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Rethinking International Law’s Responses to Refugee Flows

Tendayi Achiume, Syria, Cost-sharing, and the Responsibility to Protect Refugees, 100 Minn. L. Rev. 687 (2015).

Over the past few months, the world has been transfixed by the flows of Syrian refugees pouring into Europe. These mass movements were, of course, preceded by much larger populations fleeing Syria for neighboring countries such as Jordan, Lebanon, and Turkey; at last count, four million Syrians resided in these three states. Though international law mandates protection against refoulement, or return to Syria, for those who fit the definition of a refugee, the UN Refugee Convention says nothing about who should bear the costs of protecting these refugees. This is the gap that Tendayi Achiume seeks to fill in her forthcoming article, Syria, Cost-sharing, and the Responsibility to Protect Refugees.

The question of global cost-sharing for refugees is ground well-trod, perhaps most famously by Prof. Peter Schuck in his 1997 article, Refugee Burden-Sharing: A Modest Proposal. That controversial piece has since framed the debate around the topic. Prof. Achiume steps into this arena with a novel and provocative proposal: to leverage the international legal doctrine known as the Responsibility to Protect (RtoP) in order to frame international coordination around and equitable cost-sharing for refugees. Perhaps best known as the doctrine that enabled humanitarian intervention in Libya, RtoP is not without its critics, as Prof. Achiume readily acknowledges. Her article suggests using RtoP as a tool to address the free rider problem in responding to mass refugee flows while at the same time viewing the situation of Syrian refugees as a tool to rethink potential uses of RtoP on the world stage. Making this case is not a task for the faint of heart; Prof. Achiume’s combination of boldness and fine-grained attention to each layer of her complex argument will manage to convince even the most skeptical of readers to rethink their views of refugee cost-sharing and RtoP.

Prof. Achiume frames the situation in Syria as a problem of inequitable distribution of resources rather than a lack of resources. The primary responsibility for supporting Syrian refugees has fallen on its neighbors, who simply cannot bear the burden alone. Lebanon, which has been the hardest hit by the Syrian situation, now hosts approximately one million Syrians, a full quarter of its population. Yet donor countries have failed to provide adequate assistance; as of May 2015, the UN High Commissioner for Refugees’ Syrian Regional Refugee Response Plan, focused on assistance to Egypt, Iraq, Jordan, Lebanon, and Turkey was only 20% funded – one explanation for the large secondary flows of Syrians into Europe last summer. Prof. Achiume suggests that international law should frame international assistance for these refugees as obligatory rather than charitable in order to encourage the more equitable distribution of resources.

That law is of course nowhere to be found in the UN Refugee Convention, which studiously avoids the topic of mass influxes of refugees, let alone resources for addressing such flows. Rather than resuscitating the overused and threadbare argument that the Refugee Convention should be amended or otherwise updated to include such obligations, Prof. Achiume offers a novel insight: the situation of refugees is governed by multiple legal regimes. We can therefore locate elsewhere in existing international legal structures the obligation to equitably distribute resources to protect refugees.

Prof. Achiume steers the reader towards a particular structure: RtoP. This international legal doctrine, endorsed by UN member states and the UN Security Council, consists of three pillars. Pillar One focuses on a state’s obligations to its population; Pillar Two on the commitment of the international community to help states meet their Pillar One responsibilities, largely through international assistance and capacity-building; and the infamous Pillar three, which lays out the international community’s commitment to respond when a state “manifestly fails” to fulfill its responsibilities under Pillar One, first using pacific and, if those fail, coercive measures. The article focuses on Pillar Two and the role it could play in addressing the situation of Syrian refugees.

As Prof. Achiume recognizes, an RtoP approach is both less and more protective than an approach grounded in international refugee law. RtoP protects populations against only four relevant crimes: genocide, crimes against humanity, war crimes, and ethnic cleansing. While refugees fleeing Syria will be covered by this definition, in other scenarios, refugees who fall within the scope of the UN Refugee Convention definition will not be protected. But RtoP holds tantalizing promise, as Pillar Two is not territorially limited: it protects populations without regard to their geographic location. As long as they face a risk of RtoP crimes, refugees fall within the scope of RtoP wherever they are. Thus RtoP offers space for a nose under the tent of sovereign territoriality, a move that is all too rare when it comes to the movement of people under international law.

