Visions of the exceptional

Why did Britain and Denmark choose to reopen the migration debate not long after endorsing the 1952 refugee convention? What did this mean for the resettlement of peoples? [Reposted from openDemocracy, June 2003]

Gregor Noll
28 September 2015
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Since February 2003, plans by the British government to deport asylum seekers arriving in the UK to new ‘Regional Processing Areas’ (RPAs) and ‘Transit Processing Centres’ (TPCs) have gradually leaked to the public. While the former are to be located in the source region of the refugee crisis and purport to be a contribution to strengthening reception capacities there, the latter are closer to the external borders of the European Union and represent a deterrent for unwanted migration, and a serious challenge to the institution of asylum as we know it.

It is no exaggeration to state that it could very well mean the end of the 1951 Refugee Convention. Essentially, the British, Danish and other supportive governments, are intentionally and proactively seeking to create a permanent state of exception in the international refugee regime, in which the legal and factual protection of certain classes of individuals are gradually done away with, allowing resettlement to take place at the discretion of states.

While the decision by the EU summit at Thessaloniki in June 2003 not to place proposals for Transit Processing Centres on their agenda is a welcome sign of common sense, the merits of Regional Processing Areas or Protection Zones (PZs) will be explored further. The UK has made it clear that if necessary, it is prepared to pursue its reform agenda on its own, or in cooperation with a few like-minded states, and hopes to launch a Transit Processing Centre as a pilot project in the near future.

Limited resources


While it would prefer its fellow EU member states to go along with this agenda, thereby increasing the clout of any pilot project devised as its centrepiece, this seems to be no precondition for moving forward. States are the masters of international law, and a proposal launched and supported by states is closer to impacting on reality than the suggestions of international organisations.

After all, the fiscal resources of the EU are limited. Dissent among member states and the misgivings of the European Commission are in themselves no guarantee that the UK vision will not be implemented unilaterally, or in a smaller group comprising Denmark and probably one or two other states. Should this occur, the practice of deflecting asylum-seekers to Transit Processing Centres risks proliferating in domestic legislations, just as the concept of ‘safe third countries’ made its way from Danish law into that of other states, and is now about to transform itself into the binding norm of an EU Directive.

Moreover, the UK and its supporters – Pia Kjaersgaard, leader of the nationalist Danish People’s Party characterised Transit Processing Centres as a ‘superb idea’ – have consistently shunned broader and more transparent opportunities to discuss these proposals, and consistently ignored the lessons of precedents. So far, the UK proposals hardly represent a coherent and monolithic bloc of suggestions for reform, but rather a moving target in which a set of ideas resurfaces time and again in slightly different forms and with varying levels of sophistication. What I would like to do here is to briefly identify some of the more significant precedents, before outlining the progress of recent debate.

I begin with the model of the camp, a term charged with historical European associations arising from the totalitarian population policies of the early decades of the last century. It should be noted here that in revisiting such concepts to analyse the ‘new approaches’, it is not at all my intention to invoke the annihilation policies of those totalitarian regimes in some creeping guilt-by-association.

Rather, it is to urge the drafters to permit themselves a historical and analytical detour to study the dynamics of the 1930s European debate on population politics, in order to see how such a debate could take a sharp turn towards the inhuman with the advent of totalitarian governments.

The camp as the location of the exceptional


The pursuit of ‘new approaches’ by the UK and Denmark reflects a paradigm shift. The injustice of the global refugee regime, so vigorously decried in the UK Cabinet Office and Home Office policy paper bearing the title, A New Vision for Refugees (hereafter UK Vision paper) which was circulated informally in March 2003, is addressed by locating the refugee outside or beyond the domain of justice, whether this is labelled ‘Safe Haven’, ‘Regional Protection Area’, ‘Protection Zone’ or ‘Transit Processing Centre’.

These euphemisms notwithstanding, the UK ‘vision’ has brought back a spectre to European migration and population policies – the spectre of the camp. Enter the concept of the ‘state of exception’ as it has been elaborated in the political theories of Giorgio Agamben in his seminal work, Homo Sacer. Sovereign Power and Bare Life, this in turn inspired by the thinking of the philosopher Carl Schmitt. In an interesting example Agamben compares the frequent, yet explicit usage of a crisis situation during the Weimar era, with its permanent and tacit establishment by the Nazi government at the centre of the 1933 decree for the protection of people and state, effectively abrogating constitutional rights and freedoms for the whole duration of the Third Reich. The crisis situation, or ‘state of exception’, Agamben concludes, ‘thus ceases to be referred to as an external and provisional state of factual danger and comes to be confused with juridical rule itself.’

