Basic Human Rights, Robustness, and the Reformability of Immigration Enforcement

This paper argues that border enforcement practice that is structured according to dominant conceptions of sovereignty is not compatible with a normative imperative of respect for human rights. Accordingly, I begin the first section by specifying the conception of human rights underlying the argument. I then explain what I believe to be the normative demands of my conception. Finally, I provide a quick overview of the existing literature on the tensions between state border enforcement and human rights, indicating why I believe this literature ought to be challenged.

Political theorists all but universally agree that a state’s use of force against (would-be) immigrants can be legitimate only on the condition that their nonforfeited moral human rights are respected in the process (even conservative theorists agree; cf. Miller Reference Miller2013). But human rights discourse is complex and contested. Although there is a list of universal legal human rights—the UDHR—moral-philosophical disagreement on the proper scope, contents, and upshots of human rights discourse rages on. More concretely, there are persisting controversies about which rights ought morally to count as human rights, where they come from, and which corresponding obligations they impose on which parties (cf. Cruft, Liao, and Renzo Reference Cruft, Liao and Renzo2015). My account attempts to circumvent these debates by relying on a conception of the contents and demands of moral human rights that should be acceptable to most, if not all, observers. On this conception, immigration enforcement should, as a matter of legitimate governance, show robust respect for basic human rights. First, the idea of basic human rights identifies as a moral baseline for my argument only those human rights entitlements that are both uncontroversially agreed upon and arguably morally most fundamental. These include, though are not necessarily exhausted by, the human rights to personal security. Accordingly, my understanding of “basic human rights” captures the content (rather than the legal dimensions) of the following UDHR stipulations:

I take for granted that all reasonable philosophical positions will agree that all persons are fundamentally entitled to enjoy the content of these stipulations, unless they are forfeited, as may happen for instance in situations of war and self-defense.Footnote ⁴ I presume that to come to this conclusion it matters neither whether one thinks human rights entitlements are justified by needs, interests, the necessary conditions for human agency, flourishing, or other properties nor whether one thinks human rights entitlements are innate functions of personhood or manufactured political instruments of moral importance. It is simply the case that one could not imagine a desirable world where all persons would not have entitlements to these basic stipulations (for an overview of the philosophy of human rights, and implicit evidence that basic human rights as outlined here indeed represent an “overlapping consensus,” cf. Nickel Reference Nickel and Zalta2021).

Second, the idea that legitimacy requires robust basic human rights respect specifies the normative demands of basic human rights and introduces concrete institutional obligations. A still unspecified robustness desideratum is often implicit in the relevant literatures. In global justice and democratic theory scholarship, it is generally acknowledged that to have legitimate authority—to generate obligations for individuals to follow their rules—states must be governed such as to avoid inflicting extreme injustice on their subjects. And although it is sometimes unclear what precisely is included in this standard of extreme injustice, it is clear at least that one necessary condition for legitimacy is that state institutions systematically respect basic human rights (Buchanan Reference Buchanan2003; cf. Rawls Reference Rawls1993, 428). Articulating a similar concern, Carmen Pavel (Reference Pavel2015) argues that the international legal and political system should be restructured because under current rules and structures, states have repeatedly proven unable to reliably respect and protect their own citizens’ basic human rights. The idea common to these concerns for robustness or reliability is that when we proclaim the fundamentality of some human rights, it makes no moral sense to build institutional structures that cannot offer “adequate guarantees” that such rights will actually be protected across a wide range of scenarios (Pavel Reference Pavel2015, 23). Indeed, we can only realize aspirations of universal (basic) human rights if there are guarantees that persons can reliably enjoy the substance of these rights across many situations, and especially when they are confronted by authoritative, force-wielding institutions—in our world, usually those representing state power. Requiring robust basic human rights respect captures this: the larger the class of social and political scenarios in which persons can rely on basic human rights viability, the more robust the rights. For political legitimacy, we require guarantees that force-wielding, authoritative institutions come with a systemic capacity to prioritize our basic human rights over other considerations, thereby displaying a commitment to enlarging this class of scenarios as far as possible. Therefore, such institutions must be characterized by inbuilt dynamics suitable to facilitating a prioritization of rights viability in their relations with subjects. We can express this by insisting on a Robust Respect Imperative (RRI): where authoritative institutions govern persons with force, they do so legitimately only if they are structured in a way that facilitates the systematic prioritization of respect for all subjected persons’ nonforfeited basic human rights.