Prof. Achiume ends the paper with specific suggestions for implementing an RtoP approach, leveraging theoretical critiques of RtoP to design routes around the political roadblocks. She suggests that the UN Security Council could use its Chapter VII mandate to “maintain or restore international peace and security” to mandate compliance with a Comprehensive Plan of Action designed by the United Nations High Commissioner for Refugees. This is a creative approach, but the paper only gets more interesting from here. Taking on board the arguments of critical and realist skeptics, Prof. Achiume recognizes that both northern and southern states must support an RtoP approach for it to succeed. This is where refugee cost-sharing can revive RtoP – by prioritizing non-coercive measures, the doctrine could win the support of middle powers and southern states. This move also puts northern states in a double-bind; after supporting coercive action in Libya, they are hard pressed to reject non-coercive action. If they do, it will be clear that RtoP is simply, in Prof. Achiume’s words, “a Trojan horse for coercive foreign intervention.” In other words, this approach serves an information-forcing function that is useful regardless of the outcome. Substantively, northern states might also view the benefits to regional and international security as well as migration management from such an approach as in their self-interest.

Prof. Achiume’s article pushes the envelope in numerous exciting directions, not least by describing a mechanism for progressive development of international refugee law that does not require the drafting of a new treaty. While readers may quibble with some of its most ambitious proposals, the piece pushes the engaged reader to re-think deeply-held beliefs about refugee law and RtoP. This is exactly what the best scholarship should do.

Cite as: Jaya Ramji-Nogales, Rethinking International Law’s Responses to Refugee Flows, JOTWELL (May 16, 2016) (reviewing Tendayi Achiume, Syria, Cost-sharing, and the Responsibility to Protect Refugees, 100 Minn. L. Rev. 687 (2015)), http://lex.jotwell.com/rethinking-international-laws-responses-to-refugee-flows/.

A Need for Equity in Immigration Law (Congress, are you listening?)

Jason A. Cade, Enforcing Immigration Equity, 84 Fordham L. Rev. (forthcoming 2015), available at SSRN.

In the late twentieth century, Congress amended the immigration laws to severely limit the power of immigration judges, the agency’s adjudicators, to grant relief from removal on equitable grounds. At the same time, Congress expanded the categories of activities that render a foreign national removable. The result of the statutory tinkering was that it was much easier to be removable and much harder to be granted relief from removal.

The severity of those reforms is well known. Professor Jason Cade’s contribution to the discussion is that he persuasively argues that those statutory reforms from twenty years ago are linked to the most visible controversy in immigration law right now:  President Obama’s executive actions creating the chance for a temporary reprieve from removal.

Through Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), the executive branch has established criteria that agency adjudicators should consider in deciding whether to grant deferred action to an individual foreign national. Deferred action is a time-out from removal. It lets a foreign national know that he or she is a low priority for removal, but it does not erase removability, and provides no lawful immigration status. Deferred action is a revocable promise not to remove for a certain period of time. DACA is aimed at individuals who were brought to the United States as children but who do not have legal status. DAPA is aimed at parents of US citizens or parents of “green card” holders who do not have legal status.

Both DACA and DAPA are executive exercises of prosecutorial discretion. Congress does not appropriate to the executive sufficient funds to remove all 11 million individuals who are in the United States without permission. The executive prioritizes its removal efforts. DAPA has not been implemented, however, because a US District Court judge issued a preliminary injunction against it. According to the judge, DAPA violates the Administrative Procedure Act.

