Critical Review of International Governance

• Paz, Moria 1

Abstract

Recently, Western democracies have turned to building border walls as a strategy of immigration control. This article makes two claims. First, human rights courts and quasi-judicial bodies are deeply implicated in this move. Drawing on an analysis of case law, I show that they have worked out a system in which walls have become a predictable strategic solution for states that seek to retain control over immigration. They use variants of access to guarantee hyper protection to individual non-nationals who have either entered a host state or come under its effective control. This limits state responsibility by denying any responsibility that is extraterritorial in a very formal way. Being outside the wall means being beyond the state’s human rights-based responsibility. Second, the way human rights enforcement bodies have treated border walls has made them legally permitted and even encouraged their construction. Immigration walls raise a jurisdictional challenge. Human rights law and the national law of many democratic states guarantee individuals that have established territorial presence access to basic human rights. A porous border is thus required by the very concept of universal human rights. In one view, because a wall is concrete in a way that the jurisdictional border is not, erecting a wall closes the porous border and thus becomes a matter of human rights. In another view, the construction of a wall is an administrative technique for controlling immigration and is, from a human rights perspective, a non-event. Neither view, however, can be wholly supported. The first is politically unsustainable, while the second is morally indefensible. Human rights enforcement bodies avoid taking a stand by regulating the physical structure of the wall. They focus on whether a wall was properly constructed. The result is the redrawing of borders that is politically unstable and normatively unjustifiable.

• 1Research Fellow, Center on National Security and the Law, Georgetown University Law Center, Washington, DC; Fellow in International Law, Stanford Law School. Email: mp1521@georgetown.edu. I am thankful to Aslı Ü Bâli, Gabriella Blum, Richard Ford, Barbara Fried, Mark Kelman, Amalia Kessler, Karen Knop, Peter Kozodoy, Hiroshi Motomura, David Luban, Samuel Moyn, David Sklansky, Jaya Ramji-Nogales, Leti Volpp and the participants at the Special Lecture Series: Borders, Migrants, and Refugees at the Max-Planck-Institute for the Study of Religious and Ethnic Diversity for comments. In addition, I also thank the Stanford Law Library and in particular Richie Porter and Sergio Stone for invaluable help with the research. For case methodology, please contact the author.