With these clarifications in hand, we may now turn to immigration enforcement. Political theorists have sometimes claimed that immigration restrictions are in normative tension with what they take to be universal human rights. They have argued, inter alia, that the exclusion of immigrants impermissibly restricts freedom and autonomy rights, hampers the economic rights of the most deprived and disadvantaged, or contravenes the logic of the already codified human right to free movement within states (e.g., Carens Reference Carens2013; Oberman Reference Oberman, Fine and Ypi2016). The enforcement of these restrictions, however, has only recently been problematized as a distinct dimension to this tension. Contributions to these debates about enforcement generally reach either of two opposing conclusions, thereby dividing this literature into two opposed camps.

First, there is the reformist camp. This camp consists of a range of contributions that respond to states’ violations of basic human rights at borders by theorizing and advocating for solutions that are understood as tweaks conducive to making supposedly liberal democracies live up to their ideational promises. Dominant principles of sovereign state jurisdiction over immigration enforcement thus largely go unchallenged: it is not that our systems of bordering are fundamentally misconceived but that principally adequate systems stand in need of serious repair (e.g., Cohen Reference Cohen2020; Lister Reference Lister2020; Mendoza Reference Mendoza2017). For instance, Elizabeth Cohen (Reference Cohen2020, chaps. 1–2) tells of the ever-expanding power of U.S. immigration enforcement agencies, arguing that these regularly violate migrants’ basic human rights with near legal impunity (Cohen Reference Cohen2020, chaps. 1–2). She argues, however, that these issues can be rectified by policy reform—to operate a justifiable immigration regime, the United States needs to liberalize its approach to immigration and reorient its institutions to operate based on rights respect (Cohen Reference Cohen2020, 189–205). Similarly, Mendoza (Reference Mendoza2017, 106–13) argues that statist immigration regimes ought to adhere to universal protection and equality of burdens standards. These standards intend to render the right to operate such regimes conditional on respect for basic human rights and liberties and the citizenry’s egalitarian sharing of the burdens of immigration enforcement. These principles are explicitly meant to guide the construction of frameworks for the internal reform of prevalent sovereign state immigration policy and enforcement, providing a normative foundation “for actual immigration reform in a world like ours” (Mendoza Reference Mendoza2017, 117). As in Cohen’s case, the underlying presumption is that states operating on dominant sovereignty conceptions could appropriately reform their immigration enforcement practice towards permissible conduct.

A diametrically opposed—abolitionist—camp takes widespread border violence and human rights disrespect in immigration regimes to warrant the total abolition of border enforcement (Jones Reference Jones2017; Sager Reference Sager2020). Encompassing both open borders and no borders views, the abolitionist camp argues that basic human rights disrespecting violence is inherent in immigration enforcement. For instance, Jones (Reference Jones2017, 8–11) argues that the enforcement of border regimes does not allow for a sufficient concern for the general interests of all persons, therefore marking them irreconcilable with (among other things) basic human rights security. Similarly, Sager (Reference Sager2020, 59) insists that the power structures of immigration enforcement are such that “[d]ehumanization and demonization are not aberrations but rather an ever-present potential response.” Conceptually, borders constitute categorical inequalities, functioning to ascribe some fewer rights and protections than others; this conditions, empirically, a culture of violence and degradation.Footnote ⁵ Immigration enforcement as such is thus hopelessly corrupt and stands in the way of basic human rights security.

Both camps’ prescriptions are complicated by an argument that takes seriously the Robust Respect Imperative and the way in which dominant conceptions of sovereignty condition the institutions of state immigration enforcement. We will see that the reformist camp’s presumption that immigration enforcement could be legitimately conducted under current or closely reachable conditions becomes untenable once the sovereignty-based mechanisms that persistently and systemically endanger basic human rights at borders are understood properly. But such an understanding also provides grounds for a critical reevaluation of abolition because the culprit of basic human rights insecurity is identified not with border enforcement as such but rather with the dynamics of the dominant sovereignty conceptions that underpin it. To show how dominant conceptions of sovereignty entangle in a sovereignty nexus that conditions illegitimate, RRI-violating immigration enforcement regimes, I begin with a discussion of the concept of sovereignty.

