Hyper-legalism and Obfuscation: How States Evade Their Obligations Towards Refugees

November 1, 2021

Daniel Ghezelbash

The 1951 UN Convention Relating to the Status of Refugees creates certain obligations for states in relation to protecting refugees. These protections were agreed to by the international community in the aftermath of World War II in response to the failure of governments around the world to provide refuge to those fleeing Nazi Germany. However, many states are turning their backs on these obligations by implementing progressively more restrictive asylum and border-control measures. 

States continue to pay lip service to their protection obligations, while at the same time adopting measures aimed at keeping asylum seekers away. This is achieved through extraterritorial measures that create barriers preventing asylum seekers from reaching their destinations and seeking protection. This includes measures preventing asylum seekers from boarding planes and travelling by air, as well as intercepting and returning asylum seekers travelling by land and sea. Wealthy democracies often outsource these actions to private entities or poorer neighbouring states in a bid to evade accountability. The barriers to accessing protection have become even greater in response to the COVID-19 pandemic, with many states citing public health concerns in order to completely shut their borders to asylum seekers.

These policies push the boundaries of what is acceptable under international law, exploiting gaps in the international refugee protection regime. States have adopted two main strategies in pursuing this goal of evasion. The first is hyper-legalism— an overly formalistic bad-faith approach to interpreting international legal obligations. Hyper-legalism occurs as states manipulate and exploit perceived gaps in the international refugee protection regime. States claim to comply with the letter of international law but fail to uphold its spirit. Arguments around territory and jurisdiction are rife for hyper-legal reasoning. States have attempted to read down the extraterritorial scope of their international obligations. At the same time, they have developed legal fictions to allow them to treat certain asylum seekers who are physically present in their territory as not being ‘present’ as a matter of domestic law. A related tactic involves states legislating around what they see as inconvenient aspects of their international obligations, redefining what those obligations entail in domestic statutes and regulations.

States are aware of the limits of hyper-legalism. Some actions are so egregious under international law that no amount of formalistic sophistry could legitimize them. In such circumstances, some states have resorted to the tactic of obfuscation. Obfuscation is achieved through secrecy about what actions the government is taking and deliberate silence as to the purported legal justifications. The tactic works best when government actions against asylum seekers are being undertaken far away from the public gaze, such as push-back operations at sea, and remote detention. Obfuscation has also been achieved through the criminalisation of whistleblowing by government officials in the asylum context. By carefully controlling the flow of information about their actions, governments can avoid accountability. With no evidence available to the contrary, their claims as to the compliance of their actions with international law cannot be challenged. 

The use of hyper-legalism and obfuscation by governments around the world is undermining the international protection regime. However, they can be challenged with the right strategies. Hyper-legalism can be countered with a good-faith, integrated approach to international law, in line with the rules of treaty interpretation set out in the Vienna Convention on the Law of Treaties. By definition, hyper-legalism departs from the requirement in Art 31(1) that a treaty ‘be interpreted in good faith and in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.’ Moreover, hyper-legalistic argument often involve a selective approach to international legal regimes, with governments cherry picking norms that support their actions while ignoring those that do not. This can be countered through a systemic integration of the overlapping normative regimes that govern interaction between governments and asylum seekers and refugees—including the Refugee Convention, human rights treaties, the law of the sea, and treaties aimed at suppressing transnational crime. These arguments can be executed both in the context of strategic litigation, but also in the court of public opinion. Cogent arguments in relation to the legality of policies under international law may have the power to sway public opinion, which in turn can create momentum for policy change.

Resisting governments’ attempts at obfuscation requires a very different approach. When we do not know what actions, the government is taking or what the purported legal justifications are, no amount of legal reasoning will be enough to make a compelling case as to legality. We are left to hypothesize, and default to criticizing secrecy, rather than the legality of the underlying actions. Some limited legal options may be available, such as challenging secrecy laws, or making freedom of information requests. Where we cannot compel governments to reveal what actions they are undertaking, then we must adopt strategies that place independent observers (whether physical or virtual) in the spaces where obfuscation takes place. This form of ‘counter-surveillance’ is already happening with numerous initiatives around the world led by researchers, activists, and refugees themselves using surveillance and other data collection techniques to expose human rights violations. 

For those who wish to push-back, it is hoped the strategies outlined here will assist in their efforts to compel governments to abide by their international obligations towards asylum seekers and refugees. Such efforts are needed now more than ever, to ensure that the sweeping asylum restrictions introduced in response to the COVID-19 pandemic do not become permanent.