States as agents and as trustees

Fundamentally, Ayelet Shachar does in The Shifting Border (2020) what she did previously in both Multicultural Jurisdictions (2009) and The Birthright Lottery (2001), and what makes her voice both so distinctive and so incisive. The characteristic Ayelet Shachar strategy is not to argue, as a moral philosopher might, to the conclusion that some structure is unjust and must be revised (somehow or other), 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. This is again different from a critical legal theorist who might say the reverse – not that an oppressive power structure is also a legal apparatus, but that a legal apparatus is fundamentally an oppressive power structure – and also different from a natural lawyer who might deny that the apparatus, inasmuch as it is oppressive, is actually legal. Nor finally, is Shachar's approach like that of the political scientist, who might try to diagnose the causal structure of the injustice, both how it is carried out and how it became policy. ¹ Shachar's take, in contrast to all of these other approaches, is that, yes, it is legal, but legal systems are highly varied, built of elements that are often at cross-purposes but contain, fundamentally, not only tools of oppression but tools that can alleviate oppression if intelligently applied. And then she suggests a way to intelligently apply them and thereby alleviate oppression. There is a deceptive modesty to it all. Some powerful changes that would uproot oppressive systems could follow from relatively small tweaks regarding which rules apply where, and to whom.

Shachar (2020) describes the legal anomaly of territorial states whose policies in effect “shift” their borders both inward and outward for the sake of harassing and interdicting would-be migrants as well as facilitating the mobility of favored populations. These practices subvert the basic territoriality of legal jurisdiction in two ways: by moving the border outward, states confront would-be migrants outside their territory, preventing them from “touching base” and exercising their basic Refugee Convention rights to non-refoulement and so on; and by moving the border inward, states create zones within their own territory in which constitutional protections and legal rights are attenuated or suspended altogether, so that “touching base” lacks its normal legal force.

That these bordering practices are oppressive and in fact deadly hardly needs to be derived from sophisticated arguments. It is little wonder, then, that border skeptics, including proponents of “open borders” and of “no borders” are ascendant in the political philosophy of migration (Sager, 2018).

Yet Shachar does not follow the border skeptics. Instead, she starts from the “non-ideal” assumption that states (or at least, their politicians) will not suddenly embrace mass migration, and nor will the politics of migration miraculously become more humane. ² So she uses existing law as well as precedents from municipal and international courts to insist that the basis of state human rights duties is functional and jurisdictional, not merely territorial. This effectively gives states a choice: If the state chooses to confront migrants outside state borders, then it must guarantee the basic rights of everyone it interacts with. Such rights include the power to apply for asylum and, if accepted, to receive safe transport to the destination state. If, on the other hand, it does not want to recognize these rights, then it is free not to send representatives abroad.

This doctrine first and without exception requires states to recognize the Refugee Convention rights of all persons who “touch base” within their borders. “Constitution-lite” zones and outlaw status of the sorts that blight the political landscape of countries like the US and Australia, and more recently even the European Union, are abolished. But second, anywhere state agents go, inside or outside the territory, they must protect the rights of migrants as if they were inside state territory. In other words, where the state acts is less significant than the fact that it is the state that is acting.

At issue between Shachar and border skeptics is whether to tolerate, normatively, the state's desire to manage flows of people, refuse entry to some, and coercively enforce these decisions. Shachar does not challenge these activities, but takes them for granted while trying to “tame” them. Given what we said earlier about the obviously oppressive character of contemporary bordering practices, her toleration of bordering practices seems dubious. Let us therefore consider what can be said in its defense.

Territoriality and passivity

The debate between Shachar and open borders advocates such as Fine (2020) is over whether the “beast” of border restrictions and migration management can be tamed. They agree that it is a beast. I want here to question that framing and consider whether it is actually not a beast but an excessive and oppressive response to an understandable desire if not in fact a legitimate interest. So let's take seriously for a moment the perspective of destination or transit states, those that are using dubious legal stratagems to block or divert flows of people.

In the face of international law and transnational flows of people, resources, and environmental goods and bads, the territorial state is profoundly passive. Planted in the ground like a tree, states find themselves passive recipients of anything the world throws at them, powerless to act until they are forced to catch whatever's been thrown. The US response to the “migrant caravan,” a supposed miles-long line of people walking north from Central America through Mexico, is illustrative. The US was powerless to intervene until the caravan arrived to allegedly overburden the asylum system. Only a few years before that the children's caravan arrived, unaccompanied, at the border. Who knew how many people might come? Here we are, just trying to do our thing, and suddenly 10,000, or a million, or a billion people might appear at our doorstep needing food and shelter, health care and a job, or a set of foster parents. Stress ensued. And that was the US, a country of 330 million facing maybe 5000 migrants; now consider Hungary or Greece, adding to this the context of, say, being only one generation removed from foreign (Soviet) domination, or a genocidal war next door, or continuing to suffer from a crippling EU austerity plan, where external powers prevent you from shaping your country democratically.

