The global refugee regime is not simply under pressure. It is being reconfigured. Built on the postwar promise of universal legal protection, the regime has shifted toward practices of containment, deterrence, and externalization.Footnote 1 While the 1951 Refugee Convention and its 1967 Protocol remain formally intact, their influence over state behavior is waning.Footnote 2 Governments invoke humanitarian norms while simultaneously reinforcing borders, outsourcing asylum processing, and restricting access to rights through procedural and geographic barriers. These trends do not signal the collapse of refugee governance, but the emergence of a new, durable architecture designed to manage mobility without providing meaningful asylum.
I argue that refugee governance is being reconstituted around a logic of flexible containment. What appears as institutional failure is better understood as the consolidation of a distinct regime logic—one that prioritizes sovereignty, informality, and transactional cooperation over multilateralism and legal obligation. While the underlying practices of containment have been widely documented,Footnote 3 this essay advances the debate by conceptualizing their systemic convergence as both a normative and institutional transformation. It goes beyond identifying individual strategies of asylum norm evasion to show how they have combined into a broader governance framework that many states now treat as legitimate and effective.
This transformation is not unique to refugee protection but reflects wider shifts in the global order: the retreat of liberal multilateralism, the rise of ad hoc bilateral bargains, the growing reliance on soft law, and the weakening of rights-based regimes more broadly. In this sense, the politics of asylum mirror developments in the human rights domain, where states increasingly comply with the letter of international law while hollowing out its protective purpose.Footnote 4 Situating the transformation of the refugee protection regime within broader shifts in global governance, this analysis links the evolution of refugee policy to processes of norm erosion, institutional drift, and the expansion of soft law. Refugee governance, once anchored in liberal multilateralism, now reflects a postliberal order in which legal form persists but political function has been redefined.Footnote 5
The analysis proceeds in four parts. First, it outlines the historical foundations of the refugee regime and explains how the liberal consensus around protection has eroded in favor of more securitized and discretionary approaches. Second, it identifies the institutional mechanisms through which legal norms have been adapted and circumvented, with particular attention to drift and substitution. Third, it examines how these mechanisms have crystallized into a broader architecture of containment that redistributes responsibility across borders, actors, and legal categories. Finally, it reflects on how these developments signal a deeper normative transformation, arguing that containment has become the prevailing logic of refugee governance in a postliberal international order.
Refugee Governance After Liberalism
The international refugee regime emerged in the aftermath of the Second World War, codified primarily by the 1951 Refugee Convention and its 1967 Protocol.Footnote 6 These instruments established the right to seek asylum and enshrined the principle of non-refoulement, which prohibits the return of refugees to territories where they face serious threats to life or freedom.Footnote 7 Over time, the principle has evolved into customary international law and is widely considered binding on all states, irrespective of formal ratification.Footnote 8 Institutionally, the United Nations High Commissioner for Refugees (UNHCR) was created in 1950 to oversee implementation and offer protection. UNHCR has since served as the normative and operational core of the regime. Together, the Convention and UNHCR anchored a liberal legal order grounded in the idea that forced displacement demanded a multilateral response. For decades, states accepted binding obligations in exchange for legitimacy and burden-sharing.
The creation of this regime was possible because of a unique postwar order. In the late 1940s and early 1950s, Western powers, led by the United States, sought to institutionalize humanitarian norms as part of a broader liberal international project. The displacement of millions of Europeans, combined with Cold War competition, generated political incentives to construct a multilateral system of protection.Footnote 9 Refugees from communist states were often viewed as symbols of repression, which reinforced Western governments’ willingness to admit and resettle them. Moreover, in these early decades, refugee numbers were comparatively small and those resettled were often more educated and skilled, aligning humanitarian obligation with the strategic and economic interests of host states.Footnote 10 Against this backdrop, norms like non-refoulement carried real weight: violations were rare and reputationally costly. During the first decades of the regime, protection was not uncontested, but states largely observed their obligations and UNHCR enjoyed wide latitude to expand resettlement and local integration programs.
That liberal consensus has eroded.Footnote 11 As Hammerstad observes, refugee protection is increasingly subsumed under logics of securitization and migration control.Footnote 12 The framing of refugees has shifted: from rights-bearing individuals to perceived threats to sovereignty and social cohesion.This securitization accelerated after 9/11 and in response to the so-called migration crises of the 2010s.Footnote 13 Legal obligations remain, but they are implemented through increasingly restrictive, discretionary, and symbolic practices.