Sovereign Disrespect

“Sovereignty” is a discursive construction laden with difficult histories and prone to functional appropriation by all sorts of political projects. In political theory, it is most prominently known to have developed both in association with the social contract theories and as a quasi-theological notion of total dominion in, among others, Bodin and Schmitt (Brown Reference Brown2010, 68–70). In political practice and international law, we commonly understand sovereignty as a state’s “supreme authority within a territory,” a bulwark against external encroachment (Philpott Reference Philpott and Zalta2020). However, it is increasingly emphasized that the narrative of absolute authority has become largely fictitious in a globalized post-World War II order of multidimensional realignments of powers and jurisdictions (for discussion, cf. Joppke Reference Joppke and Joppke1998a, 12–20). What is less often foregrounded is that the legal and political practice of state sovereignty developed (also) as an instrument of colonial subordination, granting inviolability of territory and peoplehood only to racially defined “civilized” populations, and thereby enabled rather than precluded imperial impositions in the colonial era (Anghie Reference Anghie2004; Bonilla Reference Bonilla2017). The colonial anchoring of sovereignty praxis coupled with its enduring appeal for the political imagination has led to critical scholarship that seeks to problematize and refashion the concept for decolonial and emancipatory purposes (Bonilla Reference Bonilla2017; Nisancioglu Reference Nisancioglu2020). “Sovereignty,” then, is a concept in flux, with its manifold meanings and purposes constructed in response to concrete political practice and social struggles (cf. Bishara Reference Bishara2017). Thus, I do not attempt to define what sovereignty is but will instead focus merely on what I take to be the central features of its particularly dominant discursive constructions. I then show that these features entangle conceptually in a sovereignty nexus. This nexus has authoritative implications for real world border governance, structuring the conditions of enforcement in a way that is irreconcilable with the RRI.

The first move is to distinguish between two types of prevalent sovereignty conceptions: external (state) sovereignty and internal (popular) sovereignty. While we have already conceded that state sovereignty today is rarely understood in absolutist ways, this does not mean that a traditional conception of state sovereignty does not retain a central place at the heart of international law and politics (cf. Cohen Reference Cohen2004; Reference Cohen2012). In an integrated world increasingly governed by inter-, trans-, and supranational norms and networks, it is argued, the notion of a principled inviolability of state sovereignty is important to preventing the imposition of imperial projects in the name of cosmopolitan rights and norms and enabling and preserving the right to collective self-determination (Benhabib Reference Benhabib2011; Cohen Reference Cohen2012). More generally, the idea of state sovereignty as the prerogative for states to conduct their internal affairs without foreign imposition (on the condition that they respect the international jus cogens framework) has been construed as a central cornerstone of the international rules of engagement (Cohen Reference Cohen2004). In reality, of course, this rather neat picture is disturbed by ongoing, postcolonial power differentials between states that lets some states enjoy not only unquestionable sovereignty over their own development but also dominance over many of the resources that other states require to fulfil their sovereign aspirations. In practice, sovereign power is unevenly distributed, with some states enjoying supersovereignty, and others left unable to translate formal sovereignty into meaningful self-determination (Getachew Reference Getachew2019, chap. 1; Thomas Reference Thomas2019, 57–9). Nevertheless, the understanding of state sovereignty as the universal prerogative of states to (largely) self-determine matters of territory and population without imposed external interference remains hegemonic in international law and politics, exerting “normative dominance” over the ways in which state entitlements are constructed and state behavior is judged (Bonilla Reference Bonilla2017, 334). Because I seek to investigate the ways in which predominant constructions of sovereignty condition state behavior, it is this hegemonic conception of sovereignty that I shall refer to whenever speaking of state sovereignty.

If state sovereignty concerns states’ relations vis-à-vis the external world, popular sovereignty is about the state’s internal regulatory principles. Popular sovereignty, an idea with a long history reaching back to antiquity, can mean and has meant many things, depending on historical social context. Although the understanding of popular sovereignty dominant in today’s politics has retained an ancient Greek notion of “supreme unaccountable rule residing in the people,” it has been significantly shaped and developed especially by the theoretical and practical contributions of the modern social contract theories and Atlantic Revolutions (Bourke Reference Bourke, Bourke and Skinner2016, 3). Through these developments, popular sovereignty has predominantly come to be understood as the principle that those institutions that formulate and enforce the rules governing a sociopolitical, territorially bound community discharge such governance in a legitimate way only insofar as control over them is held in common by those who are both subjected to this governance and whose interests give rise to it in the first place. In today’s prevailing international order, states represent the dominant webs of coercive public institutions governing distinct sets of people on particular pieces of territory and are thus generally seen as popular sovereignty’s proper sites.

These paradigmatic understandings of the demands and sites of popular sovereignty are increasingly challenged. For instance, Achiume (Reference Achiume2019) argues that we should rethink how claims to participate in popular sovereignty properly arise, criticizing the prevalent understanding of a “political community” as corresponding to a geographically bounded polity of cocitizens rather than a particular set of relations mediated by political subjection. In another example, the sites of popular sovereignty are being contested in current thought about the possibilities for the self-determination of Indigenous peoples within colonial settler-states. Here, what is at issue is how Indigenous sovereignty can be expressed beyond assimilation into the settler state and secession and Indigenous statehood (Bruyneel Reference Bruyneel2007; Moreton-Robinson Reference Moreton-Robinson2020). Nevertheless, the hegemonic understanding of popular sovereignty generally refers to the state-bound conception of self-government as defined with reference to the social contract tradition and Atlantic revolutions. Arguably, this idea of popular sovereignty represents a central justificatory foundation for state-bound democratic governanceFootnote ⁶ and has provided the dominant frame for guiding the regulation of internal state affairs, as evidenced by its relative ubiquity in constitutional texts or other formulations of societies’ basic normative orientations (for a problematizing discussion, cf. Galligan Reference Galligan2013).