Professor Cade acknowledges this dispute about the legality of DAPA, but does not focus on it. Instead, Professor Cade ties DACA and DAPA back to those statutory reforms of the late twentieth century. His argument is that because Congress removed considerations of fairness and proportionality from the arena of immigration court adjudication, the pressure to inject equity into the system shifted to the executive officials who decide whether to begin removal proceedings. Back-end adjudicators used to be able to consider factors such as the nature of the offense, the length of residence and rehabilitation. Congress eliminated that kind of inquiry and replaced it with very high hurdles to cross to achieve cancellation of removal in immigration court. To Professor Cade, DAPA and DACA represent an effort to exercise prosecutorial discretion in a system where the “prosecutors”1 know that there is little chance for equity during adjudication. It is up to those deciding whether to place an individual in removal proceedings, then, to balance equities. If the initiation of removal proceedings surely will result in removal, then the executive branch may exercise its prosecutorial discretion to refrain from starting removal proceedings in the first place.

Professor Cade identifies several drawbacks to the status quo. He takes serious issue with the executive’s use of criminal history as a litmus test for whether an individual is worthy of prosecutorial discretion. Equity misses an entire population of foreign nationals, even if the encounter with the criminal justice system occurred tens of years ago and/or was a misdemeanor. Professor Cade argues that “some balancing should take place in individual cases, even for criminal aliens, in order for the removal system to be just.”(P. 45.) While Professor Cade acknowledges that it is good idea to give immigration enforcement agents the power to remove dangerous individuals, he stresses that “it does not follow that all removals of noncitizens with criminal history are justified.  . . . [N]ot all noncitizens with convictions or arrests are similarly situated.”(P. 45.)

Also, Professor Cade is uncomfortable with the inherent characteristics of what he calls “enforcement-based equity.”(P. 6.) He cites to the law enforcement bias of immigration prosecutors and their intense workloads as two reasons why equitable considerations and immigration enforcement are not a good fit. Professor Cade additionally observes that while equitable relief obtained from an immigration judge typically results in final, stable legal status in the United States, equitable relief obtained from an immigration prosecutor results only in a time out; it results in preservation of the status quo.

To ease the problems presented by enforcement-based equity, Professor Cade suggests statutory reform that would reinstate the ability of immigration judges to weigh equitable considerations in deciding whether an individual should be removed. This would release some of the pressure on front end enforcement officers, as there would be other avenues for equitable considerations to play a role. A parallel reform would be a statutory legalization program that would allow individuals to apply to become legal based on certain equities. This would shrink the pool of those eligible to be removed, allowing the executive to better focus on who of the remaining population should be removed.

I might dream a little bigger. I agree with Professor Cade that Congress stripped equity from the immigration court system and that we are feeling the repercussions. If there were a constitutional right to be with family, something akin to the Article 8 right to family life contained in the European Convention on Human Rights, then the entire analytical framework changes. Proportionality would become central to any decision to remove that involves the separation of family members. Congress would not be able to legislate away that kind of right. So far the Supreme Court has not acknowledged such a right, however.

Professor Cade is prudent to express his preferred solution, statutory reform, but at the same time to acknowledge that the congressional paralysis that has plagued immigration law reform likely will continue. In the absence of statutory reform, Professor Cade suggests that it will be up to executive exercises of discretion to inject equity into the removal process. He hopes that the executive branch continues to take seriously the burden Congress has placed on it by improving how it does so.

Congress, are you listening? It is time to reform the immigration statutes to inject equity back into the immigration court system. As Professor Cade observes, doing so not only would restore fairness to the system, but also would properly realign the equitable adjudication function to the immigration courts.

 

  1. Because immigration removal proceedings are civil, the government attorneys pursuing removal are not criminal law prosecutors. []
Cite as: Jill Family, A Need for Equity in Immigration Law (Congress, are you listening?), JOTWELL (November 10, 2015) (reviewing Jason A. Cade, Enforcing Immigration Equity, 84 Fordham L. Rev. (forthcoming 2015), available at SSRN), http://lex.jotwell.com/a-need-for-equity-in-immigration-law-congress-are-you-listening/.

