Border Externalization on a New Shore: A Comparative Analysis of American and European Migration Policies’ Effects on the Legitimacy of the Right to Asylum

Abstract

Encountering the two greatest refugee crises in the twenty-first century, the European Union and the United States instituted immigration policies that externalized migration controls. Through international agreements, exportation of border controls to other countries, and other tactics that legally distance refugees and asylum seekers from the EU and US, both global powers threaten the legitimacy and access to human rights. Through a comparative legal analysis of the two destination regions, the legal implications of the kingpin of modern migration strategy – border externalization – will be examined to display the effectual legitimacy of the right to asylum. While many authors criticize the European Union for their veiled disregard for indirect violations of asylum laws by member states and neighbors, a comparison of the legal implications of American immigration policy accuses the United States of mirroring European migration strategy. American and European representatives were primary authors of the UN Universal Declaration of Human Rights, 1951 Refugee Convention, and 1967 Protocol that collectively established the right to asylum internationally (Andreopoulos, 2020; Hurwitx, 2010). Therefore, the role of these two authorities in enforcing the right to asylum within their own borders is critical to maintaining the legitimacy of this protection. By exploring the historical causes of migration and policies of each region, the article examines the similarities and differences in geography, political arrangement, and catalytic factors that relate the EU and the US’ policy decisions and treatment of human rights obligations. Next, by comparing the effects of border externalization policies, I will demonstrate the legal disconnect between international standards and the actions of the EU and US. In a final examination of the global enforcement of the right to asylum and human rights, the article demonstrates that border externalization’s novel and universal application delegitimizes the right to asylum, a critical international refugee protection.