Jennifer Hyndman and Alison Mountz Another Brick in the Wall? Neo-Refoulement and the Extemalization of Asylum by Australia and Europel How can the refugee be made deportable again? - Hannah Arendt WRITING IN THE CONTEXT OF WIDESPREAD STATELESSNESS AFTER THE Second World War, Hannah Arendt lamented the unenforceability of 'human rights' in comparison to the rights of citizens protected by their governments: 'The very phrase human rights became for all concerned - victims, persecutors, and onlookers alike - the evidence of hopeless idealism or fumbling feeble-minded hypocrisy'.2 She elaborates further, 'Not the loss of specific rights, then, but the loss of a community willing and able to guarantee any rights whatsoever, has been the calamity that has befallen ever-increasing numbers of people. .. .'3 In the post-9/ll context of fear and threat, Arendt's work remains relevant,as foreigners of all kinds are scrutinized in new ways through biopolitical regimes that aim to mark, trace, and exclude where deemed necessary. We argue here that the loss of access to sovereign territory that allows asylum seekers to mobilize rights is the most pressing problem and outcome of the externaliza tion of asylum. The problem of externalization at once elides and divides foreign migrants and domestic systems of legal protection, a process that pivots on strategic geographical tactics. 1 We are grateful to Eva-Lotta Hedman and Matthew Gibney for organizing the workshop where this was presented at the Centre for Refugee Studies and for their editorial work, to Areti Sianni for her research contributions, and to the Social Sci ences and Humanities Research Council of Canada and the John D. and Catherine T. MacArthur Foundation for funding the research. 2 Hannah Arendt, The Origins of Totalitarianism, Cleveland and New York, Meridian Books, 1958, p. 269. 3 Arendt, cited in Matthew Gibney, The Ethics and Politics ofA sylum: Liberal Democracy and the Response to Refugees, Cambridge, Cambridge University Press, 2004, p. 1. Cf. Jennifer Hyndman, Managing Displacement: Refugees and the Politics of Humanitarianism, Minneapolis, Minnesota University Press, 2000. 'Neo-refoulement', we contend, refers to a geographically based strategy of preventing the possibility of asylum through a new form of forced return different from non-refoulement, the strictly legal term that prohibits a signatory state from forcibly repatriating a refugee against its commitment codified in Article 33 of the 1951 Refugee Convention. 'The principle is now recognized as a component of customary international law and is therefore considered binding on all states, including those that are not signatories to the 1951 Refugee Convention.'4Yet, it is not the actions of non-signatories that concern us here. Specifically, we address strategies employed by the Australian government and European Union whereby legal and extra-legal geographies of exclusion lead to neo-refoulement, that is, the return of asylum seekers and other migrants to transit countries or regions of origin before they reach the sovereign territory in which they could make a claim. While externalization is not particularly new, this deliberate respatialization of asylum deserves more attention, given its increasingly commonplace use. Asylum is increasingly characterized as a security issue, rather than one of protection for refugees ensconced in international law. This continuous act of defining asylum in security terms has a performa tive element, in the Foucauldian sense: 'it produces the effect that it names. Its categories, codes, and conventions shape the practices of those who draw upon it, actively constituting its object ... in such a way that this structure is as much a repertoire as it is an archive.'5 A parallel development in international politics is the shift from liberal norms of legal frameworks to more politicized practices of sovereign exceptionalism.6 As Judith Butler writes of Guantanamo Bay, , "Indefinite detention" is an illegitimate exercise of power, but it is, significantly, part of a broader tactic to neutralize the rule of law in the name of security. ... The fact of extra-legal power is not new, but the mechanism by which it achieves its goals under present circum stances is singular.'7 She argues that the suspension of the rule oflaw allows for the convergence of governmentality and sovereignty where 4 UNHCR, State of the World's Refugees, 2006, Oxford, Oxford University Press, 2006. 5 Derek Gregory, The Colonial Present: Afghanistan, Palestine, Iraq, Malden, Blackwell, 2004. 6 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, Stanford, Stanford University Press, 1998. 