Legal Reading Group on The Law of Walls
PhD candidate Carola Lingaas will discuss Moria Paz' ‘On the Law of Walls’, European Journal of International Law (2017).
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.
The legal reading group meets on a regular basis to discuss leading publications on international courts and tribunals. The aim is to develop our understanding of an article/book chapter and how it might be relevant for our own projects, through sharing insights on its substance, merits, and broader context. The reading group is managed by PluriCourts, but open to everyone that is interested.