The shifting border: Legal cartographies of migration and mobility

Ayelet Shachar in dialogue

Ayelet Shachar

• Publisher: Manchester University Press
• Year: 2020
• ISBN:
  9781526145345
• Edition: 1
• Topic: Philosophie
• Subtopic: Politische Philosophie

The border is one of the most urgent issues of our times. We tend to think of a border as a static line, but recent bordering techniques have broken away from the map, as governments have developed legal tools to limit the rights of migrants before and after they enter a country's territory. The consequent detachment of state power from any fixed geographical marker has created a new paradigm: the shifting border, an adjustable legal construct untethered in space. This transformation upsets our assumptions about waning sovereignty, while also revealing the limits of the populist push toward border-fortification. At the same time, it presents a tremendous opportunity to rethink states' responsibilities to migrants. This book proposes a new, functional approach to human mobility and access to membership in a world where borders, like people, have the capacity to move.

Part I

Lead essay

1

The shifting border: legal cartographies of migration and mobility^*

Ayelet Shachar

From the Great Wall of China to the Berlin Wall, fortified manifestations of the border have long served as a powerful symbol of sovereignty, real and imagined.¹ In 1989, the fall of the Berlin Wall led many to predict that barbed wire and sealed entry gates would become relics of a bygone era. Over a quarter of a century later, we find a very different reality. Today, new walls are erected at an unprecedented pace the world over.² Around Spanish enclaves in Morocco, between South Africa and Zimbabwe, India and Bangladesh, Hungary and Turkey, and along the US–Mexico border and Norway’s arctic border barrier with Russia, menacing border walls and steel fences continue to signal that even in a supposed post-Westphalian era physical barriers are still considered powerful measures to regulate migration and movement.

At the same time, a new and striking phenomenon—the shifting border—has emerged. The notion that legal circumstances affecting non-members change substantively only after they “pass through our gates” is well entrenched in both theoretical debates and regulatory practice.³ The remarkable development of recent years is that “our gates” no longer stand fixed at the country’s territorial edges. The border itself has become a moving barrier, an unmoored legal construct. As I will show in this essay, the fixed black lines we see in our world atlases do not always coincide with those comprehended in—indeed, created by—the words of law.⁴ Increasingly, prosperous countries utilize sophisticated legal tools to selectively restrict (or, conversely, accelerate) mobility and access by detaching the border and its migration-control functions from a fixed territorial marker, creating a new framework that I call the shifting border.

When it comes to migration control, the location of the border is shifting: at times penetrating deeply into the interior, at others extending well beyond the edge of the territory. And in other contexts, fixed territorial borders are “erased” or refortified. This is part of a shifting-border strategy that strives, as official government policy documents plainly and tellingly explain, to “‘push the border out’ as far away from the actual [territorial] border as possible.”⁵ The idea, enthusiastically endorsed by governments in relatively rich and stable regions of the world, is to screen people “at the source” or origin of their journey (rather than at their destination country) and then again at every possible “checkpoint along the travel continuum—visa screening, airport check-in, points of embarkation, transit points, international airports and seaports.”⁶ The traditional static border is thus reimagined as the last point of encounter, rather than the first.⁷ In this way, the shifting-border strategy makes it harder and harder for unwanted and uninvited migrants to set foot in the greener pastures of the more affluent and stable polities they desperately seek to enter. Conversely, wealthy migrants wishing to deposit their mobile capital in these very same countries find fewer and fewer restrictions to fast-tracked admission.⁸ The shifting border is the key pillar in a wholesale agenda to strategically and selectively sort and regulate mobility as prosperous countries seek to “regain” control over a crucial realm of their allegedly waning sovereign authority.

This shifting border, unlike a reinforced physical barrier, is not fixed in time and place. It relies on law’s admission gates rather than a specific frontier location. Just as the shifting border extends the long arm of the state, ever more flexibly, to regulate mobility half the world away, it also stretches deeply into the interior, creating within liberal democracies what have been variably referred to as “constitution free” zones or “waiting zones” (zones d’attente), where ordinary constitutional rights are partially suspended or limited, especially in relation to those who do not have proper documentation or legal status.⁹ Each of these spatial and temporal contractions and protrusions bears dramatic implications for the scope of rights and protections that migrants and other non-citizens may enjoy, revealing the violence that may be deployed through legal acts that ascribe meaning to bodies in relation to (shifting) borders, prescribing or denying them access and setting people in new relations of power in political spaces of im/mobility.¹⁰ In a world of mounting inequality and migration pressures, governments frantically search for new ways to expand the reach of their remit, both conceptually and operationally, inward and outward, in the process reinventing one of the classic dimensions of sovereignty in the modern era: namely, territoriality.

Philosophers and jurists are only now beginning to come to terms with these deep currents, which are reshaping the terrain of law and mobility in ways we might not yet fully recognize or understand. When it comes to today’s shifting border, we are, to borrow a metaphor from Seyla Benhabib, like travelers navigating a new terrain with the help of old maps; while the terrain has radically changed, our maps have not. Thus, we stumble upon streams we did not know existed, and climb hills we have never imagined.¹¹

Despite its striking implications for human dignity, democratic accountability, and disparities in attaining access to territory and membership, the “near obsession” of wealthier countries with reimagining migration and reinventing border control through sophisticated legal (not extralegal) shifting-border techniques and innovations, we currently lack the basic conceptual language to capture, describe, and critique these rapid changes.¹² This book begins to fill this lacuna.