7 Judith Butler, Precarious Life, New York, Verso, 2004, pp. 67 and 92. sovereignty is exercised in the act of suspension, and also in the self-allocation of the legal prerogative. In outlining Agamben's and Foucault's distinct conceptions of power, Derek Gregory points out that: One crucial difference between the two projects is that Foucault focused on strategies through which the normal order contains and confines 'the outside' (the sick, the mad, the criminal) whereas Agamben focuses on strategies through which 'the outside' is included 'by the suspension of the juridical order's validity - by letting the juridical order withdraw from the exception and abandon it'.s If asylum seekers represent 'the outside' from a state's perspective, we contend that the normal order on the one hand geographically contains and confines the asylum seeker, and on the other hand keeps them in a space outside juridical law, despite the law's exist ence, by excluding them from sovereign territory where they could make a legal refugee claim. The shift from legal discourses of rights to more geopolitical projects based on security is widespread. In one example, Hyndman traces a shift in emphasis from human rights to human security. She shows how the concept of human security, as ensconced in UN doctrine through 'Responsibility to Protect', represents the politici zation of human rights, shifting the protection of civilians in a con flict zone from the domain of international law to that of politics as decided by the United Nations Security Counci1.9 Theoretically, human security guarantees the protection of civilian life, not just states. In practice, human security renders human rights conditional, even while they are often unenforceable as per Arendt's observations. In this article, we make a different, but related, argument: that the externalization of asylum represents a shift from the legal domain where international instruments to protect refugees are still very much intact to the political domain where migrant flows are managed, preferably in regions of origin. Like human security, the externalization of asylum becomes a bundle of political, securitized 8 Derek Gregory, 'Vanishing Points: Law, Violence, and Exception in the Global War Prison', in D. Gregory and A. Pred (eds) , Violent Geographies, New York, Routledge, 2007, p. 207. 9 Jennifer Hyndman, 'Conflict, Citizenship, and Human SecUlity: Geographies of Protection', in D. Cowen and E. Gilbert (eds), War, Citizenship, Territory, New York and London, Routledge,2007,pp. 241-59. practices that reconstitute asylum as part of state-centric interna tional relations discourse, not legal discourse. The protection of refugees is invoked not by law but through ad hoc decisions of governments made through offshore processing centres, bilateral readmission agreements, and other tools of the transnational state that aim to prevent asylum seekers from ever landing on the territory of a signatory to the 1951 Refugee Convention or the 1967 Protocol.lO This article illustrates how Derek Gregory's 'architecture of enmity', masquerading as protection-on-paper, has been con structed, policy by policy, in Australia and Europe.lI Our analysis is by no means exhaustive in its genealogy and geography, but demon strates that the respatialization of asylum is a sustained and well funded project in the name of 'security'. The securitization of asylum continues as fiercely between the lines of policy as among them. TRACING EXTERNALlZATION In 1993, the United Nations High Commissioner for Refugees, Madame Sadako Ogata, introduced the concept of 'preventive pro tection', thus marking a distinctive shift in the orientation of refugee policy that occurred in the early 1990s.12 Preventive protection belongs to a language that emphasizes the 'right to remain' in one's home country over the former dominant discourse of the 'right to leave'. The 'right to remain' was endorsed by Ogata: Today displacement is as much a problem within borders as across them .... the political and strategic value of granting asylum diminishes . . . . The cost of processing asylum applications has skyrocketed, while public acceptance of refugees has plummeted. ... At the heart of ... a preventive and solution-oriented strategy must be the clear recognition of the right of people to remain in safety in their homes. ... 'the right to remain' ... the basic right of the individual not to be forced into exile .... I am convinced that preventive activities can help to contain the dimensions of human catastrophe by creating time and space for the political process. 10 Alison Mountz, 'Human Smuggling and the Canadian State', Canadian Foreign Policy, 13: 1 (2006), pp. 59-80. 11 Gregory, The Colonial Present. 