The Law of Walls

Abstract

Recently, Western democracies have turned to building border walls as a strategy of immigration control. This paper makes two claims. First, human rights courts and quasi-judicial bodies are deeply implicated in this move. Drawing on an analysis of case law, I show that they have worked out a system in which walls have become a predictable strategic solution for states that seek to retain control over immigration. Second, the way human rights enforcement bodies have treated border walls has made them legally permitted and even encouraged their construction. Immigration walls raise a jurisdictional challenge. Human rights law and the national law of many democratic states guarantee individuals that have established territorial presence access to basic human rights. A porous border is thus required by the very concept of universal human rights. In one view, because a wall is concrete in a way that the jurisdictional border is not, erecting a wall closes the porous border and is thus a matter of human rights. In another view, the construction of a wall is an administrative technique for controlling immigration and is, from a human rights perspective, a non-event. Neither view, however, can be wholly supported. The first is politically unsustainable, while the second is morally indefensible. Human rights enforcement bodies avoid taking a stand by regulating the physical structure of the wall. The result is the redrawing of borders that is politically unstable and is normatively unjustifiable.