Reply to my critics

Abstract

In this response essay, Ayelet Shachar replies to her critics, pushing beyond the arguments developed in her most recent book, The Shifting Border, to probe new ideas. Specifically, she elaborates five avenunes for exploration: dethorning the state as the exclusive decisionmaker on migration; finding the tools to alleviate oppression in the criticized practices themselves; identifying rights and duty-bearers; exposing the spatial dimension of structural injustice; and revisiting the role of territory as mediating equality.

Reply to my critics

“Small moves, Ellie, small moves”

Ellie Arroway, the protagonist of the film Contact—played by Judy Foster—is a scientist who specializes in the search for extraterrestrial intelligence. As a child curious to know if there's “anybody out there,” Ellie's father nourished her fascination. “Small moves, Ellie, small moves,” he guides her, as they use an amateur radio to scout the sky for radio pulses, hoping to detect a ping from the cosmos. In Ellie's field of research, small moves may lead to transformative changes.

I was reminded of Contact when I read the insightful responses offered by my astute and generous interlocutors. Inspired by their queries and observations, for which I am deeply grateful, I wish to push beyond the arguments I developed in The Shifting Border to probe new ideas. Specifically, I wish to discuss five avenunes for exploration: dethorning the state as the exclusive decisionmaker on migration; finding the tools to alleviate oppression in the criticized practices themselves; identifying rights and duty-bearers; exposing the spatial dimension of structural injustice; and revisiting the role of territory as mediating equality. I address each in turn.

De-centering the state

Patti Tamara Lenard proposes two friendly amendments to my call to dig “new channels for migrants seeking protection, rather than leaving those migrants to rely exclusively on the act of ‘touching base’” (Shachar, 2020, 82). Lenard rebels against the conventional sovereigntist interpretation of the state as holding sole and exclusive decision-making authority on migration. Instead of abstractly reevaluating the state's right to exclude, Lenard follows The Shifting Border's methodology by working from the ground up. Drawing upon recent experimentation (in Canada and elsewhere) with community-based refugee sponsorship programs that allow complete strangers to directly engage in the resettlement of newly arrived refugees with whom they have had no prior relationship, Lenard urges us to expand “our sense of who should be involved in controlling admission” (Lenard, 2021). I fully endorse this suggestion, which illustrates how we may begin to “enlarge the ‘pie’ of actors and stakeholders” who are relied on to provide aid to those seeking mobility and access to protection (Shachar, 2020, 267). Lenard speaks enthusiastically of the pro-migration actions taken by individuals in their capacity as “citizen humanitarians” (Lenard, 2021). ¹ She also mentions the stance taken by sanctuary cities which provide identity cards and services to undocumented migrants, and as such, may act against national policies. Lenard argues persuasively that such action should not be seen exclusively through the lens of civil disobedience. Rather, it is a way to engage in vibrant democratic politics that creates new spaces to “question the exclusive jurisdiction of states to control borders” (Lenard, 2021). Once we adopt this lens, it becomes clear that a wide range of actors and agents are already involved in facilitating mobility: family members sponsor the admission of their loved ones; universities play a key role in recruiting international talent; employers rely on expedited visa processing; religious organizations petition the government to issue special permits to religious leaders who can serve their communities. At the transnational level, actors such the UN refugee agency play a key role in “matching” individuals entitled to resettlement with countries that are willing to let them in.

There is a darker underbelly to international migration, too. Unscrupulous intermediaries—from profit-maximizing recruitment agencies to clandestine trafficking networks, to mention but a few—cash in on the hopes of migrants from the world's poorer and less stable regions, often in abusive and exploitative ways. The variability of these actors and their motivations affirm Lenard's point about the urgent need to take account of “who” is involved in the migration process. It is also crucial, I would add, to investigate why certain actors participate, under what authority, and with what interests in mind.

To date, despite the proliferation of these actors, none have “outbid” the state. Formally, the state remains the final decisionmaker, and the underwriter, of the rules defining admission, stay and naturalization for different categories of entrants. The prevalent legal presumption is that, with the exception of humanitarian grounds, a state is under no obligation to open its gates or grant residence to those seeking to get in. Notwithstanding the state's unique position in this space, Lenard offers a concrete illustration of the potential to de-center the state and challenge its monopolization of the authority to regulate movement by emphasizing the importance of bottom-up activism, sponsorship and matching. In this retelling, the state is no longer (if it ever was) the sole, exclusive, absolutist, unilateral player in the field of migration.

