By Cletus Alengah
The International Organisation for Migration’s Missing Migrants Project reports that over 500 people have died in the process of migration since the beginning of the year.[1] The figures are harrowing when all the recorded deaths from 2014, since the Project began tracking these deaths, are put together. Most of these deaths result from starvation, dehydration, drowning or hypothermia while others were shot and killed.[2] The only offence these people committed, if at all an offence, was daring to travel from one country to another without the authorisation of the officials of the later country. Since the outbreak of the global pandemic, with its associated lockdowns, restrictions on free movement, and closure of national borders to international traffic, most of us have experienced first-hand what it means to be confined to a place or to be prevented from going to a place of one’s choice. This should inspire a greater conversation on the issue of border closures and the case for open borders.
Admittedly, the last few years have seen some movement towards open borders, at least, at the regional and continental levels. The member states of the European Union, for example, have since the adoption of Directive 2004/38/EC[3] enjoyed greater freedom of movement across member states and accredited states. In Africa, most sub-regional organisations, like the Economic Community for West African States (ECOWAS), permit free movement of persons for a limited period of time and the entire continent has recently adopted the African Continental Free Trade Agreement which provide for the free movement of goods and services across the continent. But the US–Mexico border saga, the plight of refugees, the case of migrants stranded on the high seas, and indeed, the many cross-border issues make the case for open borders more relevant now than ever.
Perhaps, the most important question to ask at the onset is “What do Borders Divide?”[4] In Africa, just like many parts of the Middle East, borders are the creation of Western colonialists whose only motive was to divide and rule the people and to exploit the rich natural resources in these areas.[5] Till date, in many parts of Africa, it is not uncommon to find people from the same family living at the opposite sides of state borders. Even the idea that the countries in Europe are naturally divided by oceans and rivers is now considered a myth.[6] The question of what the borders divide is therefore important if the case for opening them is to be made.
Different people may think differently of what the borders divide. For Ochoa Espejo, borders do not divide people based on their identities or geographical areas based on physical spaces; neither do they divide the flow of people or resources. Borders, she argues, “are primarily an ideal distinction” that “divide territorial jurisdictions” by giving a state legal and political right and authority over a defined territory.[7] She therefore advocates for a place-based approach to borders and territories which sees borders as territories in terms of “where” people are and not “who” they are (what he terms the identity approach to borders). This idea of borders sees countries as connected and independent on each other, thus requiring shared governance over borders in a way that allows greater mobility.
From this place-based approach, Ochoa Espejo argues that the right to control borders is not based on internal legitimacy of the state, but from international conventions based on the principle of non-intervention, respect for treaties and respect for territorial sovereignty. This therefore makes border walls illegitimate, to the extent that they are unilaterally erected and managed; for they ignore the opinions and sentiments of the neighbouring states.
This is however, not a call for no borders. Almost all contemporary scholars in this area agree to the continuous existence of borders—though not all, as the readings by Harsha Walia demonstrate. Ochoa Espejo, for example, describes the idea of having no borders as a “fantasy”[8] and “an anarchist ideal of no states, or a cosmopolitan dream of a global state without internal jurisdictions.”[9] The case for open borders is therefore not necessarily a case for the abolition of borders. As Seyla Benhabib explains, the call “is not a plea for a world without borders, because democracies require jurisdictional boundaries.”[10]
The case indeed, is not a binary one between having borders and not having borders; for in between these two extremes, there are several alternatives including open borders, regulated and demarcated but unfortified borders, regulated and de-limited by un-demarcated borders and partially regulated borders between movement and trade.[11] Advocates for open border are there advocating for borders that are open to free movement; and this call itself “presupposes that there are borders.”[12]
What then is the case for open borders? Critics have argued that an open border is contrary to the tenets of democracy and sovereignty. This argument is however largely influenced by a false sense of sovereignty. Using the deficiencies in the universalisation of the 1951 Convention on Refugees, Benhabib calls for a radical thinking of the conceptualisation of sovereignty that recognises the international law constraints on sovereignty, and a renewed respect for human lives and rights. In so doing, we can create a world with open borders that at the same time acknowledges state sovereignty. Thus, while borders may be necessary for democracies, they need not be policed in such a way that prevents human mobility. This is so because human mobility is inherent in the human species and the reasons why people move across borders are influenced by both national and international factors.
