The USA-Eswatini Case: How Third-Country Deportation Threatens Global Human Rights
- Anshika Gupta and Pulak Bisen
- Oct 12
- 6 min read
By Anshika Gupta and Pulak Bisen, they are 3rd year students at Rajiv Gandhi National University of Law, Punjab
In July 2025, the United States Department of Homeland Security confirmed that a deportation flight, which contained migrants from different countries, had arrived in Eswatini, a small southern African country to which the deported individuals were previously unfamiliar. This followed a recent ruling of the U.S Supreme Court that removed the restrictions on the deportation of migrants to the third world, hence increasing executive discretion during removal. Although the case of Eswatini may be viewed as an isolated administrative decision, it raises some serious questions about whether a new trend is emerging: the outsourcing of deportation to third countries. To assess whether this is indeed a red flag, similar instances, such as the UK-Rwanda agreement and the EU cooperation with Libya and Tunisia, could be considered.
When Deportation Becomes Displacement
Deportations are increasingly executed not through court process, but rather extrajudicially, in detention centres and at border crossings, outside the purview of judges or neutral adjudicators. A sort of “shadow deportation” is aptly called “third country deportation”. This practice involves deporting noncitizens to a country other than the one assigned by an Immigration Judge, following relief, and upon completion of the court process. The offshore processing regime of Nauru and Manus Island in Australia, the pushbacks conducted daily by the European Union at the Greek and Croatian border are a day-to-day occurrence, bypassing the asylum proceedings, leaving refugees without any legal assistance to speak in their defence. The examples given support the idea that third-country deportation is no experiment but a manifestation of a much larger and more urgent process in which states are becoming more tempted to employ mechanisms that can bypass due process and accountability under the guise of migration control.
International law has consistently made a distinction over decades: a state is permitted to send an undocumented migrant back to its territory, but it cannot delegate its obligation and send them to a country they have never visited without any safety and judicial consideration. However, in 2025, the United States decided to do so. The Eswatini case is the next step towards the implementation of the plan by President Donald Trump to deport undocumented immigrants to third countries. As Eswatini has claimed, it was brought about by several months of negotiation between the two governments. Although the specifics of the step have not been announced, this appears to be a situation where even deportation is being outsourced for money.
The Global Trend
UK’s Rwanda Plan
Despite being taken to court and accused of infringing international duties under the 1951 Refugee Convention and the European Convention on Human Rights, the Rwanda Plan by the UK remains one of the key points of Britain's tough-on-migration agenda. The UK Asylum Partnership Treaty between the UK and Rwanda involves the transfer of asylum seekers to Rwanda before their asylum claims are heard. It is meant to deter, not to encourage irregular entry by refusing to protect the claim over UK soil.
EU’s Deals with Libya, Tunisia and Turkey
The European Union has deployed border control measures to separate countries, financing coast guards to prevent crossings in the Mediterranean. These nations usually do not have strong protection of human rights, and the question of abuse, detention, and unlawful pushbacks arises. Furthermore, in July 2023, the EU signed a €1 billion partnership with Tunisia aimed at reducing irregular migration.
A common thread among these examples is a shared political calculus. Keeping the asylum seekers beyond national borders leaves them under less scrutiny by the populace and out of the reach of legal responsibility. The host nations, on the other hand, will very often accept this on the condition of financial support, political compromise, or military alliance. The basic issue is not confined to moral responsibility since the Constitution does not automatically safeguard non-citizens. International law, including the 1951 Refugee Convention and the International Covenant on Civil and Political Rights (“ICCPR”), imposes duties that entail specific standards of treatment. International obligations apply to everyone, whether a citizen or not and when states deport asylum seekers to weaker states, they are guilty of breaching the commitments.
Legal Black Holes
International refugee law is based on the 1951 Convention on refugees and the Convention against torture (CAT), which outlaws extradition or deportation to a country where people face torture, persecution or have to endure dehumanising or degrading treatment. The human rights law of non-refoulement is a cornerstone of customary international law and is expected to be followed by states. The recent U.S. diplomatic relations with Eswatini, however, attract attention to relevant legal loopholes and raise questions about the enforceability of the mentioned safeguards.
