Credible Commitments? Judicial Power and Executive Resistance in the Offshoring of Asylum in Europe

Since the so-called refugee crisis, Europe has been focusing on the ‘external dimensions’ of migration policy, with proposals for offshore asylum processing growing in popularity among executives. Nonetheless, such proposals continue to face challenges in both domestic and European courts for violating states’ responsibility to protect those seeking asylum in their territory. Looking at attempts to offshore asylum, this paper explores how European judiciaries, namely the CJEU and ECtHR, ensure that states respect their responsibility for asylum seekers, and asks whether this judiciary-executive relationship has changed over the past two decades. In doing so, it taps into courts’ judicial power (and its limits), encompassing both judicial autonomy, a core aspect of independence, and effectiveness. Specifically, by focusing on delegation to European courts, it addresses judicial independence in examining their autonomy from national governments. By linking autonomy to effectiveness, it also engages with courts’ impact on policymaking. The paper first discusses existing literature on judicial power, identifying delegation-centred arguments that follow the ‘credible commitment’ logic in international relations as a useful framework for investigating changing dynamics in the asylum policy domain. However, it suggests adopting Marmo and Giannacopoulos’s (2017) notion of a judiciary-executive ‘power cycle’ to advance a more complex analysis of courts’ impact on policymaking. Then, it moves on to examine interactions between governments (EU member states and the UK) and European judiciaries in relation to key offshore policy proposals since the early 2000s through process tracing. By looking at both EU countries and the UK, it offers an insight into variation in judicial power across judicial regimes, with the UK leaving the EU but remaining a signatory of the ECHR. It finds that shifting norms can explain declining international judicial power in asylum policymaking, reflected in increased executive resistance to courts. That said, it argues that popular claims about ‘backlash’ against international courts should be examined critically, advancing an interpretation of executive-judiciary relations in asylum governance that moves beyond a pushback-backlash dichotomy (Madsen et al, 2018). Ultimately, the paper’s contribution lies in (a) incorporating a more nuanced understanding of judicial power into international judicial politics drawing on socio-legal studies, one that treats both judiciaries and executives as active policy actors; and (b) taking threats to legal responsibility in the European asylum regime seriously, while addressing fears of collapsing international legal institutions with caution.