We are now in a good position to move back to border enforcement and consider how it might become structured and conditioned by a sovereignty nexus. To begin with, migration challenges dominant conceptions of state sovereignty. Where the sovereign imperative to exert territorial control coincides with a state’s expressive commitment to human rights, a liberal paradox has been argued to result: immigration is viewed skeptically and heavily restricted, and yet states admit at least some unwanted immigrants and can often accommodate their human rights demands (Joppke Reference Joppke1998b). It is much debated which mechanisms effect this outcome, with some arguing that logics of globalization are primarily responsible for constraining states’ capacities to exclude as they wish and others insisting that state-internal rule of law prerogatives most stifle sovereign logics of exclusion (Hollifield, Hunt, and Tichenor Reference Hollifield, Hunt and Tichenor2008; Johannesson Reference Johannesson2018; Joppke Reference Joppke1998b). However, although this debate shows that various mechanisms have often kept sovereign states sufficiently in check to thwart at least some of their impulses to exclude and ignore outsiders’ claims, a deeper question about the positioning and sturdiness of these claims within systems of sovereign governance has not so far been addressed. Although it is worthwhile to ask what leads to empirically observable human rights outcomes that run counter to seemingly restrictive sovereign logics, such studies ought to be supplemented with a deeper theoretical analysis of the way in which (dominant) sovereign logics fundamentally condition exclusionary institutions’ responsiveness to migrants’ human rights entitlements to begin with.Footnote ⁷

This is where we get to the sovereignty nexus. Where both outlined constructions of state and popular sovereignty are dominant, they entangle in a unique way at state borders, creating a normative paradigm for immigration enforcement that flows from the interdependence of these sovereign logics. As noted above, the dominant conception of popular sovereignty concerns the political empowerment of the members of territorially bounded political communities. For such a conception of popular sovereignty, what Arash Abizadeh (Reference Abizadeh2012, 847) calls the “legitimate boundary problem” has long been intractable: there seems to be no procedure or criterion that establishes the civic and territorial boundaries of the sovereign in ways consistent with popular sovereignty’s more general aspiration to institutionalize rulemaking by and for those subjected to it, as exclusion from the sovereign subjects the excluded to rule making supposedly without consultation or consent (see also Goodin Reference Goodin2007; Whelan Reference Whelan1983). In practice, of course, dominant constructions of popular sovereignty are nevertheless widely seen to require ongoing civic and territorial boundary-drawing. After all, without continual demarcation between those who belong and those who do not, there is no clear sense in which a group (itself a concept that requires an outside comparison category) can enable itself to commonly strive for territorially bound self-governance. Not only is this boundary-drawing necessary; it is also the self-governing group who is generally seen to have authority over it (cf. Benhabib Reference Benhabib2011, 143). For one, deciding over the future bounds of the demos is simply one instance of governance over the existing in-group members and thus a matter of popular sovereignty. Even more importantly, such a decision concerns the future composition of the popular sovereign itself, thereby affecting and potentially threatening the directions a current sovereign envisions for its future trajectories.Footnote ⁸

To practically achieve such a vision of popular sovereignty, state sovereignty legitimizes authoritative control over borders. Ultimately, state sovereignty as final authority over borders and immigrant admissions is central to facilitating popular sovereignty because the maintenance of a particular sphere of popular sovereignty is generally seen to require its members’ collective decision-making power over its own boundaries. The ability to assert final authority over borders, in other words, is construed as central to facilitating the boundary-making seemingly necessary for popular sovereignty to remain a coherent, functional, and attractive ideal. The function of border regimes is to authoritatively include and exclude in order to enable the bounded promise of popular sovereignty, to make possible and maintain the popular sovereign’s control over its own constitution. The border becomes the site of a nexus between popular and state sovereignty.