It is in this strict sense that comparison with the UK proposals applies: the UK vision, if successful, will introduce another permanent ‘state of exception’ into asylum and migration policies. ‘Exception’ is a term derived from the Latin ex capere, meaning to ‘take outside’. Once implemented, this vision would quite literally take the refugee outside the territory of the destination state at the same time as removing him or her institutionally from the normal mechanisms for assessing the asylum claim. This institutional ‘outside’ relates to public perception and the political leverage it might afford as well as the fully-fledged judicial control exercised by courts and competent authorities.

‘The camp is the space that is opened when the state of exception begins to become the rule,’ writes Giorgio Agamben. The concept of Transit Processing Centre is perhaps the most obvious articulation of that exceptional space. Like any camp, such centres will be ‘enclosed’ within a boundary fence of barbed wire. In them, the regulation of living conditions will become a totalised economy of incentives and deterrence. Ultimately, they threaten the inhabitants with the denial of any hope of a change in circumstance, be it through resettlement or local integration.

There is more to this ‘Transit Processing’ term than its drafters might intend: for these camps will act as much for the processing of human beings in transit as it does as a location for a transition process – fundamentally changing thereby the parameters of the relationship between states and migration.

The camp regime presupposes a normative order which is not necessarily a legal order, joining law with violence, as Agamben argues, and rendering them indistinct. The project articulated in the UK Vision paper presupposes the threat of use of force against persons as well as states. Refugees and other undocumented migrants will be deprived of their liberty upon arrival at the screening stage, deported to a camp and detained there. States producing refugees will be threatened with intervention on a scale including the use of military force.

Change in convention


But this violent potentiality is produced by law. The UK Draft Vision proposes the change of the 1951 Refugee Convention, while the Danish Memorandum drafted in April 2003 reminds us that amendments in domestic legislation will also be necessary, Therefore, it would be wrong to rely on preconceived notions that any violence exercised in realising the vision will be illegal. On the other hand, some of it might well be illegal, as the state of exception encourages the possibility of violent excess.

There is an interesting line of development stretching here from the introduction of Temporary Protection in the early 1990s to this contemporary debate around ‘new approaches’ comprised of TPCs and PZs. For the notion of ‘Temporary Protection’ can be legitimately described as another state of exception imposed on the European refugee regime. Temporary Protection denoted a regime which allowed states to opt out of ordinary asylum processing by leaving open the question of status or category. Its supporters amongst European states turned to the UNHCR for the role of conceptualising and legitimising this state of exception, so it comes as little surprise that the UK has been so assiduous in seeking UNHCR endorsement for its Transit Processing Centres and Protection Zones.

Yet, the introduction of Temporary Protection was largely reactive. The war in the Federal Republic of Yugoslavia was an external factor setting off a spiral of events which culminated in the launch of this programme. And after the event, there was an attempt to mould the concept into legal form, which eventually resulted in a 2001 EU Directive, a legal instrument never deployed in practise.

But the debate on ‘new approaches’ cannot be said to have been fuelled by a war on the threshold of the European Union. The number of asylum-seekers in the UK is hardly ‘exceptional’, especially if compared to the ratio of applications – in terms of population, territorial reach or the wealth of other states – within or outside the EU. Proactively rather than reactively, the UK and Danish governments are creating a state of exception ex nihilo, the source of which has to be sought in their political will alone. As the objective of these ‘new approaches’ appears to be the eradication of all normality in favour of a permanent state of exception, the camp itself finally becomes normal.

Even if one single pilot project of this type, favoured by a ‘coalition of the able and willing’, emerges from the current EU negotiations, it will nevertheless send up a signal of a deep transition under way. It will unleash an exercise in discretionary sovereignty which since 1951 we have hoped and believed was firmly fettered by refugee law as we know it: a sovereignty which feeds off the confluence of law and violence, exception and decision, both right and might.

If the drafters of such a proposal wish to avoid comparison with those European forbears who were also sovereigns of the exceptional, they should institutionally ensure their ‘new approaches’ against any abuse by a radicalised politics. They might even come to appreciate the advantages of those ‘old approaches’ – onshore processing, public scrutiny and judicial control by courts. So, where have we got to now?

'New Approaches' in spring 2003 – the recent history of a debate


The Danish government pursued the topic of ‘reception in the region’ on its advent to power in 2001, promoting discussion on such precedents in interception policy as the US programme to deter Haitianasylum seekers by redirecting those with a ‘credible fear’ of persecution to the US naval Base on Guantanamo, Cuba, and Australian attempts to launch a ‘Pacific solution’ to avert arrivals by boat. In contrast to the EU member-states, the US and Australia have traditionally relied on resettlement for the vast majority of their refugee intake. However, this discussion seemed to ignore the extensive analysis and rejection of interdiction programmes in the studies of the EU’s 1994-95 Inter-Governmental Conference (IGC).