It's understandable that states might desire to break out of this passive stance that their territoriality seems to leave them in, to take a more active role in managing the flow of people so that intake and absorption do not overwhelm them or force them to drop everything and scramble to deal with an emergency. In fact, the outward shift might in some ways be more humane than the passive stance, since it might reduce the costs incurred and risks borne by migrants who actually do make it to the border only to be sent back; it might, furthermore, reduce the perceived need for an inward shift, and temper the predictable right-wing backlash. These would all be salutary consequences.

Because it accommodates this desire to manage flows of people and things, arguably Shachar's proposal is more likely to actually bring moral progress than an open-borders view. For mere open borders returns every state to its passive territorial position of awaiting whoever and whatever comes, merely denying states the right to interfere with their entry when they do. Worse, this passivity also entails no help for the refugee until arrival: migrants have to run the gauntlet of dangers, toils, and snares on their way to the destination country. Shachar's new and improved border backpack is thus importantly preferable.

The border skeptic obviously denies the legitimacy of the state's desire to transform this situation of passivity. The problem with this denial is that it ignores what justifies territorial jurisdiction in the first place. Why do people fear mass migration? That is, why do people fear it? Leaving aside racism and xenophobia, and the racist or xenophobic politics that can be whipped up by sensationalistic media accounts of migration, there are also legitimate reasons for concern. These reasons go to the basic justification of territorial rights. To put it roughly, as I suggested earlier, we are trying to do our own thing here (Kolers, 2009). Mass migration not only might divert us from doing our own thing and force us to spend significant resources on intake and absorption, but could radically change what it was that we were doing. Social changes that nonconsensually alter our choice structure threaten autonomy even if no particular person coerces us to make any particular choice (Benjamin, 2016). I don’t mean to accept what might be biased or racist accounts of national culture or whatever. But I do want to insist that there are some things that some people might be doing – most clearly, small-population states, regions with distinctive cultures or close-knit communities or cultures highly adapted to their environment, or Indigenous communities – that would become impossible or at least be radically altered if the flow of migrants could not be regulated. This is one reason that scholars of resilience argue that bounding and controlling access to common pool resources is essential for managing them; in general, community resilience seems to require relatively low net migration (Kolers, 2015; Ostrom, 1990). Thus managing flows of people is not an intrinsically illegitimate thing to want to do. To the contrary; it can be necessary for the sustainable provision of basic needs and public goods. And at bottom, management rests on enforcement. Shachar's view accommodates this; border skepticism does not.

Radical monopoly and states as trustees

Shachar's proposal thus makes room for states’ attempt to seize an active role where they were previously passive, and with it the justification of particular territorial claims. Yet it may be less able to account for the justification of territorial claims in general. That is, beyond the question of why it's permissible for each state to regulate its borders, is the question of why it's permissible for the state system to control the entire surface of the Earth. States constitute a radical monopoly, disabling people from adopting alternative modes of social and political organization, or any mode of protecting their own rights, that does not depend on states (Illich, 1973). States themselves threaten autonomy by altering our choice structure in just the way I noted above; so if their actions rest on this justification then their actions must be evaluated by the same criterion. What, if anything, can justify or at least exculpate this radical monopoly? Arguably, it has to be the rights and interests of all people (or moral patients generally) in perpetuity: the states system organizes the Earth in trust for all current and future generations.

This trusteeship establishes a principal-agent relationship between the states system as a whole and human beings severally and together. Each of us is a principal; and since the states system as a whole does not act except through individual states and the organizations they establish, individual states and organizations inherit the fiduciary duty to act as our trustee. This fiduciary duty entails, at least, universal respect for basic rights, including political rights in the form of what Hannah Arendt (1966, 296–298) called “the right to have rights” – the right to “a place in the world which makes opinions significant and actions effective.”

