Deterrence as Legal Innovation: Management of Unwanted Mobilities and the Future of Refugee Protection

In this chapter, we focus on deterrence as a legal innovation intended to manage unwanted mobilities. Our starting point is the discrepancy between the global commitment to human rights and the practical implementation by states of refugee protection with respect to protection seekers from former colonial countries. In the first part of the chapter, we contextualize deterrence as legal innovation within the framework of the broader shift to restrictive deterrence policies by states of the Global North and argue that the division or difference in treatment of various groups of migrants that propels the adoption of externalization measures is an inherent feature of international law, revealing its deep colonial structure. We then analyse the different ways and methods of deterring asylum seekers that have been increasing in numbers in Australia, the U.S. and the European Union, and their justification of deterrence of asylum seekers in response to various ongoing "crises". In the second part of the chapter, we evaluate the various responses to these crises, and the role played by the law in guiding and restraining state responses. We conclude by showing how the law, when migrants are wanted, can be swiftly and effectively used as a protective tool, and how the true crisis of international human rights law actually applies to the international law of the Global North that has emphasized and protected its own interests through the increasing exclusion of unwanted protection seekers.