This is the sequence of main events:

February 2003, against the backdrop of an intensifying domestic debate in the UK on the increasing number of asylum-seekers, UK prime minister Tony Blair promises to cut 2003 applications down to half of the 2002 numbers, drawing inspiration from its liberal-conservative Danish colleagues. The UK reform agenda was gradually developed during spring 2003, reaching the public mainly through piecemeal press reporting or NGO reactions to leaked documents. Given the fundamental changes envisaged to both domestic and international asylum systems, the lack of transparency is striking: governmental actors and international organisations involved in the debate chose not to share core documents with the public.

February 2003, a UK Cabinet Office and Home Office policy paper, entitled, A New Vision for Refugees is leaked to the British daily, the Guardian and thereafter circulated informally in the NGO sector. The key concept of this 28-page draft is the creation of so-called ‘safe havens’. These are described as not in breach of the Geneva Convention, although a revised Geneva Convention might be wise. It is suggested that their legality does require acceptance by the Courts.

Early March 2003, a longer draft, expanding on the core idea is circulated informally. The term ‘safe haven’ has been replaced by ‘regional protection areas’. Probably the drafters were reminded of the Srebrenica massacre, which took place when UN troops failed to protect haven inhabitants in Bosnia, a memory which could have proved useful in the evolving debate.

10 March 2003, Prime Minister Tony Blair writes to the EU Presidency asking for ‘better management of the asylum process globally’ to be put on the agenda of the European Council in Brussels that month. The European Commission is asked to explore certain ideas, including the creation of Transit Processing Centres in countries close to the borders of the EU, ‘in particular with UNHCR’. By this time, it is clear that Denmark and the Netherlands publicly support the UK in its pursuit of reforms.

17 March 2003, UN High Commissioner for Refugees, Ruud Lubbers attempts to take the lead in the ensuing debate by presenting a three-prong model to a meeting in London: solutions in the region; improved domestic asylum procedures and EU-operated closed reception centres within EU borders for processing asylum cases which are manifestly unfounded.

28 March 2003, Lubbers presents an elaborated version of the UNHCR model in Greece, where graphs and explanatory notes are leaked to the press. The range of dissent among EU member states becomes clear, with German Interior Minister Otto Schilly reported as very sceptical. But the Netherlands, Italy and Spain mark their support for the UK proposals which will be worked up for the June European Council in Thessaloniki, Greece.

7 April 2003, EU member state delegations raise a number of concerns regarding the legality and feasibility of the UK proposals at the sixth meeting of the EU Immigration and Asylum Committee in Brussels. The UK delegation has merged RPAs and TPCs into one and the same model for migration control and refugee protection. Claimants who fail in the TPC procedure can be returned to RPAs, while ‘humanitarian removals’ could go in the opposite direction. The UK delegation highlight the very real problem that their approach might simply displace cases into illegal immigration. Given what is on offer, migrants might as well move to destination states such as the UK in the same numbers, but abstain from filling in an asylum application.

23 April 2003, Denmark hosts an informal meeting exclusively dedicated to what is termed the ‘new approaches’. Denmark, the Netherlands and the UK are joined by the EU Commission, IGC and IOM as well as the UNHCR. The meeting results in a memorandum drafted by the Danish Ministry of Refugee, Immigration and Integration Affairs, setting out a number of legal, practical and financial issues. In the Danish memorandum it emerges that the authors envisage a downgrading of legal safeguards in the procedures used by the TPCs, perceiving processing as unconstrained by norms applicable in the jurisdiction of destination states.

23 May 2003, Denmark hosts an IGC workshop discussing Regional Protection Zones, ‘developed to respond to protracted refugee situations, where repatriation or local integration would not be available in the near future.’

End May 2003, Tony Blair’s representative to the Convention on the Future of Europe proposes the alteration of Article 11 of the Draft Constitutional Treaty to allow the Common European Asylum System to be geared towards processing and asylum in the region of origin rather than within the Union, thus introducing a paradigm shift in EU asylum and migration policy.

3 June 2003, while paying lip service to the timeliness of the UK proposal, the EU Commission sets out a number of ‘basic premises of a new approach to the international protection regime’, and points out that the UK proposals disrespect a number of them. Instead, it recommends member states consider the introduction of Protected Entry Procedures, which allow a non-national to approach the potential host state outside its territory with a claim for asylum or other form of international protection. The Commission has more radically disassociated itself from the UK proposals than the UNHCR.

5-6 June 2003, the EU Justice and Home Affairs Council examine both the UK proposals and the Commission’s response.

