The Shifting Border: How Nation States Control Human Mobility
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Transcript: English(auto-generated)
00:04
If I ask you to close your eyes and imagine a border, what image would come to mind? Most of us, I suspect, would think of a line on a map or would think of a fortified, massive barrier or wall or fence.
00:22
That's the border and that's the image we're all trained to see if we look at our Atlas book, for example. This version of the border I refer to as the static border. This is the classic Westphalian image of a very clear line where one country ends and the other begins.
00:40
On the other hand, there's another theoretical model that we find in the literature. This comes to us especially from the post-Berlin Wall period, so after 1989. And the second theoretical construct I'll refer to as the disappearing border, a border that no longer exists or the thought was post-1989 that borders will become insignificant relics
01:04
of a bygone era. So the static and the disappearing borders are two very familiar theoretical frameworks that we have. Now when I started writing my book and exploring the question of borders, I was disturbed by the fact that both of these models failed to capture the much more complicated, dynamic,
01:24
nuanced legal reality and political reality around us. The fact that borders are no longer static, but they definitely have not disappeared. So really the basic research question that I had here was trying to conceptualize a much more complicated legal reality, which up until now has not been given a name, a
01:44
title, and a conceptual framework. So this book really tries to say if we're thinking about borders, we can no longer just think about how individuals move across borders. We actually want to look at how borders themselves move to regulate mobility.
02:02
Well, the approach I took was to look at the existing literature and the existing frameworks that we have, the static border and the disappearing model, and to identify partly their weaknesses, what they failed to capture in the world around us, and to actually work from the bottom up. That is to try and identify what kind of changes, dramatic changes in the ways that
02:23
states regulate mobility can we witness, and working from the bottom up in that sense with the legal material that I was exploring, to try and show that neither the static nor the disappearing border conceptions can capture that. The more I did the research, the more I looked at different countries, and the more
02:42
I digged comparatively, it became very clear to me that it's not just that they are failing to capture something minor, they're actually failing to capture a very dramatic shift in the way that states regulate mobility, and that has led me to create or to develop this new model that I'm suggesting, the shifting border.
03:01
Now I should say I was not just looking at legal materials, and when I mean legal materials, it's a very rich set of sources. So it's legislation, what countries would pass in parliaments, it's regulation, this is the way that agencies actually operate, and also it's case law, meaning that individuals might challenge certain laws or regulations and bring them before the courts,
03:21
and the courts would have to interpret and decide what precisely is the meaning. So that gives us a very rich set of sources that I was looking at, and immigration and its regulation is always a topic that receives tremendous attention in law on these various aspects. In addition to that, I was looking at various social science and humanities literature
03:41
exploring the border, and I was also looking at institutional design. One of the things that inspired us was trying to think through the shifting border, imagining once I have created this new paradigm, what kind of questions were left unanswered, what kind of rights individuals might have or not have under this new shifting border model. That is, once I've done the foundational work of identifying a new framework,
04:04
of course that led to a whole new set of findings and new questions that I addressed in the book. My key findings are that, unlike the theoretical expectations we have from the static or the disappearing borders,
04:21
borders are definitely not disappearing, they're still with us, but they're transforming and they are metamorphosing, they're really changing in a very dramatic way. And the main finding that I have is that unlike the image that we have with the static border, that the individual has to first reach the territorial border, only there, you know, they would meet an immigration official, have their documents inspected,
04:42
and then either be granted permission or not. This kind of regulation now occurs far, far away from the territory prior to arrival in many cases, or it may occur after you're already within the country, still your status might be checked and you might be ordered removed if you're not in the country with permission.
05:02
So the new border that we're fighting, the shifting border, is much more dynamic. It's a tool that provides tremendous flexibility, tremendous discretion, tremendous power to states acting alone or in concert in terms of regulating mobility of individuals as they move through the travel routes that they take.
