Between the Kingdom and the Desert Sun: Human Rights, Immigration and Border Walls

Abstract

A peculiar construction boom is in progress worldwide: border walls are being installed at an unprecedented rate in order to control unwanted immigration by poor people into wealthy countries. This paper asks why, almost a quarter of a century after the Iron Curtain came down, the walls are now going up again. It provides a provocative answer: I suggest that these separation barriers are a logical response of states to the way in which human rights law has been enforced in cases bearing on immigration. In other words, and counter-intuitively, the recent boom in border wall construction signals the success of the human rights tradition, rather than its failure to establish an alternative to territorial sovereignty.

Next, I use the case study of walls to make a larger point on the intractability of the human rights regime that bears on immigration. Building on a systematic analysis of jurisprudence, the paper argues that human rights courts and quasi-judicial bodies utilize an arbitrary category – territory – to balance the policy interests of the individual non-national and the state. The result is essentially random from the perspective of both these stake holders. Walls make concrete a perverse side effect of this compromise: because the regime conflates access with territory, it disproportionately rewards strong young men who already have sufficient capacity (in age, gender, or resources) to scale the barrier, even if their predicament may not actually call for protection. But it privileges them only after they have risked themselves, and if they survive that risk. And so, at least when it comes to immigration, the human rights regime operates in effect as a natural selection mechanism. This is fundamentally unstable and unjust.

Speaker Bio

Moria Paz focuses her scholarship on the intersection of minorities, immigrants, international law, and human rights. Paz is a visiting scholar at the Freeman Spogli Institute for International Studies and a Fellow at Stanford Law School. Before joining FSI, she was a Law and International Security Fellow at CISAC, a Lecturer in Law and Teaching Fellow of the Stanford Program for International Legal Studies (SPILS) at Stanford Law School. Paz received her S.J.D. doctoral degree from Harvard Law School. While at Harvard, she was awarded a number of fellowships, including at the Hauser Center for Non-Profit Organizations, The European Law Research Center, and the Weatherhead Center for International Affairs. Before Harvard, she attended The University of London, School of Oriental and African Studies (SOAS) and Beijing Normal University.

She is currently working on two books, Network or State? International Law and The History of Jewish Self-Determination (under contract, Oxford University Press) and The Law of Strangers – Critical Perspectives on Jewish Lawyering and International Legal Thought (co-edited with James Loeffler). In 2007 she was awarded the Laylin Prize for most outstanding paper in international law awarded by Harvard Law School. In 2013 she was selected by the American Society of International Law (ASIL) for the New Voices Panel at the Society’s Annual Meeting. In 2014 was a winner of the Law & Humanities Junior Scholar Interdisciplinary Writing Competition. Her papers appear in multiple journals, including the Harvard International Law Journal and the European Journal of International Law.