By a graduate student in the seminar

The movement of people across borders – be it as migrant, asylum seekers, or refugees – has emerged as a major issue of our times. The number of forcibly displaced persons worldwide is at an all-time high with 70.8 million people as of 2019[1]; only those who cross internationally recognized borders are called “refugees,” which stand at 25.9 million.[2] This has led many countries to impose stricter immigration policies, and some have even erected walls at their borders to exclude those who are seeking refuge from entering into their territory. Conversely, the crisis compelled many to call for “open borders,” while some advocate for more “porous borders,” others propose to abolish borders altogether.

The recent crisis has highlighted shortcomings in the international human rights regime that was set to prevent such human miseries. In the post-WWII period, Western democracies committed to a series of protective measures concerning the outsider, including the 1951 Geneva Convention Relating to the Status of Refugees and its 1967 Protocol, and the 1953 European Convention on Human Rights (ECHR). While one expects that such valuable legal tools would offer robust protections for refugees, the continued suffering and exclusionary practices in the context of the recent Syrian refugee crisis reveals a gap between what the legal documents are set out to achieve and the lived reality.

Today, EU member states have deviated from their commitments in significant ways. While maintaining normative formal commitments to human rights principles, states are increasingly adopting politics of non-entrée, fuelled by the rise of right-wing populist governments that adopt exclusionary, racist, anti-immigration policies. While refugee law is founded on the duty of non-refoulement (that refugees shall not be turned away), the politics of non-entrée is based on a commitment to ensure that refugees never arrive.[3]

As a result of these policies, “the developed world today protects less than 20% of the world’s refugees.”[4] Seyla Benhabib identifies the root of this issue, she writes “the use of territorial exclusion to deny rights is one of the reflect mechanism of the modern statal imaginary: deep-seated fear of the outsider and the stranger as an invisible threat.”[5] Benhabib elaborates, in an increasingly interconnected and deterritorialized world, “migrants’ and refugees’ bodies become the site upon which sovereignty can inscribe itself in a world where controls over money, capital, the cyberspace and the environment are increasingly deterritorialized, abstracted and rendered invisible, fuelling anxieties about losing control.”[6] Thus, the politics of non-entrée is emblematic of a larger crisis of sovereignty, where a “fatal tension” between commitment to human rights and territorial state sovereignty influences migratory politics.[7]

In such a political atmosphere, gaps that exist in the very documents that are designed to uphold and promote asylees’ and refugees’ “right to have rights,”[8] are magnified and exploited. One of those gaps is identified in Article 13 of the Universal Declaration of Human Rights which upholds freedom of movement across borders but is silent on the state’s obligation to grant entry. Thus, despite the universal character of these rights, the Declaration upholds the sovereignty of individual states.[9] Additionally, the 1951 Geneva Convention and its 1967 Protocol are “binding on signatory states alone and can be brazenly disregarded by non-signatories and, at times, even by signatory states themselves.”[10] While judicial, executive, and legislative bodies often express normative commitments to universal rights, deviations occur; the basis for the effectiveness of all these legal instruments is state consent.

Seyla Benhabib maintains that changing the border regimes cannot be achieved through normative declarations, instead she calls for an “immanent critique of the internal logic” of existing domestic and international legal regimes. She writes, “we have to deconstruct and reconstruct the edifice of institutional practices from within in order to open up space for responsible reform.”[11] However, in an environment where European states are increasingly attempting to avert their commitments and access to protection is largely dependent on state’s consent, the European Court of Human Rights (ECtHR) seems to be caught in a balancing act, between safeguarding a state’s territorial integrity and upholding universal commitments to human rights. In the next section we will focus on a recent ECtHR case where this attempt at balancing is amply clear.

Borders have walls, behind those walls are guards and the guards have guns

At land borders, refugees are swept up in a generalized deterrent effort, where “some migrants must suffer to prevent other migrants.”[12] Intimidation, terrorization and pushback is common practice at land borders, but N.D. And N.T. v. Spain (2020)[13] is the first of its kind because of the many difficulties involved in bringing such migration cases. The applicants were two migrants to Morocco: N.D. and N.T., a Malian and Ivorian nationals respectively. In 2014, N.D. and N.T. with a group of 600 persons, attempted to enter Spain by scaling a border fence separating Melilla (a Spanish enclave) from Morocco. Summarily after crossing the fence, the applicants were forcibly returned to Morocco[14] in handcuffs, by the Spanish Guardia Civil, without any identification procedure or opportunity to explain their personal circumstances. The Court found that the lack of individual removal procedure had been the consequence of the applicant’s “own conduct,” notably their failure to use “official entry procedures.”

Immigration walls raise a jurisdictional challenge. The court acknowledges in this case that “a state’s jurisdictional competence under Article 1 is primarily territorial.”[15] However, despite Spain’s preliminary objection, the court expanded the state’s jurisdictional duty to include any such area where the state’s effective control is exercised, it stated “the existence of a fence located some distance from the border does not authorise a State to unilaterally exclude, alter or limit its territorial jurisdiction.”[16]  Interestingly, the court ties this expansion to human rights  “the special nature of the context as regards migration cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention.”[17] It is also noteworthy that the court draws a parallel to Article 33 (1)  of the 1951 Geneva Convention on the principle of non-refoulement, stating that it applies not only on the territory but also at the border.[18]

Despite these human rights pronouncements, the court ruled against the applicants based on the applicants “own conduct,” which warrants the question, how does personal conduct come into a question of collective expulsion? Ultimately, the court is setting a dangerous precedent because it is saying, those who attempt to enter irregularly are no longer protected under the convention. This defies the purpose of the convention which is supposed to apply regardless of mode of entry.