Avery Kolers goes a step further. He argues in favor of tipping the balance of power: from states blocking mobility to individuals seeking entry. Before I elaborate on this theme, I would like to highlight another dimension of Kolers response, which starts off with an elaboration of the method of argumentation that informs The Shifting Border.

A methodological interlude

More explicitly than I have done in my own writing, Kolers elucidates that “Shachar[‘s] strategy is not to argue, as a moral philosopher might, to the conclusion that some structure is unjust and must be revised … but rather from the evident fact of injustice to explicate how the state's capacity to deploy unjust oppressive power is a legal construct, and hence, can be revised in some specific way once we appreciate how the relevant laws work” (Kolers, 2021). Kolers’ analysis captures an important insight about the methodology of critical theory as a commitment to reimagining the emancipatory potentials hidden in (deficient) contemporary practices and dominant institutional structures (Ahlhaus, 2021). These emancipatory potentials may appear as moments of rupture, counter-movements, or claims-making. These contestations do not appear out of thin air. Rather, they erupt from cracks in the machine, seeping through its fault lines of injustice and inequality. If the tools of resistance are in part contained in the practices that sustain the shifting border's amorphous form of unmoored power, then we need to comprehend, scrutinize, theorize, and anatomize the contours of the machine, or the “beast,” we are up against This opens the possibility to not only “identify the tools of oppression, but tools that can alleviate oppression” (Kolers, 2021).

Kolers concurs with my argument that “where the state acts is less significant than the fact that it is the state that is acting” (Kolers, 2021). If each state seeks to continue to exercise control over its borders—a power that is so colossal that it “cages” people onto certain bounded territories—the state system as a whole must be responsible for protecting people on the move, especially those seeking refuge and asylum (Kolers, 2021; Owen, 2020). But how can this be done? In the book, I discuss the metaphor of the backpack filled with rights and protections that must be carried by state officials (or their third-country partners and delegates) whenever and wherever they deploy the flexible tentacles of the shifting border; this ensures that governments cannot evade their obligations to protect basic rights by manipulating the location of the encounter. Alex Sager crisply summarizes the logic of this proposal: “when states manipulate borders to extend their control over people, they should simultaneously acquire responsibilities to protect human rights” (Sager, 2021). On this account, when Italian pushbacks are turned into Libyan pullbacks, the backpack remains in operation. Otherwise, as human rights activists have been quick to point out, in a post-Hirsi world the Italian authorities will outsource to Libya what they are prohibited from doing themselves. The idea of attaching a binding set of rights and protections to be carried in the “backpack” offers a mechanism to “bind states and to harness shifting borders so that they can be used to serve refugees” (Sager, 2021), turning into a potentially reconstructive moment where the tools of oppression, once identified, can be turned “against themselves.”

On rights and duty bearers

Think of the backpack as a “kit full of supplies that can be deployed to help the migrant reach safety” (Kolers, 2021). As such, Kolers suggests it should be transferred from the shoulders of state officials (or their deputized agents) to those of individuals on the move. There is much to be said in favor of this proposal. Kolers is spot on in his conclusion that if the metaphorical backpack is passed onto the individual, she gains immunity and the state acquires a liability (Hohfeld, 1917). But which state, precisely? It is here that we find the Achilles heel of the current international refugee system. In the post-WWII era, the right to asylum is enshrined in the 1948 Universal Declaration of Human Rights, which states that “[e]veryone has a right to seek and to enjoy in other countries asylum from persecution” (UDHR, Article 14). The 1951 Refugee Convention and its 1967 Protocol, the main legal documents instituting the postwar international refugee protection system, establish the definition of refugee and the principle of non-refoulement. Regional conventions and court decisions, domestic and supranational, have further expanded the definition of refugee beyond the 1951 Convention. The result is that there is no shortage of rights that attach to individuals seeking asylum. The problem is to determine the corresponding duty-bearer: which specific state must activate the mechanisms of protection that translate the universal right to asylum from an abstract promise to a concrete reality.

