Over the last few years, refugees have increasingly been met with hostility upon arrival in Europe. The upsurge of right-wing populism undoubtedly has been an important factor in this regard. According to Nora Achterbosch, right-wing populism poses an imminent threat to refugee law – as it jeopardizes the customary status of the principle of non-refoulement –, and should be dealt with in light of the threat that it poses.
Refugees are refused entry at the border, are wrongly placed in detention centres, or are waiting in uncertainty for an interview with the immigration services for years. While a variety of factors can be argued to cause these dreadful occurrences, negative sentiments towards refugees can be ascribed substantially to a recent development: the upsurge of right-wing populism. More specifically, the right-wing populist ideology is increasingly jeopardizing the principle of non-refoulement, a paramount principle in refugee law which refers to a humanitarian protection from danger for those fleeing their home countries.
The principle of non-refoulement and its international customary law status
The principle of non-refoulement is specified in Article 33 of the Refugee Convention:
“1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
The principle is often referred to as a cornerstone of international refugee law, as it is considered in a variety of other legal instruments related to asylum, especially in the EU asylum acquis including the Qualification Directive, Asylum Procedures Directive, the Reception Conditions Directive and the Dublin Regulation. Furthermore, the principle is widely considered to hold an international customary law status. This status refers to the ‘general practice as acceptance of law’ and is based upon an objective (the general practice) and subjective (the acceptance as law) limb, the latter being the opinio juris. So how does the rise of populism influence this customary law status? To answer this, it is important to first define populism.
Populism as thin-centered ideology
Populism is widely perceived in the literature as consisting of three core elements: the people, the elite and the general will. In populist views, ‘the people’ are seen as a homogeneous moral driving force behind political decision making and are the legitimizing power of a democratic society. ‘The elite’ is a group based on economic, political or cultural power and is viewed as ‘corrupt’, as it ignores and counteracts the interest of ‘the people’. Therefore, ‘the general will’ is viewed by populism to be restrained by the elite whereas democracy should be as representative of the general will of the people as possible.
In the relevant scholarship, populism is generally understood as a thin centered ideology, an ideology which lacks substance to stand on its own. For this reason, populism ‘attaches’ itself to other existing ideologies. Hence, a common distinction is made is between right-wing and left-wing populism. Where left-wing populism defines its core concepts in relation to economic classes, right-wing populism bases itself upon sentiments of culture in order to define the people, the elite and the general will.
The constitution of a ‘dangerous other’ and the narrative of crisis
The right-wing utilizes the populist ideology through nativism, which is the act of distinguishing between native and non-native elements within a country. “The people” then constitute the nation and the general will, while non-native elements threaten these. As non-native elements in right-wing populism are perceived as dangerous, refugees are inherently considered to pose a threat to a nation and are therefore send back to situations of danger. In relation to this, various countries wrongfully apply the exclusionary Article 33(2) of the Refugee Convention, resulting in the exposure of refugees to refoulement. Although there is (yet) no causal link discovered between countries characterized by populist in power and this wrongful application, it does set a dangerous precedent and opens up the opportunity for populist to use this article in a way to frame refugees as dangerous more easily.
In addition, a prolonged narrative of crisis assists the right-wing populists in their quest to continuously frame the refugee as ‘dangerous other’. Namely, populists adopt and make use of a rhetoric of crisis in order to propose quick solutions, which contributes to their popularity. Hence, the notion of a crisis makes it easier to defend closing the border against ‘dangerous refugees’, as the matter at hand is perceived as urgent by the wider public.
Lastly, although not inherently intertwined, right-wing populism and Euroscepticism often go hand in hand, leading to strong opposition against an EU-led asylum policy. Thus, laws and policies derived from the characteristics and strategies of right-wing populists in power are at odds with the principle of non-refoulement, as the protection of refugees in danger is continuously denied.
The rebuttal of the ICL status of the principle of non-refoulement
Through actions of governments from Hungary, Slovakia, Poland, the Czech Republic and Italy , which are or were characterized by right-wing populists in power at the time of this research, the subjective limb of the ICL status is increasingly under threat. The closing of borders and harbours, the failure to decide upon necessary EU migration reforms, non-compliance with EU policy such as the refugee relocation plan and the general backsliding of the rule of law all signal non-acceptance of the principle of non-refoulement. Hence, recent developments within the EU illustrate that right-wing populists in power increasingly take action which undermines the opinio juris (co-)determing the customary status of the principle of non-refoulement.
Although the abovementioned actions and policies are clearly add odds with EU policy and general international (refugee) law, responding with a severe punishment from the EU level and/or through the exclusion of countries that employ the populist rhetoric potentially contributes to their success. Yet, right-wing populism should be acknowledged as the danger that it is to the paramount principle of refugee law of non-refoulement. It seems that a diplomatic balance must be struck between the EU as bearer of humanitarian duties and the sovereignty of the EU member states in order to alter the increasingly dire circumstances for refugees that arrive in Europe.
Nora Achterbosch is an exchange student at the KU Leuven Faculty of Law as part of the EMA Master Programme ‘Human Rights and Democratisation’ at the European Inter-University Centre in Venice. This blogpost is a summarized adaptation of Nora’s Master Thesis: ‘Refugee Protection at Risk; Right-Wing Populism and its Threat to the Principle of Non-Refoulement in the EU’.
Nora ACHTERBOSCH, "No Refuge for the Refugee: Right-Wing Populism in the EU and the Denial of a Safe Haven", Leuven Blog for Public Law, 27 November 2020, https://www.leuvenpubliclaw.com/no-refuge-for-the-refugee-right-wing-populism-in-the-eu-and-the-denial-of-a-safe-haven (geraadpleegd op 24 October 2021)
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