The theoretical landscape and the road ahead

The shift in perspective I propose—from the more familiar locus of studying the movement of people across borders to critically investigating the movement of borders to regulate the mobility of people—reveals a paradigmatic and paradoxical shift in the political imagination and implementation of the sovereign authority to screen and manage global migration flows in a world filled with multiple sources of law: formal and informal, hard and soft, local, national, supranational, transnational, and international. Scholars in multiple disciplines have creatively explored borders as processes or methods.¹³ My analysis builds on some of these insights but seeks to both deepen and sharpen them by emphasizing the core role of law and legal institutions in reconfiguring the border in the brazen exercise of governmental authority. I further explore whether there are limits on such authority, and if so, how to activate them and who should do so.¹⁴

In a world where borders are transforming, but not dissolving, I will aim to show that the question of legal spatiality—where a person is barred from onward mobility and by whom—bears dramatic consequences for the rights and protections of those on the move, as well as the correlating duties and responsibilities of the countries they seek to reach and the transit locations they pass through. And here lies the deep paradox of the shifting border: when it comes to controlling migration, states are willfully abandoning traditional notions of fixed and bounded territoriality, stretching their jurisdictional arm inward and outward with tremendous flexibility; but when it comes to granting rights and protections, the very same states snap back to a narrow and strict interpretation of spatiality which limits their responsibility and liability, by attaching it to the (illusionary) static notion of border control. This duality is perhaps most profoundly pronounced in the case of asylum seekers who trigger protection obligations only once the destination country’s soil is firmly under their feet, yet access to these territorial spaces of protection is increasingly unreachable. Those on the move are shut out long before they reach the gates of the promised lands of migration and asylum.¹⁵

By charting the logic of a new cartography (or legal reconstruction) of borders and membership boundaries I seek to show both the tremendous creativity and risk attached to these new legal innovations and the public powers they invigorate and propagate. I further seek to establish that debates about migration and globalization can no longer revolve around the dichotomy between open and closed borders. Instead, the unique and perplexing feature of this new landscape is that countries simultaneously engage in both opening and closing their borders, but do so selectively, indicating, quite decisively, whom they desire to admit (those with specialized skills, superb talents, or, increasingly, deep pockets), while at the same time erecting higher and higher legal walls to block out those deemed unwanted or “too different.”¹⁶

This dialectical relationship between restrictive closure and selective openness is what makes the study of the new legal gates of admission ever more vital; this is also where the reformulation of basic democratic conceptions of membership boundaries become entangled with profound questions of justice and distribution about how, by whom, and according to what principles access to membership should be allocated, whether at birth or later in life. It further reveals, quite vividly, the recalibration of new immigration and border regimes as “public statements,” as a recent study put it, “about who we are now, who we want to become, and who is ‘worthy’ to join us.”¹⁷ This idea of a border that is in flux—operating in a quantum-like fashion, simultaneously both fixed and fluid, stationary and portable, exerting influence over those coming under its kaleidoscopic dominion—is at the heart of my inquiry. This reinvention of the border facilitates unequal access to desired destinations and the life chances they offer. As such, it touches on some of the most delicate and contentious issues that must be addressed by any membership regime that falls short of a global reach: defining who belongs (or ought to belong) and on what basis.

The shifting border is not a disappearing border, however. Although theorists and activists have prophesied the imminent demise of states and borders, the new reality explored in this study tests and challenges such conclusions. The examples I provide throughout the discussion show quite vividly that sovereign authority over migration is neither dissipating nor vanishing. Today’s brusque encounters of moving bodies and shifting borders provide concrete illustrations of both deeper and broader tensions, such as those between sovereignty and human rights, statists and cosmopolitanists, local and global obligations, and the right of the state to exclude and its duty to protect. Instead of rehearsing these influential debates, I wish to initiate a discussion that disrupts some of these familiar dichotomies while simultaneously investigating the grounds on which they stand, literally and conceptually. My intervention adds a crucial legal dimension to these pressing debates, focusing on the often neglected dimension of how the spatial and regulatory reinvention of borders matters dramatically to how we think about justice, equality, and the “crisis” of migration.¹⁸ In a rapidly changing system, freeing up sovereignty from a rigid and static “Westphalian” understanding of fixed territoriality is a powerful transformation.

This is the case because relaxing the relationship between law and territoriality and blurring the distinction between “inside” and “outside” opens up a whole new purview for exercising power in the name of securing the integrity of the home territory and vigilantly protecting its membership boundaries. The sheer reach and magnitude of the shifting border thus calls for revisiting the age-old question of how to tame menacing governmental authority. Today, states, localities, and supranational entities such as Frontex (Europe’s border and coastguard agency) increasingly rely upon a complex web of national, subnational, supranational...