The language used by the court reflects the general trend of criminalization and stigmatization of migrants[19] using words like “storming” and “placed themselves in jeopardy” by “storming the fences,”[20] which seems to suggest that they are violent people, hence undeserving of protection. Additionally, Moria Paz points out that “by converting the abstraction of the border into a physical reality [the wall], they make more concrete the act of trespass.”[21] Normalizing the stigmatization of migrants defies the spirit of Article 31 of the Refugee Convention on non-penalization, “refugees are entitled to arrive of their own initiative, [and] may not be penalized for unlawful arrival.”[22] This is especially important given that N.D. and N.T.’s chances at entering lawfully are very limited,  the Beni Enzar crossing which the court references, only opened after the 2014 events. Moreover, the asylum office that is now operating, runs in a very racialized way where, for example “Blacks are turned away” by the Moroccan authorities.[23] Even though the court states that migrants have a “genuine and effective possibility of applying for a visa at other Spanish embassies,”[24] a later ECtHR case that quoted N.D. and N.T. held that individuals who apply for visas at embassies with the intention to seek protection, do not fall within the jurisdiction of state parties to the ECHR.[25] This discrepancy indicates that the court is caught in a balancing act, where increased political pressure is likely to lead to further discrepancy.

In a way the court in N.D. and N.T. has “made border walls an attractive strategic solution for states that seek to regain their traditional control over migration.”[26] Walls are the most concrete signs of bordering, but the function of this border ‘shifts,’ it can exclude those on the outside, but it can also operate to “exclude inside the national geographical space by way of deportation and detention.”[27]

Societies that build walls are not free societies. Similarly, countries that outsource their duties and dissuade their civil society,[28] are not only subverting their obligations, but also losing grip over their own identity. European integration is not only premised on power but also principle, including respect for human rights. However, despite these commitments, members deviate from compliance in significant ways. So long as the “right to have rights”[29] remains bound by the tension between human rights and political sovereignty claims, it will not be achieved in its full sense. As long as access to rights remains tied to ‘sovereign jurisdiction,’ the question of rights will be subject to political maneuverer.

Notes

[1] See, Seyla Benhabib, The End of the 1951 Refugee Convention? Dilemmas of Sovereignty, Territoriality, and Human Rights, 2 Jus Cogens (2020). [Hereinafter, The End of the 1951 Refugee Convention] (on how the number of migrants has grown faster than the world’s population in this period.)

[3] Itamar Mann, Humanity at Sea : Maritime Migration and the Foundations of International Law (1 ed. 2016) [hereinafter, Itamar Mann]

[4] James C. Hathaway & Thomas Gammeltoft-Hansen, Non-Refoulement in a World of Cooperative Deterrence, at 7 Law & Economics Working Papers (2014), https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1216&context=law_econ_current. [Hereinafter, Hathaway]

[5] The End of the 1951 Refugee Convention, supra note 1 at 3

[6] Id. at 8

[7] Id. at 18

[8] Arendt, Hannah, The Origins Of Totalitarianism. at 267-268. (2nd ed. 1958) [hereinafter, Arendt]

[9] Seyla Benhabib, The Rights of Others: Aliens, Residents and Citizens  (1 ed. 2004). [Hereinafter, The Rights of Others]

[10] Id. at 11

[11] Seyla Benhabib, Border Regimes in the Age of Covid, https://blogs.law.columbia.edu/abolition1313/seyla-benhabib-border-regimes-in-the-age-of-covid/

[12] Itamar Mann. supra note 3 at 4

[13] ECtHR, Case of N.D. and N.T. v. Spain, Appl. no. 8675/15 and 8697/15, Judgement of 13 February 2020. [Hereinafter, N.D. and N.T.]

[14] See also, Ashifa Kassam, Morocco Destroys Migrant Camps Near Border with Spanish Enclave the Guardian (2015), https://www.theguardian.com/world/2015/feb/11/morocco-destroys-migrant-camps-melilla-spain-border (last visited Dec 19, 2020). (which describes the practices on the other side of the border.)

[15] N.D. and N.T. supra note 34 at para. 89-103.

[16] Id. at para.109

[17] Id. at para. 110

[18] Id. at para. 176 -188

[19] Judith, Resnik “”Within Its Jurisdiction”: Moving Boundaries, People, and the Law of Migration.” Proceedings of the American Philosophical Society. 160, no. 2 (2016): 117-59. Accessed December 21, 2020. https://www.jstor.org/stable/26159207.

[20] N.D. and N.T. supra note 13 at para. 231

[21] Moria Paz, The Law of Walls, 28 The European Journal of International Law at 622 (2017). [Hereinafter, Moria Paz]

[22] See generally, James C Hathaway, The Rights of Refugees Under International Law (1 ed. 2005).

[23] Santiago Saez, Melilla: No Asylum for Black Men (2017), https://www.dw.com/en/melilla-no-asylum-for-black-men/a-41404179 (last visited Dec 20, 2020).

[24]  N.D. and N.T. supra note 13 at para. 222

[25] ECtHR, M.N. and Others v Belgium, Appl. no. 3599/18, Judgement of 5 May 2020.

[26] Moria Paz, supra note 21 at 1.

[27] Id. at 616

[28] See also, The EU’s Dirty Hands: Frontex Involvement in Ill-Treatment of Migrant Detainees in Greece, (2011), https://www.hrw.org/report/2011/09/21/eus-dirty-hands/frontex-involvement-ill-treatment-migrant-detainees-greece (last visited Dec 19, 2020).

[29] Arendt, supra note 8.