This study of the 16-year-old Russian Constitutional Court provides several insights for scholarship on the “black box” of judicial empowerment. Although these insights, learned from a three-case study within one state, may not travel successfully across other times and places, this learning may provide a context for future systematic comparisons and may illuminate the puzzles to be addressed in future research. Understanding the turbulent emergence of Russian constitutionalism and judicial review in the post-Soviet era informed us about several puzzles of judicial empowerment:

1. why the same powerful political actors who created the judicial review tribunal in 1991 nearly disbanded it after 2 years of its operation, and then revived the court shortly thereafter;

2. why the RCC exercised its judicial powers broadly yet inconsistently; and

3. why government officials, including judges on other courts, promptly carried out RCC decisions in some cases, delayed implementation in other cases, and sometimes simply ignored RCC orders.

My short answer to all three puzzles is that a mix of domestic and international legal, political, and psychological factors accounts for this zigzag behavior on the part of politicians, judges, and bureaucrats. Those who pay attention to judicial review (politicians, judges, bureaucrats, and legal elites) can attempt to influence the impact of the constitutional courts by changing the design of these courts, their jurisprudence, and levels of compliance with their judgments. This may generate the following nonlinear trajectories of judicial empowerment.

The core argument of this book is that rulers – regardless of their authoritarian or democratic pedigree – create and tolerate new constitutional courts as long as the latter: (a) provide important benefits for the new rulers, and (b) do not interfere too much with public policies. However, the enormous uncertainty during the change of political regime, the unstable policy preferences of the new ruling elites, judicial behavior, and the incapacity of the government machinery to obey court decisions – these four factors blended together complicate a cost–benefit calculus of having a strong judicial review and facilitate the unintended nonlinear trajectories of judicial empowerment.

To explain why judicial empowerment during the change of political regimes is a nonlinear process, the rest of the chapter consists of three parts. First, it defines judicial empowerment as a dynamic feedback among the three variables: the court design, judicial decision making, and the enforcement of court decisions. Next, it takes a closer look at the benefits provided by the judicial review during the regime change and describes a feedback mechanism that facilitates the nonlinearity of judicial politics. Then, it explores the four factors that exacerbate the nonlinearity in transitional judicial politics and four potential objections to my argument.

DESIGN, JUDGING, AND COMPLIANCE: A TRILATERAL DYNAMIC OF JUDICIAL REVIEW

A traditional way to think of the relationship among the institutional design of courts, their judgments, and compliance with them is to construct it in a temporal linear sequence. First, a court is created and staffed.

Tales of globalization invariably return to one of two geographies – the European Union or the United States. In the case of Europe this turning is a romantic longing: a sense that Europe is the peaceful way of the global future. With good luck and good governance we can imagine Europe is what globalization will mean for all of us: eroding borders and diminished sovereignty, all to mutual benefit. Europe is set on a course of steady expansion, spreading the blanket of strong human rights protections and robust international law ever eastward and southward. Candidate countries are eager to comply and join; enticed by the prospect of economic union, they rush to improve conditions of human flourishing. What could be better for all than to turn the globe itself into an area of freedom security and justice? The United States is the twin avatar of globalization. Although the image is not exclusively rosy, the United States is the sole remaining superpower, winner of the Cold War, uncontested hegemon. In contrast to Europe, the United States is engaged in a more “direct delivery” method for the global spread of democracy and human rights. There is enormous contestation within and outside the United States about the virtues and values of its war on terror. This is a debate about methods, not about the ultimately unambiguous good of conquering terrorism and bringing the disputes it represents within an appropriately broad democratic umbrella.

I started writing this chapter in July 2005 as the forensic sifting following the first coordinated bombing of London's public transit system was beginning. Within days, the investigators had discovered that the suicide bombers had been “homegrown” Britons, citizens, full members of the society they had attacked. Three of the four had been born in the United Kingdom, and all had grown up there. This detail was repeated in news reports, even when the report was clearly focused not on place of birth as a potential determinant for terrorist predilection, but as a detail that somehow had relevance nonetheless. This news, presented as “shocking,” was quickly followed by a story originally carried by the New York Times, but soon syndicated to the corners of the globe, arguing that Britain had allowed itself to become a haven for Muslim extremists and that the attacks were a complicated consequence of having been “too tolerant.” Later it emerged that at least one of the bombers had trained in Pakistan. These events, and this coverage of them, encapsulate the new notes in the migration law – security fugue. They point to diverse aspects of the urgency that security issues have taken on for those concerned with migration, and to the reasons that security, a marginal concern at most in a statistical panoply of migration, now clamors for attention at the center of the discursive stage.

In the twenty years since Joseph Carens wrote that birth in a prosperous state is the modern equivalent of feudal privilege, his statement has become truer than ever as it travels through time to the cusp of a postmodern world. This truth comes from the shifting nature of sovereignty under the pressures of globalization, and from the resulting transformation in migration laws that undercuts the individual equality of liberal legalism with a rigid hierarchy of entitlement. This chapter completes my argument about globalization and illegal migration by analyzing these shifts in three concluding movements. The first of these is to look at the picture of sovereignty that emerges in each of the core sampling chapters and to develop from this an analysis of the prospects for migration law reform. The second concluding movement is to consider what the implications of this transformed sovereignty are for the rule of law. The final movement of the chapter is to consider what migration law reveals about the place of law, more broadly, in the narrative of globalization.

Migrating sovereignty

The case that migration law is being transformed into the last bastion of sovereignty is made out in a straightforward way. There is evidence of this transformation in each of the core samples, as well as in the narratives of globalization reviewed in Chapter 3.

