Maritime Legal Black Holes:
Migration as Extra-legality
Itamar Mann
Draft, December 2016
Abstract. This essay proposes that the sub-discipline of "global migration law" should be dedicated to the
study of how international law allows for the emergence of a population of migrants who are both defacto and de-jure rightless. Taking as its case study the phenomenon of migrants drowning in the
Mediterranean sea en masse, it traces the relationships between international human rights law, the law
of the sea, and refugee law, to show how some migrants are effectively located in a maritime "legal black
hole." It then proceeds to discuss this legal black hole in the context of an earlier theoretical debate
about the "legal black hole" at Guantánamo Bay. In contemporary conditions, it is argued, the maritime
space of extra-legality generates rightless populations neither as a result of sovereign prerogative, nor by
intentional legal design. The deaths of migrants at sea should be understood as a byproduct of the very
structure of international law. Such an understanding is a necessary first step towards addressing the
ongoing macabre spectacle at sea.
The position of such individuals destitute of nationality may be compared to vessels on the
Open Sea not sailing under any flag of a state, which likewise do not enjoy any protection
whatever.
Lassa Oppenheim, 1905
1 Introduction
Let us start with a linguistic intuition: in the context of the so-called “global migration crisis,”
the word “migrant” has come to label someone who is not a tourist, not an immigrant, not
the holder of a temporary work visa, and not a refugee. In a particular political imagination
expressed in European and other popular media sources, a migrant is a foreign citizen who
doesn’t fit into any established legal category, or who has, somehow, fallen out of them all.
1
Nevertheless, a migrant is someone who is present in the “developed” world or who is en
route to establish such presence. While traditionally migration has referred to movement
across borders writ large, the word has come to be associated with a more particular
phenomenon: the migrant is the contemporary Anglophone version of the sans papiers or
the clandestino of previous decades. Since the conclusion of the 1961 Convention on the
Reduction of Statelessness, statelessness has come to be associated with a particular legal
status.1 The “migrant,” on the other hand, is stuck in the position Hannah Arendt described
as a more radical kind of “statelessness”: that of being altogether outside the law.2 To be
sure, the label of migrant is still also used in the traditional way. But as long as you
recognize from the political environment surrounding you the charge that some migrants
lack any legal status, the following inquiry can be launched.3
Recently, a group of international legal scholars and several social scientists came together
to address the question: what is global migration law?4 The effort, quite simply, was to
delineate the contours of a new sub-discipline in international law. This essay aims to
respond to the meeting’s provocation with an answer. My answer constitutes an
interdisciplinary research agenda for the field, focusing on the above linguistic intuition, and
therefore on global migration law as a study of “extra-legality.”5 The high number of
migrants continuously drowning in the Mediterranean Sea generates an urgency for new
1
Convention on the Reduction of Statelessness (1961).
2
H. Arendt, The Origins of Totalitarianism (Houghton Mifflin Harcourt, 1973).
3
Responding to a context in the legal status of some people is questioned, advocates have asserted the
opposite statement: the rallying-cry “no one is illegal!” should be taken quite literally. See e.g. Maurice
Stierl, “‘No One Is Illegal!’ Resistance and the Politics of Discomfort,” 9(3) Globalizations (2012).
4
The meeting was funded by the Rockefeller Foundation and included: Karen Knop, Vincent Chetail,
Audrey Macklin, Alexander Aleinikoff, Janie Chuag, Jacqueline Bhabha, Tendayi Achiume, Siobhan
Mullally, Ibrihim Awad, Frédéric Mégret, Martin Ruhs, Cathryn Costello, Pablo Ceriani, Ralph Wilde,
Loren Landau, and myself.
5
See discussion in F. Johns, Non-Legality in International Law: Unruly Law (Cambridge University Press,
2013).