Cultural Narratives and Legal Rights

A perennial question for scholars interested in social justice is how politically and socially marginalized groups can become full members of society. Jennifer Lee provides an important contribution to the literature addressing this issue. Building on insights from the social movement literature on strategic framing, Lee contends that strategic mainstreaming offers an opportunity for marginalized groups to obtain immediate benefits. Lee focuses on unauthorized immigrant workers and views strategic mainstreaming as a tool to successfully litigate workplace violations, petition for immigration status, and obtain desired public policy reforms.

Much has been written within the social science social movement literature about the role of frames and framing strategy in bringing about legal reform. Frames serve as tools for organizing and understanding information. Because of the relationship between cultural norms and law, framing offers a useful strategy for legal reform advocates. As Lee notes, “law is neither objective nor fixed but rather dependent on the relationship law shares with the dominant cultural and social patterns of society.” (P. 1068.) Consequently social movements seeking legal reform “are more powerful when the messages of the movement align with the values of mainstream culture.” (P. 1069.) Lee focuses on one type of framing strategy—mainstreaming. This is the process by which “interpretive frames correlated to dominant cultural values” are used “to create connections to mainstream society.” (P. 1064.) Through mainstreaming advocates seek to demonstrate common ground between those seeking reform and dominant cultural values.

Two interpretive frames have dominated the immigrant worker rights movement: the universality of being a worker frame and “immigrant workers as victims of criminal employers who fail to obey the rule of law” frame. (P. 1070.) Within the first frame immigrant workers are presented as “individuals who, like anyone else in the workforce, are seeking the same things out of life through the dignity of their work—the ability to survive independently and provide a better future for their children.” (P. 1069.) Immigrant workers are first and foremost workers. Average Americans are able to identify with immigrant workers through their common experience as workers. This frame also builds on the view of the United States as a place where anyone can accomplish the American Dream through hard work. The second predominant frame has been immigrant workers as victims of criminal employers. Within this frame immigrant workers are hard workers who have done what is expected of them and employers are criminals who steal wages and misclassify workers in order to reduce pay and benefits. This frame makes immigrant worker rights issues easy to address by creating a clear good actor (immigrant worker) and a clear bad actor (employer). This frame also resonates with an American tendency to criminalize social challenges. Lee demonstrates the effectiveness of these frames in the work of public interest lawyers and immigrant workers that address workplace violations in litigation, petitioning for immigration status, seeking public policy reform, and obtaining legal redress through direct action.

Lee does not simply advocate the use of mainstreaming by immigrant worker advocates, she argues for the use of strategic mainstreaming. Strategic mainstreaming builds on insights from the public interest lawyering literature. This literature has documented the various ways in which public interest lawyers contribute to the disempowerment of their clients by ignoring their voices. Lee seeks to avoid such disempowerment by requiring the participation of immigrant workers in the development and deployment of the cultural narratives used to draw connections between immigrant workers and mainstream cultural values.

Lee contends that strategic mainstreaming is an effective option for promoting not only the legal rights of immigrant workers, but also their broader inclusion in American society. Yet she acknowledges an important limitation of this approach to legal reform. Strategic mainstreaming does not attempt to transform dominant cultural values. Rather this strategy seeks to move immigrant workers from the margins of society by demonstrating their similarity to mainstream America. Yet relying on dominant cultural values may further entrench the justifications for the limited legal rights and protections for immigrant workers and other marginalized groups. For example, the immigrant workers as victims frame reinforces the idea that traditional civil law violations should be treated as criminal violations. While this frame may be useful for responding to wage theft and misclassifications, it also makes unauthorized immigrant workers vulnerable to claims that they are criminals due to their civil immigration violations. Furthermore it supports the idea that criminal law strategies should be used to address unauthorized migration. Lee acknowledges this as a challenge to using strategic mainstreaming. She notes that in the immigrant worker context use of this strategy can mean “disfavoring immigrant workers who do not fit the role of the ‘good immigrant’—the iconic hard worker or victim.” (P. 1066.) Despite this challenge, Lee concludes that strategic mainstreaming is worth pursuing because it results in “immediate benefits for real people, whether it is the receipt of monetary compensation, immigration status, or workplace reform.” (P. 1101.) She also views strategic mainstreaming as having the benefit of leading to personal empowerment when workers “own their own narratives.” It can also offer a way to develop alliances and coalitions based on broader identities such as the new working poor. (Pp. 1102-03.)