Refugee governance today is shaped more by geopolitical bargaining than by normative compliance. States cooperate not to protect rights, but to prevent arrivals. The logic of humanitarianism coexists uneasily with policies designed to minimize responsibility. As several scholars have argued, informal mechanisms, such as executive agreements, soft law, and bilateral deals, have become central to contemporary global governance, offering flexible alternatives to treaty-based cooperation in a fragmented institutional landscape.Footnote 14 They provide flexibility, obscure accountability, and permit states to act outside formal legal channels. This move toward informality in refugee protection is part of the same structural shift evident in human rights domain, where nonbinding declarations and periodic reviews often replace substantive enforcement.
In parallel, UNHCR has undergone institutional drift through mandate expansion and functional transformation. While it continues to reference the 1951 Convention, its operational scope has broadened to include internally displaced persons (IDPs), stateless populations, and those affected by climate shocks or generalized violence—often in the absence of formal legal authority.Footnote 15 This expansion has been largely donor driven, shaped by funding incentives and the imperative to remain relevant amid shifting global priorities. Increasingly, UNHCR’s core activities center on coordinating humanitarian assistance, facilitating development initiatives, and promoting refugee self-reliance, as seen in its leading role in the Global Compact on Refugees.Footnote 16 Yet this broadening of responsibilities has coincided with a contraction of the regime’s core protection functions. UNHCR’s survival as an organization depends on continued sponsorship and financial support from member states, which leaves it vulnerable to pressures to accommodate state preferences.Footnote 17 This dependence creates a tension: the UNHCR is expected to defend asylum and uphold non-refoulement, but it often lends legitimacy to restrictive policies when it participates in or endorses them.Footnote 18 This reorientation reflects a broader move from rights-based enforcement to governance by coordination and persuasion. UNHCR’s normative authority is now predominantly moral rather than legal, and its ability to operate depends on alignment with donor governments that often prioritize containment and externalization over access to protection.Footnote 19
The global regime, then, has not collapsed. It has adapted. But the adaptation has favored sovereignty over rights, flexibility over obligation, and deterrence over protection. The next section turns to how this transformation has been operationalized through mechanisms of institutional drift and legal substitution.
Institutional Drift and Legal Substitution
The erosion of refugee protection has not occurred through formal treaty withdrawal or explicit norm rejection, but through quieter processes of adaptation. Drawing on Mahoney and Thelen’s discussion of gradual institutional change, I use “insitutional drift” to describe changes that occur within existing rules and organizations: the law remains on paper, but its meaning and function are gradually altered.Footnote 20 Legal substitution, on the other hand, refers to the creation of alternative arrangements that formally acknowledge the Convention while in practice displacing its operation. In the refugee context, drift is most visible in UNHCR’s mandate expansion and its shift toward coordination and development, while substitution is evident in the restriction of access to territory, the rise of temporary or exceptional statuses, and the outsourcing of protection responsibilities to third countries.
One clear example of drift is the Global Compact on Refugees (GCR), adopted by the UN General Assembly in 2018. Framed as a reaffirmation of the protection regime, the GCR is in fact a codification of its deformalization. It offers no binding commitments, establishes no formula for responsibility sharing, and explicitly avoids modifying international law.Footnote 21 Instead, it institutionalizes a model of responsibility by proximity, where front-line states are expected to contain displacement in exchange for voluntary support.Footnote 22 The GCR’s main innovations—the Global Refugee Forum, support platforms, and multistakeholder approach—are process-oriented mechanisms aimed at coordination rather than rights enforcement. As such, the GCR exemplifies drift: the formal architecture remains in place, but the center of gravity moves from rights enforcement toward coordination, persuasion, and voluntary pledging.Footnote 23
Concurrently to institutional drift, states have increasingly engaged in legal substitution, that is, constructing alternative frameworks that restrict access to protection while formally adhering to the Refugee Convention. Instead of withdrawing from multilateral commitments, they operationalize migration control through bilateral and regional arrangements that sidestep binding obligations. These include “safe third country” agreements, offshore processing regimes, and disembarkation platforms negotiated with third states. A prominent example is the 2016 EU–Turkey Statement, a political deal that enabled the return of asylum seekers from Greece to Turkey in exchange for financial support and diplomatic concessions. While not legally binding, the agreement established durable mechanisms for externalized asylum processing. The EU has pursued similar arrangements with Libya, Niger, and Tunisia, funding border enforcement and migrant detention despite widespread reports of rights violations.Footnote 24 In the Americas, the United States has adopted a parallel strategy.Footnote 25 Under the Migrant Protection Protocols (MPP), asylum seekers were required to await their hearings in Mexico under precarious conditions. Asylum Cooperation Agreements (ACAs) with Guatemala, Honduras, and El Salvador enabled expedited transfers of migrants to countries with limited protection capacity. These practices exemplify what Gammeltoft-Hansen and Hathaway call “cooperative deterrance”: efforts to prevent access to asylum through formal partnerships that outsource enforcement while obscuring accountability.Footnote 26
Legal ambiguity also persists at the recognition stage.Footnote 27 States exploit bureaucratic discretion to deny refugee status by adopting restrictive interpretations of eligibility criteria or by reclassifying claimants as economic migrants.Footnote 28 Others manipulate the asylum process by deliberately delaying decisions, leaving applicants in prolonged legal limbo. These recognition-stage tactics typically lack transparency and judicial oversight but enable states to manage migration without formally breaching international law. They reflect a broader preference for flexibility, control, and informality, which are the tools that allow states to preserve the appearance of legal compliance while reshaping protection obligations to suit domestic or geopolitical interests. In conceptual terms, these recognition-stage practices operate as substitution at the point of adjudication, since they reconfigure how and where the Convention’s protections are made actionable.
