Carrot and Stick: How Western States Lure and Pressure Third States into Cooperating in Migration Control and What This Means for Migrants’ Rights

[Lena Riemer just finished a year as a Fox International Fellowship at Yale University and is currently a PhD Candidate at the Free University of Berlin writing on the prohibition of collective expulsion in public international law.]

In June 2019, US President Donald Trump announced  a migration agreement with Mexico which reportedly provides for “a regional approach to burden-sharing in relation to the processing of refugee status claims to migrants”. In practice, the deal seemingly seeks to establish a ‘safe third country’ agreement which would force asylum seekers to apply for protection in Mexico first. This is just the latest form of established cooperation on migration control between the two countries. Just a few months prior to the deal, the two governments agreed to return some asylum seekers to Mexico for the duration of their asylum process in the USA.

Cooperation with countries of origin and transit as well as the shift of border controls outside a state’s territory –  the so called process of externalization – has become an key component of migration control policies of many western sates ranging from the USA, to the European Union member states, Australia and Israel. This process is multifaceted and consists of an array of different strategies from temporary transfers to third states for asylum procedures or permanent transfers of refugees to third states to prevention of departure and pull-backs at sea. The scope and selection of a specific policy by a certain state depends to a large extend on geographic circumstances of the respective country; the proximity to the countries of origin where the majority of migrants and asylum seekers is coming from and the domestic, regional and international laws a country is bound by (e.g Australia which does not have a written constitution is surrounded by ocean, USA direct land border with Mexico, EU states which are bound by European human rights law and Northern Africa are separated by Mediterranean). What do these strategies have in common?

First, they all aim at the reduction of the number of arrivals of migrants and asylum seekers in Global North countries. Second, all these policies necessarily depend on the cooperation with a Global South state which is lured, pressured or both into collaborating and third, this form of cooperation comes at a high cost for the human rights of the affected people trying to move across borders without a valid entry permit. In the following, I will rely on two brief case studies to address these three issues in turn. I will first assess the cooperation between the USA and Mexico followed by the collaboration between the EU and Libya.

Cooperation between Mexico and the USA in migration control has a longstanding tradition. Since the 1980s, the southern neighbor has served as a buffer zone to prevent mass movement up north (FitzGerald, David Scott Refuge Beyond Reach (OUP 2019), pp. 123-159). To halt and decrease the rapidly rising numbers of asylums seekers from Central America in the last months, the US government has pushed for the above-described policies. Both policies, the extraterritorial asylum processing (‘Remain in Mexico-policy’) and the safe-third-country concept, were implemented after a combination of immense pressure from the US government and good coaxing. President Trump had used the threat to introduce at least 5% import tariffs on Mexican goods as means of pressure. Approximately 80 percent of Mexican exports go to the USA – import tariffs would have severely impacted the Mexican economy.

The effectiveness of these measures to bring down the number of asylum seekers to the USA is highly questioned by experts. Meanwhile, these new forms of cooperation undermine core principles of asylum law and due process guarantees. As only the scope of the ‘remain in Mexico-policy’ has been published and implemented so far, I will limit the legal assessment to this policy. For now, the legal battle surrounding this policy is pending at court. In April, the US Court of Appeals for the Ninth Circuit in San Francisco has determined that the policy can be carried out while the court case is ongoing. Reports of the actual consequences of the policy draw a different picture.  Many vulnerable asylum seekers that have expressed fear for their life or serious harm if returned to Mexico are forced to do so and ought to stay in overcrowded and unsafe cities in Mexico while waiting for their day in court. This constitutes a clear violation of the non-derogable non-refoulement principle which is codified in Art. 33 of the 1951 Convention on Refugees. Even though the USA has only signed and ratified the 1967 Additional Protocol to the Convention it assumed all of the international obligations under the Refugee Convention upon this ratification. This principle also constitutes binding customary law. Furthermore, the same principle is to be found in Art. 3 of the UN’s Convention Against Torture which the USA has signed and ratified. The policy also constitutes a great obstacle to a fair hearing in an immigration court in the USA. While the asylum seeker is forced to wait in Mexico for the day of the hearing, the actual procedure takes place on US territory. Logistical hurdles have led to absolute chaos; some have missed their day in court at all due to scheduling glitches and most asylum seekers have great difficulties to find a US lawyer in Mexico. This is particular severe as non-detained individuals who are represented are “nearly five times more likely” to win relief. In short, fair trial guarantees are denied on a large scale. On the level of international law, the USA violate the  American  Declaration  on  the Rights and Duties of Man (Art. XXVII (right of asylum), in conjunction with Arts XVII (right to a fair trial) and XXVI (right to due process of law)) by denying due process rights to asylum seekers that seek protection from  persecution in the USA. Whether domestic law is impaired too, will soon be determined by an appeals court – on the preliminary stage, a district judge had affirmed a such violation.  

On the European continent, a similar pattern in migration control has become apparent in recent years. Here too, politicians use carrot and stick to establish cooperation with African countries to curb the number of arrivals at European shores. For example, in 2016 the EU announced its Migration Partnership Framework. One aim was to establish new cooperation agreements with third states in the area of migration control. Here too, the concept is based on a combination of positive and negative incentives. States that are willing to cooperate receive money, aid or other benefits; those states who refuse to collaborate are cut out. The year after, the EU introduced the Malta Declaration establishing cooperation between the EU and Libya. In a nutshell, the EU promised Libya financial aid, training of the coastguards, and technical support in exchange for preventing asylum seeker from accessing Europe. Furthermore, numerous recent bilateral and multilateral agreements between EU member states and African states related to migration control are linked to development aid.

Experts however warn that this form of migration control is ineffective on the long run as it will only lead to a shift to more dangerous migration routes –such as through the Mediterranean and the Sahara– and therefore come at a high cost for the human rights, the safety and the lives of migrants and asylum seekers.

The effects on the lives of those asylum seekers attempting to reach Europe to apply for protection depends highly on the route they are forced to take. The most dangerous passage is probably through war-ridden Libya and the Mediterranean. Here, most asylum seekers are held in detention centers, suffer from torture, rape or arbitrary killings. Many of those who manage to leave the country by boat, are pulled-back my Libyan coast guards, encouraged, equipped and trained by the EU.

Whether this form of cooperation violates the European Convention on Human Rights and whether EU member states are legally responsible for cooperating therein, as some scholars claim, remains to be seen as a case on this matter is currently pending at the European Court of Human Rights.

The two examples are paradigmatic for recently implemented migration control policies by numerous states of the Global North to curb the numbers of arrivals of migrants and asylum seekers at their territories. The trend to externalize migration control and cooperate with third states in this area is not a new phenomenon, however, in recent years, states have massively expanded and reconceptualized such cooperation. Ever more drastic policy changes often occur at intervals of only a few months which leaves the competent courts no time to react appropriately. In order to ‘win over’ third states for such cooperation, Global North states lure and pressure third states with promises of good relations, financial support or threats to impose tariffs. While the long-term effectiveness of these measures is questionable, this development comes at a high cost for these countries reputation, the rule of law, human rights, the lives and well-being of the migrants and asylum seekers. Maybe it is time for the responsible governments to overthink such policies and shift them to a more human and effective migration control policy on the basis and in accordance with international and domestic law.