Buffering North America

Washington and Ottawa have tried to keep out most of the Central Americans fleeing to North America beginning in the civil wars of the 1980s. Central America and Mexico buffer the United States, which in turn buffers Canada. The U.S. government has propped up client states in Central America; paid for refugee camps; and provided training, equipment, and financing for migration controls further south. Mexico has weak rights of territorial personhood, so rather than strictly controlling entry across its southern border, its entire territory has become a “vertical frontier” with the United States. Aggressive U.S. enforcement at the Mexican border traps transit migrants in Mexico and creates an incentive for the Mexican government to deport them. But harsh U.S. enforcement on its border and the fact that it targets Mexicans as well as third-country nationals impedes the bilateral cooperation that would make Mexico a more effective buffer.

The Dome over the Golden Door

The aerial dome is the single most effective block in the architecture of remote control. The contemporary dome over U.S., Canadian, and Mexican airspace was derived from controls over transoceanic shipping passengers dating back to the nineteenth century. Its deeply rooted history makes the system seem natural. The use and framing of mobility controls as a way to protect national security also has a history more than a century old. Terrorist attacks further generated a strong security rationale for strict passenger controls that states then use to keep out all manner of unwanted foreigners. Many controls are exercised in spaces that are difficult for watchdogs to access. The people harmed by the system because they are blocked from reaching sanctuary are uncounted and unseen. As a result of these characteristics, there are few institutional constraints on the system of visas, carrier sanctions, liaison officers, pre-clearance operations, and international anti-smuggling operations that together constitute the dome.

The Euro-Moat

European governments acting alone and collectively through Frontex and NATO are intercepting asylum seekers and other migrants far from their shores. Patrolling the moat is tightly linked to buffering. In lieu of offshore processing, European governments collaborate with coastal states in North Africa, Albania, and Turkey to prevent departures and accept readmission of people intercepted at sea. The weakness of coastal states’ control capacity has then led European governments to drive further inland and build expanding rings of land buffers around the moat. The modest constraints on Europe’s moat strategy are the supranational judiciary and monitoring of conditions at sea and in coastal buffer states by NGOs, investigative journalists, and the UNHCR.

Building Fortress Europe

The European Union since the 1990s has been engaged in a unique project of reducing mobility controls between members while strengthening the external borders and then shifting control outward. The individual pieces of the remote control strategies themselves are common, with the exception of the Frontex external border control coordinating agency, which does not have parallels in the North American or Australian cases. Europeanization has cross-cutting effects on remote control. The ubiquity of policies rooted in law, regulations, or formal agreements with other states—around readmission, visas, carrier sanctions, safe third countries, and safe countries of origin—is a result of Europeanization. However, Europeanization also includes built-in constraints derived from its supranational courts and institutions.

Raising the Drawbridge to Cuba

U.S. policies toward Cubans have oscillated between periods of welcome and restriction embedded in an overall trajectory of restriction. The biggest difference between the treatment of Haitian and Cubans was that only Cubans seeking protection were granted realistic legal paths to enter the United States through visa waivers for air passengers, relaxation of enforcement of immigration laws, more robust asylum screening on the high seas, and in-country processing programs for dissidents and other programs guaranteeing slots in the immigration stream. The favorable treatment of Cubans shows that even tens of thousands of asylum seekers arriving over the course of a few months did not threaten the capacity of the United States to provide sanctuary for those facing persecution at home. The Cuban case also challenges the conceptualization of remote control. Remote control’s efficacy is highly dependent on collaboration by other governments, such as Cuba’s willingness to accept Cubans intercepted at sea by the U.S. Coast Guard.

The Catch-22 of Asylum Policy

Most refugees do not have a legal way of reaching safety in the rich democracies of the Global North. There is no legal line where they can register and wait as their number advances. Obtaining a resettlement slot is like winning the lottery. The only realistic way to reach the Global North is to reach its territory and then ask for asylum. Rich democracies typically abide by the principle of non-refoulement but deliberately and systematically shut down most legal paths to safety. An architecture of repulsion based on cages, domes, buffers, moats, and barbicans keeps out asylum seekers and other migrants. Australia, Canada, the United States, and the European Union have converging policies of remote control to keep asylum seekers away from their territories. The catch-22 for refugees is that rich democracies are essentially telling them, “We will not kick you out if you come here. But we will not let you come here.”

Protecting Access to Sanctuary

Regardless of whether a given technique of remote control sustains legal scrutiny, the cumulative effect of these policies shocks the humanitarian conscience. Diffuse humanitarian norms cannot be evaded so easily because they focus attention on the effects of the whole. Feedback loops channel information between the legal process and the production of knowledge by refugee advocates. This knowledge is the basis for integrated advocacy to keep access to sanctuary open. The extent to which such advocacy is effective varies by technique of remote control and across contexts. The least constrained remote control policies involve the dome, and the most constrained involve the barbican. There are more varied limitations on the high seas, where courts have strongly constrained the EU but given the United States carte blanche to refoule refugees. Political constraints on buffering and caging are derived from embedded liberalism and linkages to other foreign policy issues.

The North American Moat

The U.S. Coast Guard intercepted more than a quarter of a million migrants, including an unknown number of refugees, between 1982 and 2015. Practices developed by the United States to stop Haitians were then copied to prevent Chinese asylum seekers from crossing the Pacific. The 1993 Sale decision by the U.S. Supreme Court to allow refoulement on the high seas still stands. The fact that there are screenings at all, whatever their serious inadequacies, is evidence of diffuse international pressure articulated through the U.S. State Department and the influence of civil society. The Canadian government flirted with maritime refoulement but was constrained by greater deference to international law and the concern that openly flouting it would potentially damage Canada’s international reputation. The United States is a world leader in defining military bases strewn across the globe as territories under its control but not its sovereignty and thus spaces where asylum seekers have limited rights.

Stopping the Refugee Boats

Australia has unusually effective controls to deter asylum seekers as a result of its remote geography, regional hegemony, and relatively weak legal constraints. In the 1970s the government’s options were self-limited by foreign policy interests that favored asylum seekers fleeing the fallen ally of South Vietnam. By the 2000s, it had shifted toward a harsh policy built on buffers in Indonesia and Papua New Guinea, the “excisions” of particular Australian territories to restrict asylum seekers’ rights there, aggressive interceptions of visa-less travelers at sea, and offshore processing of maritime asylum seekers in other countries’ territories where most have been determined to be refugees by the UNHCR definition. The only current modest limitations on Canberra’s remote controls derive from reliance on other governments to do the work of buffering and caging and scrutiny by civil society.

Origins and Limits of Remote Control

Many theories try to explain why remote controls of asylum seekers proliferated in the 1980s and 1990s, but most techniques of remote control were developed in the 1930s and 1940s. Policies to push out the border were ad hoc responses to perceived crises that then spread as governments copied each other’s policies. Europeanization took this process toward convergence the furthest of all the cases. Over time, policies have tended to converge across the Global North as multiple forces, such as the end of the Cold War and the broadening of the refugee definition, incentivized further remote control. This chapter describes the broad factors that promoted the spread of remote control as well as where those impulses have been constrained by countervailing forces arising from the courts, transnational advocacy networks, and foreign policy interests.