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

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.