This month, the Supreme Court decided to allow the Trump administration to enforce new rules banning most Central American migrants from seeking asylum in the U.S. The order comes only weeks after Donald Trump announced that the U.S. government will start detaining asylum-seeking migrant families indefinitely until their cases are decided. Before that, the U.S. began implementing the Migrant Protection Protocols, which mandates that people who cross the U.S. from Mexico must return to Mexico until they can have their day in court. And last month, the U.S. also reached a so-called "safe third country" agreement with Guatemala, requiring asylum seekers from Honduras and El Salvador to seek asylum in Guatemala instead of the United States.
When taken together, experts say, these policies are a deliberate project aimed at making it impossible to claim asylum at the U.S southern border. "It's been an overwhelming barrage of policies aimed at limiting access to asylum," said Stephanie Leutert, director of the Mexico Security Initiative at the University of Texas.
The humanitarian costs are already piling up. Experts have warned that detaining families indefinitely will lead to psychological harm for children and denies asylum seekers due process. There is growing evidence that, as predicted, the Migrant Protection Protocol will actually put migrants at greater risk by forcing them to stay in dangerous situations in Mexico without necessary protections. Guatemala, a proposed "safe third country" is not, in fact, a safe place for asylum seekers.
Yet these policies are by no means unique to the United States or the Trump administration, and experts say they fit a broader pattern of rich democracies around the globe outsourcing the dirty work of border control, and turning a blind eye to human rights abuses in the process, in order to block asylum seekers from reaching their borders. As the U.S. and Europe systematically build barriers to seeking asylum, a broader question is emerging: Is the right to seek asylum disappearing?
At the heart of the issue is the 1951 Refugee Convention, which defines a refugee as anyone who flees their country due to a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion." The convention also forbids states from returning people to nations where they are likely to be in danger of persecution and stipulates that states may not impose penalties on people who enter countries illegally in order to present themselves as asylum seekers. The United States signed on to an amended form of the Convention in 1967 and since then has enshrined many of its principles into law.
The basic idea is that if someone fears for their safety in their own country because they belong to a particular political, racial, religious, or social group, they can escape danger and seek safety in another, where they can declare themselves to authorities and go through a formal process to become legal residents. Going through the asylum system can be complicated and fraught, as the tens of thousands of people who petition the U.S. government for asylum every year know, but a fresh wave of restrictions and penalties have been placed upon asylees as many of the liberal democracies who signed the 1951 Refugee Convention have been steadily undermining it on the ground.
"Since the 1980s, there has been a consistent trend toward making it more difficult for asylum seekers to reach territory where they can ask for asylum," said David FitzGerald, a professor at the University of California, San Diego, and author of Refuge Beyond Reach: How Rich Democracies Repel Asylum Seekers.
According to FitzGerald, rich democracies employ a range of "remote control" methods in order to prevent asylum seekers from reaching their territory, effectively blocking their asylum claims before they can make them. "There are various strategies of remote control, that is, pushing border control out from the territorial borders of a country so that the effective control is happening in the territory of other countries, or it is happening on the high seas or in the air," FitzGerald said. A prime example of this, FitzGerald explained, is the securitization of the air passenger system, which proliferated in the 1980s. "The real work of remote control happens at the check-in counter," he said, "where the airlines are checking documents because if they transport a passenger who turns out to be inadmissible, the air carrier is fined, and they are liable to take the passenger back to the port of embarkation."
Recent estimates indicate more than 70 million people worldwide have been forcibly displaced from their homes, among whom 26 million are refugees. The majority are hosted by poor or developing nations who cannot provide for them without assistance from rich nations. Yet these unprecedented displacement numbers come at a time of critical humanitarian aid shortages, further compounded by the Trump administration's decisions to slash aid budgets and dramatically reduce the number of refugees accepted by the U.S.
Between 2014 and 2016, Europe saw an influx of asylum seekers from Syria who were joined by asylum seekers and economic migrants from other parts of the globe. At the time, two Mediterranean crossings, one from Turkey to Greece and the other from Libya to Italy, comprised the main gateways to Europe for refugees. Despite initial efforts by some European governments to uphold their obligations under international law, European policymakers ultimately decided to impose measures that would block asylum seekers from reaching European borders.
