Instruments of Evasion: The Global Dispersion of Rights-Restricting Migration Policies

This essay traces the global spread of legal techniques that strive, as official government policy documents explain, to “push the border out” as far away from the actual territorial border as possible. This concept, enthusiastically embraced by governments worldwide, involves screening people “at the source” or origin of their journey, not the destination, and then again at every possible checkpoint along the way. My study is devoted to tracing the core countries and actors that have facilitated the adoption of such policies. I show that desired destination countries systematically learn from, and emulate, each other’s innovations in asylum-denying laws and policies. The lens of diffusion, which guides the analysis, emphasizes processes of inter-jurisdictional learning and emulation. It invites us to ask how and why “ideas travel” across jurisdictions and to trace the complex ways in which states are interacting with one another in shaping their own border control policies.

These developments adopted by policymakers in major turning points are part of a major rethinking that extends—spatially, temporally, jurisprudentially—the sovereign authority of states to regulate mobility. While still operating in the shadow of a Westphalian image of fixed territoriality in which all nations fit neatly together like pieces of a jigsaw, prosperous nations increasingly rely on sophisticated legal tools to expand the reach of border control, limiting the rights of migrants both before and after they enter the country’s territory. The basic idea is that controlling the movement of people might begin “elsewhere,” as close as possible to the point of departure. The traditional static border is thus reimagined as the last point of encounter, not the first.