The problem is that the sovereignty nexus thus understood creates a normative paradigm for immigration enforcement that cannot be reconciled with the RRI. The point of the RRI is that a proper commitment to basic human rights must disqualify institutional arrangements under which basic human rights respect and protection are subjected to a continuous re- and devaluing commensurate with the changing political tides. But border regimes, insofar as they instantiate a sovereignty nexus, are precisely such arrangements. To see why, remember that the RRI demands that institutions of power must be structured so that they are capable of prioritizing respect for basic human rights over counteracting motivations. Institutional commitment to respect basic human rights throughout and across contingencies is what renders basic human rights reliably secure. Therefore, to live up to the RRI, states must govern immigration enforcement based on a fundamental principled and policy-instantiated regard for basic human rights, which must in turn create appropriate constraints on action on the ground. But when final authority over borders is understood as a crucial requirement for the facilitation of popular sovereignty, states must prioritize not outsiders’ rights but their own unquestionable authority over immigration and border enforcement. Within such systems of bordering, striving for effective control over territorial boundaries is structurally prioritized over counteracting motivations, including basic human rights respect. Under the sovereignty nexus’s logic, then, states are systemically tilted toward prioritizing the maintenance of absolute authority over satisfying the interests of those who confront their borders, regardless of how morally stringent such interests or obligations to respect them may be (for a similar diagnosis, cf. Hidalgo Reference Hidalgo2016, 145–52). Ultimately, what should be a prioritized commitment to the basic human rights of outsiders necessarily becomes a mere possibility, arrived at only through lucky constellations of uncommitted, even biased, political stars.

Beyond its drastic implications for human rights concerns, thinking about border regimes in terms of sovereignty nexuses yields distinct theoretical insights about real-world bordering mechanisms and practices. Most importantly, it enables us to capture the evolving character of border regimes and urges caution about tying our understanding of sovereignty to their static and traditional forms. For instance, it sheds doubt on Brown’s (Reference Brown2010) influential diagnosis that border walls signify the advent of “waning sovereignty,” where futile efforts at border protection through walling are interpreted as hail-Mary efforts at signaling sovereign dominion in the face of an erosion of the quasi-theological fiction of sovereignty as absolute power over territory.

For one, even where border walls are ineffective, they may comfort the popular sovereign’s self-understanding of self-rule, shoring up fragile popular sovereignty constructions by projecting authority and control. To understand this as signaling a waning of “actual” sovereignty is to misunderstand that popular sovereignty is fundamentally a discursive construction, upheld not only by facts on the ground but also by suitable narratives about such facts. And second, to pose that sovereignty’s trajectories can be illuminated by focusing on bordering practices and then limiting one’s analysis to the phenomenon of border walls is to neglect the more compelling side of the coin. Many states have expanded on the static practice of focusing immigration control efforts on the policing of fixed geographical boundaries, pivoting instead toward intra- and extraterritorial measures. They outsource border control to private companies and third states, decouple the bounds of their legal territories from the parameters of their geographical territories, vest bordering capacities in artificial intelligence systems, and subject successful irregular migrants to heavy state-internal attrition—all to the effect of controlling territorial entry and immigration status both far outside and far inside of the geographical bounds of territory (Longo Reference Longo2017; Kukathas Reference Kukathas2021, chap. 3; Shachar Reference Shachar2020b). Thinking about such “shifting borders” (Shachar Reference Shachar2020b) in terms of sovereignty nexuses makes powerful sense of them. Dominant and powerful sovereignty logics do not necessarily emphasize states’ territoriality in static spatial terms, and their relation to bordering processes is not restricted to what happens at fixed territorial lines. Instead, what matters is how prerogatives of state sovereignty can protect the imperatives of entrenched popular sovereignty conceptions most effectively: be it through symbolic walling practices or through the transterritorial reinvention of border governance as a “transportable legal wall that variably shrinks, expands, disappears, and reappears across space and time” (Shachar Reference Shachar2020b, 20). Thinking in terms of sovereignty nexuses yields a critical analytic conception of sovereignty that allows us to track and conceive of the dynamism and evolution of border regimes functionally, without having to tie the fate of sovereignty to spatially static bordering practices.

