Muddying the waters: migration management in the global commons
| Author | Kaija Schilde,Noora Lori |
| Published date | 01 September 2021 |
| Date | 01 September 2021 |
| DOI | http://doi.org/10.1177/00471178211036221 |
| Subject Matter | Articles |
https://doi.org/10.1177/00471178211036221
International Relations
2021, Vol. 35(3) 510 –529
© The Author(s) 2021
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DOI: 10.1177/00471178211036221
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Muddying the waters:
migration management in
the global commons
Noora Lori and Kaija Schilde
Boston University, USA
Abstract
Advanced liberal democratic states interdict migrants on the High Seas global commons.
Why have liberal states engaged in this practice over the past four decades? Deterrence and
humanitarian rescue explain part of this puzzle, but they are insufficient for understanding the
patterns and justifications for migrant interdiction on the High Seas. Tension between states
promoting international human rights and circumventing those obligations challenges expectations
of liberal state behavior. International relations scholars must incorporate the global commons
when explaining state behavior; ungoverned areas create exceptional zones for states to partially
suspend their standard operating procedures to execute policies furthering their interests. We
argue that liberal states use the regulatory gray zones of the High Seas to ‘muddy the waters’ in
order to advance their security interests. States with the highest domestic refugee protections
have incentives to circumvent their own obligations, which vary over time with changes to
domestic asylum laws.
Keywords
border security, global commons, high seas, liberal democracies, migrant interdiction, migration
management
States increasingly manage migration by outsourcing and externalizing migration enforce-
ment. Outsourcing can take multiple forms: states privatizing government functions to
non-state actors, states delegating government functions to international organizations, or
states delegating policy to other states. States have developed offshore ‘remote controls’1
outside their borders to ‘ensure that aspiring migrants or asylum-seekers do not reach the
Corresponding author:
Kaija Schilde, Frederick S. Pardee School of Global Studies, Boston University, 152 Bay State Road, Boston,
MA 02215-1300, USA.
Email: kschilde@bu.edu
1036221IRE0010.1177/00471178211036221International RelationsLori and Schilde
research-article2021
Article
Lori and Schilde 511
territory of the receiving countries’.2 Remote controls include visa regimes, which regu-
late entrants prior to arrival, offshore detention arrangements, and expanded interdiction
efforts to intercept migrants en route.3
The practice of migrant interdiction stems from the dual state imperatives of border
security and the responsibilities they have set for themselves under domestic legal con-
straints, often in response to international laws. All states have a sovereign right to pro-
tect their borders and authorize who may enter their territory and under what conditions.
Indeed, the prerogative to authorize cross-border movement is the ‘sine qua non of sov-
ereignty’ and an intrinsic feature of the interstate system as a whole.4 However, this
sovereign discretion collides with obligations states have under customary international
law and international treaties.
This article evaluates the phenomenon of migrant interdiction in international waters,
and specifically the High Seas global commons. We examine the logic of why advanced
liberal democracies, in particular, engage in this practice. Maritime migrant interdiction
is puzzling: the most advanced liberal democracies that drive international human rights
regimes also aggressively limit access to asylum, including through offshore interdic-
tion, detention, and forced return. We argue that maritime migrant interdiction by liberal
states in the global commons is the result of domestic tensions between a state’s security
interests and the rights it grants to individuals. We identify a range of strategies liberal
democracies use to engage in High Seas interdiction, ranging from humanitarian
responses to ‘muddying the waters’ by exploiting gaps in domestic law and international
legal regimes. We focus specifically on tracing this phenomenon in the United States,
Australia, and Europe.
In examining the practice of High Seas migrant interdiction, we argue that while it is
not a practice limited to liberal states, it represents a liberal strategy of exclusion that is
particularly useful for evading the checks and balances of advanced liberal democracies
party to the Refugee Convention. Liberal strategies of exclusion are strategies that tam-
per with the inclusion criteria that determine whether specific groups of people can
access rights rather than through the exertion of discretionary power to deny rights to
those populations outright.5 The establishment of international migration regimes are
both a result and enabler of these strategies.
Liberal strategies of exclusion help explain the emergence of contradictions between
universal liberal values enshrined in democracies and more exclusionary practices. In
the realm of asylum policies, ‘measures to keep people from reaching sanctuary are as
old as the asylum tradition itself’.6 As the international legal framework and domestic
laws establishing and protecting asylum have become increasingly robust, liberal states
find themselves in an increasingly elaborate dance to comply with the rigorous norms
and laws of humanitarian protection while maintaining the discretion to withhold access
to asylum and securitize their borders. Indeed, the tension is not necessarily between
states and the international regimes they constructed, but within liberal states, specifi-
cally between liberal domestic institutions upholding rights and the security institutions
trying to fulfill their protection mandates. Maritime migration interdiction is the contin-
gent outcome of a reaction by one part of the liberal state – its security and migration
management components – to increases in domestic humanitarian protection legislation
or judicial enforcement.
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