2
thinking about their plight.6 There is a considerable need for thinking about migration, and
maritime migration in particular, not only as a humanitarian issue, but also as raising
fundamental questions of international legal theory.7
What all this means will hopefully become clear as the argument unfolds. For now, please
note that if we follow the above colloquial sense of the word “migrant,” putting forth a
definition for “global migration law” is a rather paradoxical task: it is proposing a law for
those who are outside of all law.8 What are the merits of such a project? The research
agenda proposed below explores how the very basic infrastructure of international law
creates a space in which people are both de-facto and de-jure rightless.9
The argument is made roughly in three steps. First, I will explain this position of extralegality and demonstrate that it is legally constructed. Second, I will argue that
understanding precisely how the migrant’s extra-legal position is legally constructed should
6
In his introduction to a collection of essays that very much foresaw this possibility, Gregor Noll writes
poignantly: “Faced with the predicament of undocumented migrants, legal scholarship cannot maintain its
calm and carry on.” G. Noll, ‘Introduction - The Laws of Undocumented Migration,’ 12 (2) European
Journal of Migration and Law (2010), at 144. As of 15 November, 2016, the International Organization for
Migration (IOM) reported that during 2016 341,055 migrants reached Europe by sea, and 4,271 drowned
on the way.
7
On migration generally see e.g., J. Ramji-Nogales, ‘Undocumented Migrants and the Failures of
Universal Individualism,’ 47 Vanderbilt Journal of Transnational Law (2014): 699–764; J. Ramji-Nogales,
‘Migration Emergencies,’ SSRN Scholarly Paper (Rochester, NY: Social Science Research Network,
November 14, 2016), https://papers.ssrn.com/abstract=2869230. C. Thomas, ‘What Does the Emerging
International Law of Migration Mean for Sovereignty,’ 14 Melbourne Journal of International Law
(2013): 392–450; F. Megret, ‘L’Etatisme Specifique Du Droit International,’ 24 Revue Quebecoise de
Droit International (2012 2011): 122-123. Noll (2010); G. Noll, ‘Why Human Rights Fail to Protect
Undocumented Migrants,’ 12 European Journal of Migration and Law (2010): 241-172. On maritime
migration see: Violeta Moreno-Lax and Efthymios Papastavridis, “Boat Refugees” and Migrants at Sea: A
Comprehensive Approach: Integrating Maritime Security with Human Rights (Brill, 2016). Itamar Mann,
Humanity at Sea: Maritime Migration and the Foundations of International Law (Cambridge University
Press, 2016)
8
This paradoxical exercise has often times been associated with the law of piracy. See e.g., D. HellerRoazen, The Enemy of All: Piracy and the Law of Nations (New York : Cambridge, Mass: Zone Books,
2009).
9
On “rightlessness” and migration see: A. Gündogdu, Rightlessness in an Age of Rights: Hannah Arendt
and the Contemporary Struggles of Migrants, 1 edition (Oxford ; New York: Oxford University Press,
2015); and review by Dana Schmalz, ‘Rightlessness in an Age of Rights. Hannah Arendt and the
Contemporary Struggles of Migrants,’ 13 (2) International Journal of Constitutional Law (2015): 551–53.
3
be a central task for the sub-discipline of global migration law; it may have a considerable
normative payoff in understanding which bodies of law can be reformed in order to better
protect humans from conditions of extra-legality. Third, I will contextualize the
contemporary plight of migrants within a larger scholarly attempt to understand the way
international law generates seemingly lawless spaces and rightless persons:10 the problem
of the “legal black hole.”11
Part 2 introduces the study of global migration law as that of rightless travelers. Part 3
offers a certain objection, according to which all humans by definition have a legal status.
Part 4 illustrates the extra-legal position of migrants travelling and often drowning in the
Mediterranean Sea. Part 5 explains the intended task of global migration law. Part 6
describes how global migration law can contribute to the understanding of political
authority on land and at sea. Part 7 introduces this essay’s contribution to the study of
extra-legal spaces in international law, particularly engaging the groundbreaking work of
international legal theorist Fleur Johns. Part 8 briefly concludes by clarifying the central role
the study of migration can take in the critique of international law more generally.
2 Who is a “Migrant”?
The label “global migration law” refers not only to law (positive, “emerging,” or
aspirational). It refers also to a class of people: “migrants.” To answer the question what is
global migration law, one might first consider: who is a migrant?
One answer is that “we are all becoming migrants.” As Thomas Nail explains in a recent
book, “People today relocate to greater distances more frequently than ever before in
10
Noll, “Why Human Rights Fail to Protect Undocumented Migrants” (2010).
11
For an elucidation of the problem see R. Wilde, ‘Legal Black Hole - Extraterritorial State Action and
International Treaty Law on Civil and Political Rights,’ 26 Michigan Journal of International Law (2004):
739–806.