However, it is important to stress that this sovereignty nexus thesis is not meant to yield specific predictions about, or comprehensive explanations of, concrete basic human rights outcomes. Importantly, the sovereignty nexus’s triggering need not have any actual detrimental consequences for migrants’ basic human rights: migrations need not be perceived as opposed to the in-group’s interests, and the popular sovereign may tolerate and even welcome immigration for many reasons. Consider the class-based and racialized dimensions of immigration; rich immigrants are often welcomed with open arms, as they bring wealth and capital to domestic economies (Shachar Reference Shachar2020a, 21–5). In the Global North, it is mostly nonwhite immigrants who are suspected to subvert cultures or introduce undesirable novelties into their adoptive societies (cf. Fine Reference Fine, Fine and Ypi2016). Rather than focusing on outcomes, the sovereignty nexus thesis is concerned with explicating the hegemonic conceptual entanglements that lead to paradigmatic interests in authoritative control, paving the way toward a problematization of the way in which these interests condition institutional structure. Because of this, it can also be compatible with real-world examples of more rights-respecting, open, and interconnected border regimes, such as those recently coming to fruition in much of South America (Acosta Reference Acosta2018; Geddes Reference Geddes2021, chap. 4). For as Acosta’s detailed analysis of these emerging South American regimes emphasizes time and again, their relative openness and sensitivity to migrants’ rights claims remain predicated on matter-of-fact sovereign assertions of final border authority, including executive discretion over entry, regularization, and expulsion. They also remain fundamentally vulnerable to governmental change that can easily reverse hard-won progressive change, as the case of Argentina has demonstrated (Acosta Reference Acosta2018, 130–1, 140–1, 146, 190–2, 196–7; a point made also in Geddes Reference Geddes2021, chap. 4). The notion that the sovereignty nexus effects an institutional skew toward prioritizing authoritative border control fits well with such developments. But such developments also show that empirical debates about liberal paradoxes remain highly relevant: beyond the diagnosed institutional skew, the contextual variable constellations shaping bordering practices in concrete cases remain integral to understanding particular human rights outcomes.

Where sovereignty nexuses structure border enforcement, migrants’ basic human rights are highly insecure and RRI requirements go unmet. If we want answers to the question of whether states have moral rights to exclude migrants, we ought to consider the mechanisms according to which exclusion occurs. Insofar as sovereignty nexuses pervasively condition exclusion, states fail to institutionalize legitimate exclusionary practices and thus cannot be thought to have a right to enforce exclusion. In the last section, I will argue that the sovereignty nexus is not inherent in borders or their governance; rather, it is a particular mode of politics that can be displaced. Before getting there, however, it is worthwhile to show that it is a stubborn mode and, as such, one whose effect of institutional skew is not suitably correctable by putative constraint mechanisms available to politics operating within the framework of dominant sovereignty constructions.

Objections: Constraining the Sovereignty Nexus

One way for reformists to respond to my argument is to hold that although the uninhibited dynamic of borders as sovereignty nexuses may indeed have RRI-imperiling consequences, sovereignty nexuses can be appropriately constrained by counteracting forces. Resources for creating such forces are either already available to our domestic or international legal and political systems or at least in close reach. Thus, reform is much more feasible than I have suggested and sovereignty nexuses need not dominate our bordering systems.

Dismantling the Sovereignty Nexus

Given this bleak outlook, should we simply join the abolitionist camp? Arguably, ideas and practices of bordering are normatively problematic from a wide variety of perspectives, which may well warrant border abolition for reasons not negotiated here.Footnote ¹² I want to show, however, that the particular problem posed in this paper—that of border enforcement’s incapability to comply with the RRI when structured by certain sovereign logics—does not require border abolition as a theoretical solution. It locates RRI-imperiling mechanisms not in bordering as such but in the dominant conceptions of sovereignty that underlie and condition it. Such conceptions can be theoretically dismantled; and rethought understandings could take hold in political practice.

Because wielding authoritative state sovereignty against migrants has transpired as functional to enabling dominant conceptions of popular sovereignty, dismantling sovereignty nexuses requires a serious rethinking of popular sovereignty. A suitable conception of popular sovereignty will represent a radical departure from current hegemonies while having to retain its central ideal of self-governance. More precisely, moving beyond the mode of the border as sovereignty nexus necessitates a severing of the functional interconnection between popular sovereignty and authoritative state sovereignty. In a word, sovereignty as self-governance needs to be reoriented to reject the idea that the “current” popular sovereign’s absolute control over its future makeup is required for a desirable ideal of popular sovereignty to function.

In fact, many societies’ normative frames and practices already imply neither agreement with the idea that such control is required to achieve popular sovereignty nor that there is a right to exercise it. After all, it is widely accepted that we cannot permissibly dictate to people how many children they are allowed to have or who gets to reproduce. A society that takes itself to be progressive, for instance, is not morally permitted to deny the right to procreation to its scarce conservative members in order to control and keep stable the makeup of their popular sovereign. Neither is a predominantly white society allowed to ensure the stability of its racial makeup by prohibiting nonwhites from procreating. Similarly, it is a widely accepted rule that existing members (that is, citizens) cannot generally permissibly be expulsed from the makeup of the sovereign, even if a great majority should wish it so (cf. Fine Reference Fine2010, 353; Walzer Reference Walzer1983, 34–5). We may have interests in preserving the historical, political, cultural, social, and even ethnic characters of our communities, but we readily accept that we face significant constraints on the means our more general commitments allow us to discharge in pursuit of such interests. It is not in dispute, moreover, that these constraints against coercively regulating procreation or enforcing the expulsion of members do not diminish our ambitions and abilities to govern ourselves as the sovereigns of our respective communities.

