Book Review: The Shifting Border: Legal Cartographies of Migration and Mobility

Guest post by Jonas Püschmann. Jonas is a German qualified lawyer, Research Fellow at the Max Planck Institute for Comparative Public Law and International Law and doctoral candidate at Freie Universität Berlin. His research interests include international and regional human rights protection, general international law, migration law as well as international humanitarian law. He is on Twitter @jpueschmann.

Review of The shifting border: Legal cartographies of migration and mobility – Ayelet Shachar in dialogue, by Ayelet Shachar (Manchester University Press 2020)

States are territorially confined by their borders. We all have, already at young ages, localised borders as the lines separating unicoloured shapes on multi-coloured maps of the world. These lines appear to delineate the outer limit of a state’s sovereign power and mark the place of control over entry into the territory. Shachar disagrees. Analysing techniques which are commonly used around the world to prevent or channel (and sometimes facilitate) human movement, she finds that ‘the location of the border is shifting: at times penetrating deeply into the interior, at others extending well beyond the edge of the territory’ (p. 4). The analysis comes at a time where pushbacks have become a ‘routine element of border governance’ and asylum processing is outsourced to third states. For instance, Denmark’s recent policies have been condemned by the African Union ‘as an extension of the borders and … control to the African shores’.

Shachar’s main concept is discursively presented in a lead essay which is then replied to by six scholars from disciplines including philosophy and political sciences and concluded by a final response. Positioning herself against a perception of a (Westphalian) static border, Shachar describes that today’s borders can be everywhere and nowhere. Borders are internalised where states differentiate between a person’s physical presence on a territory and legal admission – a process usually stripping people of the protection generally afforded on states’ territories (p. 25). Simultaneously, borders are pushed out when interdiction measures are applied far outside a state’s territory, allowing countries to shield themselves from human rights obligations that generally apply within the state’s territory (p. 33). A glimpse of this shifting border’s power was visible during the Covid-19 pandemic, when ‘it did not require a single sack of cement … to barricade the United States from travelers arriving from the European Union’.

Moving from the interpretative to the aspirational, Shachar envisages taming this shifting border and turning it into a rights-enhancing tool. Confronted with ever more creative techniques in externalizing state’s borders, she calls for a re-spatialisation of law and justice obligations. In today’s legal environment, receiving protection relies on the ‘premium of territorial arrival’ (p. 71). As states increasingly delink their border from territory, Shachar proposes that the encounter with the shifting border ought to provide human rights as if state’s power had been exercised within the territory or its frontiers. In addition, states shall – de lege ferenda – facilitate mobility and detach asylum from territory so that ‘individuals in need of protection will be able to claim asylum or other forms of protection upon encounter with the shifting border’ (p. 82). While such processing-at-distance is often criticized as perpetuating rights-restricting policies, Shachar shares these concerns, but finds that these ‘speak to the level of implementation rather than principle’ (p. 258). In principle, such processing could overcome the current system’s immorality that disregards persons who do or are not able to take a risk. Rather than the location where a person had been stopped, the ‘severity of the risk they face’ should be the decisive criteria for access to protection (p. 251). At the same time, Shachar reminds us that it is equally important to uphold current standards: territorial arrival must remain one basis for providing protection.

Notably, Shachar assumes ‘that states currently have, and are likely to continue to have … the authority to determine conditions of entry and stay’ (p. 92). Other and more utopian alternative concepts of a borderless world would risk replacing ‘whatever shred of solidarity and distribution … available under our current, imperfect political structures’ (p. 71). While Shachar is generally in favour of contesting unqualified sovereign power, according to her, states may still retain a qualified legitimate interest in regulating movement. Though, the burden of justification for the exclusion of people, should be upon the state (p. 236).

Reflecting on her proposals, it is in my view hard to imagine Shachar’s rights enhancing shifting border in today’s reality. This concern is shared by some of the replies. Steffen Mau – while generally agreeing with Shachar – shows that states intended precisely to create illiberal leeway to exclude people through the shifting border. Besides, while the ECtHR expanded the scope of human rights functionally based on an exercise of effective control, after the publication of the book, the court displays a more restrictive stance and seemed to have ‘shut the doors’ to migrants. Shachar’s proposals of relaxing the fixation of asylum on territorial arrival will therefore likely lead to restricting rights for those on the move – though she opposes current offshore processing policies as arch-enemy of good processing-at-distance (p. 269, a critique shared by Leti Volpp, p. 174). Focussing on this lack of political will, Chimène I. Keitner strongly criticises Shachar’s reliance on legal advocacy models. As law is embedded in social and political contexts, long-term solutions would come from compromises between and within states (p. 184). Keitner therefore calls to look for ‘incentives that can be deployed to motivate countries to more evenly share burdens associated with the transnational movement of people, and to address the underlying causes of displacement’ (p. 191). Still, while all of this is certainly true, Shachar’s vision pushes us to not simply accede to this current status quo but to believe in the power of ideas and emancipatory force of law.

Additionally, because of the focus on the Global North, the book does not, in my view, adequately address third countries in the Global South as actors on their own with different agendas, and how they can constitute a source of contestation. From a protection perspective, it is also debatable whether the shifting border does not to a certain extent improve the rights of those seeking protection through means of norm diffusion: While such measures – of course – inhibit mobility, they may also establish a protective border that is closer to those in need of protection by developing protection capacity in third countries. Finally, the law of international state responsibility can provide further avenues for inducing legal responsibility in cases where migration controls are outsourced (p. 81): As third countries are themselves bound to human rights, states externalising their border may be complicit for aiding or assisting in abuses that are the ‘collateral damages’ of their policies (cf Art 16 ARSIWA).

Having read and enjoyed this inspiring book, I strongly recommend it to scholars of international law (especially migration and refugee law) and migration studies. However, its broad scope and accessible language also make it appealing to a non-specialist audience interested in the rationales underlying contemporary migration policies and how they can be challenged. Through the discursive structure with a main essay and responses to it, it prompts new thinking on the relationship between the power of ideas and the emancipatory force of law. Besides, it delves deep into core questions of exclusion, discrimination and contestation that were beyond the scope of this review.

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How to cite this blog post (Harvard style) 

Püschmann, J. (2022) Book Review: The Shifting Border: Legal Cartographies of Migration and Mobility. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2022/03/book-review [date]