4
human history.”12 More modestly, lawyers might choose to grant particular attention to
distinct legal categories: tourists, who are travelling temporarily to a country that is not
their country of citizenship; immigrants, who are in the process of relocating from one
country to another; workers who hold temporary or renewable work visas; and refugees
and asylum seekers -- who may suffer from a “well-founded fear or persecution” -- and who
are protected from deportation by the norm of non-refoulement.13
Correspondingly, one approach to the question “what is global migration law” is integrative.
Such an approach attempts to bring together the law concerning all or some of the groups
mentioned above under one coherent legal umbrella (whatever that may mean).14 As Peter
Spiro and Jaya Ramji-Nogales have put it, the point of such an approach is “to break out of
subject-matter silos” in order to develop “an integrated conceptualization of global
migration law.”15
But what, if any, is the law pertaining particularly to the migrants who figure at the heart of
the popular political imagination as rightless? What is the law that governs those we call
“migrants” precisely because they are not immigrants, tourists, foreign workers, or
refugees? Focusing specifically on the conundrums raised by these more “extreme” cases is
informative for two reasons. First, it may help in understanding the seemingly more
mundane vulnerability that is intimately tied up with cross-border mobility. Second, it may
shed light on the international legal structures that produce categories of people that are
not protected by law.
12
T. Nail, The Figure of the Migrant (Stanford University Press, 2015), 1.
13
The norm of non-refoulement dictates that people should not be deported to where they may suffer
persecution or grave human rights violations. It is grounded in treaty, and many believe that it also reflects
customary international law.
14
See e.g., Vincent Chetail, ‘Sources of International Migration Law,’ SSRN Scholarly Paper (Rochester,
NY: Social Science Research Network, November 13, 2012), https://papers.ssrn.com/abstract=2174892.
15
Note of preparation to the Rockefeller Foundation workgroup on global migration law, on file with the
author.
5
The label “migrant” has now come to signal a precarious state, the legality of which is
questionable or yet to be determined.16 The popular imagination of rightless persons, I will
argue, is not merely the consequence of economic anxieties or xenophobic outlooks
(though those are surely at work). It is also made possible because the very structure of
international law makes it possible for certain people to become rightless.17
In a certain genre of contemporary discourse, the word migrant often refers to those
crossing international borders from developing to developed countries in a non-authorized
or “irregular” manner.18 Combinations of conflict, material dearth, and dreams of a better
future often propel these people’s travels. They may not ultimately turn out to have legally
valid protection claims. They may not intend to formally apply for legal protection at all.
One way or the other, as long as they are called “migrants,” the implication seems to be
that no such claims have, as of yet, been solidly established.19 They would otherwise be
called “asylum seekers” or “refugees” -- labels the very use of which implies an ethical
commitment, and legal duties.20 Unlike migrants, refugees signal a potential opening of the
social contract to new members.21
16
To be sure, this implication is nowhere to be found in the word’s definition, e.g., in the Oxford English
Dictionary. Rather than the dictionary, you will find this intuition put to use in widely distributed
newspapers and tabloids such as the U.K.’s Daily Mail (which has often taken a particularly incendiary
tone). See e.g. Darren Boyle, “Calais Aid Workers Are Regularly Having SEX with Jungle Migrants,” Mail
Online, September 22, 2016, http://www.dailymail.co.uk/~/article-3802351/index.html.
17
Noll, ‘Why Human Rights Fail to Protect Undocumented Migrants,’ (2010). at 242.
18
Alexander Betts has called this “survival migration.” A. Betts, Survival Migration: Failed Governance
and the Crisis of Displacement (Ithaca, NY: Cornell University Press, 2013).
19
Many European countries now have large populations of rejected asylum seekers, Germany leading
among them with about half a million. They too are not called “immigrants” or “refugees” but are more
often labeled “migrants.”
20
It is often said that the refugee status is “declaratory” and not “constitutive,” i.e., that a refugee is a
refugee whether they are legally recognized as such or not. While this is true, it does not make a difference
for the argument above. A refugee status without any recognition grants no rights in the sense of imposing
no duties on authorities who must enforce it. James Crawford and Patricia Hyndman, “Three Heresies in
the Application of the Refugee Convention,” 1(2) International Journal of Refugee Law (1989), at 158.