Lee offers a pragmatic approach for responding to the immediate needs of unauthorized immigrant workers. Her article thoughtfully utilizes the insights from the social science literature on social movements to change the perception of immigrant workers within the American imagination. This strategy can be successful in obtaining monetary compensation for wage theft, lawful immigration status, and specific workplace reforms. However, these achievements may come at the cost of reinforcing dominant conceptions of worthy immigrants.

Cite as: Angela Banks, Cultural Narratives and Legal Rights, JOTWELL (September 9, 2015) (reviewing Jennifer J. Lee, Outsiders Looking In: Advancing the Immigrant Worker Movement Through Strategic Mainstreaming, 2014 Utah L. Rev. 1063 (2015)), http://lex.jotwell.com/cultural-narratives-and-legal-rights/.

Questioning Compliance with Immigration Law

Lives and loves and wars have been lost because of assumptions about what other people thought or did. Our immigration laws and policies often rely on popular misconceptions about why people come to the United States without authorization and what will deter them or compel them to leave. Popular ideas about unlawfully present noncitizens have shifted over time toward a view that unauthorized border crossers are criminal aliens who constitute the kind of crisis that require the combined forces of the immigration and criminal enforcement systems to regulate.

Yet without knowing what unlawfully present noncitizens actually think or believe, it’s hard to say whether those laws and policies have it right. In Less Enforcement, More Compliance, Emily Ryo has confronted this question of what unlawfully-present people think about their own presence in the U.S. by doing what seems both obvious and fraught with obstacles: she asked them.

More precisely, she asked sixty-four current and prospective unauthorized immigrants from Latin America at migrant and day-labor centers and sites about why they decided to come, what that was like, and why they continue to work and reside in the United States in violation of U.S. immigration laws. The interviews explored their knowledge of U.S. immigration law, their border crossing experiences, and their attitudes toward the U.S. government, Americans, and U.S. immigration law.

I like this article (lots) because it exemplifies a trend that other intrepid legal scholars began of going into the field to explore interesting questions about crimmigration, like whether prosecutors really care about the immigration consequences of a conviction (they do), whether political partisanship is more significant than changing demographics in driving states and cities to pass anti-immigrant laws (it is), or whether race correlates with how immigration enforcement is rolled out (it sure looks that way).

Here is the question that intrigued Ryo: how does the unlawfulness of unauthorized border-crossing impact noncitizens’ view of themselves as law-abiding? She discovered that the people interviewed viewed themselves as “moral, law-abiding individuals who respect law and order” and not as “delinquents” and “criminals.” Moreover, many spoke of their respect for the sanctity of national borders and their belief that it is appropriate for sovereign nations to control their borders, invoking the analogy of the homeowner’s prerogative to decide to host a guest. How, then, do immigrants reconcile these views with their current or planned noncompliance with U.S. immigration law?

Ryo analyzes the “neutralization techniques”—culturally acceptable legitimations—that permit noncitizens to disobey U.S. immigration law and see themselves as law-abiding. She identifies a number of them; this post will highlight just a few.

First, the noncitizens raised narratives of personal blamelessness for their situation, combined with a higher loyalty they felt they owed their families, especially their children. While that higher responsibility “called for drastic action—even illegal action,” disobeying immigration law was of a different moral caliber than committing unrelated crimes or otherwise causing injury to others. Even dire poverty or familial need did not justify harm-causing criminal or civil disobedience. As one interviewee put it, “Immigration law is different from other laws. Immigrants who come to work should not be compared to those who kill or those who steal.”

