Daniel Skobla
Are contemporary refugee and asylum policies a symptom of moral crises of liberal democracies?


In what follows I shall elaborate my argument that there is a deep-rooted contradiction between policies professed by western parliamentary democracies and moral principles embodied in doctrine of liberalism, which provide fundamental ideological underpinnings for those regimes. In order to be more specific I claim, that today we can observe striking inconsistency tendencies between 1) concept of civic citizenship  (based on integration of the people with different ethnic-cultural background) as declared by liberal tradition, and 2) 'exclusivist' asylum policies prosecuting by western democracies in reality. This contradiction permeating collective conscious of most of democratic societies is translated into contemporary nationalism in Europe, which is directed against incoming migrants. Thus, new nationalism in Europe is not more an attribute of liberalism and democratization (as was 'old' nationalism of the nineteenth century) but it is rather its negation.

Restrictive migration and asylum policies have been continually institutionalized during the last 15 years both individually, within particular states, and by European 'umbrella' agreements - the Schengen Accords, the Dublin Convention, the Third Pillar of the Maastricht Treaty and the Amsterdam Treaty. More significantly, nowadays we witness a critical charge against basic provisions and logic of the 1951 Geneva Convention Relating the Status of Refugee.<1>

It seems so, that European democracies nowadays limit universal liberal rights - most importantly the right of free movement of people - by a particular rights - the rights of a 'Gemeinshaft' (community) to protect its social and cultural integrity. The free movement of the people belongs among the basic human freedoms and liberties. The Article 13 of the Universal Declaration of Human Rights, adopted and proclaimed by the UN General Assembly's resolution in December 1948 states: a) Everyone has the right to freedom of movement and residence within the borders of each state, and b) everyone has the right to leave any country, including his own and to return to his country. More specifically, the 1951 Geneva Convention relating to the Status of Refugees in its Preamble secures for refugees "the widest possible exercise of ... fundamental rights and freedoms". According the Article 1, the term 'refugee' refers to anybody who has "a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion". <2> The convention, in fact, guarantees the right to asylum without conditions.

Proclamations, which have been a cornerstone of aforementioned declarations, have their philosophical roots in the doctrine of liberalism. This doctrine, coming into life in the nineteenth century, established new principles of political legitimacy. Among the most significant were three following: 1) sovereignty lies in the people - this principle, which made the decline and fall of 'ancient' dynastic regimes legitimate also facilitated creation of new nation-states, 2) political change is normal - this principle facilitated an 'invitation' of masses into political life by extension of universal suffrage, 3) individual has a supreme moral position - this principle brought about an acknowledgement of individual legal and civic rights. The latter premise embraces universal principles that weight more an individual will, than a will of traditional institutions - family, clan and guild. From persuasion that 'individual will' has a supreme position, claims in the sphere that we nowadays call 'human rights' has been derived.

Parallel with liberalism, as a program of a profound social change and an antithesis to eternal 'stability' of 'ancient regime', also socialism (Marxism) had developed. Yet, while Marxism, in order to achieve a classless and therefore a just society, accepts some restrictions on the human rights, for liberalism human liberties are the basic underpinnings. And indeed, in the nineteenth century liberalism, as the ideological principle, supported and accompanied creation of new nation-states. This kind of historical liberalism has been the main ideological pillar of contemporary western democracies. Historical liberalism is a universal doctrine - according to its tenets human rights have universal validity and nobody can be excluded from their exercising. On this assumption is built logic of the Universal Declaration of Human Rights, and on the same premises should be based the performance of modern western democracies. However, nowadays the European Union and its member states cannot or (from of pragmatic or whatsoever reasons) do not want to live up to the ideas they proclaim. Why?

