Dissident Voices: Refugees, Human Rights and Asylum in Europe
| Published date | 01 September 2000 |
| DOI | 10.1177/096466390000900303 |
| Date | 01 September 2000 |
| Author | Colin J. Harvey |
| Subject Matter | Articles |
DISSIDENT VOICES: REFUGEES,
HUMAN RIGHTS AND ASYLUM
IN EUROPE
COLIN J. HARVEY
Queen’s University of Belfast, Northern Ireland
ABSTRACT
This article examines the law and politics of asylum in Europe. The aim is to explore
both the construction of ‘Fortress Europe’ and the resistance within Europe to the
dominant policy response. Human rights law now plays an important part in the
struggle to secure decent treatment for asylum seekers in Europe. Its use has exposed
serious problems with existing refugee law and policy. In examining the law and poli-
tics of human rights this article suggests that dialogic models of law are useful. In par-
ticular they bring back into the picture those individuals and groups which make
change happen in practice. This allows us to ‘ground’ the discourses of human rights
and refugee law much more securely within concrete political struggles over the terms
of asylum policy. At a time when human rights lawyers are becoming part of the inter-
national ‘mainstream’, this article suggests that we must be alive to the importance of
dissident voices that remain on the margins.
INTRODUCTION
LIBERAL TRIUMPHALISM in the post-Cold War era has coincided
with a steady increase in the number of refugees and forcibly displaced
persons in the world. In fact the story of the 20th century is one of
failure, if judged by the massive human displacement that has followed mod-
ernity’s path, and the barbarism that often underpins it. The refugee stands
as the defining figure of a century that gave displacement an iconic status.
Refugees and asylum seekers are faced with increasingly restrictive legal
regimes which penalize them for the act of seeking asylum. Northern states,
in particular, are now openly hostile to the plight of many of the world’s
forcibly displaced. A barrage of devices is in operation to ensure that asylum
seekers never reach the North. If they do, states have implemented punitive
schemes which include detention and the removal or restriction of welfare
SOCIAL &LEGAL STUDIES 0964 6639 (200009) 9:3 Copyright © 2000
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entitlements. States are currently scrambling to make themselves appear as
unattractive as possible to asylum seekers. The situation is rightly character-
ized as a crisis that is endangering the future of refugee protection. The
problem is particularly prominent in Europe. The European Union (EU) is
in the process of constructing a more cohesive common asylum and immi-
gration policy which will have implications for the whole region and beyond.
The aim in this article is to examine the crisis currently facing the legal regime
with a particular emphasis on the EU. In addition, I explore the politics of
rights discourse as it impacts on the asylum debate. Although ‘Fortress
Europe’ is a metaphor with substance, rights discourse has been deployed
with some success in Europe. To understand and criticize trends in Europe I
adopt a dialogic model of legal discourse which I have defended elsewhere.
My principal argument is that the institution of asylum is under serious attack
from states intent on constructing walls of exclusion around their territories.
However, this policy of deterrence and restriction has met with political and
legal resistance which has, on occasion, been successful. In any account of EU
asylum law and policy it is essential to be able to account for both the trans-
national political and legal activism that is confronting the dominant narra-
tives in Europe as well as the general restriction evident in state practice. To
neglect either element is to undervalue the strength and potential of the resist-
ance to the dominant narratives. The article thus contains a second major
pillar. That is a general defence of the relevance of the dialogic approach to
understanding the law and politics of human rights.
RECONSTRUCTING REFUGEE LAW
Those working within refugee law are faced with a problem. For a law which
on its face claims to offer a humane response to refugee protection in prac-
tice operates in exclusionary ways. The legal regime acts as a limiting device
which confines the nature and scope of the protection offered by the state to
asylum seekers. States are preoccupied not with who is to be included in this
legal regime but primarily with those to be screened out. Impressive levels of
creativity have been deployed by states in constructing the ‘walls of exclu-
sion’. The refugee debate in Europe is trapped within unsophisticated cat-
egories which pay little regard to the complexity of refugee movements.
Refugee law consists of the 1951 Convention relating to the Status of
Refugees (1951 Convention) and its 1967 Protocol. It contains a definition of
‘refugee’ which applies to someone who:
owing to a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is
outside the country of his nationality and is unable or, owing to such fear, is
unwilling to avail himself of the protection of that country. (Art. 1A(2))
The 1951 Convention contains substantive guarantees for those recognized
as refugees. The cornerstone of the legal regime is Article 33(1):
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