Changes in migration laws, whether formalized or discretionary, reverberate throughout citizenship law. Like migration laws, citizenship laws in prosperous Western states are displaying an increasing similarity at present, with more states permitting dual citizenship and more states opting for citizenship rules that come somewhere between the traditional jus sanguinis and jus soli principles. Citizenship, as the most privileged form of membership, seems remote from illegal migration. Nonetheless, both popular and scholarly talk of illegal migration introduces citizenship into the discussion in fairly short order. This happens because citizenship is easy shorthand for legitimacy, and because citizenship law and migration law work together in creating the border of the nation.

This chapter considers what citizenship laws mean for illegal migration. Its central assertion is that citizenship as a formal legal status is enjoying a resurgence of authority at present and this is directly linked to the worldwide crackdown on illegal migration. I begin by considering how migration law and citizenship law work in tandem. Given this relationship, I then outline how the pressures of globalization on migration laws are transferred through the migration law “buffer” to citizenship laws. This leads to the conclusion that citizenship law reflects the paradoxical nature of globalization as we see here that inclusions and exclusions are increasing at the same time. Finally, in considering the role that amnesties play in both the politics and the law of illegal migration, the fiction of formal legal citizenship is unmasked.

In any given week in 2007, newspapers around the world carried reports of “illegal” migration. This did not start in 2007. It is not poised to end any time soon. While many of the accounts are about the United States or the European Union, unauthorized migration is newsworthy in all corners of the globe. Russia has a large and growing extralegal population. China stopped more than 2,000 illegal border crossers in 2006. Thailand and Malaysia have launched a cooperative approach to their shared illegal populations. The Gulf of Aden is a key human smuggling route. South Africa is attempting to grapple with its unauthorized occupants. Morocco and Ethiopia face similar issues. Brazil both sends and receives extralegal migrants, as does Mexico. Illegal migrants come in droves to India, and in lesser numbers to Pakistan. Whatever term we choose, extralegal migration is a global phenomenon.

The rise of the moral panic that accompanies this phenomenon is a marker of the twenty-first century. At the outset of the twentieth century, migration was in the process of becoming “legalized.” It was not until early in that century that a robust system of passports and visas was fully established to regulate border crossing. The great waves of migration of earlier eras took place largely without the framework of migration laws, fostered instead by the legal structures of colonial empires and the image of great unpopulated spheres of the globe.

This chapter addresses the decreasing availability of asylum in prosperous Western countries. The vital theme here is how international refugee law has become intertwined with the growing global concern about illegal migration. From an advocacy point of view, this is jarring. Refugees are not illegal migrants. Although the Refugee Convention does not specify a right to enter another country, it is widely understood to prohibit turning claimants away from a state party's borders, and it explicitly prevents states from punishing refugees for illegal entry. It seems, therefore, that conditions are in place to prevent refugees from being caught up in the illegal migration panic. This impression is heightened by the observation that international refugee law has been in place for more than half a century, that 147 states are signatories to the key Convention and Protocol, and that this high rate of adherence has prevailed for some time. In addition, the Refugee Convention, as I mentioned in Chapter 3, is the one exception to the principle that international law has very little to say about migration, and that states are by and large free to close – or open – their own borders.

All of these factors mean that it is crucial to understand why refugee law nonetheless fits with the argument I am making. Refugee law's relationship with state sovereignty is my reason for putting this core sample first.

The phenomenon of human trafficking stands out as the starkest example of illegal border crossing. Illegal migration with a difference – trafficking has “victims.” As victims, those who are trafficked fit differently into the imagination than many of those who are rendered illegal by the migration laws of prosperous nations. The label “illegal” will hardly stick, as the victims are innocent. This makes it more difficult for states to rhetorically cast the victims of trafficking as transgressors, thus altering the familiar illegal migration discourse. It is even problematic to equate the victims of human trafficking with those who suffer from the trafficking of drugs. Drug addicts are discursively more blameworthy than human trafficking victims are; they somehow are associated with some initial choice, a lack of willpower, or at the very least, a deep weakness. Trafficked humans have none of these markers. Although people trafficked are not only women and children, they are overwhelmingly so. In addition, while they do not exclusively serve the sex trade of the prosperous, sex work and sexual exploitation predominate as explanations for the success, in market terms, of trafficking in human beings.

The importance of human trafficking to globalized migration laws is all about victims: what it means to be a victim, how victims are constructed and named, how victims shape criminals, and how victims call forth remedy, or lack the power to do so. More than refugees, the victims of trafficking trouble the insider-outsider dichotomy of migration law.

In September 2003, five Britons released their “No One Is Illegal!” manifesto. With the opening salvo, “For a world without borders! No Immigration controls!” they called for the elimination of all border controls, for opposition to all deportations and for a massive trade union campaign to organize undocumented workers. Their opposition to border controls is grounded in a conviction that immigration laws cannot be “reformed” in a way that will meaningfully sever them from what they label racist and fascist origins. The “No One Is Illegal” manifesto asserts the impossibility of grounding thoroughgoing reform in compassionate exceptions to the immigration laws, and the inability of liberalism to do more than reinforce a demarcation between inclusion and exclusion. Beginning in 2002, “No One Is Illegal” groups began to make their voices heard in a number of Canadian cities. The Canadian groups identify themselves as a “campaign” and, in a perhaps typically Canadian political posture, take a less ideologically articulated position than the British group. The Canadian groups do not, for example, highlight an opposition to all forms of immigration control. They instead focus on a broad integration of social justice issues: