Abstract
David FitzGerald's Refuge Beyond Reach: How Rich Democracies Repel Asylum Seekers delivers precisely what its title promises: it lays out, in impressive and painstaking detail, the how of keeping asylum seekers from ever entering countries where they might take advantage of national laws that assure that they will not be sent home. FitzGerald, Professor at the University of California San Diego and co-Director of its Center for Comparative Immigration Studies, convincingly demonstrates that wealthy countries that have signed the Refugee Convention effectively dodge their international obligations through physical and legal forms of remote control. That is, by preventing asylum seekers from ever setting foot in their territories, wealthy countries can avoid being called out for forcing people to return to the countries from which they claim to be persecuted, and thus they can still claim that they have adhered to the international norm of nonrefoulement.
Through a historical and modern examination of asylum as a concept, followed by seven empirically rich chapters on the United States, Canada, the European Union, and Australia, Refuge Beyond Reach demonstrates the lengths to which these governments have designed an “architecture of repulsion” (p. 14) that deploys strategies to keep people out that are akin to medieval forms of barricading.
Indeed, FitzGerald draws parallels between several medieval practices and those undertaken by governments today, showing that across time and also across space, nation states’ methods for securing their borders have not become any more humane. In Chapter 1, he explains how modern practices of keeping asylum seekers out resemble cages, domes, buffers, moats, and barbicans. These are technologies that involve various degrees of coercion, but they converge around efforts to block access to the physical place where vulnerable individuals might have an opportunity to claim asylum. FitzGerald lays out the specifics of each of these – moats limit water access, domes restrict air space, barbicans create special zones where the regular rule of law does not hold, for example – but these are far less important than their collective result. In concert, these techniques, which rely on transnational securitisation practices and involve a range of government departments, stem the entrance of those who have an international right to claim asylum.
This right has a long historical precedent, FitzGerald reminds us. Chapter 2 reviews the roots and history of asylum, noting the pre-modern precedents for protecting political refugees. But it then details how these precedents were sufficiently weak so as to fail to protect European Jews from the Holocaust As Jews tried to flee by boat to Palestine, for example, the then-internationally enshrined principle of freedom of navigation on the high seas was undermined quietly, and then ignored openly as “the scale of arrivals reached a tipping point” (p 32). FitzGerald shows how the international refugee regime that emerged in the wake of World War II made efforts to address prior weaknesses in international obligations to protect refugees, with the 1951 Refugee Convention as its foundational document, and the principle of nonrefoulement as one of its central tenets. This narrative is well-known to refugee scholars, but FitzGerald reminds us that debates about where the principle of nonrefoulement applied are as old as the Refugee Convention itself. Some countries held that asylum seekers could not be turned away once they reached the border, while others insisted that the principle only applied once they were in the country. The physicality of the border as the marker for the application of the principle is crucial here, and it foreshadows a recurring theme in the book: the “hyper-territorialization” (p. 123) of immigration policies that base the possibility granting status (and not forcibly removing people) not on the protection of the vulnerable, but on the precise physical spot where they find themselves when they seek refuge.
Chapter 3 examines another aspect of spatial differentiation – the proclivity for states to design their refugee and asylum policies such that they favor protection-seekers who are far away. The phenomenon of remote control, FitzGerald demonstrates, has been around for many more decades than most scholars have claimed, and the factors generally offered to explain its origins are insufficient. FitzGerald convincingly critiques as incomplete some of the most common explanations, such as securitisation (associating refugees with threats against the state), the end of the Cold War (wherein countries no longer needed to accept refugees from Communist countries in order to de-legitimise their systems of governance), an anti-refugee media landscape, and the increasing ease of long-distance travel. Yet remote control preceded these happenings. Instead, FitzGerald suggests, nation states enact remote control policies in response to perceived crises, and then, converging around the lowest common denominator, copy each other's most punishing policies to keep people out. The “networks of experts” (p. 48) that diffuse these policies reveals a deep irony, although FitzGerald doesn’t point it out explicitly: bureaucrats trade advice on the best way to implement remote control policies at meetings organised by international institutions that comprise the international refugee regime. Thus the very meetings that are held every year to discuss the protection of refugees also allow for the spread of strategies and tactics that hold them at bay.
