New study proposes innovative framework for transnational asylum

While human rights law and oversight measures concerned with the rights of refugees are focused on refugees spontaneously arriving to a country seeking asylum, traditional destination countries are becoming less inclined to accept spontaneous asylum seekers on their territory. This is the main dilemma explored in a new PhD dissertation completed by Nikolas Feith Tan, researcher at the Danish Institute for Human rights.

“Today, the international asylum system is focused on territorial asylum. That means that we still have a system that presume that refugees arrive spontaneously at the border and are granted asylum when needed. That is however, seldom the case today. In the Global North, countries are entering into bilateral cooperation to avoid spontaneous asylum seekers,” says Nikolas Feith Tan.

As two examples of practice, Nikolas Feith Tan mentions the EU’s deal with Turkey on Syrian refugees and the Australia arrangements with Nauru and Papua New Guinea that has deflected thousands of refugees seeking asylum in Australia.

The end of territorial asylum?

The first part of the dissertation offers a systematic analysis of the current human rights law in bilateral cooporation on refugees in both Europe and Australia. One significant finding is that both cooperation countries are obliged to ensure that the arrangement meets their international human rights obligations. However, today no one is giving oversight to make sure that this is actually the case in bilateral cooperation.

Consequently, Nikolas Feith Tan ends his dissertation by presenting a new framework for how two countries can work together on protecting asylum seekers and meet their human rights obligations.

“Countries in the Global North are moving away from territorial asylum and we may see the end of spontaneous refugees being granted asylum in these countries. Therefore, we need to come up with a new framework to make sure that refugees will still have their basic human rights protected,” says Nikolas Feith Tan.

Nikolas Feith Tan proposes 14 minimum human rights standards that should be met in bilateral cooperation on refugees. Among them are an international oversight measurement driven by the UNHCR and full transparency about the agreements.

“As one example, this would mean that the Danish Institute for Human Rights would have access to Danish-driven asylum centres in third countries to oversee the human rights practices in the centre,” Nikolas Feith Tan explains.

Standards building on lessons learned

The human rights standards presented in the dissertation have been extracted from both existing human rights law and from policy learnings from Australia’s cooperation in the Pacific.

“We do already have standards established in current human rights law but experiences from current bilateral cooperation also offers relevant lessons learned. Human rights law does not protect people from living in limbo for years as refugees are doing in Nauru, for example, but Australia’s experience show that it has major negative consequences for the people living in this infinite limbo.”

However, Nikolas Feith Tan also finds silver linings in the experiences with bilateral cooperation on refugees.

“In Turkey, EU funding has resulted in education for millions of Syrian refugees. It is very unlikely that they would have receive the education if the EU and Turkey had not made a deal that gives EU the possibility to send Syrian refugees back to Turkey. Even the Australian asylum practices offers some positive experiences.”

He adds:

“We need more countries to give protection to refugees in the future. Therefore, it is positive if bilateral cooperation could lead to more countries having strong asylum and integration systems in place.”

However, Nikolas Feith Tan emphasises that both countries must be able to offer a certain level of human rights protection and stability before bilateral cooperation should be established.

“For the human rights standards to be met, Global North countries must choose the right countries to work with. This dissertation offers a framework for future bilateral cooperation on refugees that complies with human rights and learns from past mistakes.”