 Convention and the Treaty of Amsterdam’, in Guild and Harlow, Implementing Amsterdam, op. cit., pp. 141–63; Peers, S., ‘Immigration, Asylum and the European Union Charter of Fundamental Rights’, European Journal of Migration Law, 3 (2001), pp. 141–69.CrossRefGoogle Scholar

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86 Van Selm, ‘Refugee Protection’, op. cit.

87 Steiner, Arguing About Asylum, op. cit., p. 147. For a discussion of the dilemma of liberal democracy in an era of international terrorism, see M. Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror, Edinburgh, Edinburgh University Press, 2004.

88 Guardian, 11 December 2002. Incidentally, this proposal was originally advanced by the Danish People's Party.

89 Noll, ‘Visions of the Exceptional’, op. cit., p. 338.

90 Barnett, L., ‘Global Governance and the Evolution of the International Refugee Regime’, International Journal of Refugee Law, 14: 2 (2002), pp. 257–62CrossRefGoogle Scholar; R. Bruin and K. Wouters, ‘Terrorism and the Non-Derogability of Non-Refoulement’, International Journal of Refugee Law, 15: 1 (2003), p. 29; J. van der Klaauw, ‘European Asylum Policy and the Global Protection Regime: Challenges for UNHCR’, in S. Lavenex and E. M. Uçarer (eds), Migration and Externalities of European Integration, Lanham, MD, Lexington Books, 2002, pp. 33–53. And for a more critical account of the regionalization of international law, see G. Noll, ‘Securitizing Sovereignty? States, Refugees and the Regionalisation of International’, in Newman and Van Selm, Refugees and Forced Replacement, op. cit., pp. 277–305.

91 For an overview of the state of health of the Geneva Convention in the early twenty-first century, see UNHCR's global consultations on international protection, E. Feller, V. Türk and F. Nicholson (eds), Refugee Protection in International Law. UNHCR's Global Consultations on International Protection, Cambridge, Cambridge University Press, 2003.

92 Van Selm, ‘Refugee Protection’, op. cit., pp. 88–90. Gibney argues that politicians should have the courage to back up their official support of non-refoulement with a conscious strategy of shaping public opinion in its favour (The Ethics and Politics of Asylum, op. cit., p. 245).

93 Bruin and Wouters, ‘Terrorism and the Non-Derogability of Non-Refoulement’, op. cit.

94 J. Hollifield, Immigrants, Markets and States: The Political Economy of Post-War Europe, Cambridge, MA, Harvard University Press, 1992. As Gibney puts it:

The unspoken truth is that, as shocking as the recent terrorist attacks in New York, Pennsylvania and Virginia were, the number of people killed by them is dwarfed by the number of people whose lives are saved from death and torture annually as a result of the asylum policies of the US, Canada and other Western countries. Even if there are good moral reasons for prioritising the needs of one's compatriots, the value of these lives saved cannot be completely written off (The Ethics and Politics of Asylum, op. cit., pp. 257–8).