Securing Refugee Protection in a Cold Climate

The terrible events of September 11, 2001, in the U.S. continue to have an impact on the treatment of refugees and asylum seekers in a range of states. This is despite the fact that little evidence has been produced to demonstrate any link between international terrorism and refugee movements in, for example, Canada or the U.S. The suspicion is that governments have used events to justify the accelerated implementation of policies which were already being considered, or have applied existing authorities inappropriately in this new context. Through such cynical manipulation of this tragedy governments too display a lack of respect for the victims of international terrorism. Governments have a duty to protect their citizens. Citizens have the right to expect to be protected. Those who support a social contract model of democratic life affirm not only the duties of the citizen, but also the responsibilities of the state. That governments come under intense pressure to offer security to their citizens is not in doubt. No one disputes the role of the state in securing the conditions which make a decent human life possible. Terrorism often brings with it vocal demands for tough responses. In the case of internal opposition movements the focus is on the perceived enemy within. Responses can take the form of enhanced monitoring of political movements and/or national minorities. However, when the danger comes from international terrorism then attention often shifts to migration control, and with it more intense scrutiny of the regulation of entry and the monitoring of migrants who are already present. What is sometimes neglected is that this does not take place in a legal vacuum. States have obligations arising from national and international law which apply to citizens and non-citizens. In particular, human rights law is there to offer protection to persons. It may seem obvious, even banal, but it is the human element which makes human rights so important. One of the more dispiriting current political themes is the vilification of human rights advocates, and the downgrading of human rights considerations in the formulation of policy responses. This is a hard time to be a human rights lawyer and/or activist. What is remarkable is that states that parade their adherence to the rule of law in the international community treat human rights law (and human rights lawyers) with contempt when it is convenient to do so. It is almost as if the struggle to enshrine human rights in law had never happened. A similar trend is also evident with respect to those who call for the full and effective implementation of refugee law. The danger is that the gains in refugee and human rights law are threatened by states that view them as inconvenient constraints. The contributors to this special issue of Refuge offer insights into the responses to the events of September 11 which have impacted on refugees and asylum seekers. If there is a unifying theme, it is the importance of defending basic humanitarian principles at a time when they are coming under intense strain. All the contributors acknowledge the need to address international terrorism. This is not in dispute. What is problematic is the way basic human rights principles have been lost in the process. Governments often talk of a balance. However, when one looks at the evidence, human rights are frequently at the bottom of the list when national security becomes an issue. In addition, it should be remembered that in law at least some rights really are absolute. In Europe, for example, Article 3 of the European Convention on Human Rights provides an absolute guarantee against return. Most human rights do not take this form. Limitations are permitted, for example, to the right to liberty and security of the person. Refugee law also contains permissible limitations and even allows exclusion from status in a range of cases relevant to this special issue. However, the point is that state policy is constrained by established norms of refugee and human rights law. …

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