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Offshoring International Law? Australia and the Right to Seek Asylum

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Offshoring International Law? Australia and the Right to Seek Asylum OFFSHORING INTERNATIONAL LAW? AUSTRALIA AND THE RIGHT TO SEEK ASYLUM By Jonathan David Kent A thesis submitted in conformity with the requirements for the degree of Doctor of Philosophy Department of Political Science University of Toronto © Copyright by Jonathan Kent (2019) ABSTRACT Offshoring International Law? Australia and the Right to Seek Asylum Jonathan Kent Ph.D. in Political Science (International Relations) Department of Political Science The University of Toronto 2019 For many years now, liberal democracies have pursued controversial asylum and border control practices to prevent and deter potential asylum seekers from accessing their in-country asylum systems. Australia is arguably the most extreme and visible proponent of this broader trend in its response to boatpeople arrivals. How can we explain Australia’s shift from implementing and supporting an onshore asylum and border control system (1950s to late 1990s) to one in which those practices are carried out offshore (2001 to present)? Understandably, most observers evaluate this development using arguments about domestic politics and self-interest to explain Australia’s shift in practices. Others maintain that these states actually acknowledge international law, but only because of its instrumental and strategic value. Finding prevailing accounts incomplete and unsatisfying, my dissertation takes a different approach. I use a longitudinal assessment of the relationship between the legal norm governing the right to seek asylum and Australia’s response to boatpeople over time. I argue that the legal norm both shaped and was shaped by Australia’s response to boatpeople. By straddling the divide between domestic and international levels of analysis and treating legal norms as dynamic, I find that Australia’s response to boatpeople can be more accurately explained using a constructivist theory of legal norms. ii ACKNOWLEDGEMENTS I am deeply grateful to my partner Althea Man, my parents David and Margo Kent, and in-laws Gladys and Mike Man (recently deceased) for their love and support. I am also indebted to my dissertation committee members Phil Triadafilopoulos, Matthew Hoffmann, and Jutta Brunnée for their insights, feedback, and patience during the planning, researching, and writing of my dissertation. Thank you to my special circle of friends at the University of Toronto, particularly Mahmood, Ben, Karen, and other “Squashies”, along with my political science department colleagues. I also want to thank my many interview participants including current and retired civil servants of the Australian, Canadian, and Indonesian bureaucracies, the United Nations High Commissioner for Refugees, the International Organization for Migration, and United Nations Office on Drugs and Crime, and civil society groups. In particular, I would like to thank both Peter Hughes and Jennifer Bedlington for their hours of conservations, follow-up interviews, and their seemingly photographic memories. I sincerely appreciate the financial assistance of the Department of Political Science and the School of Graduate Studies. And last but not least, thank you to the ever-accommodating and resourceful Carolynn Branton in the graduate office. iii TABLE OF CONTENTS ABSTRACT ............................................................................................................................. ii ACKNOWLEDGEMENTS ......................................................................................................... iii TABLES AND GRAPHS ............................................................................................................ vi LIST OF ACRONYMS ............................................................................................................. vii CHAPTER 1: INTRODUCTION................................................................................................... 1 Introduction ..................................................................................................................................1 1.2. From Onshore to Offshore: Shifting Asylum and Border Control Practices .................................2 1.3. Common Explanations and Second Thoughts ...........................................................................5 1.3.1. National Sovereignty and the Human Right to Seek Asylum ..................................................................... 7 1.3.2. Theoretical Explanations and Puzzle ........................................................................................................ 10 CHAPTER 2: DYNAMIC LEGAL NORMS................................................................................... 17 2.1. A Longitudinal Theory of Dynamic Legal Norms ...................................................................... 17 2.2. Dynamic Legal Norms ............................................................................................................ 18 2.2.1. Legal Norm Development and Acceptance .............................................................................................. 20 2.2.2. Legal Norm Change: Adaptation and Contestation.................................................................................. 23 2.3. Adaptation: Incremental Change and the Normative Community ........................................... 25 2.4. Legal Norm Contestation, Domestic Politics, and Change ........................................................ 31 2.5. Methodology ........................................................................................................................ 42 2.6. The Added Value of a Theory of Dynamic Legal Norms ........................................................... 50 CHAPTER 3: AUSTRALIA AMIDST THE DEVELOPMENT AND ADAPTATION OF THE GLOBAL REFUGEE REGIME (1950 to 1999) ................................................................... 55 3.1. Introduction .......................................................................................................................... 55 3.2. Australian National Sovereignty and the Emerging Right to Seek Asylum in International Law . 56 3.3. Universalizing the Right to Seek Asylum and Australia ............................................................ 65 3.4. Adherence and Law Making: Australia’s Response to the Indochinese Boat Crisis (1976-1981) 76 3.5. Legal Norm Adaptation and Australia’s Response to Boatpeople During the 1980s and 1990s . 94 3.5.1. Indochinese Boat Crisis 2.0 and the Comprehensive Plan of Action ....................................................... 97 3.5.2. Responding to New Asylum and Migration Pressures within the Broader Normative Community ...... 101 3.6. Conclusion .......................................................................................................................... 129 CHAPTER 4: CONTESTING THE RIGHT TO SEEK ASYLUM IN AUSTRALIA: ............................... 131 iv THE HOWARD GOVERNMENT AND BOATPEOPLE (1996-2001) ............................................ 131 4.1. Introduction ........................................................................................................................ 131 4.2. A Populist Inspired Vision of National Identity and Australia’s Onshore Asylum System: The Howard Government from 1996-1999 ........................................................................................ 133 4.3. Australia and Contesting the Legal Norm Governing the Right to Seek Asylum ...................... 144 4.3.1. New Boatpeople and New Questions: Rising Uncertainty and Delegitimizing the Right to Seek Asylum in Australia ............................................................................................................................................................ 145 4.3.2. Relegitimizing the Right to Seek Asylum ................................................................................................ 163 4.4. Prolonged Uncertainty and the Howard Government’s Pacific Solution Strategy ................... 177 4.5. Conclusion and Assessment ................................................................................................. 192 CHAPTER 5: THE LABOR GOVERNMENT AND REGIONAL COOPERATION AMIDST A NEW LEGAL NORMATIVE CONTEXT (2002-2013) .................................................................................... 197 5.1. Introduction ........................................................................................................................ 197 5.2. The Australian Influence and an Emerging Normative Context Governing the Right to Seek Asylum ...................................................................................................................................... 198 5.3. Legal Norm Contestation and Second Image Reversed: Australian Domestic Politics and National Identity ........................................................................................................................ 216 5.4. Labor’s Response to “Irregular Maritime Arrivals”: Regional Cooperation and Implementing New Shared Understandings and Practices ................................................................................. 238 5.5. Conclusion .......................................................................................................................... 262 CHAPTER 6: CONCLUSION .................................................................................................. 266 6.1. Introduction .......................................................................................................................
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