The state of asylum: democratization, judicialization and evolution of refugee policy in Europe

In this paper, I will examine the relationship between increasing government restrictiveness towards asylum seekers and the growing entanglement of states in human rights law that restrains their activities. The argument I will make about the relationship between the two applies best to European states, encumbered by European and EU human rights legislation, especially after the Treaty of Amsterdam. However, much of this paper is of broader relevance to other liberal democratic states, and the examples I use will draw freely from non-European countries.

This paper contains four parts. In the first, I will locate the roots of recent restrictive policies by governments over the last 15 years in the dynamics of electoral politics, and particularly in hostile public attitudes towards asylum seekers. In the second, I will argue that the consequences of restrictive pressures emanating from the political realm have been restrained in important ways by legal developments that begin to acknowledge asylum seekers as rights-bearing subjects and vest them with important new legal protections. Third, I will argue that this contradiction between a restrictive politics and inclusive legal developments is best understood as reflecting a tension in the idea of the liberal democratic state. This tension manifests itself practically in the way that the growth of human rights protections for asylum seekers fuels the use by governments of restrictive and exclusionist measures designed to prevent asylum seekers arriving at their territory to access these protections. In the conclusion of this paper, I address the implications of this account of the evolution of asylum for the future of the values associated with the 1951 Geneva Convention fifty years after its birth.