That mobility is a right inherent in the human species in further advanced by Joseph Carens who premises his case for open borders on two broad reasons, freedom and equality. The argument on equality proceeds on the basis that border restrictions serve to maintain the inequality that exists between developed and developing countries. Indeed, Carens argues that the case for open borders “has particular force with respect to restrictions on movement from developing states to Europe and North America”, although it applies generally to all borders.[13] Indeed, statistics from the Missing Migrants Projects show that a majority of the people who die in the process of migration are from Africa en route to Europe through the Mediterranean.[14]
Carens likens the border restrictions especially between the developed and the developing states to the feudal system that existed in medieval Europe; with citizens of Europe and North America being likened to the nobility of the medieval ages and the citizens of developing countries being likened to the peasantry of the feudal system. By limiting people to their countries of origin, border restrictions are used by citizens of the developed states to ensure that citizens of developing states remain poor, by denying them access to the opportunities in available the developed states. This argument is supported by the theories that Africa and the Middle East has remained underdeveloped due to the artificial boundaries that were drawn in these areas by the colonialists.[15] According to this view, artificial boundaries drawn between people of the same group and lineage became an impediment to their economic growth and have resulted in the underdevelopment of these states.
Carens’ second reason why borders should be opened is to ensure human freedom. He argues that the mere fact that a person requires permission to move from one place to another, which permission can be denied by political authorities, is in itself a restriction on the freedom of a person. This should lead the advocates of border restrictions to justify the need for the restrictions and not to require advocates for open borders to justify their case; for freedom of movement, must necessarily include the freedom to move from one state to another. He quizzes why people should have the right to freely move within states but not the right to move across borders; for the same reasons people may want to move within states justify their movement across states. He debunks the idea that internal movement within states serve some special purposes like nation building, protecting citizenship rights and non-discrimination which movement across borders to not possess.
Apart from these two reasons, the fact that borders were artificially created by humans is a further justification for open borders. Since these institutions and practices were created by us, he argues, we can, at least, in principle change them.
While Carens calls for justification by the advocates for border closures, Ochoa Espejo, examines the available justification and concludes that the good to be achieved by border closures is not proportionate to the harm caused to people and thus unjustified. Supporters of the US–Mexico wall, for example, argue that the purpose of the wall is not necessarily to prevent crossing, but to push migrants to a more dangerous crossing point. Ochoa Espejo argues forcefully that, to the extent that the border fortification measures are used to harm people and cause the death of others, as a means of deterring people from crossing borders, there can be no justification for such border fortifications using the proportionality test.
In conclusion, it is important to reiterate that the case for open borders is not a case for the elimination of borders. Unless this distinction is clearly made, criticisms relying on sovereignty and democracy will persist. However, once we define its contours, there are compelling reasons why the borders should be opened; for it is indeed possible for open borders to co-exist with democracy and sovereignty.
Notes
[1] International Organisation for Migration (IOM), Missing Migrants: Tracking Deaths Along Migratory Routes, https://missingmigrants.iom.int/ (Last visited: 17th March, 2021)
[2] Ibid.
[3] Directive 2004/38/EC of the European Parliament and of the Council. Prior to this directive, earlier treaties contained provisions on free movement within the EU. See Article 21 of the Treaty on the Functioning of the European Union
[4] See Paulina Ochoa Espejo, On Borders: Territories, Legitimacy and the Rights of Place (Oxford University Press, 2020), Chapter 3
[5] See generally, Alberto Alesina, Janina Matuszeski and William Easterly, Artificial States, 9 Journal of the European Economic Association 246 (2011)
[6] Ochoa Espejo, supra note 4, p. 96
[7] Ibid., p. 71
[8] Ibid., 25
[9] Ibid., 13
[10] Seyla Benhabib, The End of the 1951 Refugee Convention? Dilemmas of Sovereignty, Territoriality and Human Rights 2 Jus Cogens 75, 94 (2020)
[11] Espego, supra note 4, 13
[12] Joseph H. Carens, The Ethics of Migration, (Oxford University Press, 2013), 231
[13] Ibid., 225
[14] International Organisation for Migration (IOM), Missing Migrants: Tracking Deaths Along Migratory Routes, https://missingmigrants.iom.int/ (Last visited: 17th March, 2021)
[15] See Alesina et. al., Artificial States; Ieuan Griffiths, The Scramble for Africa: Inherited Political Boundaries, 152 The Geographical Journal 204 (1986)
