Asylum Law or Criminal Law: Blame, Deterrence and the Criminalisation of the Asylum Seeker
Jurisprudence. 2011, 18(4): 1543–1554
13 Pages Posted: 14 May 2012
Date Written: December 2011
Although the Refugee Convention 1951 generally provided that contracting states should recognise those who came within its definition as refugees, it did not prescribe how contracting states should determine this in order to enable them to balance this obligation with their national interests. However, evidence from the background and drafting of the Refugee Convention 1951 suggests that the provisions that a contracting states would implement in order to protect its interests would be commensurate with the human rights spirit of the treaty. This implied that contracting states would act fairly in balancing the competing interests in devising status determination policies and would take into account decent considerations. But, from a theoretical viewpoint, it is arguable that some recent asylum determination policies have been based on the threats posed by asylum seekers. Asylum seekers have come to be blamed for contributing to the national issues that some contracting states face and as such, some contracting states have adopted draconian measures as a result.
This paper argues that Criminal Law also has an intrinsic nature based on, amongst other things, the need to deter certain forms of harmful conduct on the basis of culpability and, arguably, that some status determination policies are now coming to mirror this.
Keywords: Convention relating to the Status of Refugee 1951, asylum determination policies, criminal law, underlying criminal law principles, criminalisation of asylum
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