12 Hyndman, Managing Displacement. In the 1990s, preventive protection and the containment of human displacement proved to be a very dangerous policy, especially in Srebrenica inJuly 1995, when Dutch peacekeepers were unable to keep Serb militias at bay. Between 7,000 and 8,000 Muslim boys and men were murdered in this so-called 'safe city' Y Preventive protec tion also shifted protection from legal ground, namely the Refugee Convention, to political ground, whereby the UN Security Council named six safe cities inside Bosnia-Herzegovina, authorized peace keepers to protect them, and in so doing ethnically cleansed the Bosnian countryside of endangered Muslim civilians. If these civilians had been allowed to 'leak' into nearby signatory states as refugees, the slaughter could have been averted. This anecdote illustrates that 'protection in the region' and the exclusion of asylum seekers from the territory of signatory states in the global North is not new. Fur thermore, 'preventive protection' has returned under another guise: preventive protection of home through the neo-refoulement of asylum seekers to transit countries or regions of origin, from where they can 'properly' apply for asylum consideration. This architecture of enmity, framed as protection, has been con structed policy by policy. The respatialization of asylum is a deliberate political project stoked by fear and buttressed by incredible funds and 'aid' in the name of 'security'. The securitization of asylum continues, for which we reference a shift from a paradigm of refugee protection to prioritizing the protection of national security interests. The remainder of this article contextualizes links between asylum and security, highlighting the political uses of fear in relation to migration. We then trace the 'architecture of enmity' that both Australia and the EU have erected through policies that include readmission agreements (in return for aid), safe third-country agree ments, aggressive visa regimes, detention and interdiction practices, among other strategies. By mapping systematic geographical projects that make access to asylum all but impossible for those travelling overland and across seas, we argue that this bundle of policies and spatial practices constitutes neo-refoulement. 13 Jennifer Hyndman, 'Preventive, Palliative, or Punitive? Safe Spaces in Bosnia Herzegovina, Somalia, and Sri Lanka', Journal of Refugee Studies, 16: 2 (2003), pp. 167--85. SECURI1Y, FEAR AND THE UNINVITED MIGRANT Ian McEwan's novel, Saturday, subtly represents the production of fear generated by attacks on the nation in a post-gill world. Pre emptive security measures to minimize risk are proffered as the way forward in an unstable world: 'Sleepless in the early hours, you make a nest out of your own fears - there must have been survival advantage in dreaming up bad outcomes and scheming to avoid them. This trick of dark imagining is one legacy of natural selection in a dangerous world.'14 The threat of migrant invasion is underwritten by securitization, a governmentality based on mistrust and fear of the uninvited other.15 The mobilization of fear to securitize asylum serves a politically pow erful resource for states that need legitimate grounds for extraordi nary measures, such as exclusion from their territories by potentially legitimate legal subjects, namely asylum seekers.16 Yet 'Government practices of border control do not simply defend the "inside" from the threats "outside", but continually produce our sense of the insid ers and outsiders in the global political economy' .17 Societal fear is actively fuelled by the reiteration of threats and creation of discursive distance between 'us' and 'them', producing a crisis in search of a response. Such crises create an opening for states to advance enforce ment agendas. IS In their responses to human smuggling by sea, for example, Alison Mountz shows how states operate transnationally, working far beyond traditional territorial borders through airline carrier sanctions, off shore screening of passengers by airline liaison officers and visa restrictions to exclude asylum seekers and other migrants.19 Comple- 14 Ian McEwan, Saturday, London, Cape, 2005, p. 39. 15 Didier Bigo, 'Security and Immigration: Toward a Critique of the Governmen tality of Unease', Alternatives, 27 (2002), pp. 63-92. 16 Jennifer Hyndman, 'The Securitisation of Fear in Post-Tsunami Sri Lanka', Annals of the Association of American Geographers, 97: 2 (2007), pp. 361-72. 17 Louise Amoore and Marieke de Goede, 'Governance, Risk and Dataveillance in the War on Terror', Crime, Law and Social Change, 43 (2005), pp. 149-73, p. 168. 18 Alison Mountz, Transnational States of Migration: Human Smuggling and the Borders of Sovereignty, forthcoming. 