Samenvatting

This study is intended to offer an insight into the difficulties experienced by the nation-state in its policy response to asylum and to determine whether there is a post-national solution. Processes of globalization accompanied by war and conflicts, increased migration flows of refugees, and a growing interdependence among nation-states have pressed for the development of international jurisdiction and institutions. As a result, the nation-state is no longer the only actor to provide rights to the individual. The establishment of international law provides rights that transcends national borders and can legally bind states to uphold human rights. For instance, the individual that has a well-founded fear of being prosecuted in its home country for reasons of, for example, race, religion, or political opinion, has the right to enjoy international protection according to the 1951 Geneva Convention. A party to the Convention is obliged to live up to that responsibility and to offer asylum to persons that carry the refugee status. The research has shown that this Convention has influenced both European as Dutch asylum law to a great extent as it has been fully incorporated in both systems. Yet, incorporation of international law into domestic law relies heavily on the willingness of the national government to do so. Moreover, there is no enforceable
framework in international law that prevents a nation-state from expelling or excluding foreigners.
Thus the foreigner has no protection from expulsion by the nation-state, unless, the foreigner
resides legally on the territory according to national law. Additionally, the research shows that a nation-state is only bound to an international agreement when it has signed and ratified it. If not, then the state is not obliged to transpose any provisions from international law into domestic law.
In this case, national sovereignty remains untouched. The study therefore reveals that international law does provide transnational jurisdiction but cannot be called post-national. This also applies to the EU and its asylum policy, mainly illustrated by the Common European Asylum System that seeks ways to harmonize existing asylum and migration policies among the member states. Although, the system has succeeded in this to a certain extent, the dissertation presents findings to conclude that the European Union may never carry a post-national solution to asylum, mostly because EU policy remains a product of political compromise between member states. Nonetheless, growing interdependence will continue to press for international and European cooperation, also in the interest of the nation-state. Analysis of struggles with issues of asylum experienced within both the Netherlands and the European Union as a whole reveal that it is perhaps better not focus on an ultimate post-national solution. Instead, the study recommends that states should look for a system of solidarity that integrates a shared responsibility, not only for the sake of national interest but also for the sake of human rights.