This trustee relationship and its attendant fiduciary duty brings us to my principal concern with Shachar's proposal. That is, it seems not to do enough to demand fulfillment of this fiduciary duty, and thus treats migrants more as patients or objects of concern than as active principals whose claims are dispositive, up to a point, against the state. The reason for this limitation is that Shachar does not challenge the direct municipal principal-agent relationship that binds each state to its own citizens and puts them at odds with migrants in the way described above. This municipal principal-agent relationship – which must be authorized by and subsidiary to the global one that the states system bears to all of us – creates a pernicious triangular relationship where state agents act on migrants in the name of their citizens. This triangular relationship between principal, agent, and patient imposes dependency and vulnerability on migrants, undermining their “right to have rights.” ³

To be sure, Shachar's “border backpack,” which state agents carry beyond the border and which Shachar would turn into a kit full of supplies that can be deployed to help the migrant reach safety, does enable the migrant to act. But as described, it seems to me merely to ask the state agent to assist the patient much as a charitable organization might subcontract some of its assistance work out to a local on-the-ground agency. So while I applaud the proposal to protect the vulnerable, I fear that the worrisome triangular relationship remains in place.

A similar risk exists inside the destination country. Shachar's principle would altogether ban inward shifts such as excision zones and Constitution-Lite zones, restoring the sacrosanct rights-guarantee contained in “touching base.” But the question is how far this would go toward empowering or even protecting migrants. Specifically, there remains the risk of enforcement against refugee claimants whose claims are denied (rightly or wrongly) but who try to stay anyway; and against people who never present themselves to state agents, but simply seek to cross the border for their own purposes, be they work, family, meeting basic needs, or whatever. Extending the rule of law to protect refugees does nothing to address non-refugee irregular migrants, temporary migrant workers, illegalized immigrants, and so on. Nor does it challenge enhanced and militarized attempts at interdiction that threaten everyone's rights even if those rights could be legally enforceable, should anyone get their day in court.

To address this problem of the triangular relationship, I want to suggest an extension of Shachar's proposal. Attending to the justification of the state system, David Owen (2020, 3) has suggested that states receiving refugee claimants must act in loco civitatis for the migrant or refugee. We might imagine each migrant, indeed each person, equipped with a backpack full of rights, claims, and powers that can be exercised by contacting any agent, official or semi-official, of any state. The migrant becomes the principal and the state agent becomes their agent.

The justification for this shift is twofold. First, at the individual level, if non-refoulement is a basic human right, then any asylum seeker whose claim has not been evaluated, at least, is prima facie in peril and so their right to have their case heard cannot be a mere liberty right; it must be a claim right, and they must have the power to compel state agents to begin appropriate intake procedures. The second justification is structural. As Owen (2020, 29–31) argues, echoing Arendt, the states system's legitimacy rests on its service of the interests of each and all. Therefore, being on call for refugees is a condition of state legitimacy, because, but for the state system's radical monopoly, that person could have gone somewhere else entirely and not needed anyone's permission to enter.

It follows that it is not only states that shift the border outward that have to protect asylum seekers outside their territory, but all states, or at least, all states whose agents can be reached by phone or email. Yet if all states, even those that are trying to mind their own business, are suddenly implicated in duties to protect refugees, this seems to exacerbate the passivity of territoriality that I was worried about earlier.

To break out of this passivity, states can act collectively with other states. Migrants who arrive at our borders do not simply materialize out of thin air, but move through other states. And migrants who contact our state agents might want to exercise their rights by coming here or going somewhere else. There is thus a panoply of duties at the front end as well as the back end – from enhancing safe mobility and communications capacity, to resettlement and social supports – that must fall on the states system as a whole but not necessarily on any particular state in any given case. Interstate cooperation, not migrant interdiction, is the appropriate site of enhanced state activity, and a way for particular states to break out of their territorial passivity.

This revision also addresses the problems of the inward-shifting border. If state legitimacy depends on the legitimacy of the states system, and the latter is grounded in a universal trusteeship for which each state is accountable, then not only do migrants have individual human rights but political rights. Whereas the triangular relationship leaves the state in position to dominate irregular migrants in the name of its citizens, universal trusteeship repudiates this. Even if it is reasonable to set up a temporal boundary on the right to full citizenship (Cohen, 2018), it is not reasonable to have a migration system that is unaccountable to the persons whose activities, locations, and rights it regulates. Thus, for instance, noncitizen migrants should carry, in their backpack of rights, claims, and powers, the right to vote on the head of the immigration enforcement agency. Such rights as this would change the inward-shifted border in crucial ways. It would become a system serving its clients, rather than a system of domination serving third parties with whom it has little interaction.