19 Alison Mountz, 'Embodied Geographies of the Nation-State: An Ethnography of Canada's Response to Human Smuggling', Department of Geography, University of British Columbia, 2003; and Mountz, 'Human Smuggling and the Canadian State'. menting this analysis, William Walters also argues that security measures transcend the political borders of any single nation-state, and he introduces the concept of 'domopolitics' to suggest the central place of the home (domus) in geopolitical discourse: 'Domopolitics implies a reconfiguring of the relations between citi zenship, state, and territory. At its heart is a fateful conjunction of home, land and security. It rationalizes a series of security measures in the name of a particular conception of home .... The home as hearth ... as our place, where we belong naturally ... home as a place we must protect. '20 While any natural conception of home is at risk of being essential ist and becoming a reactionary Heideggerian politics of belonging, metaphors of family and homeland conjure powerful nationalistic images during times of conflict or perceived danger.21 And yet the nationalistic production of home requires a constitutive outside, something against which home is defined. Migrants occupy these spheres 'outside' national belonging. Matthew Sparke argues that the securitization of nationalism, evident in the discursive distance actively created between 'us' and 'them', is consistent with a state's economic goals related to migra tion: 'By securitised nationalism I am referring to the cultural political forces that lead to the imagining, surveilling and policing of the nation-state in especially exclusionary but economically discern ing ways.'22 Didier Bigo observes that the 'expansion of what security is taken to include effectively results in a convergence between the meaning of international and internal security.'23 Fear and insecurity are produced at multiple locations and across space, from the bodies of asylum seekers who represent insecurity in the imagination of states in the global North to transnational net works ofbiopolitical surveillance at borders but also within. Fear does deeply political work: it generates feelings of insecurity based on what are seen to be credible threats, and then, as Ian McEwan hints in the excerpt from Saturday, creates a crisis in search of a response. Left 20 William Walters, 'Secure Borders, Safe Haven, Domopolitics', CitizenshiP Studies, 8: 3 (2004), pp. 237-60, p. 241. 21 Deborah Cowen and Emily Gilbert, 'Citizenship in the "Homeland": Families at War', in Cowan and Gilbert, War, Citizenship, Territory, pp. 261-8. 22 Matthew Sparke, 'The Neoliberal Nexus', Political Geography, 25: 2 (2006), pp. 151-80, p. 153. 2S Bigo, 'Security and Immigration', p. 63. unchallenged, fear and the threats of invasion upon which it is predi cated represent a deeply geopolitical problem that eschews legal approaches to asylum and migration in general, preferring a politi cized, comprehensive and transnational approach of invisible policy walls. We turn now to detail the construction of these walls, connect ing the dots from brick to brick across shores and international borders. SHEDDING SHORELINE AND BUILDING WALLS: AUSTRALIA AND THE EU Australia Since the 1990s, Australia has crafted aggressive detention, interdic tion and deportation regimes to deter asylum seekers from landing on mainland sovereign territory. It is important, therefore, to go to the source; to understand what exclusion looks like within (and beyond) Australia, since it has been a leader among a small 'commu nity' of nation-states with managed refugee resettlement pro grammes. This is a dark story, many parts of which have been documented by others but bear repeating.24 Australia prides itself on some of the most controlled cross-border flows and has used isolation and racialized dehumanization to exclude asylum seekers in particular from accessing asylum, sovereign territory and Australian society. In 1993 the Liberal Party ratified and in 1994 implemented a policy of mandatory detention of anyone who arrives on Australian shores without a visa. 'Non-citizens in Australia without a valid visa are unlawful and must, by law, be detained. '25 A person who arrives in Australia without a visa will immediately be imprisoned or expelled. 