The subsequent chapters demonstrate, in fine detail, the ways that remote control operates, and the consequences for some of those who are repelled from countries that don’t want them. Chapters 4 through 7 focus on the practices of the United States, where all the medieval tactics named by FitzGerald are on display in their most ferocious form. We read of the measures that keep asylum seekers out by air and sea, of ways that nearby countries are used as buffers and of ways that outer islands are used as barbicans in order to limit access to U.S. law. Explicit policies are examined as well as more clandestine efforts, the latter of which FitzGerald uncovers by combing through Wikileaks documents and Senate and Congressional testimonies. The almost manic drive to prevent the trigger of U.S. law leads to hardly believable acts, like the Coast Guard official who shoots a Cuban in the water with pepper spray to prevent him from coming ashore.
While it would be easy to single out the United States for bad behaviour, FitzGerald points out that “remote control is relational,” and requires collaboration among governments (p. 122). Thus Chapter 7′s examination of the various buffering strategies in North America underlines that many countries work in concert with the U.S. to stop a south-north flow of asylum seekers. U.S.-funded deportations of Central Americans from Mexico and U.S.-led regional trainings on border security for Guatemala, Honduras, and El Salvador represent a buffering tool for the United States. Canada adds additional preventative measures through its visa policies to stem even a small number of asylum seekers who try to make their way north.
Visa policies also play an important role in Europe's strategies for repelling asylum seekers, where, along with several containment tactics, they serve as “concentric rings of interactive buffers” (p. 165). In chapters 8 and 9, FitzGerald details how Europe's supraregional institutions offer opportunities for European Union members to align their policies to build legal and extralegal barriers to surround Fortress Europe. A common border force (Frontex), safe country of origin designations, and myriad bilateral readmission agreements ensure that most asylum seekers are pushed out to ever-widening circles like “hot potato(s)” (p. 176) as European states fund and train nearby countries to act as buffers and cages. Libya's shocking treatment of migrants and asylum seekers in detention, funded by Italy and the European Union, nearly belies belief. So too do boat pushbacks and evasion of responsibility to rescue in the Mediterranean. Military helicopters and naval vessels have deliberately avoided assisting boats in distress, and humanitarian actors (individuals and organisations) have been arrested for trying to help (for example, pp. 203–206). With such a draconian architecture of repulsion built into the European system, it is not surprising that more than 26,500 migrants lost their lives at Europe's external borders between 2000 and mid-2016 (p. 205).
As an isolated land mass separated from other countries by significant waterways, Australia's repulsion tactics have been mostly centred around stopping asylum seekers arriving by boat. Chapter 10 briefly discusses Australia's strategies to keep asylum seekers from arriving by air, and then focuses mainly on Australia's shifting treatment of its ‘boat people,’ demonstrating that acceptance or rejection of maritime arrivals has been contingent not on the reality of their protection needs, but, as elsewhere, on domestic pressure and the geopolitical context. West Papuan asylum seekers who arrived by raft in 1969 were deported. Indochinese refugees who came by boat starting in 1975 were at first accepted, then gently buffered, then accepted, and then wholly rejected. FitzGerald demonstrates that the norms informing the treatment of maritime arrivals have reversed starkly: in the 1970s, the Australian government made public pronouncements that firmly rejected the idea of pushing back boats of asylum seekers. But since the 2000s, the Australian government has used every medieval-like tool at its means to keep people on boats from reaching Australia, from physically keeping them out of Australia's physical waters (through boat pushbacks and interceptions) to the “legal bubble” (p. 232) created around excision zones to trying to pawn off refugee determination and detention to a suite of regional partners offshore, most prominently through agreements with the governments of Papua New Guinea and Nauru. “Australia's regional hegemony,” FitzGerald notes, “allows it to buy legal and political cover for its remote control activities” (p. 237). These tactics almost certainly led to instances of refoulement, where asylum seekers were sent back to their home countries of Sri Lanka and Vietnam.
Throughout these empirical chapters, a longitudinal view of wealthy states’ architecture of repulsion points to ever-greater cooperation between and among states to block potential entrants, combined with the most astonishing physical and legal exertions to evade the obligation to determine refugee status and subsequently protect those deemed refugees. The reader would be pardoned for allowing a sense of despair to settle in. Perhaps anticipating this, in each chapter, FitzGerald points out the very modest constraints that prevent governments from the most egregious methods of remote control. These are few and far between. Screenings on intercepted boats in North America's moat (p. 100) and checks on Mexico's most violent paramilitary buffering (p. 158) reveal the existence of the smallest acknowledgement of international norms as promoted by rights groups. Europe's regional institutions – the European Court of Human Rights, the European Parliament, and European funding mechanisms that support monitoring processes – limit some maritime interceptions (p. 218) and forced returns (p. 191). Australia's numerous watchdog organisations engage in a variety of tactics to try to keep the conversation about offshore asylum seekers alive (p. 250).