05:23
And in terms of examples, I can give you three examples that just illustrate different manifestations. There are many others, but I'll just point out these three. So the first example I'll share with you is from the United States, and that's an example of the boarding shifting inwards. In the United States, there was a change to the primary legislation,
05:42
to U.S. Immigration and Nationality Law, which introduced a procedure that's called expedited removal. And expedited removal, as the name indicates, means that border enforcement authorities are permitted to remove individuals or not allow them to come in very expeditiously, very quickly, without requiring them to have, say, a whole full process of review
06:04
if a person is seeking asylum, for example. So that's what expedited removal stands for. But in the United States, the federal government also added one other change. Now, this expedited removal occurs not just at the territorial border, but within a zone of 100 miles away from the border.
06:23
So if you are now caught in that zone, in that 100-mile zone, which as it happens, 200 million Americans reside in that zone, two-thirds of the U.S. population is within this 100-mile zone, border authorities or any law and order authority is permitted to ask you to provide documentation
06:42
that indicate that you have a right to remain in the country. You could be asked this randomly, without probable cause, which typically is not something that authorities are permitted to do once you are physically within the territory. So here the border bleeds in, leading some individuals to say that within the United States now, we have a constitution free or constitution light zone.
07:05
And again, given that we typically think about arrival to the territory as granting very significant rights to individuals, this is a dramatic change. This is one indication of the shifting border. I'll provide you a second example. So my second example is from Canada, my home country.
07:21
So Canada, given its geopolitics, most people need to fly into the country in order to enter. And what Canada has done is it has perfected the technique of interdiction abroad. This means that your documentation, your permission, your ability to enter Canada is not checked upon arrival, but actually upon departure. So if you're flying in, say from Europe or Asia or any other part of the world,
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you would typically meet other liaison officers, which operate on behalf of the Canadian government, or almost likely you'll meet third party delegates such as airline personnel who would actually check your documentation. And if you don't have the correct documentation, you will not be able to embark on a plane. You will never be able to reach the territory.
08:02
Now, this might matter dramatically for all of us, but especially for asylum seekers, because their rights are very different if they are either in the country or if they do not reach the country. They don't have the same extraterritorial protections. A third example, which is one of the most dramatic examples of the shifting border,
08:21
comes to us from Australia. Australia, even more than Canada and the United States, has reimagined its territory for the purposes of immigration regulation, creating through law a change which is referred to as the migration zone, which is different than Australia as we would have seen it on the map.
08:40
So Australia, of course, is still there physically, and its map, if you look at the Atlas, it still has the same map. But for immigration regulation purposes, if you cross the border without permission and reach one of those mobility zones or excision zones, from the perspective of Australian law, you will have never reached the country. Although physically your body is there, you actually arrived, legally you never arrived.
09:05
This is what we call a legal fiction. But this legal fiction is very dramatic in terms of its implication for your rights and protections. Again, especially if you're seeking asylum, you will not be able to remain in Australia. You will be moved to another location where your claim will be processed.
09:21
It could be Papua New Guinea. It could be the island of Nauru in the Pacific, a very small island that has had individuals who were detained there for years while their claims were processed by Australia. Even if you have a legitimate claim to remain, even if you gain refugee status, you will not be able to go back to Australia.
09:41
So the shifting border here becomes a black hole. It's just a place where you can never exit. You will never be able to come back to that country that you were trying to enter. So these are specific examples of the shifting border. Other manifestations, but I hope I convinced you that they are very dramatic. It means that the world now is not similar to what we would have
10:00
either under the image of the static border or the disappearing border. And I believe we should think through these findings and really find ways to respond to this new legal reality out there. The findings are relevant because we're dealing with some of the hardest questions that we have to deal with as societies.
10:22
That is who belongs, who gets in, and according to what criteria. And questions of territorial entry are connected to questions of membership. Therefore, they're always deeply charged in all of our societies. So long as we don't have a global community where not everyone, every human being is included in the community, we have to make hard choices.
10:41
That is who belongs and who does not. And again, how do we make these decisions is very crucial. And territorial entry is meaningful for that kind of question. If I need to distill the findings and why they're relevant, I would mention two dimensions. There are many others, but I'll just mention these two.
11:01
The principled level and the pragmatic level. At the principled level, again, the question of regulation of mobility has been defined as the last bastion of sovereignty. It's crucial. It's crucial for the identity of states. It's crucial for their ability to exercise authority. We learned that they do so in very creative and new ways,
11:21
oftentimes in great collaboration with other states, either transit states, states of origin, what are referred to as buffer zone states, and also in collaboration in Europe, for example, with Frontech, which is a supranational entity, and also with private entities, such as airlines and airports.