When drafting the Refugee Convention, states intentionally left open this highly charged question. Over time, territorial arrival became the required connecting factor. Accordingly, once the asylum seeker—the right-holder who has no clear duty-bearer to turn to—reaches the territory or frontier of a given state, its gates of asylum must open. And herein we find the kernel of the shifting border, the invention of a “variety of legal fictions and political maneuvers” (Sager, 2021) that allow states to evade their responsibilities as duty-bearers if they manage to avert the territorial arrival of the rights holder. As I show in The Shifting Border, affluent countries are using a stunning range of techniques to expand and contract, “plant” and “replant” the now-portable border—doing everything within their powers to uphold their commitments de jure while de facto hollowing them out by averting the possibility of “touching base.” To address this problem of evading responsibility, the reversal of the roles that I have proposed obliges state agents and their proxies to carry a backpack containing all the rights and protections that would have been triggered had the migrant reached terra firma. In this way, we may forestall the tremendous discretion and authority that states have given themselves by manipulating time and space in the service of rights-restricting shifting-border operations that allow states to evade, rather than fulfill, their roles as trustees. Another way to explain this last point is: the refugee already carries the backpack with her, but she is barred from exercising the rights, claims, and protections that her backpack contains so long as states continue set the conditions that must be met to decide which fiduciary duty holder will become the actual addressee of the universal right. ² By obliging agents representing the state to carry the backpack, and by shifting the basis of responsibility from the territorial to the functional, we give true meaning to the goal that Kolers and I share: namely, that “[t]he migrant becomes the principal and the state agent becomes their agent.” (Kolers, 2021). ³

The spatiality of structural injustice

Sager's beautifully-written essay speaks to the significance of “drawing new maps and formulating new conceptions of sovereignty, territory, and legal spatiality” (Sager, 2021). He aligns his inquiry with the project I began in The Shifting Border by exploring the prospect of “reconcil[ing] state spatial innovations with justice” (Sager, 2021). Focusing on the political function of maps, Sager emphasizes their track record as tools for solidifying the spatial matrix of modern sovereignty as well as imperial and colonial conquests. Maps help to “naturalize” and sanction the classification of people by location, status, and category—with widely unequal access to rights, resources, and life chances. Sager importantly observes that “[m]aps not only represent the nation-state; they actively construct it” (Sager, 2021). Moreover, maps play a normative or “framing” function (Sager, 2021), which helps shape and legitimize a dominant point of view of space and place, in the process silencing and erasing competing interpretations or prior definitions of sovereignty and peoplehood. The legal doctrine of terra nullius (Latin: “nobody's land”) is perhaps the starkest example of this phenomenon. The visual image of empty territory was historically deployed in the service of conquest and empire by indicating that a European colonial power could take control of such land if no other European colonial power had claimed it. The conquerors’ gaze frequently saw territory as “empty” even if inhabited by indigenous populations. The historian Alan Forst explains that Europeans considered a territory uninhabited and therefore conquerable if “they [the indigenous population] had not yet mixed their labour with the earth in a permanent way.” Recent work that explores the relationship between liberal theory (including John Locke's theory of property, invoked here), international law, and colonialism vindicates Sager's point about the significance of the spatial dimension of structural injustice—and its cartographic articulation. Sager further contends that when faced with a “rotten system” that immobilizes people and normalizes violence against migrants, the “solution is not solely a matter of individual resistance, but systemic change” (Sager, 2021). I could not agree more. Alas, we face a significant challenge in charting the contours of the rotten system we are up against. No longer a fixed territorial marker but an amorphous legal construct, the shifting border defies any simple attempt to capture or “map” it. The massive expansion of sovereign power that is enabled by and results from this ever-mobile, kaleidoscopic shifting border remains scarcely regulated; as such, it creates lawless zones and rightless subjects. How to respond? Sager resists the poles of cynicism and abolitionism (Sager, 2021). In the alternative, he suggests that we explore something that is grander, albeit more difficult to achieve. In line with the emphasis on reconstructive methods mentioned earlier, and echoing the book's spirit, Sager endorses a strategy of “outsmarting” the shifting border by “harness[ing] states’ extraterritorial reach in the interest of refugees;” fearlessly imagining “institutions under which mobility [rather than its denial] is an ordinary part of life” (Sager, 2021).