While these strategies are most visible in the Global North, where states have the infrastructure, capacity, and distance to prevent asylum, developing countries have adopted parallel methods to limit protection, often through return rather than exclusion.Footnote 29 As Schwartz argues, Global South states frequently rely on an alternative form of norm evasion that she terms “return without refoulement”:Footnote 30 a suite of tactics that pressure refugees into involuntary return without formally violating the principle of non-refoulement.Footnote 31 These include prematurely invoking the ceased circumstances clause of the Refugee Convention to justify status cessation, as seen in Tanzania’s handling of Burundian refugees; using confinement, deprivation, or threats to induce “voluntary” return, as in Pakistan’s treatment of Afghan refugees; and offering conditional financial incentives to encourage departure. Although these practices preserve formal legality, they undermine the purpose of protection and shift the burden of compliance from substantive rights to procedural performance. This reflects what Inder calls “hyper-legalism”: a formalistic deployment of legal norms that legitimizes restrictive policies while shielding states from reputational or legal consequences.Footnote 32 In this sense, asylum becomes a space of strategic legalism, where the form of compliance substitutes for its substance. The transformation of the refugee regime, then, is not driven by defection or collapse, but by controlled reinterpretation. Drift within institutions and substitution through alternative frameworks enable states to reconfigure protection in ways that serve their interests while maintaining the appearance of normative fidelity.
Importantly, these institutional and legal maneuvers do not emerge automatically. They reflect strategic choices by political leaders facing simultaneous domestic and international pressures. In Putnam’s terms, governments are playing a two-level game.Footnote 33 Domestically, they face pressures to demonstrate control over borders; internationally, they seek to avoid the costs of overt defection. Remaining formally within the refugee regime allows governments to demonstrate control at home while retaining the international benefits of compliance: continued access to aid, markets, and cooperative partnerships that depend on a credible humanitarian reputation. By contrast, outright defection may yield similar domestic gains but imposes higher international costs, including litigation, sanctions, and diminished influence over rulemaking. Strategies of “plausible legality,” externalizing, delaying, and delegating in ways that sustain the appearance of compliance, mitigate these trade-offs. This helps explain why leaders across diverse contexts converge on strategies that are tough in practice but legal in appearance.
This international calculus is inseparable from domestic politics. Public opinion is heterogeneous and cue driven: some voters reward humanitarianism and integration, others react with hostility when refugee inflows rise.Footnote 34 Leaders facing such mixed coalitions—nativist constituencies, moderates, business groups, and courts—are incentivized to adopt strategies that appear both tough and legal. They signal restriction to hawkish audiences while stressing legality and partnerships to reassure others. Crises create openings for this balancing act. Leaders frame restrictive steps as temporary responses, then routinize them through drift and substitution, a dynamic consistent with research on opportunistic repression in other domains.Footnote 35 These dynamics show that the refugee regime is not unraveling through collapse or open defection, but through deliberate strategies of bending rather than breaking. Institutional drift, legal substitution, and the political calculus of leaders converge to preserve formal legality while hollowing out substantive protection. The next section traces how these practices have been consolidated into a broader architecture of containment.
The Architecture of Containment
Beyond individual tactics of reinterpretation and legal maneuvering, contemporary refugee governance has coalesced into a structured system—an architecture—designed to restrict mobility while sustaining the appearance of compliance. This section moves from individual mechanisms to the overarching architecture they produce, tracing how dispersed practices have consolidated into a durable regime of containment. Rather than signaling breakdown, the current system operates through geographic distancing, legal flexibility, and layered delegation, managing asylum procedurally while limiting it in practice.