In 2016, the E.U. cut a deal with Turkish President Recep Tayyip Erdoğan, promising €6 billion ($6.6 billion) of assistance in exchange for Turkey for agreeing to block migrant boats from leaving its shores. Italy once cut a similar deal with Libyan strongman Muammar Gaddafi, paying him billions to block migrants under the guise of a reparations package to atone for Italy's colonial occupation of Libya during the first half of the 20th century. But amid the chaos that followed Gaddafi's demise in 2011, Europe has turned to a patchwork of quasi-government security forces and unaccountable militias in order to prevent asylum seekers from reaching its borders.
In Libya, some groups that were involved in migrant smuggling pivoted to hunting and capturing migrants in an effort to profit from the detention-industrial complex that Europe underwrites. The result is African asylum seekers locked in cages, indefinitely warehoused in horrifying conditions by actors who Europe considers partners in its quest to keep migrants confined to a war zone. In July, 50 migrants being held in one of these detention centers were killed by an airstrike, yet Europe insists that it does not have a responsibility to accept asylum seekers rescued at sea who try to reach Europe via Libya.
Even in other transit states further away from European borders, Europe is working with authoritarian regimes, including those accused of genocide and crimes against humanity like Sudan's, in an effort to block migrants and asylum seekers. In other cases, the E.U. has dangled enticements such as humanitarian and economic aid to convince source and transit countries to crack down on or criminalize migration. To make matters worse, some European leaders have sought to criminalize the very act of rescuing asylum seekers at sea.
These policies have also had the effect of transforming migrants into commodities. The European Union, for example, initially hoped for a €3 billion deal with Turkey, but President Erdoğan, taking a page from Gaddafi's playbook—the Libyan despot once warned that he was the only thing preventing Europe from becoming "black"—leveraged European urgency into twice the amount. Meanwhile, European leaders have found themselves considerably weakened when pressing Erdoğan on matters of human rights in Turkey and conflicts in the Middle East, in part because they are beholden to him on the issue of migration. Earlier this month, Erdoğan warned that Turkey will be "forced to open the gates" to Europe unless it receives logistical support from the E.U. to establish a "safe zone" in northern Syria.
The same dynamics are playing out in the U.S. In addition to cases of asylum seekers being harmed as they languish in Mexico under the Migrant Protection Protocols, migrants have increasingly been turned into bargaining chips between Trump and Mexican President Andrés Manuel López Obrador. Mexico may not be paying for a physical wall that Trump campaigned on, but the Mexican government is footing the bill for the deployment of 15,000 troops to its borders in response to threats from the Trump administration, which are in many ways a continuation of the Obama administration's efforts to convince Mexico to block and deport Central Americans transiting through Mexico. The Trump administration is looking to replicate the safe third country agreement with Guatemala by proposing similar deals with El Salvador and Honduras, despite the fact that all three countries have proved unable and unwilling to guarantee asylum seekers necessary protections.
Domestic and international courts may eventually deem some of these measures illegal, but in the meantime, experts say, the entire premise of the 1951 Refugee Convention is being undermined.
"Most of these rich democracies are not usually openly violating the refugee convention, they are violating the spirit that motivates the whole idea of providing sanctuary, but they are keeping within the letter of the law," said FitzGerald. "The convention still has a real meaning in practice but only if you can make your way past the obstacle course to try to access those rights."
As the Trump administration and some of its counterparts in Europe proceed in pushing the limits of what has been traditionally considered legal, other countries are starting to take note.
"There are increasingly going to be these ripple effects whereby countries in the global south try to emulate what is happening in the global north," said Jeff Crisp, who previously served as the head of policy development and evaluation at United Nations High Commissioner for Refugees and is currently affiliated with Chatham House and Oxford University's Refugee Studies Centre. Crisp believes many countries have realized that they can "gain respectability" by being signatories to the Refugee Convention in principle and in rhetoric, but violate it without suffering any consequences.
Crisp added that these policies, almost always implemented in perceived times of crisis, are rarely ever rolled back. "It suits politicians and policymakers to maintain this notion of an unprecedented refugee crisis because it justifies the measures they've introduced when there was some sort of emergency."
Years from now, if and when the right to seek asylum has all but disappeared in practice, it may not be because the refugee convention was scrapped or rewritten, but because purportedly liberal democracies decided, one moral compromise at a time, that refugee rights aren't worth defending.