19-20 June 2003, the European Council “takes note” of the Commission Communication and invites the Commission to present a report on the orderly and managed entry of persons in need of international protection to the EU. Before the meeting, the UK has backed down from pursuing TPCs further within the EU framework. The European Council further “notes that a number of Member States plan to explore ways of providing better protection for the refugees in their region of origin, in conjunction with the UNHCR” and reminds such states that this work “shall be carried out in full partnership with the countries concerned on the basis of recommendations from the UNHCR”.

Concluding remarks


This leaves us with three positions. First, we have the UK ‘vision’ backed by the Danish and Dutch governments. Second, Ruud Lubbers’ attempt to wriggle his office out of Tony Blair’s ambivalent embrace by offering a three-prong compromise. This model gives in to UK aspirations by accepting closed processing camps and the listing of safe countries of origin; but distances itself from the UK project by moving the camps back into EU territories. Third, the European Commission defends the Common European Asylum System against the political dynamics of the UK proposals while pushing forward with the idea of Protected Entry Procedures and enhanced resettlement schemes.

So much is clear. What is less clear is why the UK, the Netherlands and Denmark chose to reopen a debate in 2003, barely fourteen months after the so-called Global Consultations – a multiannual discussion of the refugee protection system supported inter alia by all three countries – ended with an unequivocal endorsement of the 1951 Refugee Convention. What momentous changes had enticed them to start chiselling away at their own reaffirmation of the Convention so soon?

Moreover, why should the UK and Denmark go to some lengths to represent old wine in new caskets to refugee lawyers and electorates alike, couching thinly disguised proposals that have already been tested and found wanting in the language of ‘new approaches’? The 1995 IGC report, for example, regarded the Haiti programme as an exceptional case, given that the US was concurrently involved in a military intervention in that country with the backing of a UN Security Council mandate. But it voiced considerable scepticism towards the idea of exclusive regional processing. It considered the Cuban interdiction programme as a failure: the US closed down safe havens in Guantanamo Bay and Panama less than a year after the inception of the programme in 1994, finding both schemes ‘very expensive’. Interestingly, the drafters of the 2003 UK Vision paper state openly that, ‘the proposed vision is not designed to be a cost savings exercise’ and is likely to require an injection of additional funding in the short term. In the long term as well, one must add, given the reliance on force and repression which will inevitably trigger evasion strategies by would-be migrants.

A more contemporary example is Australia’s ‘Pacific solution’ whereby boat arrivals are systematically removed outside Australian jurisdiction to Nauru and Papua New Guinea, which was brought to the attention of European audiences during the MS Tampa incident of August 2001. In spite of severe international criticism, Australia has implemented its model since 2001 and continues to promote it internationally. The ‘Pacific solution’ was cited as a source of inspiration to the British and Danish governments in the ‘new approaches’ debate this spring.

An outright comparison of the cost of caseloads in such schemes is inappropriate, given the differences between the countries involved. However, Australian experiences point in a quite different direction from that hoped for by the UK and Denmark. The budget of the Australian government indicates that all savings from reduced onshore arrivals are consumed by the massive costs for offshore processing. The Australian government calculates a decline in a 1,000 processed places per year, costing a net loss of some AUD 900 million for the Australian taxpayer over the fiscal year: calculated by one commentator at AUD 300,000 per boat refugee dissuaded from the journey. Against this backdrop, the suggestion that there will be funds left over from decreasing spontaneous arrivals in the UK or Denmark which can be reallocated to improve refugee protection in the south is simply untenable.

However, this is justified of course, not on the grounds of granting asylum to aliens, so much as defending the boundaries of our state communities. If the ongoing Australian experience can be described as little more than a sustained tragedy, the UK and Denmark seem all set to launch themselves on a course of farcical repetition.

Close reading of the scheme for TPCs and PZs as sketched out in the documents to date suggests that refugees would be worse off than in territorial processing, while states are not necessarily better off. A reinforced and improved system of territorial processing would be a better investment of the additional resources needed, and turn out to be far less intrusive with respect to refugees – one of the constituencies at least which the system is intended to serve. If this is the case, such a scheme, by violating the rule of necessity, itself becomes an exercise in discrimination. Then again, if destination states take the risk of discrimination reproaches seriously and tailor-make the screening system to accommodate the special needs of individuals, the deterrent effect of the entire system is lost. In the end, states will be choosing between a workable and illegal system, or a legal one that is unable to deliver either deterrence or control.

However, the ignorance of existing analysis, the selective approach to precedent, and the avoidance of broad debate all reflect the same desire to doff the burden of connecting to earlier arguments and problematic experiences. One must conclude that such a strategy subscribes to power, not to knowledge. It prefers the decisive gesture to rational debate.

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