It is noteworthy that the United States is not a party to the 1951 Convention on refugees. It is critical to acknowledge that being a non-signatory impedes the realisation of the human rights objectives. Being a non-party to such agreements, the USA does not necessarily comply with the national practices of assessing asylum claims. This non-compliance prevents the attainment of human rights objectives because it provides authorities with much freedom in the removal processes, which are not necessarily within the international norms.
However, in contrast, the U.S. is indeed bound by the Convention Against Torture (CAT), which explicitly forbids the expulsion, return, or extradition of individuals where there are reasonable grounds to believe they face torture (Article 3). Nonetheless, deportations to Eswatini, facilitated by the July 2018 ICE memo allowing removals with only six hours’ notice in exigent cases, appear to contravene these obligations. This illustrates that ratifying a treaty is insufficient; concrete administrative and judicial actions are necessary to uphold the treaty’s protections and authority.
The situation is further complicated by the U.S. Supreme Court’s decision to invalidate a federal injunction against such removals, effectively rendering legal protections inconsistent, unenforced, and unreviewable by courts or legislatures. Justice Sotomayor, in his dissent, cautioned that the government was doing this without any warning or the option of a hearing and could deport anyone anywhere.
The human rights lobby claims that this leads to a legal black hole, or a gap in the law. In this case, they are difficult to enforce because the state does not necessarily introduce legal protections and accountability. In contrast to formal treaties, the executive agreements with third states often bypass the control of the judicial system, which introduces migrants to a hostile environment, such as a solitary prison or poor detention conditions in Eswatini. Finally, these actions illustrate how executive discretion may undermine the language and the spirit of international human rights commitments.
Migrants are not merely treated as instruments of diplomacy, and a lack of accountability and transparency poses the danger of establishing uncomfortable precedents that undermine the rule of law. The authority of human rights protection is at risk, as states fail to act in accordance with their treaty obligations and the principles of fundamental human rights. It is an indication that international responsibilities are not merely administrative in nature.
The Domino Effect
Even though, at present, the number of individuals who were deported because of such efforts as the U.S.-Eswatini one is relatively minor, the given precedent matters. These deportations are not isolated and are already felt in Europe.
The number of people deported under such attempts as the U.S.-Eswatini one might not be enormous as of now, but the precedent created is far-reaching. These deportations are not isolated events, but a ripple effect that is already being felt in Europe. The Rwanda strategy of the United Kingdom, EU collaboration with Libya, Tunisia, and Turkey, and the growing dependence on offshore processing can be viewed as examples of how measures that were once considered extreme are making their way into the mainstream of immigration policy. The threat is domino: once one state manages to outsource its duties, the rest will do the same, simply because of precedent, not principle.
This insidious normalisation is slowly eroding the post-World War II regime of refugee protection.[1] Each new accord dilutes the principles of non-refoulement, the right to asylum, and the protections of due process, potentially resulting in a continent-wide erosion of the rights of refugees, as feared by human rights activists. In this regard, the U.S.-Eswatini deportations cannot be merely a transatlantic problem, but a reconstitution of migration control. There is a possibility that Europe will increasingly deploy deportation diplomacy in which responsibility is exchanged with political expediency, and migrants become bargaining chips in geopolitics. The results are not only legal but also structural: the progressive erosion of refugee law, the emergence of unaccountable executive structures, and the long-term destabilisation of international human rights guarantees.
Thus, the domino effect of third-country deportations is not merely a policy trend, but a direct threat to the integrity of international refugee law. Therefore, when normalised, these practices may shatter the foundations of global human rights protection. However, improving the enforcement of international legal frameworks, increasing cooperation between states, and focusing on protecting refugees can help address these challenges. This approach ensures that migration policies support both national interests and human dignity.
[1] Goodwin-Gill, Guy S, and Jane McAdam, The Refugee in International Law, 3rd Edition (2007; online edn, Oxford Law Pro), https://doi.org/10.1093/law/9780199207633.001.0001, accessed 26 Sept. 2025.