Spatial distancing has become a central pillar of this architecture. Rather than offering protection within their own borders, states increasingly shift the responsibility for asylum to third countries, relocating the legal and logistical burden of protection. This strategy does not involve formal withdrawal from international law but relies on geographic outsourcing: managing claims through containment zones, disembarkation platforms, and bilateral partnerships with transit states.Footnote 36 Australia pioneered this approach with its long-running Nauru and Manus processing centers, where successive governments kept asylum seekers offshore while maintaining a façade of legal compliance. In Europe, the 2016 EU–Turkey Statement built on this logic, formalizing a template of financial incentives and political concessions in exchange for containment. The deal functioned outside formal EU law yet reshaped the geography of asylum by redefining protection as something that can be administered at a distance,Footnote 37 a logic echoed in the US Asylum Cooperation Agreements with Guatemala, Honduras, and El Salvador.Footnote 38 Similar arrangements soon followed with Libya, Niger, and Tunisia, and today the model has expanded further: Denmark legislated for offshore processing, and EU member states have floated proposals for disembarkation or asylum platforms in Africa. Across these arrangements, geography rather than rights becomes the gatekeeper: access hinges less on legal entitlement than on the location of the claim.
Legal flexibility reinforces spatial outsourcing by embedding ambiguity, delay, and procedural complexity into the asylum process. Rather than openly rejecting international obligations, states manage legal exposure by exploiting ambiguities in refugee law. Temporary protection regimes, narrow interpretations of refugee status, and prolonged delays in refugee status determination (RSD) have become institutionalized.Footnote 39 These mechanisms transform legal obligation into bureaucratic inertia. The United States “Remain in Mexico” program illustrates this dynamic; asylum seekers were not stripped of access to hearings but were forced to wait outside US territory, where delays eroded the promise of protection.Footnote 40 Similar patterns appear elsewhere. Italy and Greece have relied on extensive backlogs and procedural bottlenecks that keep claimants in limbo for years; several European governments have adopted restrictive interpretations of eligibility—such as limiting recognition of gender-based persecution—thereby narrowing protection while formally adhering to the Refugee Convention; and the EU’s differentiated use of temporary protection, expansive for Ukrainians but restrictive for other groups, shows how legal categories are flexibly applied to manage rather than guarantee asylum. Across these cases, the mechanism is the same: legal containment operates not by relocating claims elsewhere but by hollowing out protection through delay, ambiguity, and selective interpretation.
Institutional delegation is the third core element of the containment architecture. If spatial distancing answers where protection is handled, delegation answers who handles it. Rather than administering asylum directly, destination states transfer operational responsibilities to a transnational network of actors. Transit states such as Turkey, Tunisia, and Rwanda are enlisted as gatekeepers, often incentivized through financial aid, diplomatic recognition, or migration-linked development packages. International organizations, particularly UNHCR, play a dual role. On the one hand, they help coordinate returns, facilitate regional dialogues, and provide logistical support in politically sensitive environments. On the other hand, they confirm legitimacy to informal arrangements that may diverge from the protection-centered commitments of the 1951 Convention.Footnote 41 The Global Compact on Refugees exemplifies this shift. While framed as a consensus-based approach to responsibility-sharing, it replaces binding legal commitments with voluntary pledges and support platforms.Footnote 42 Containment is not enforced through outright exclusion but institutionalized through a development-oriented model of refugee governance, where flexibility is privileged over accountability.
The UK–Rwanda agreement is a novel extension of this architecture.Footnote 43 It builds on delegated enforcement but moves it beyond regional proximity, transferring asylum seekers from the United Kingdom to a distant third country with limited refugee protection involvement. This arrangement recasts asylum not as a legal right at the border but as a responsibility that can be shifted through financial and diplomatic negotiation. Unlike previous models centered on neighboring transit states, the UK–Rwanda partnership decouples protection from geography and restructures it as a bilateral contract. Although the plan was ultimately struck down by domestic courts, the idea has not disappeared. The European Union is now reviving the model, advancing proposals for asylum processing centers in non-EU countries, particularly in Africa. Germany has entered talks with Rwanda, while the Netherlands has pursued discussions with Uganda, showing how the template is spreading within Europe.Footnote 44 Beyond Europe, the United States has also turned to Africa.Footnote 45 In June 2025, the Supreme Court allowed President Trump to restart deportations to third countries, clearing the way for transfers to Uganda and Rwanda despite warnings that thousands could face torture or death.Footnote 46 Taken together, these developments show that the UK–Rwanda plan was not an anomaly but part of a broader shift in refugee governance, where distance and delegation are becoming central features of asylum policy.