Territory as equalizing?

Collen Murphy makes three important arguments. First, she asserts that The Shifting Border provides a “conceptual framework for making sense of important phenomena in the world that are familiar but have not been sufficiently synthesized and conceptualized in ways that allow for systemic analysis and critique” (Murphy, 2021). I am grateful for this elegant characterization, which affirms a key motivation that guided me in writing the book, namely, an attempt to fill a large hole created by the realization that “we currently lack the basic conceptual language to capture, describe, and critique” the sweeping transformation taking place in the reconfiguration of territoriality and recalibration of sovereign power (Shachar, 2020, 7). To begin to close this lacuna, I deployed three interrelated levels of analysis—diagnostic, interpretative, and prescriptive—to reveal the failure of existing theoretical models to capture the new realities of border and migration control that we find on the ground. I further aimed to show how practices that initially appear disparate and unconnected fit into a larger interlocking pattern, creating a nebulous yet formidable matrix of power and control: a world of shapeshifting borders that arrest justice and mobility. As mentioned by all my commentators, the book engages in a “form of critique that aims to employ normative potentials” (Ahlhaus, 2021) to transcend the unjust institutional frameworks which it investigates.

Second, and in line with Kolers’ argument, Murphy views The Shifting Border as essentially providing “grounds for calling into question the legitimacy of the international order” (Murphy, 2021). By emphasizing its connection to an enduring idea – the duty of hospitality that is owed to strangers (Murphy, 2021; for comprehensive discussion, Boudou 2017), Murphy situates the book's outcry against injustice as part of a tradition that stretches back to the ancient world. Murphy highlights the moral calamity of an “international community [that] is prepared to allow a great number of people to be left to their own fate” (Murphy, 2021). It is against these background conditions that the sharp edge of territoriality is revealed. In arguing that “touching base” cannot exhaust the routes of protection, I tried to explore principled ways to hold states accountable to their obligations and to open up new channels for refugees and asylum seekers to find safe haven without necessarily following the arduous and often perilous prerequisite of attaching their bodies to the territories of well-off countries that are doing everything in their powers to avert their arrival (Shachar, 2020).

Third, whereas my book focuses on migration and mobility, dealing primarily with questions that fall under the rubric of “migration politics,” Murphy urges a broadening of the analysis which I welcome by turning the gaze from migration politics to “membership politics.” In doing so, she calls our attention to the violence that states deploy against the “unwanted” from within. As Sager reminds us, governments throughout the world are “pioneering newly opaque ways of exercising control and evading moral and legal responsibilities” (Sager, 2021). These patterns have only been exacerbated during the Covid-19 pandemic. Justified as emergency regulations that exist outside the regular democratic process, new technologies such as biometric facial recognition, algorithmic risk calculation, and digital surveillance can target anyone, anywhere. Although we expect such extreme measures to elapse once the crisis has passed, the worry is that once such technologies have been “activated,” they may be prejudicially and discriminatively turned against religious, ethnic, or racialized minorities (Murphy, 2021). In seeking resources to counter such practices, Murphy notes that “[b]y defining community in a manner that links territory and sovereign borders, the exclusion of individuals living within those borders from citizenship is vulnerable to critique” (Murphy, 2021). Echoing Lenard's emphasis on the role played by multiple actors in shaping access to membership, the idea that presence on the territory can act as a source of claims-making has been powerfully embraced by migrant social movements, from the “Dreamers” in the United States to family reunification advocates worldwide, just as it has gained a mainstay in theoretical arguments prevalent in law and political philosophy.

Indeed, the notion of territorial presence as equalizing is central to the Westphalian order and to the rise of modern conceptions of citizenship, which revolted against ancien-régime societal orders that were structured around unequal statuses, entitlements, and distinctions. While we now take it for granted, equal citizenship within the territorial state is, as Rogers Brubaker reminds us, a “distinctive feature of the modern political landscape” (Brubaker, 1992, 21). Murphy is concerned that any loosening of this system will implicitly grant states license to deny citizenship to those they wish “imagined out” on account of religion, race, ethnicity, turning them into stateless residents in their own home countries, and in the process exposing them to grave risks if not outright atrocities.