24 See for example Graeme Hugo, 'From Compassion to Compliance? Trends in Refugee and Humanitarian Migration in Australia', Ceoforum, 55 (2001), pp. 27-37; and Suvendrini Perera, 'What is a Camp ... ?', Borderlands e1ourna~ 1: 1 (2002), pp. 1-10, available at http://www.borderlandsejournal.adelaide.edu.au/vollnoL2002/ perera_camp.html. 25 Australian Government Department of Immigration and Citizenship (DIAC) , Managing the Border: Immigration Compliance, 2004-2005 Edition, 2006, p. 5, available at http://www.immi.gov.au/media/publications/compliance/managing_the-border/ index.htm. This includes those who claim asylum, until their cases are resolved. One immigration official interviewed in 2006 characterized this as Australia's 'right to sovereign assertion'.26 In the late 1990s, arrivals by sea increased, with smugglers operat ing through South-East Asia, and played on racialized images of invasion. The highest number of boat arrivals came in 2000 with some 4,000 persons. The largest countries of origin were Mghanistan, Iraq, Iran, with smaller numbers from Sri Lanka, Palestine, Syria, China and Vietnam. The largest number of refusals that year were to claims from Tonga, Russia, Indonesia and China. Boats of migrants evoke xenophobic, racialized, well-rehearsed fears and moral panics about the 'other', linked to a desire to control borders and protect one's territory.27 They are often treated distinctly from other modes of arrival. Along with the arrival of boats, Australia saw the rise of Pauline Hansen's One Nation Party and the corre sponding development of a comprehensive detention regime. Asylum seekers who arrived without visas were placed in remote detention centres along the west coast and in the outback in sites such as Woomera and Baxter. There, detainees were provided pre cious little information about Australia, their cases, possibilities for asylum or legal representation. Furthermore, information about them was kept hidden from the public, as were they, quite literally. Curtin Detention Centre, for example, is a nine-hour trip from Sydney. One flies to Perth, then Broom, and then travels more than 200 km by road to the air base in Derby.28 As in other countries, therefore, detainees were strategically removed from access to advo cates and information, translators and legal counsel. This removal continues today, wherein as punishment, detainees are flown to more remote detention centres away from contact with friends and advocates. By not releasing the identities of detainees for several years, the Australian government conflated persons, histories, countries of origin and legal status. Through such homogenization emerged the figure of the bogus, criminalized, racialized asylum seeker. Australia has a long history of concealment by distinct kinds of imprisonment, 26 Interview, Canberra, April 2006. 27 Mountz, Transnational States of Migration, forthcoming. 28 Peter Mares, Borderline, Sydney, University of New South Wales Press, 2002. and particular contemporary discourses offer narratives of migrants as security threat.29 Though human smugglers often facilitate the migration of popu lations characterized as 'mixed flows' (i.e. out of place for both political and economic reasons), these applicants tend to be scripted as economic migrants and therefore 'bogus refugees'. In the con flation of public discourse about terrorists, refugees, economic migrants, human smuggling and others on the move, people are stripped of their identities as individuals and re-subjectified as groups.30 Articulated in the terms of human migration, this is the discursive space between nationalist 'us' and foreign 'them' identi fied by Sparke.31 These images racialize and criminalize migrants in relation to the nation-state and saturate the media. The explanatory narratives that these are not 'genuine' convention refugees enable their remote detention and removal from the support of translators, refugee advocates, refugee lawyers and legal processes usually housed in urban centres. Multiple processes mark and differentiate, simulta neously grouping, homogenizing, racializing, medicalizing, criminal izing and isolating. The dispersal of detention takes different forms in different coun tries.32 In the United States, for example, secrecy about detainees extends to the places where they are detained. They are detained quietly, in county and state jails.33 The most obvious example is Guantinamo Bay, where national and international laws and human rights agreements are undermined and the Patriot Act enacted, whereby citizens and non-citizens are stripped of civil rights, on limited evidence, in the name of protection from ambiguous others elsewhere. In Australia, a very strategic geography of isolation like wise coordinates extraterritorial and internal detention practices.34 29 Alyson Bashford and Caroline Strange, 'Asylum-Seekers and National Histories of Detention', Australian Journal of Politics and History, 48: 4 (2002), pp. 509-27. 30 Alison Mountz, 'Embodying the Nation-State: Canada's Response to Human Smuggling', Political Geography, 23: 3 (2004), pp. 323-45. 31 Sparke, 'The Neoliberal Nexus'. 32 Alice Bloch and Lise Schuster, 'At the Extremes of Exclusion: Deportation, Detention and Dispersal', Ethnic and Racial Studies, 28: 3 (2005), pp. 491-512. 33 Michael Welch, Detained: Immigration Laws and the Expanding l.N.S. Jail Complex, Philadelphia, Temple University Press, 2002. 34 Butler, Precarious Life.