In Chapter 5, I examine cases in which refugees directly challenge regional containment instruments. This has occurred in North America (a safe third-country agreement between the US and Canada), Asia-Pacific (offshore processing agreements between Australia and Malaysia, Australia and Papua New Guinea and Australia and Nauru), Europe (the Dublin System and a refugee swap agreement between Europe and Turkey) and Libya (an externalisation agreement between Libya and Italy). I examine the ways decision-makers manoeuvre juridical borders in constructing ideas of refuge and determining the legality of states’ attempts to prevent refugees crossing international borders. I observe that when courts consider the significance of refugeehood and expand their juridical borders, they set high thresholds for refuge and characterise it as a duty owed by states. However, in most cases courts ignore the salience of refugee status and retract their juridical borders. This means that there is no minimum standard of refuge set and refuge morphs from an obligation to a discretion. Refugees become trapped in the resisted place of refuge, unable to continue their journey except in extraordinary circumstances. What is considered exceptional is highly gendered with the narrow frameworks developed sidelining experiences of male and also many female refugees.

This chapter places the towering judges phenomenon in a specific historical and global context, i.e., at the height of global constitutionalism – c. the 1990s – when the liberal cosmopolitanism, human rights culture, and constitutionalization that had started after WWII peaked following the fall of the Soviet empire and an influx of new constitutional democracies. I list three connections between global constitutionalism and towering judges. First, global constitutionalism placed constitutional judges at the center of the moral and ideological revolution it presented, not only giving them immense moral authority, political influence, and prestige but also enhancing judicial personal agency, i.e., toweringness. Second, the conception of rights adopted at this time empowered judges to interpret rights broadly and expansively to reach, as much as possible, a universal ideal, which also promoted agency and creativity, i.e., toweringness. Last, to belong to the global community of judges that was a feature of global constitutionalism, a judge had to excel and stand out, i.e., tower. The chapter ends by exploring some of the normative challenges to the concept of towering judges.