11:41
So all of these agents are doing the work of regulation and understanding, comprehending how thick and complicated and dynamic the network of the shifting order has become, allows us to understand the way that we think about questions of membership and identity and belonging has to factor in this new legal reality
12:02
that complicates many of our existing models. In many ways, it's restrictive, but given that I am an eternal optimist, I think we could also think about various new openings that we can identify once we take seriously and fully comprehend the weight of the shifting border. So now just turning to the pragmatic,
12:21
one specific example that I develop in the book. If borders are now shifting, that they may operate at the point of destination throughout your journey, once you cross the border and even after you cross the border, that our still static imagination of where rights become effective,
12:41
which is typically when you actually reach the static, territorial border has to be revisited. We need to rethink our conception of how protections are implemented in the context of mobility and migration. So if the border itself can shift, if enforcement can occur potentially anywhere in the world, I argue that so should rights.
13:02
Rights should follow the border. So if the border is extremely flexible, mobile, agile, dynamic, so should our rights protection. And currently there's a disconnect. States have really run away with their, in some ways, extremely creative and brilliant ways of regulating mobility. But the consequences might be so great for individuals
13:21
that I think we need to find ways to bring in that perspective of the individual, of the person whose body is caught in that network of the shifting border and bring them the same rights and protections that they would have had had the border only stayed static. And of course, if the border had disappeared, mobility would be much freer than it is today.
13:42
So that model just has not materialized itself. The important thing about the shifting border, which I track, is that states are really playing a very fine line. They're not saying we do not respect our international obligation, or they're not saying we no longer respect non-refoulement or other aspects of refugee law,
14:01
but they are really doing everything in their powers to walk very close to that line of not enforcing all of these rights while still claiming that they uphold the values of human rights, democracy, protection of individuals. And I actually see that gap as an opening. That is, if states are still stating
14:20
that this is their obligation, we can hold them to account. It gives us tremendous ability as democratic citizens to respond and to say, well, if these are your principles and the implementation is precisely the reverse, then we have to close this gap. And one way, as I said, is to have human rights follow the border.
14:41
Well, my research, really this particular project, the Shifting Border Book, is part of my larger outlook or my fascination, my attempt to really comprehend how states are regulating mobility and migration and citizenship, how individuals interact with states once they encounter these very powerful systems,
15:04
and also how we might reimagine membership, diversity, inclusion under these new circumstances. And throughout my work, I've dealt with different aspects of my first book, Multicultural Jurisdictions, looked at questions of religious diversity
15:20
and gender equality. My second book, The Birthright Lottery, explored, reconceptualized how we think about the transfer of membership from one generation to another. This book, The Shifting Border, focuses more on how states regulate mobility, whether within the country, prior to arrival,
15:41
all around the idea of regulating mobility and how sovereignty is exercised in relationship to the border. And the next project that I'm now embarking on really brings all these themes together. That is, I'm calling it the grand transformation of citizenship. I'm fascinated by this question
16:00
of how we organize our lives collectively. And I look at it again from a very multidisciplinary perspective, through the legal perspective, philosophical perspective, social science and humanities perspective, trying to first have a very good grounding, understanding the kind of nuances and the kind of shifts that have occurred. And also, once I have that grand picture,
16:22
which I believe I will have in this book, trying to explain what I believe might be some of the injustices or some of the concerns that we might have with these new structures. And how we might respond to them, envision a reality or a perspective of membership, which is more inclusive,
16:42
but still also respective to the claims of individuals and communities that want to suggest that they have a particular identity or way of life that they would wish to preserve. So again, typically we might think about just saying, let's just go up to a global level, have global citizenship. That's not the mechanism that I advise.
17:02
I think it's wonderful if people have a sense of a global community, but in terms of our legal structures, I believe that states will remain with us for the foreseeable future and therefore the kind of work that we need to do. And they might act collectively, they might act regionally. This is all within the framework, but this grand transformation of citizenship
17:22
really tries to track and understand and comment on the future of citizenship, membership and identity in the 21st century.