Emma: Welcome to CMSOnAir, the podcast on migration and refugee issues, brought to you by the Center for Migration Studies of New York. I’m Emma Winters, CMS’s communications coordinator. In this episode you’ll hear CMS’s researcher, Mike Nicholson, as he speaks with David Fitzgerald: Theodore E. Guildford Chair in US-Mexico Relations, Professor of Sociology and Co-director of the Center for Comparative Immigration Studies at the University of California San Diego. David is a frequent contributor to local, national, and international media. He was honored with the award for public sociology from the International Migration section of the American Sociological Association in 2013. And he’s written three books, including Culling the Masses: The Democratic Roots of Racist Immigration Policies in the Americas, which won the American American Sociological Association’s Distinguished Scholarly Book Award. David’s latest book, Refuge Beyond Reach: How Rich Democracies Repel Asylum Seekers is now available from Oxford University Press. Now, here’s Mike and David.
Mike: Thank you for joining us in New York today David. You’ve written and researched extensively on immigration policy and asylum. In Refuge Beyond Reach, you write about what you call “remote controls.” What are remote controls? And what are some common forms of remote controls?
David: Well, thanks for having me Mike. The idea of remote controls was first developed by Aristide Zolberg. He was a political scientist who worked extensively on migration policy around the world. What he noticed was that beginning in the 19th century governments started pushing their border control very far away from their territories. He was referring to efforts to prevent people from simply getting on boats in Europe and coming to the United States and that those controls started in European ports. So this is an idea that he developed and I’ve taken that and run with it to show the wide range of ways that governments try to keep people from ever reaching their territories — without passing through some kind of selection process.
Specifically, we’re talking about things like visa policy. That might seem like a natural thing, that people should get a visa before they try to go to a country, but that’s actually pretty new in human history. That’s something that started systematically around World War I. You also have remote controls at sea with maritime interceptions by the Coast Guard, for example. You have air carriers sanctions that fine air carriers — the airlines — that bring passengers who are not admissible and require those airlines to transport the passenger back to the place that they embarked from. There’s a whole range of remote controls. Some of them are highly visible, and some of them are taking place behind the scenes.
Mike: And why do states use these remote controls rather than simply, for example, tightening their asylum policies for those that arrive at their borders?
David: One of the main reasons that governments try to keep asylum seekers from ever touching their toe onto their soil is that once someone touches their toe onto, say, US soil there is a whole range of rights that they have access to. They have access to constitutional rights, under the US Constitution that anyone has regardless of whether or not they’re a citizen and regardless of their legal status. And then they also have rights under international law. Specifically when it comes to asylum seekers, they have the right not to be returned into the arms of their persecutors. They have the right not to be “refouled” is the legal term.
Mike: And are remote controls a new phenomenon?
David: There have been a lot of remote controls that have been forgotten, but almost all of the different features of remote control that you can find today in the rich democracies of the Global North were originally developed to try to keep Jews fleeing Europe bottled up in places like Germany. Whether you’re talking about maritime interceptions or restrictive visa policies, going after smuggling networks, publicity campaigns to try to keep people from leaving, a whole panoply of measures — those were used by countries in the Americas, including the United States, by the British authorities in Palestine, and by liberal European countries like Switzerland and the United Kingdom to keep Jews from being able to reach places of safety. What’s new now is that you have a global system of remote controls that don’t just target one particular nationality and that are used often deliberately to keep asylum seekers from coming — or they’re simply trying to control migration generally. It affects asylum seekers along with many other kinds of travelers.
Mike: Do states face any constraints in their applications of remote controls?
David: So there are constraints, but it’s only particular kinds of remote controls that are constrained. So when it comes to the air passenger system, there are really very few constraints on what states do. This is an area of policy that is highly securitized. That’s intensified since 9/11. But even going back to the 1970s, because of all of the skyjackings, there [have been] a lot of state security controls around air travel. Those same controls are used to stop asylum seekers and many other kinds of travelers. Because of that and because most of those controls take place on another country’s territory, there are very few judicial constraints on what states are able to do in that domain. When it comes to some other areas of policy, like attempts to play with definitions of the border and to create more restrictive rules around spaces right at the border line or around territories like Guantanamo — that are controlled by the US but are not considered sovereign US territory — there you can see the courts having a more constraining power.
