Publication Date

2020

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. In the past decade or so, these institutions have been successful in both enforcing and creating new rights for asylum seekers and irregular migrants. They have used 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 legal success has resulted in the unintended consequence of rendering wall-building a logical move for state prevention of migration. Second, we ought to understand these rapidly proliferating walls as not only physical realities made from bricks and mortar, but also as legally constructed barriers. The wall-builders (politicians) and international human rights enforcement bodies (the judges) are reacting and responding to each other. Iteratively, and over time, they are generating the new physical-legal reality of border walls. Today, such walls select in favor of the strongest—a function of their physicality. Alas, this dynamic creates a tension with the paradigm of equality under human rights law. Further, it is also problematic in a practical sense. Even if some differentiation may be appropriate, physical might selects for the wrong criteria. It sidesteps the key political and distributional questions that are involved in immigration: (i) which individuals should be protected and in what order of priority; (ii) which states should protect them, and how to allocate protective duties; and (iii) what screening methods are acceptable.

Document Type

Article

Publication Title

Legislation & Public Policy

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