In time of its promulgation The Geneva Convention was simply regarded by many of its signatories as a mean how to pursue economic and political struggle against the communist threat from the Soviet block. To overcome this instrumental narrowness, two years after its signing the Convention was extended in the way that it could apply to anyone who was forced to leave his/her country as a result of "well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion". <3> After the collapse of communist regimes pragmatic instrumentalism of the Convention rendered useless. The western world (and particularly Western Europe) started to face an influx of immigrants from destabilized and poverty stricken countries. The fear of political and social 'costs' of asylum significantly changed attitudes of western population and modified political agenda of governments. While the asylum policies in Europe in the 1960s and 1970s were characterized by 'uncoordinated liberalism', in the 1980s and the early 1990s have been termed a period of 'harmonized restrictionism'. <4> The European Union started turn to 'autarkic' measures by professing the notorious policies symbolically called 'the Fortress of Europe'.

Since 1990 asylum seekers were facing increasingly restrictive legislation, initiated both at European level, the so-called 'Fortress of Europe', and by individual states <5> These policies "have been aimed at deterring asylum seekers both by making it more difficult to enter or remain within Europe, and by denying them access to social rights in the country of exile". <6> Thus, the Schengen accords, the Dublin Convention on the Crossing of External Frontiers, the Third Pillar of the TEU (Maastricht) and the Treaty of Amsterdam have been continuously weakening the international refugee law and "have ensured, in the long run, that a tight mesh of regulations on the movement of asylum seekers are being introduced in the European Union". <7>

In the late 1990s we could observe a direct offensive against the very logic of the Geneva Convention 1951. The Greens in the European Parliament in 1998 strongly criticized a proposal of the Austrian European Union presidency, which suggested changing the Geneva Convention. <8> Austrian effort was seen by many as attack on the principles of international law and human rights because the proposal implied abolition of the individual right of political refugees for asylum. The decision to offer asylum should be left to the 'good will' of the concerned country. In contrast, the Geneva Convention guarantees the right to asylum without conditions and establishes an individual right for asylum. Austrian proposal, thus, broken a western tradition in asylum policies framed around the principle of individual human rights.

Even more significantly, in the summer 2000, British Home secretary campaigned to overturn the Convention claiming the agreement was 'outdated' and that the intention was to place asylum law on a more rational basis. <9> He claimed that essential contradiction at the meaning of the 1951 Convention was that it set out individuals' right to asylum but it did not oblige any particular country to accept seeker for asylum. The result was that refugees had to enter a country illegally before they could submit their claim to asylum. Britain proposed a new plan according to which an internationally recognized list of 'safe countries' would be set - from these 'safe countries' which Britain and other states would not accept asylum seekers. Those who would like to leave the country that is internationally recognized as violating human rights, would have ask for asylum in their home country [sic] or neighboring state. Then applicant could be given under protection in international quota system. In its consequences the British proposal would radically reduce prospects for obtaining a refugee status. This would also mean that host countries does not finance the cost of support for asylum applicants - a fact that has been in the last decade so often used by the political right as effective argument against 'open door' migration policy.

Migration and asylum restrictions can be seen as quintessential example of moral crises of liberal democracies. Freedom of movement and freedom of residence in any country are acknowledged as universal liberal rights, which nobody can be excluded from. Yet, actual European Union's member-states policies both restrain free transit of men and women that are arriving from outside of the European Union and impose tight regulations on asylum inside the European Union states. Thus European migration, and settlement policies instead of inclusion - excludes. Therefore there is a deep contradiction between declared promises that gives liberalism and actual behavior of the west in the sphere of human rights.

1. Cf. Geneva Convention Relating to the Status of Refugee <www.unhcr.ch/refworld/legal/instruments/asylum/1951eng.htm> <powrót>

2. Quoted from Ibid. <powrót>

3. Quoted from Geneva Convention Ibid. <powrót>

4. Levy, Carl. 1999. "European asylum and refugee policy after the Treaty of Amsterdam; the birth of a new regime?" In: Refugees, citizenship and Social Policy in Europe, p.  21. <powrót>

5. Duke, Karen, Rosemary Sales, Jeanne Gregory. 1999. "Refugee resettlement in Europe." In: Refugees, citizenship and Social Policy in Europe, p. 106. <powrót>

6. Ibid.:106 <powrót>

7. Ibid.: 26 <powrót>


Wroc³aw, 27.05.2001