Together, these cases demonstrate that flexible containment is not an ad hoc response to crisis but the organizing logic of contemporary refugee governance. Geographic externalization, legal ambiguity, and institutional delegation now work in tandem to manage mobility while minimizing legal accountability. This is not the collapse of the refugee regime but its transformation. It preserves the outward form of international protection but repurposes it toward deterrence and control. What emerges is a regime that substitutes durable asylum for strategic distance, recasting protection as a matter of policy discretion rather than legal right.
From Crisis Response to Regime Logic
The current architecture reflects more than a shift in policy; it signals a deeper transformation in how protection is understood and practiced. What began as temporary responses to crisis has solidified into a durable regime logic. Containment is no longer a stopgap but has become the accepted mode of managing displacement.Footnote 47
This shift is most visible in how legal categories are used. Tools like temporary protection, safe third country designations, and narrow eligibility assessments are not deployed as emergency exceptions.Footnote 48 They are now foundational instruments of policy, used routinely to limit access without explicitly breaching formal obligations. In practice, protection is offered selectively and remotely. Asylum is rarely denied outright, but access is often delayed, rerouted, or procedurally suspended. The effect is to maintain the appearance of compliance while shrinking its substance.
These practices have been accompanied by a change in how responsibility is framed. Where past discourse emphasized the moral imperative to offer refuge, today’s language centers on management, coordination, and risk mitigation. Appeals to solidarity and rights have been replaced by terms like return facilitation, host country resilience, and responsibility sharing. These terms are not neutral. They reflect a shift in priorities—from ensuring legal protection to minimizing political and logistical burden. Instruments such as the Global Compact on Refugees have helped consolidate this discursive turn.Footnote 49 While they do not explicitly renounce protection norms, they offer a vocabulary that allows states to emphasize containment without openly rejecting their obligations.
This normative reorientation is not confined to refugee governance; it mirrors broader trends in international politics.Footnote 50 As the liberal order fragments, states are increasingly reluctant to enter binding multilateral arrangements that constrain their discretion. Informality, bilateral deals, and soft-law coordination have emerged as dominant modes of cooperation. Refugee governance is particularly susceptible to this trend because its legal architecture is already thin and enforcement mechanisms weak.Footnote 51 The space between obligation and discretion is wide and growing.
The normalization of containment does not mean the end of international cooperation. States still coordinate, fund, and participate in protection regimes. What has changed is the purpose such regimes now serve. Rather than facilitating access to asylum, they are often used to outsource, defer, and manage claims elsewhere. This is not a retreat from governance but its reconfiguration around new norms—ones that privilege distance, flexibility, and deterrence.
Whether this logic is reversible remains uncertain. Some argue that moments of crisis produce short-term distortions in international norms, but the persistence of these practices points to deeper entrenchment: containment is no longer framed as temporary or exceptional.Footnote 52 It is widely seen as legitimate, efficient, and even responsible. In this new configuration, international protection is not being dismantled, but redefined. It is no longer about admission or integration. It is about managing movement in ways that preserve national control.
Conclusion
The global refugee regime, long anchored in liberal norms of universal protection and multilateral obligation, has been reconstituted around a governance logic centered on flexible containment. This transformation, traced throughout the essay, shows that international refugee governance has not unraveled but adapted in politically strategic and institutionally durable ways. Through mechanisms of institutional drift and legal substitution, states have recalibrated their obligations without formally abandoning the refugee regime. As illustrated by policies such as the EU–Turkey Statement, US externalization practices, the UK–Rwanda agreement, and more broadly the Global Compact on Refugees, containment has become not just a tactical response to crisis but a normalized, legitimate mode of managing displacement.
This reconfiguration signals a broader shift in international politics. As binding multilateralism recedes, states turn to ad hoc coordination and transactional partnerships. The refugee regime reflects this shift, privileging national discretion, geographic distancing, and flexibility over shared responsibility. Containment is no longer a deviation from the norm; it is the norm.
Looking forward, this evolution carries both pragmatic and perilous implications. On one hand, it may enable limited cooperation on migration in an era of rising polarization. On the other, it entrenches asymmetries in responsibility and undermines the foundational idea that protection is a right, not a favor. The consolidation of containment demands more than policy critique, it calls for a reassessment of the ethical and political commitments that underpin global governance. If international protection is now shaped by states’ willingness to delay claims, outsource responsibilities, and restrict access, then the challenge for scholars and practitioners is not to restore a liberal order that no longer prevails, but to rethink what solidarity and obligation might mean in its aftermath.
Acknowledgments
I am thankful to Burcu Savun for her feedback on this essay and for the many conversations that helped me think through this topic. I also appreciate the thoughtful comments of the three anonymous reviewers and the editors. All errors are my own.