In Europe you see the courts having a pretty strong constraining power, even when it comes to remote controls at sea. All members of the European Union are also under the jurisdiction of the European Court of Human Rights in Strasbourg and that court has issued a number of really important rulings to keep states from doing exactly what they want willy nilly. Most importantly, the courts have said that, if one of those member states — like Italy — intercepts people on the high seas, they can’t simply return them to harm’s way. Because even though those interceptions take place in international waters, the Italian government has effective jurisdiction over the passengers. That’s the kind of constraint you see from supranational courts in the European context that you don’t see in the case of say the US or Canada or Australia. The Australian courts have been pretty weak on constraining what their executive has tried to do because they don’t have a Bill of Rights. The extent to which these constraints operate really varies across the countries that we look at, as well as over time, and by the specific techniques.
Mike: How about civil society? Does the civil society play a role in constraining remote controls?
David: Yes, civil society plays a really important role, especially when it comes to efforts to monitor what’s going on in buffer states. Buffer states are countries between asylum seeker’s countries of origin and their final destination. Mexico, Indonesia, Morocco, these are all major buffer states. Thinking about the case of Mexico, in particular, you can see a much more dense civil society developing around these issues. You have organizations that specialize in human rights, that specialize in the rights of migrants. There’s a lot of media attention both national and international in Mexico. You have some agencies that are quasi-autonomous within the Mexican government, for example, that also monitor abuses of migrants and keep an eye on what the government is doing to try to prevent them from passing. That’s important because that kind of information is used in landmark legal cases. If you look historically at cases that have restrained state efforts at remote control, the courts are very often relying on reports from organizations like Amnesty International or Human Rights Watch and also elements within governments that are concerned about human rights, such as the US State Department, which annually releases a report on human rights abuses in most of the world’s countries. So the courts rely on that information to determine, for example, whether or not a country is really a safe third country, whether it’s really safe to return asylum seekers to a particular country. That’s where civil society plays an exceptionally important role.
Mike: Yeah. And of course it’s a very political decision whether a country is safe.
David: It is definitely a political decision. It’s a legal decision, but it also relies on information.
Mike: Yes.
David: A judge sitting in his or her chambers in the US doesn’t know from personal experience what those conditions are and relies on this kind of civil society input.
Mike: In your book, you mentioned several policies that the US government has implemented in order to manage Central American migration, including the placement of attachés in Central America, the creation of biometric databases and publicity campaigns, which you discussed a little bit, to discourage irregular migration. The US government also recently concluded a Safe Third Country Agreement with Guatemala. Has the US government’s approach to managing asylum flows from Central America changed over time?
David: Yeah, those approaches have changed over time, but the goal of controlling migration from Central America, including people who are coming to seek asylum and people fleeing different forms of violence, has a pretty long history. Since the early 1980s, the US government has been involved in one form or another of those efforts. What’s changed is that in the early 1980s — which was the height of the civil wars in Central America, specifically in El Salvador and Nicaragua and Guatemala — the United States … spent billions of dollars on military aid to those countries and that was done very explicitly and publicly, in part, with the goal of keeping refugees from reaching the United States. Ronald Reagan spoke very openly about this in his public speeches: If the United States didn’t contain communism in Central America that would release even more refugees to come to the United States. That military intervention also involved US trainers, for example, US soldiers training local troops. That money, that kind of training was part of an effort to contain refugees in Central America. The United States also financed in part the construction of refugee camps in southern Mexico. These were camps primarily for Guatemalans, but to a lesser extent for Salvadorans. The United States was also instrumental in pressuring the Mexican government to allow the UNHCR to establish its operations in Mexico.
Those are features of the control system that we don’t see right now. But what we do see and what’s really changed during the Trump administration compared to previous administrations is the open bullying of Central American and the Mexican government to control migration flows. There is a long history of pressure behind the scenes to control those flows. What’s different now is that it’s done so explicitly, so openly, so aggressively and also tied to pretty big sticks — such as the Trump administration’s threats to tax remittances of Central American countries such as Guatemala, if they don’t sign onto a Safe Third Country Agreement. That’s what really distinguishes the current period from what we’ve seen historically.
Mike: You argue that courts and civil society can constrain the use of remote controls in countries such as the United States. Which constraints, if any, govern the processing and treatment of asylum seekers apprehended or detained in Mexico and Guatemala?
David: You know that’s a great question, and it’s a very dynamic question. We don’t know the full extent to which there will be constraints. But one of the interesting things going on in Guatemala right now is that we’re seeing the Guatemalan judiciary step up and the Guatemalan courts have said, the High Court has said that the Guatemalan outgoing president cannot simply sign an agreement with the United States to make Guatemala a safe third country without the input and passage of a law on the part of the Guatemalan congress. So this is interesting because it’s not just a question of what the courts in rich liberal countries like the United States or Canada are saying. Increasingly, we’re seeing courts and other places like Papua New Guinea and Argentina also weighing in on these questions and sometimes pulling back their executives. It’s an open question as to what extent that’s going to finally determine what happens with policy in a place like Guatemala. But I think it is important, and there are many countries, such as Mexico, where the judiciary does not have a tradition of reining in executive power. It will be interesting to see what happens there.
