Your book has been described as a ‘cautionary tale’ about the sharing of border control policies, particularly in the context of the European refugee crisis. What are your main concerns about this ‘race to the bottom’?
My main worry is that the hard-won institution of asylum is under threat. The 1951 Convention on the Status of Refugees, concluded in response to the failure of states to give refuge to those fleeing Nazi Germany, creates certain obligations for governments in relation to protecting asylum seekers. States around the world are turning their backs on these obligations by implementing progressively more restrictive measures aimed at keeping asylum seekers away. These include policies like mandatory detention, interception and push-backs at sea, and extraterritorial detention and processing. All of these are aimed at blocking and deterring asylum seekers from accessing a state’s territory.
The situation is made all the more dangerous by the fact that states view themselves as being in direct competition with each other. When one state introduces restrictive policies, it places pressure on others to do the same. This is based on a perception that comparatively lax border control policies will act as a magnate for asylum seekers. This is what is fuelling the current race to the bottom— the logical end point of which is states completely shutting their borders to asylum seekers. That is precisely what has happened in Australia. And other states around the world are looking to emulate our policies. This could spell the end of the institution of asylum. If all states closed their borders like we have, then persons in danger will have nowhere to flee to.
Can you tell me about the significance of the title and quote at the beginning of the book?
The title of my book, Refuge Lost, is a play on John Milton’s Paradise Lost. That is where my opening quote comes from:
Farewell happy fields
Where joy forever dwells: hail, horrors!
These are the words uttered by Satan, after he was expelled from heaven along with the other fallen angels. This quote resonates with me because of the way it captures a loss of innocence. In the context of my book, it can be seen as a critique of the loss of compassion and humanity in our treatment of refugees. It also has a more literal meaning, describing the journey of asylum seekers who leave their home in search of safety, but instead are subject to cruel and callous treatment by the governments that seek to keep them away.
What is the role of the so-called ‘pull’ and ‘push’ factors in asylum seeker policy?
This is a really important question to which I have no definitive answer. Anecdotally, it appears that both pull factors (such as the stringency of asylum policy) and push factors (like deteriorating conditions in asylum producing countries) influence asylum flows. However, there is no compelling research identifying the relative importance of these factors. This is because a valid study of this issue would be very difficult to design. There are so many variables in asylum seeker decision making, and it is close to impossible to control for all of them. Nevertheless, it is important that we try to do this as researchers.
As I say in my book, until we can answer this question, the discourse on immigration and border control will continue to ‘be characterised by assertion and assumption rather than by reasoned and evidence-based exposition’.
Putting that discussion to one side, what is important is that the public and their elected leaders believe that pull factors are important and that they can keep asylum seekers away by implementing restrictive policies. This is the rationale driving the competitive race to the bottom in the asylum space.
What made you choose an interdisciplinary analysis for your book?
This was dictated by the subject matter of my book. I needed a conceptual framework to analyse the transfer of law and policy across jurisdictions. I found the legal scholarship on this issue (often referred to as the study of ‘legal transplants’) to be somewhat outdated and not capable of capturing the nuances of the transfers I was observing. This prompted my exploration of how the issue was examined in other disciplines. This led me to engage with the rich bodies of literature on the topic from public policy, international relations, economics and sociology. Each approach had its own strengths and weaknesses, so I embarked on a transdisciplinary endeavour to develop a framework which integrated the strengths of each of these approaches. What surprised me the most was that there had been very little interdisciplinary dialogue between scholars on this topic. It is ironic that bodies of literature devoted to studying the transfer of ideas between governments have been resistant to the transfer of ideas across disciplines. My book aims to bridge this long-standing interdisciplinary gap.
What is the key message you would like readers to take from this book?
I hope it can be a call to action to work towards preserving the institution of asylum. As I examine in detail in my book, legal challenges in domestic and supra-national courts have failed to stop the trend towards increasingly restrictive asylum policies. In fact, victories in the courts have often prompted the executive and legislative branches of government to implement even more draconian policies. As long as governments believe that their constituents want tough border policies, they will find a way to circumvent the courts. The only way to save the institution of asylum is to radically shift opinion and flip the paradigm. Compassion, rather than deterrence, needs to become the vote winner.
Refuge Lost will be launched by the Hon Michael Kirby AC CMG on 28 March 2018 in Sydney, Australia. For further details about the launch, please visit https://www.mq.edu.au/about/events/view/book-launch-refuge-lost-asylum-law-in-an-interdependent-world/