Of course, it is not accepted that such lack of absolute control over self-constitution should extend to the regulation of outsiders’ movement over “our” territorial boundaries. One may give a range of reasons to account for this discrepancy—for example, that expulsion of members would amount to a denial of the general right of membership in some political community or that authoritative regulation of procreation would fail to show members of the cooperative venture that is the political sovereign sufficient respect, reasons that do not apply to the regulation of would-be immigrants’ cross-border mobilities. Still, we lack a principled explanation for the idea that nonabsolute control over outsiders’ cross-border mobilities should have a more seriously detrimental effect on the ability to maintain popular sovereignty than the lack of control insiders already accept when it comes to the treatment of their compatriots.

One does well here to remember that “popular sovereignty” is discursively constructed and upheld. Its dominant meanings are not defined simply by whatever the most convincing philosophical arguments produce. Rather, what we understand its contents to be is heavily shaped by histories of discourse imbued with and functional toward the achievement of particular sociopolitical objectives. Popular sovereignty is an idea with a history much older than the modern state’s prerogative to coercively exclude outsiders and aggressively border its boundaries. Where it has been constructed to interlock with Westphalian notions of state sovereignty via the purported need for control over the composition of a territorially bounded in-group, chances are such developments have aided the Global North’s fever dreams of “domestic” racial and ethnic homogeneity in times of concurrent imperialist conquest and colonial domination (cf. El-Enany Reference El-Enany2020, chap. 2). Where these conceptions persist today, chances are they function to mask institutionally entrenched and racially selective xenophobia while facilitating and rationalizing the postcolonial monopolization of illegitimately won and unjustly retained spoils (cf. El-Enany Reference El-Enany2020, chap. 3; Nisancioglu Reference Nisancioglu2020).

Whatever set of historical motivations and contingencies is ultimately behind the reconstruction of popular sovereignty as proper grounds for authoritative border enforcement, discursive hegemonies can be unsettled and dismantled, and so can dominant constructions of what popular sovereignty ought to contain and entail. An appropriate conception of popular sovereignty will continue to represent the foundation of democracy as self-governance while allowing for border governance that accords with the RRI. Therefore, an appropriate conception of popular sovereignty must ultimately be reconcilable with effectively porous borders: borders whose respect for migrants’ basic human rights is institutionally prioritized, and which can thus only be enforced to certain extents and under appropriate institutional regimes. Such border governance will resolve any arising tensions between control over migrants’ mobility and respect for their basic human rights in the latter’s favor, thereby displaying the institutional capability to dispense with border enforcement altogether when the circumstances do not allow guarantees that enforcement can be reconciled with basic human rights respect.

If dissolution of the sovereignty nexus is required and popular sovereignty must be reconcilable with porous borders, what do suitable conceptions of popular sovereignty look like more specifically? They must (a) shed the idea that popular sovereignty entails the current populace’s absolute control over its self-constitution and (b) marshal a regulatory ideal of governance that decenters authoritative border enforcement in favor of more dynamic and reflexive conceptions of the self.

Democratic theory has produced and developed various proposals specifying the precise contents, purposes, and merits of popular sovereignty so conceived. For instance, Ochoa Espejo (Reference Ochoa Espejo2011, 137) argues for a processual conception of the people, where popular sovereignty consists in the self-governance of all individuals partaking in a people defined as “an unfolding series of events coordinated by the practices of constituting, governing, and changing a set of institutions [that] are the highest authority for all those individuals intensely affected by these events and these institutions.” This framework’s conception of a people as a process rather than a set of individuals attempts to reconceive of popular sovereignty as an ideal coherently pursuable in realities in which the relevant in-group’s composition is in constant change (Ochoa Espejo Reference Ochoa Espejo2011, 13). Thus, popular sovereignty is liberated from the practice whereby any change in the in-group’s composition needs to be legitimated by the “current” set of in-group members. Instead, whoever is “intensively affected” by the ongoing processes constituting a people participates in peoplehood; this lifts the conceptual need for drawing hard boundaries that “exclude immigrants, ethnicities, classes, or future generations” (Ochoa Espejo Reference Ochoa Espejo2011, 159, 194). Similar resources can be drawn from deliberative models of democratic legitimacy, such as Benhabib’s (Reference Benhabib2004, chap. 5; Reference Benhabib2011, chap. 8) conception of popular sovereignty as the reflexive self-rule of a demos in accordance with its duties of justification. While demoi remain principally bound on this model, their authority over outsiders is legitimate only insofar as they are capable of continually justifying their coercion to all those subjected to it in a series of transnational “democratic iterations.” These iterations constitute processes of democratic deliberation that negotiate when and how particularist objectives of specific demoi can be legitimated in view of their more universal duties of justification. On this view, it is not that a people’s exercise of popular sovereignty should be constrained by ongoing duties of justification to insiders and outsiders alike. Instead, the very idea of the demos is taken to describe a model of self-rule that understands the ongoing and potentially unbounded practice of legitimation-as-justification of coercive force as an integral part of its normative raison d'être. In this sense, the rule to use only such coercive force that can be legitimated in a constant deliberative process directed at justification is simply a constitutive part of popular sovereignty properly conceived.

