One morning in late October, law enforcement officials hauled thirty-three corpses from the surf, victims of an overloaded migrant vessel and rough seas. The survivors were promptly interned in a detention camp on the outskirts of town. Later they would tell of a flight from violence, a long ocean journey, and the swamping of their boat within sight of shore. One could easily imagine this tragedy unfolding in Lampedusa, Lesbos, or other littoral sites on Europe’s periphery today, but this was not the Mediterranean. It was Hillsboro Beach, Florida; the deceased were Haitians; the year was 1981.
This tale of migrant death takes us back to a pivotal moment in the securitization of sea borders that offers a historical perspective on the current situation in Europe. The same day that these bodies washed ashore in Florida, the U.S. Coast Guard was heading to Port-au-Prince to repatriate the first group of Haitians apprehended under a then-unprecedented migrant policing program. The repatriations marked the birth of a new border imaginary in which migration patrols would take place not on land, but on the high seas. The impetus behind this novel form of oceanic policing was law evasion, clear and simple: Reagan-administration policymakers had designed the program to avoid the legal imbroglios that had developed around previous administrations’ draconian policies toward Haitian asylum seekers. By moving the border-screening regime out to sea and beyond the judiciary’s purview, the administration was shrugging off the shackles of domestic law’s constraining legalities. More than two decades later, this interdiction paradigm would make its way to Europe and Australia. Although its Mediterranean version has since been largely defanged by the European Court of Human Rights’ decision in Hirsi v. Italy, recent calls to “externalize” the policing of maritime borders reveal the stubbornness of these law-evading tendencies and the need to revisit the roots of interdiction in an American-led project of oceanic exceptionalism.
Some further history is in order. Haitians began arriving in South Florida by boat in 1972. From early on, they were seen as undesirable: black, uneducated, diseased, impoverished, non–English-speaking migrants from a regime viewed as a right-wing counterweight to Castro’s Cuba. The Haitians did not rank highly within the politicized asylum system of the 1970s, and this was reflected in the near-blanket denial of their claims. Over time, however, a coalition of Haitian exiles, radical cause lawyers, and institutions like the National Council of Churches mounted a devastating campaign against the Immigration and Naturalization Service’s efforts to empty Florida of Haitian boat migrants. The unprecedented efficacy of these activists, perhaps the first to successfully litigate using international human rights instruments in U.S. courts, provoked a spatial shift that would move the immigration border out onto the high seas. The idea behind the government program was straightforward: in international waters, on the decks of Coast Guard cutters, there would be no lawyers and no court intervention in the screening process. The inspectors’ discretion would be virtually unconstrained. Interdiction was staggeringly successful and the biases that guided it immediately apparent: despite ongoing repression and violence in Haiti, only six out of 21,461 interdicted Haitians would be permitted to come to the United States to pursue their asylum claims over the next eight years (Lawyers Committee 1990).
Since these early days, interdiction has emerged as a paradigmatic form of border policing in the United States. In 1993, the U.S. Supreme Court gave interdiction the Court’s imprimatur, declaring that neither the U.N. Convention Relating to the Status of Refugees nor domestic immigration laws constrained interdiction efforts at sea. In the early 1990s, Guantánamo also emerged as a legally anomalous site within this offshore screening framework, serving as a means to continue extraterritorial migrant vetting even when refugee surges surpassed the detention capacity of the Coast Guard cutters. Since the Supreme Court’s 1993 decision, U.S. maritime interdiction operations have become standard in the Pacific, the Caribbean, and the Atlantic. Perhaps more disturbing, U.S. immigration officials currently oversee a privately run detention center at Guantánamo that remains closed off to journalists and more shrouded in secrecy than the base’s infamous prison for suspected terrorists.
This brings us back to Europe. In the context of increased anxiety over porous borders following the terrorist attacks of September 11, the American model of migrant interdiction became appealing to the European Union (Noll 2003). The goal was to replicate the law-evading flexibility that Haitian interdiction had offered the United States and to take advantage of the legitimacy conferred by the U.S. Supreme Court’s endorsement of the oceanic exceptionalism that made such flexibility possible. By the end of the decade, the European Union’s border protection agency, FRONTEX, was interdicting migrant vessels in the Mediterranean, as were individual member states. A decision handed down by the European Court of Human Rights in 2012 altered the legal terrain, however, blocking continued use of the full American model by allowing migrants to seek the intervention of national and E.U. courts once E.U. officials interdicted their vessel. Nonetheless, various proposals continue to circulate, which offer other methods of externalizing borders similar in spirit to the U.S. framework, including last year’s Italian white paper endorsing the outsourcing of Mediterranean policing to non-E.U. states, a strategy designed to stifle migrant flows while denying asylum seekers the protections of E.U. law.
In the wake of the recent attacks in Paris and Brussels, we find ourselves again in a moment of heightened fear over the vulnerability that hospitality entails. At such moments, it is useful to ponder the conditions that produced exceptional frameworks of law evasion like the American programs of maritime interdiction and detention at Guantánamo. The symbolic weight of these models and the continued efforts to adopt variants of them as a method of escaping legal obligations to the refugees at Europe’s doorstep should prompt us to pause and reflect on the missteps that gave birth to such deeply troubling paradigms.
Lawyers Committee for Human Rights. 1990. Refugee Refoulement: The Forced Return of Haitians Under the U.S.-Haitian Interdiction Agreement. New York: Lawyers Committee for Human Rights.
Noll, Gregor. 2003. “Visions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres and Protection Zones.” European Journal of Migration and Law 5, no. 3: 303–41.