PROTECTION SEEKERS, STATES AND THE NEW SECURITY AGENDA

                                        ABSTRACT

This book is concerned with the subject of anti-terrorism laws and their impact on the rights of refugees and asy­lum seekers. In particular, it looks at the compatibility of and -terrorism laws with international human rights law instruments.

Over the last decade international terrorism and the subsequent anti-terrorism laws have created insecurities both for States and individuals and, as a result, have become important is­sues both internationally and nationally. This book critically eva­luates these topical subject areas, which States are frequently re­luctant to divulge information on details due to their political na­ture and the sensitive security-centered information they entail. Contained herein is a comparative study of law and policy, which attempt to fill gaps in current analysis in the literature. I argue that the recent anti-terrorism and asylum law has had a dire im­pact on the legal rights of asylum seekers. More specifically, the core international human rights standards that are central to the integrity of World War II asylum law have become weakened and to a significant extent even perverted by special criminal law re­sponses to national security and terrorist threats after 9/11 by the a number of Western States. While there is a wide spectrum of anti-terrorism laws, there are also a number of safeguards and rights provided by in­ternational human rights law, instruments designed to provide le­gal protection for individuals. Some states - the U.S., the U.K., and Australia - have chosen to disregard the legal protections they are obliged to uphold, arguing that the current security climate justifies the exceptional nature of such apparently negative ac­tion. Apart from the politics of security concerns, international re­lations and media priorities contribute to the moulding of laws and policies. This has been particularly the case for the current treatment of asylum seekers.

Most of the anti-terrorism laws and policies impact on the treatment and rights of non-nationals and immigrants, particu­larly on those seeking protection either as refugees or asylum seekers. This impact can be seen in two spheres, one within con­text of immigration control - including asylum determination proc­esses - and another within the judicial procedures involved when asylum seekers are suspected of being a threat to national security and/or a terrorist. The measures that will be focused are deten­tion; restriction of movement and exclusion.

Chapter One examines why immigrants seeking protec­tion are considered threatening to the host State and how policies are molded by this idea. Historical events, international law and relations, foreign policy and domestic politics are all examined. This chapter emphasises and explains how the nexus of territorial security and the movement of persons and terrorism have changed in nature since September 11, 2001. It portrays a scenario of rights vs. rights: on the one hand the rights of individuals who seek pro­tection and, on the other, the right of a State to protect itself and provide security to its citizens. The contest of rights takes place in a dualist environment created by governments ('us' and 'them') and the national security concerns of the state subordinate indi­vidual rights. In doing so the Chapter One concludes that with the use of anti-terrorism and national security law and policy asylum seekers and refugees are criminalised and treated with discontent which has resulted in their basic human and legal rights being cur­tailed.

Chapter Two has three aims: an analysis of the label­ing and definition of a terrorist act; an examination of the theo­retical and jurisprudential approaches to the exclusion of refugees and asylum seekers suspected of being terrorist; and, an explora­tion of the dignitary principles (that should be) used when assess­ing the possible exclusion from protection. Analysis of jurisprudence and policy since September 11, 2001, suggests the interpretation and use of exclusion clauses in the Refugee Convention have been transformed and, as a result gave rise to many criticisms. The conclusion is reached that when applied in its full spirit the Refugee Convention provides an effec­tive and wide scope of protection both for the host states seeking security from terrorism and the individuals seeking refuge. How­ever, the states have chosen to go beyond what the Refugee Con­vention proscribes and this trend has had a dire impact on the le­gal rights of asylum seekers and refugees.  

Chapter Three examines the respective anti-terror laws and procedures in Australia, the U.K. and the U.S., and the impact they have had on the legal rights of refugees and asylum seekers. It involves critiquing substantive law and an analysis of how and why the recent counter-terrorism legislation has been created. It pinpoints the tensions and contentious issues govern­ments have experienced and sought to address. In doing so, differ­ences and similarities are drawn out. For example, while the U.S. and the U.K. have codified aspects of international human rights law instruments in their domestic legislation and, consequently, also have procedures which provide a scrutiny of anti-terror laws and policy, Australia differs in her stance towards any scrutiny over her national laws and has viewed any criticism with suspicion and discontent. Moreover, while the U.S. and the U.K. have ex­perienced terrorist attacks on their soil thus giving them the con­text in which anti-terror measures were argued to be justified, Australia used these attacks abroad to expand most of the anti-terror legislation. In comparing counter terrorism law and policy, specific provisions that directly or potentially have an impact on asylum seekers and refugees have been identified and compared in three different jurisdictions. In light of relevant international and regional human rights legal instruments, the conclusions underline how the rights of asylum seekers and refugees have been altered and/or reduced.