The point of mentioning these two approaches to reconceiving popular sovereignty is not to prescribe either one of them as precisely the right solution for our sovereignty issues. These theories are considerably complex and deserve a longer examination of their relative merits and drawbacks. Rather, the purpose here is simply to point out that there are existing ways of thinking about popular sovereignty that dispense with the idea that a current sovereign—conceived of as a fixed group of people—must have the capability to authoritatively determine its future composition in order to properly govern itself, even while hanging on to the idea that demoi can or should have jurisdictional boundaries. In Ochoa Espejo’s (Reference Ochoa Espejo2011) account, this need is voided by the ontological move to conceive of the people as a series of events connected by their relevance to authoritative institutions. This move abandons the thought of a sovereign set of individuals in favor of a dynamic notion of a set of particular institutionally mediated relations. The idea of authoritative borders for migrants is thereby stripped of its salience while the individuation of peoples with less rigidly demarcated boundaries is still allowed for. In Benhabib’s deliberative account, too, boundaries remain jurisdictionally important, but the legitimacy of exclusionary acts becomes dependent on honoring the outcomes of the deliberative processes of democratic iterations. These iterations, the practice of which is placed at the core of popular sovereignty, target the justification of coercive force to those subjected and can thus be expected to produce legitimation only for such bordering structures that can meet stringent standards, including the RRI. By making the deliberative processes of democratic iterations fundamental to popular sovereignty, Benhabib develops a conception that incorporates migrants’ concerns from the start, thus displacing the irreflexive prioritization of authoritative control over self-composition as a task central to the facilitation of popular sovereignty.

The insight that sovereignty nexuses widely structure border regimes in our current world complements these accounts. It provides a crucial specification of the entrenched structures that stand in the way of the realization of their democratic prescriptions. In Benhabib’s work especially, establishing democratic iterations as a suitable procedure for the proper consideration of outsiders’ rights claims has, at times, been understood as a process well on its way, and apparent in the development of liberal democracies (cf. Benhabib Reference Benhabib2004, chap. 5). Yet, more recently, Benhabib has lamented that such a process seems to be moving out of reach in a world still marked by the power of sovereigntist prerogatives (Benhabib Reference Benhabib2020). The present account helps us understand the prematurity of the first position and underwrites the latter with an explanation of what stands in the way of a comprehensive reimagining “of sovereign jurisdiction and renewed respect for human lives and rights” (Benhabib Reference Benhabib2020, 96). It is necessary to understand the workings of the sovereignty nexus to begin forming a fuller picture of why the realization of radically rethought conceptions of popular sovereignty is currently out of reach and to have a solid theoretical foundation for beginning our endeavors of attaining them.

Understanding the necessity and possibility of developing and establishing such novel understandings of popular sovereignty also unearths significant complexities that both reformists and abolitionists about border enforcement have failed to sufficiently consider. In the absence of further damning evidence, reformists are right to presume that there could be institutions of border control systematically respectful of migrants’ basic human rights but wrong to believe that this can be achieved by efforts to implement more favorable policies, design constitutions with strong individual rights safeguards, extend the reach of transnational court systems, or even push borders more outward. Attempts at constraining border enforcement by enacting exogenous policies and institutional structures to try to contain the sway dominant popular sovereignty conceptions hold on border regimes are insufficient. Instead, endogenous change in our conceptions of what it means to self-govern is needed; a change that would, presumably, also require a radical reorientation of our basic institutions of self-governance. Because of the highly aspirational character of such prescriptions, abolitionists rightly observe that optimism about systematically ending illegitimate border violence seems wildly misplaced. But they overlook that where the locus of concern is on the principled suitability of institutions to robustly respect the basic human rights of migrants, the obstacle is not border enforcement as such but rather the displaceable underlying dynamics that have come to shape its realities.