Article: Coloniality and case law on the Australian asylum offshoring scheme Journal: International Journal of Migration and Border Studies (IJMBS) 2023 Vol.7 No.2 pp.132 - 148 Abstract: This article presents an analysis of case law from Nauru, Australia and Papua New Guinea concerning the Australian offshoring scheme for asylum seekers. Its specific focus is to enquire to what extent and how colonial conceptual and ideological patterns of thought play a role in the reasoning of the courts involved. The analysis shows the Australian averseness to have its external action in former colonies subjected to international (human rights) law; and the juggling of sovereignty so that it justifies the administration of policies in former colonies. However, it also shows resistance to this coloniality, be it from actors with relatively little power. These insist on application of well-developed international human rights norms to Australian administration of its policies in two former colonies, and to some extent incorporate international power relations into their sovereignty reasoning. Other courts in the Global South have engaged more fundamentally with core assumptions of international migration law. Inderscience Publishers - linking academia, business and industry through research

Title: Coloniality and case law on the Australian asylum offshoring scheme

Authors: Thomas Spijkerboer

Addresses: Vrije Universiteit Amsterdam, Amsterdam, Netherlands

Abstract: This article presents an analysis of case law from Nauru, Australia and Papua New Guinea concerning the Australian offshoring scheme for asylum seekers. Its specific focus is to enquire to what extent and how colonial conceptual and ideological patterns of thought play a role in the reasoning of the courts involved. The analysis shows the Australian averseness to have its external action in former colonies subjected to international (human rights) law; and the juggling of sovereignty so that it justifies the administration of policies in former colonies. However, it also shows resistance to this coloniality, be it from actors with relatively little power. These insist on application of well-developed international human rights norms to Australian administration of its policies in two former colonies, and to some extent incorporate international power relations into their sovereignty reasoning. Other courts in the Global South have engaged more fundamentally with core assumptions of international migration law.

Keywords: asylum; Papua New Guinea; Nauru; Australia; externalisation of migration policy; colonialism; comparative law.

DOI: 10.1504/IJMBS.2023.128600

International Journal of Migration and Border Studies, 2023 Vol.7 No.2, pp.132 - 148

Received: 17 Aug 2021
Accepted: 16 Jun 2022
Published online: 27 Jan 2023 *

Title: Coloniality and case law on the Australian asylum offshoring scheme

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