In reaction to all of these, governments engage in increasingly secretive maneuvers to keep repulsion strategies out of the public eye. Yet FitzGerald tries to conclude on a note of hope. Chapter 11, while noting variation in the power of courts to check government policies, points to “integrated advocacy” efforts (p. 257) as a way, over the mid to long term, of trying to reverse the curse of remote control. Courts work in conjunction with transnational advocates – which include NGOs, United Nations agencies, and human rights organs within governments – to raise awareness and try to influence high-level government decisions. Yet one cannot help but note that these appear to be nothing more than glimmers of justice. The combined effects of the dome, the moat, buffering, caging and barbicans sends a brutal message to those who might otherwise seek protection in the countries of the world that have the greatest capacity to help: stay away.
Depressing empirics aside, there are four correctives I might have made to this excellent volume. First, a recurring thread through this book's narrative is the physicality of the border. This is drawn out through fascinating examples of hyper-territorialisation where governments define what counts as state territory through rather insulting, yet bio-politically relevant, cat-and-mouse games and through stingy, fussy criteria, such as whether the sand is wet or dry when the asylum seeker puts her/his foot down on land. Here, a regrettable opportunity is missed to explore – and perhaps add to – an abundant literature on the relationship between space and power, most famously theorised by Doreen Massey, whose “geometries of power” draw attention to the ways that physical location and people's relationships with those locations influenced the way they experienced the organisation of society, from access to capital to hierarchies of power (1994). Borders as political and social constructions notwithstanding, this book might have wrestled with theoretical work that explains how physical space is deployed to irregularise and criminalise noncitizen populations (for example, McNevin, 2011).
Second, this book is a detailed examination of the how; FitzGerald does not claim to answer the why. Of several ‘why’ questions that linger for me, the most salient is: why do countries even bother with the legal fiction of claiming to adhere to international refugee law? So many of FitzGerald's examples – in the Americas, in Europe, and in Australia – provide ample and infuriating evidence that countries regularly violate the spirit of nonrefoulement, manipulating territoriality with a legal sleight of hand that has deadly serious consequences. The brief, glossed-over explanation that states are concerned about their international reputations seems insufficient in light of the numerous moral failures that characterise post-World War II politics.
The third change I would have offered to this excellent book can only be suggested in hindsight: that it might have added, had COVID-19 been known to FitzGerald at the time, an additional medieval form of repulsion to its arsenal: the rapid deployment of supremely restrictive border policies in response to a pandemic. This is precisely what the city states and principalities of present-day Italy did to try to stop the spread of the Black Death starting in the 14th century. This “defensive quarantine” (Cliff et al., 2009, 204) system included patrol boats, horsemen stationed at borders, and suspensions (temporary) and bans (long term) on the movement of people and goods. It also included a system of quarantine of 40 days – from the Italian word for 40 (quaranta). Much like FitzGerald's other medieval instruments, these measures keeping foreigners out have their modern-day equivalents during COVID-19, although these vary from country to country. But is not only the practices of restrictive measures that is worth observing, but the discourse of defending against disease that justifies them (Meer et al., 2021).
Indeed, discussions of immunity go far beyond medical practice and have been used since COVID-19′s advent to justify border closures. With a year to observe the Global North's inconsistent migration responses to COVID-19 – for example, Australia's open border policy for Australian Open tennis players versus its temporary ban on all travellers from India, including citizens – one might have called to mind Roberto Esposito's immunitary dispositif, a prescient concept that depicts the state as an immunitary instrument that expels alien substances in order to (paradoxically) maintain its communitarian character (Esposito, 2010). Likewise, countries of the Global North have effectively manipulated COVID-19 to demonise foreigners and construct widely accepted justifications for long-term barriers to entry. This is modern biopolitics multiplied and iterated. That is, in the post-COVID-19 era, it is not only that politics have been deployed to assert control over bodies, but that political control has been drawn from diseases done to the body.
Refuge Beyond Reach begins and concludes with reference to the importance of sanctuary – a physical site of refuge. While sanctuary is a term more recently adopted for its connotations to political protection, COVID-19 reminds us that sanctuary also suggests a place of physical healing. In other contexts, it foregrounds the need for conservation efforts to protect the natural environment. We are now more aware than ever before that refugee populations will continue to seek sanctuary from a range of complex and overlapping political, physical, and environmental hazards. The final corrective I would offer to this book is that FitzGerald's concluding call that civil society must rise to the challenge of guarding “paths to refuge from the duplicitous attempts to close them” (p. 265) must also be the guiding principle to protect all those who seek refuge, whether political or otherwise.