This “neutralization” comes with a cost. When asked about whether unauthorized immigrants caused potential harm to native workers, racial stereotypes emerged, such as the trope of the black welfare recipient, that reinforced interviewees’ beliefs that they were not displacing native workers. Ryo explained that the “internalization of racial stereotypes and imagined racial hierarchy by newcomers who have yet to be assimilated into U.S. society is a testament to the continuing salience of race in American life and to an understanding of the American racial hierarchy that is international in its reach.”

Class and race played a much more nuanced role in the noncitizens’ perceptions of the legitimacy of the U.S. immigration system, in which only the rich obtain U.S. visas, and skin color plays a crucial role in evading enforcement. A broadly shared view was that immigrants from Latin America were at a significant disadvantage within the system as a whole, and “mixing” with Americans or passing as white was critical to the success of the project of unlawful entry and remaining. Seeing the system as fair was further endangered by the “prevailing sense that the U.S. immigration system granted greater opportunities for certain national-origin groups based on capricious and ever-changing international politics” rather than a clear set of rules.

Ryo concludes that these noncitizens’ belief that the U.S. immigration law system is immoral lends support to their view that violations of the system may be “the only viable moral choice under the circumstances.” Her prescriptions—that the U.S. craft a development strategy that promotes job opportunities, and set up an expanded temporary worker program that would permit circular migration of workers—lines up, perhaps for the first time, with empirical data about why those programs might increase compliance with immigration law.

Thanks to Ryo we now know that “legal” and “honorable” work and commitments to economic stability for family are moral values that influence decisions to engage in violations of immigration law. Establishing a viable, legal way to fulfill these moral values may encourage timely circular migration among those present in the U.S. and “motivate prospective immigrants to wait to enter legally rather than attempt to cross illegally.”

We’ve all had the experience of thinking we knew what someone else was thinking. Sometimes it pays just to ask.

Cite as: Juliet Stumpf, Questioning Compliance with Immigration Law, JOTWELL (June 26, 2015) (reviewing Emily Ryo, Less Enforcement, More Compliance: Rethinking Unauthorized Migration, 62 UCLA L. Rev. 622 (2015)), http://lex.jotwell.com/questioning-compliance-with-immigration-law/.

The Borders of Human Rights

Moria Paz, Between the Kingdom and the Desert Sun: Human Rights, Immigration, and Border Walls (Stanford Public Law Working Paper No. 2526521), available at SSRN.

What is the relationship between international human rights law and migration? Though many might assume a simple one – human rights protect migrants – the reality is much more complex, raising profound questions about state sovereignty, politics, and the nature of international law. In her new paper, Human Rights, Immigration and Border Walls, Moria Paz maps out the central tension of this relationship, providing an insightful and balanced description of deep structural problems with the current human rights approach to migration.

Paz defines clearly for the reader the tension between sovereignty and individual rights that underpins the relationship between human rights and migration. She argues that the two normative doctrinal approaches available to resolve questions of migration necessarily clash. According to Paz, the human rights approach locates the right to a minimum level of human dignity in the individual, whether or not that individual has complied with formal immigration requirements. Yet these rights exist in a statist international legal regime that provides states with absolute authority to decide who can enter, “under what conditions, and with what legal consequences.” In other words, states and their members have the right to decide who can become a member of their political community and how the state’s resources will be allocated. This tension is, of course, grounded in age-old questions about international law’s ability to constrain state behavior. Yet the highly politicized nature of migration law sharpens this perennial conflict, leading to interesting and unexpected outcomes.

Paz argues that human rights courts and treaty bodies have increasingly resolved this tension in favor of human rights by expanding substantive protection standards in the direction of more absolute rights for migrants. The heart of her paper, and a terrific contribution to the literature, is here. She highlights an important structural problem with this approach: courts have extended the reach of human rights protection by grounding jurisdiction in theories of territory and effective control. In the context of migration, these theories are of course self-defeating, and Paz explains lucidly why they are so problematic. Here her paper steps beyond international law, and asks important questions about law itself and its ability to constrain politics. Paz offers a cautionary tale of overreach and backlash.