This is not a farfetched scenario. India's recent Citizenship Amendment Act (in tandem with its digital national population registry) provides a chilling example: it has exposed close to 2 million Muslim citizens in the northeastern state of Assam to the peril of being stripped of their citizenship rights if they cannot provide evidentiary documents to prove tenancy records or birth registration in India. In this example, shared territorial presence fails to provide an equalizing, common denominator for eligibility. Instead, the specter of ethnonational chauvinism and violence raises its ugly head. In other countries, too, the connection between territory and citizenship by itself has not ensured a remedy against systemic racism and structural injustice. The struggles of indigenous communities in both the Global North and South, as well as recent Black Lives Matter protests against police brutality offer a fresh reminder. If anything, there is a risk that racialized minorities in the United States and elsewhere will face “hyper-territorial” surveillance that erodes their freedom and dignity. This risk is reflected, for example, in policing practices that target predominantly Black neighborhoods by using predictive AI tools which rely on “location-based algorithms to draw links between people, events, and historical crimes rate.” Such surveillance creates a feedback loop: increased surveillance results in more reported crime, which in turn justifies even greater surveillance and police presence.

Despite these difficulties, I wish to hold onto the notion that “being here” (to draw on Bosniak’s (2007) terminology) can serve as a powerful claim for justice, especially for those who would otherwise remain without a secure status. In previous work, I have explored how to give meaning—ethical, political, legal, institutional—to the commitment of ensuring that those who reside on the territory, even if not born there, have an opportunity to acquire membership; indeed, I devoted a significant part of The Birthright Lottery (Shachar, 2009) to providing justifications and pathways to expanding such access beyond what current law prescribes. One such idea is the “jus nexi” principle, which offers an equitable and remedial route to citizenship based on actual links, connections, and place-based bonds to the territory and society in which one has taken root (Shachar, 2009, 164–190). Jus nexi and related proposals focus on the circumstances of those who are already on the territory. In contrast, The Shifting Border focuses on people “out of place,” including refugees and asylum seekers who are blocked before they reach the shores of the promised lands of migration. If you never enter the territory or are removed to an offshore processing location (as Australia has done, and as Denmark and the UK may soon do too), even the most generous regime of equal citizenship mediated by territorial presence will not provide you justice or remedy.

Unless challenged, the statist gaze will remain imperial in relation to the territory it possesses (Hirschl and Shachar, 2019), engaging in willful amnesia to erase and silence previous owners, dispossessed peoples, earlier sovereigns, or other competing claims holders. Reliance on territory in assigning membership is typically understood as an expression of civic over ethnonational markers of identity and affiliation; but land can bear and be infused with fervent nationalist narratives, just as it may deny recognition for other spatial imaginations or community formations that do not comply with existing lines on the map which themselves suppress earlier conceptions of membership and sovereignty – for example, by indigenous peoples.

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I agree without reservation that the problems we address are grave; the prospects for a magic bullet solution is slim. But I do not wish to advocate despair. As more players are engaged in the complex web of the shifting border apparatus, we may see more oppression and more skirting of responsibility and accountability. More access points may also entail, however, revamped scrutiny and unforeseen opportunities. Recall that it was the Supreme Court of Papua New Guinea—a country that was previously subject to Australia's colonial rule and whose government agreed to lend its soil to Australia's project of detaining its “offshored” asylum seekers—that bravely put an end to Australia's offshoring processing, vindicating the asylum seekers who petitioned the court. Lenard focuses on new actors; Kolers on relocating the backpack; Sager on the multiple functions of maps; and Murphy on the mediating role of territory. Each of these perspectives is vital in dismantling or at least mitigating the liability and injustice unleashed by the shifting border paradigm. Like Ellie's father in Contact, and along with my commentators, I believe we must ambitiously take in the big picture while at the same time acknowledging that if we find the sticking place in this intricate, multifaceted machine, “relatively small tweaks could bring powerful changes” (Kolers, 2021).