Border Dialectics: Progress, Regress, and Resistance

Received knowledge about the protection of migrants in international law tells a story of progress. A story of expanded refugee definitions, complementary protection, and extraterritorial obligations. Yet a counternarrative has also emerged, one of backlash and deterrence. As the scope of migrants’ rights has expanded, states have also adopted policies aimed at evading concomitant obligations with eternalised and outsourced border controls. The dialectic between these two normatively opposite and chronologically overlapping logics has, at times, pushed forward an expansive view of migrant rights protection – including beyond national borders. Simultaneously, in reaction to this progressive push, it has forged accountability gaps that render people rightless, as they are abandoned in legal (and physical) maritime black holes, or in the desert across borders, with no legal or material way out or redress.

The development of international refugee and human rights law in this field follows a narrative of progress, pursuing a congruous synthesis among opposite political goals. Yet, such a synthesis is difficult to observe in practice, where expanded protection seems to inevitably imply regressive policies and pushback.

One Step Forward, Two Steps Back? 

Over the years, the jurisprudence of the European Court of Human Rights (ECtHR) has, in many ways, challenged the false premise according to which states can insulate their responsibility by shifting migration controls beyond their borders. In the famous Hirsi Jamaa case, the Court explained that state jurisdiction and, thus, the applicability of the human rights obligations enshrined in the Convention extends wherever a state, through its agents operating outside its territory, exercises control and authority over an individual (Hirsi Jamaa, para 74).

Following Hirsi Jamaa, there was a sense that litigation could vindicate the promise of (universal) human rights.  Strategic litigation has since been used in various contexts to hold states accountable for human rights violations at the borders of Europe and to shape legal and policy frameworks to better protect migrant rights. The narrative was that of progressive development and norm internalisation emerging as the synthesis of opposing forces through the dialectic of transnational legal processes.

Meanwhile, however, state practice has adapted to these new legal challenges and morphed to evade the expanding notion of human rights jurisdiction and concomitant responsibility. This can take the form of visa restrictions, carrier sanctions, or aerial refoulement performed (also) with the assistance of private actors, the outsourcing of migration control to third countries financed and assisted by the EU and its member states.

Already in the aftermath of the Hirsi Jamaa decision, Mann observed how dialectical processes can lead to regressive outcomes, inviting, for example, states’ backlash and more restrictive approaches from courts in an attempt to avoid those reactions. On the one hand, in a string of cases starting from ND and NT, the ECtHR conditioned the applicability of certain fundamental guarantees to the applicants’ conduct, including not making use of official entry procedures and posing a security threat (for a fuller account, see here, here, here, and here). On the other hand, more than ten years after Hirsi Jamaa, state practice is characterised by a move towards oblique policies and externalised border controls. One of the main reactions against the extraterritorial application of human rights in the context of migration controls is the rise of what Giuffré and Moreno-Lax (pp. 82-108) have defined as policies of ‘contactless control’. The aim of such policies is to sever the jurisdictional link to states sponsoring containment measures in third countries, therefore eclipsing their responsibility under international human rights and refugee law.

Cooperative deterrence policies pivot around the reciprocal commitments of participating actors. Destination states offer political, financial, and technical support in exchange for preventive border control measures directly performed by third states within their territories (Pijnenburg, Gammeltoft-Hansen and Rijken). The compliance of these synallagmatic commitments with international human rights law is commonly taken as a self-evident truth. Yet, despite their presumed innocuous – and sometimes even humanitarian – nature, these informal and indirect policies can have a serious human rights impact. These policies reflect the neocolonial and neoliberal logic that is still pervading positive international law, as well as the practice of migration control, in so far as they project political and economic power beyond the territorial borders of the power-wielding (Achiume; Pedersen et al).

In the face of these policies, a more or less integrated litigation strategy has been put forward by NGOs and human rights lawyers across various legal regimes to respond to the current contactless control practices (Pijnenburg and van der Pas; Tan and Gammeltoft-Hansen).

The logic underlying these distinct but mutually reinforcing strategies is that of a linear process that, through contradiction, manifests one unique progressive development. In this line, pushing the existing jurisprudence of the ECtHR and other human rights bodies towards a more principled approach to jurisdiction might be seen as an attempt to reach a progressive synthesis. An important example is the case of A.S and Others v Italy and A.S and Others v Malta, where the UN Human Rights Committee established jurisdiction over a shipwreck involving over 200 persons based on the ‘special relationship of dependency’ between the vessel and the state authorities that were contacted, had a ship in the vicinity, and reassured the victims they would be rescued.

Still, the regressive reaction to this expansive approach is already in the making. Beyond cooperating with third countries and private actors, the EU is funding surveillance equipment and training for border guards in countries bordering Europe through the intermediation of a panoply of actors with different international obligations (see e.g. here, here, and here), as well as reduced transparency and accountability standards.

Negative Dialectic and Possibilities of Resistance

An expansive extraterritorial application of human rights obligations might reveal counterproductive. When it comes to the protection of migrants’ rights, in particular, it might incentivise new strategies of evasion. In this sense, ‘precisely when they try the hardest to protect rights beyond territorial borders, courts acquire the most significant role in providing the conditions for the rights’ further violation’ (Mann).

While it is impossible to make predictions, and a clear-cut causality link might be challenged (Farahat), the expansion of migrant rights protections may result in dangerous side effects (Wilde). This is not to dismiss the relevance of strategic litigation, but only to invite an exercise of self-reflexivity. Ultimately, the very notion of progress should perhaps be freed from narratives of historical advancement and emancipation. Every step forward towards a more protective legal and political regulation of global migrations seems to inherently imply two steps back towards states’ right to exclude. This negative dialectic implies the rejection of narratives of historical advancement and emancipation. As long as territory is perceived as the defining feature for the enjoyment of human rights, and as long as material control determines any exception to the territorial applicability of human rights, their promise of universality will remain unfulfilled (Moria Paz).

What remains, then, of the absolute commitment to human rights?  Does the notion of extraterritorial jurisdiction immersed in a dialectic of progress leave any hope for their realisation?

The inadequacy of the dialectic of progress in relation to the expansion of migrant and refugee rights cannot be overcome or bypassed without the risk of turning its narrative into a romantic hyperbole. Yet, beyond the disillusion, acknowledging the legal and political conflicts underlying migrant rights protection can foster not only an honest self-reflection but also open new possibilities of resistance, within and beyond the law.

Some would rightly insist that the response is in the law itself. These efforts strive to enhance strategic litigation by moving towards more principled approaches to human rights jurisdiction (Moreno-Lax; Giuffré), while also relying on notions of complicity and shared responsibility (Gammeltoft-Hansen and Hathaway; Pijnenburg), and looking at further accountability routes beyond the human rights realm (Fink; Kalpouzos). These efforts would still be exposed to the paradoxes of the dialectic of progress with implosive risks. However, it is worth noting that the anticipated backlash, with its strategic accountability gaps and devastating consequences, has been occurring for a long time now. This requires a comprehensive litigation strategy, underpinned by a deeper understanding of the broader context where backlash unfolds, informed by a coherent interpretation of jurisdiction and supported by innovative investigations.

Beyond the law, it becomes unavoidable to consider the voice and resistance of migrants and refugees. Migrants’ networks and refugee-led organisations are becoming more and more interconnected and demand to be regarded as actors of migration policy decisions. More fundamentally, the responsibility for the management of the European (and Global North) borders does not stop at the jurisdictional remit of states. Yet, the question is: what is the scope of my own obligations towards (fellow) migrants attempting to cross those borders? Do I have any responsibility for them?