Liberal democracies and asylum: legal transformation and implementation challenges

Abstract

Over the last 30 years, liberal democracies of the Global North have increasingly restricted access to their in-country asylum systems shifting many asylum and migration practices extraterritorially and prompting concern about the status of the universal human right to seek asylum. Most observers explain the trend as liberal states exerting national power and self-interest to ‘externalize’ asylum, ‘evading’ but not breaching international law. This piece adopts a different approach blending research on dynamic legal norms with Brunnée and Toope’s use of Lon Fuller’s criteria of legality. In contrast to explanations based on self-interest and power, I describe how the legal norm governing asylum has evolved over time alongside the shifting asylum and migration practices of liberal states through three phases. First, liberal democracies traditionally practiced an exclusively in-country approach to asylum prior to the late 1990s which only tentatively adhered to the criteria of legality. Second, the legal norm governing asylum shifted during the late 1990s and early 2000s creating new doctrine and legal practices at the multilateral level for reasons that resonated with the criteria of legality. Following contestation, however, liberal states have so far failed to implement the new substantive and procedural guidance despite the availability of more appropriate asylum practices. This account provides a significant qualification to the work on externalization and legal norm evasion, allows for the development of a typology containing three modes of asylum, and points to more legalistic asylum practices than what currently prevail among liberal states.