The structural problem she describes is an ongoing struggle with the legacy of Westphalia, the international legal scholar’s shorthand for the delineation of rights by territory and its proxies. Paz notes that this approach is problematic from both directions. For individuals, a territorial delineation of rights privileges proximity and capacity to gain access rather than substantive immigration or protection needs. It doesn’t work for the states either, as their allocation of migrants depends on whether they have accessible borders or suffering neighbors rather than on their ability to assist or incorporate those migrants.

As a result, Paz explains, not only has the human rights approach to migration failed, but it has actually given rise to border walls. She begins her explanation of this phenomenon by categorizing current jurisprudence into three buckets. First, the human rights tradition would find that states owe protective duties on both sides of the wall. In other words, jurisdiction is based on proximity to the border. Paz labels this the “wall as bridge” approach. Second, under a statist tradition, the state owes protective duties only to migrants who have entered the territory – the classic jurisdiction based on territory approach. This she labels the “wall as barrier” approach. Finally, Paz describes a compromise approach in which migrants obtain thin procedural rights outside and strong rights only inside the territory. In her words, the wall softens jurisdiction back to geography. Paz makes a compelling argument that these approaches are all problematic.

I won’t walk in detail through her exploration of “backdoor human rights protections” that the UN Human Rights Committee and European Court of Human Rights have implemented “to counteract sovereignty” – suffice to say that she offers a clear and detailed analysis of the case law that’s well worth a read. Paz describes the ways in which norms around family unity and private life as well as prohibitions on refoulement to torture have expanded to offer increased access to human rights by non-nationals. These adjudicators have both read norms more strictly and more absolutely, and have grown substantive protections beyond their original definitions. Yet jurisdiction has still been correlated with physicality grounded in territory. In other words, these human rights bodies offer more rights, but migrants have to reach a country’s shores in order to obtain those rights.

This grounding in territoriality enables backlash through “front-end strategies of immigration control.” Paz argues that because these rights attach to territorial access, states have responded by tightening their immigration policies through interdiction and border walls. In other words, in order to avoid activating these increasingly stringent human rights obligations, states have created physical boundaries to prevent entry by land or by sea. She offers several examples of human rights decisions about the latter situation, but notes that no human rights body has yet examined the question of rights that apply at a border wall.

Paz illustrates the shortcomings of current approaches by presenting this undecided question: when and how do human rights attach to individuals approaching border walls? Under the human rights tradition, she suggests, if human rights bodies guarantee rights to non-nationals approaching a wall, this may lead to withdrawal by states from their human rights obligations. The statist tradition suggests that a state has power to build a wall on its own territory and to decide to whom it owes obligations. Such an approach essentially would constitute a deferral to Northern states’ interests and a sacrifice of norms concerning universal and fundamental dignity. Finally, the compromise would be to distinguish between land and sea borders, providing different rights for different people. Again, Paz highlights the flaws in such an approach, as it would create too many distinctions that do not make sense.

The paper ends with a tantalizing proposal for reform. Paz suggests that international law should shift from its current concern with access to a focus on actual protection and consequences for the individual and the state. In terms of the individual, the international legal regime would focus on the nature of the misery to be alleviated and the process by which such misery should be assessed. For host states, this shift could create alternate means, apart from physicality, for distributing protective duties. Her vision leaves plenty of details to be worked out, which hopefully will be the topic of a future research project.

In the meantime, Paz has illuminated the central quandary in the relationship between human rights and migration. The current “focus on physicality . . . substitutes complex political criteria . . . with a set of arbitrary rules that require [answers to] relatively simple questions.” This approach hands to courts questions unresolved politically, thereby avoiding the messier, though potentially ultimately more effective, practice of negotiation, compromise, and politics.

Cite as: Jaya Ramji-Nogales, The Borders of Human Rights, JOTWELL (April 1, 2015) (reviewing Moria Paz, Between the Kingdom and the Desert Sun: Human Rights, Immigration, and Border Walls (Stanford Public Law Working Paper No. 2526521), available at SSRN), http://lex.jotwell.com/the-borders-of-human-rights/.