I think what’s more important broadly speaking in the region is the fact that you have so many more civil society monitors. You also have a lot of organizations in the United States and you have particular political entrepreneurs and some powerful people — senators, for example — who have taken on the goal of making sure that US aid to build up the enforcement capacity of these countries is not used for human rights abuses. And I’m not saying that aid is not used for human rights abuses, but you have people who are in positions of power and influence who care about this issue and who are trying to monitor [how] money is used in a way that you probably didn’t see 30 years ago.
Mike: And the US government is currently requiring some asylum seekers to wait in Mexico while their cases are processed. Would you say that this “Remain in Mexico” policy is new? Or would you say that it has some sort of historical parallel or precedent — looking at the history of engagement between the United States and Mexico with respect to these remote controls?
David: One of the things that I was surprised to find in researching this book is that there is some precedent for that, but it is a “Remain in the United States” policy that the Canadian government developed in the 1980s and deployed episodically, including in the 2000s. This was used for Central American asylum seekers who would pass through the United States, had applied at a Canadian port of entry, were given a date for a hearing in Canada, and then returned to the United States to wait. In some cases the UNHCR found that the US government deported those people before they ever had a chance to have a hearing of their case in Canada. They were deported back to Central America, so the Canadian government stopped that policy and reserved the right to implement it again, but in practice stopped. That is a bit of a precedent. I think it’s a precedent that highlights the dangers of a remain in some other country policy. The “Remain in Mexico” policy is a novelty in the US-Mexico context.
Mike: And you mentioned a global system of remote controls. Is this a phenomenon that we’re seeing outside of the countries that you discuss in your book (United States, Canada, Australia, and the European Union). Are we seeing this elsewhere in Asia or Africa? You mentioned Argentina.
David: So countries throughout the world use visa policies for remote controls. That’s something that’s become standardized. Some of the most restrictive visa policies are actually in Asia and Africa. Very few countries have the capacity to implement effective remote controls abroad the way that the United States and the European Union and Australia and Canada have. For example, all of those countries that I just mentioned deploy airport liaison officers who are stationed in airports around the world and don’t have legal authority, but they tell airlines whether or not to admit passengers onto an aircraft or whether or not to allow passengers onto an aircraft to fly to a place like Canada or the United States. Very few countries around the world have the capacity to deploy those kinds of controls. They don’t have the long range maritime interception capacity, the way that the United States and Europe and Australia have. Parts of the system are in place for a broader set of countries, mostly documentary controls, but others are really particular to rich liberal democracies.
Mike: Thank you. No one can predict the future but what do you think will be the impact of some of the remote controls in place right now — both in the United States and elsewhere?
David: I think the biggest impact is that it’s becoming increasingly difficult for someone who is fleeing violence or persecution to be able to reach a place of safety. There are very few legal avenues to do that. The resettlement avenues for refugee resettlement were never very wide. Even at their height, they were only resettling not even 1 percent of the world’s refugee population. Those resettlements have been slashed under the Trump administration, which is exceptionally important because the United States historically has been the number one country of refugee resettlement. Diplomatic asylum, where someone goes to a consular post abroad and asks for asylum, is illegal in many countries, and it’s never business as usual in any country. It’s really something that has only been used as a way to gain asylum by a handful of prominent dissidents. For an everyday person fleeing violence, that’s not an option. These remote controls are making it almost impossible for someone to legally travel to a place of safety.
Mike: Well, thank you very much. We look forward to reading your future work as a way to navigate these shifting policies. So this year you have a new book out from Oxford University Press called Refuge Beyond Reach: How Rich Democracies Repel Asylum Seekers. It’s available on OUP — Oxford University Press — .com, Amazon. How else can people follow your work?
David: I have a Twitter handle: @FitzgeraldUCSD. All my information is available on the website of the Center for Comparative Immigration Studies. I’m happy to take questions from your listeners.
Mike: Thank you very much.
David: Thank you.
Emma: CMSOnAir’s theme music is provided by Danny Duberstein and The Music Case. To get more information on CMS’s research, publications, and events, visit us at cmsny.org.
This transcript has been edited for clarity and style.