21
The three “durable solutions” for refugees envisioned by the post-WWII refugee regime are safe return,
resettlement, or naturalization. While only the latter involves an opening of the social contract of the host
state, all three entail the reintegration of the refugee in a social contract, i.e., reestablishing the protections
of citizenship. For an explanation of this structure and an early critique, see T. Alexander Aleinikoff,
6
It is unclear what rights a migrant has, or what duties a state that is hosting migrants has
toward them. States that aim to close their doors to refugees make concerted efforts to
label them as “merely” migrants (rather than refugees). On the other hand, the more radical
advocates for the protection of these mobile populations entering from the “developing”
world also use the term migrants: the idea is that their solidarity extends beyond victims of
persecution, and therefore beyond the bounds of extant law.22 The refugee definition, in
this view, illegitimately excludes many categories of people in need of international
protection such as e.g. those fleeing abject poverty, civil war, or the results of climate
change. If we are to put together a definition of global migration law, it should reflect the
precariousness of the migrant that both these camps recognize, each from its own ethical
and political perspectives.
This essay seeks to employ an approach to the definition of global migration law, which is
clearly distinguished from the integrative approach referred to above. Such an approach
attempts to answer the question: what law, domestic and/or international, generates
growing populations of rightless travelers, who may enjoy no legal protection whatsoever?
3 The Rights of All Humans
Before answering this question, it might be better to address a preliminary objection. Is the
legal status of migrants really as insecure as the above interpretation of the word’s
colloquial use might suggest? Surely there is a "floor" beneath which the migrant’s legal
status cannot drop: that is the legal status of a human.23 Under International Human Rights
Law (IHRL) it would seem that every person has certain legal protections. One commentator
“State-Centered Refugee Law: From Resettlement to Containment,” 14 Michigan Journal of International
Law (1992): 120–38.
22
See e.g., Stierl (2012).
23
See generally, C. Costello, The Human Rights of Migrants and Refugees in European Law (Oxford
University Press, 2015).
7
has put this contention forth quite straightforwardly: “no human being is without protection
under international law… in every circumstance, every human being has some forms of
protection under human rights law.”24 Some basic protections do not even depend on state
consent: part of IHRL is treaty law, but another part of it is a kind of natural law for our
time:25 jus cogens is universally binding upon states even without their consent (and some
have strongly asserted that the norm of non-refoulement enjoys the status of jus cogens).
To put it very simply, if (a) every migrant is a human, and (b) every human has some basic
rights, than (c) every migrant has some basic rights.26 The objection, in other words, is that if
“global migration law” refers to the law of those who are protected by no law, then there is
no such thing at all. When a migrant enjoys no other legal status, he or she surely still enjoys
the status of a member in humanity.
The human rights framework aims to ensure the legal protection of all of us primarily
through the structure of citizenship.27 The idea goes back to the social contract tradition,
according to which states are granted a monopoly on the use of violence in return for
providing their citizens some basic protections.28 If the face of the earth was crisscrossed
and divided (without remainder) into sovereign entities based on separate social contracts,
all persons would have de-jure protections within their respective countries. Importantly,
24
Jordan J. Paust, ‘Post-9/11 Overreaction and Fallacies Regarding War and Defense, Guantanamo, the
Status of Persons, Treatment, Judicial Review of Detention, and Due Process in Miltitary Commissions The
Changing Laws of War: Do We Need a New Legal Regime after September 11,’ 79 Notre Dame Law
Review (2003), at 1351.
25
Andrea Bianchi, ‘Human Rights and the Magic of Jus Cogens,’ 19(3) European Journal of International
Law (2008), at 492 (noting that “René-Jean Dupuy, at the time a member of the Holy See’s delegation to
the Vienna Conference, accurately noted that the inclusion of Article 53 in the VCLT sanctioned the
‘positivization’ of natural law.”); International legal positivists have strongly attempted to avoid this
conclusion, see e.g. Georg Schwarzenberger, ‘International Jus Cogens,’ 43 Texas Law Review (1964):
455–78.
26
Following the jurisprudence of former President of the Israeli Supreme Court Aharon Barak, Owen Fiss
put forth the same assertion in spatial terms: “law is everywhere.” Owen Fiss, ‘Law Is Everywhere
Tribute,’ 117 Yale Law Journal (2007): 257–79.
27
See generally A. Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law,
(Oxford University Press, 2012).
28
David Singh Grewal, ‘The Domestic Analogy Revisited: Hobbes on International Order,’ 125 Yale Law
Journal (2015): 618–81.
8
this would still not mean that all persons would in fact be able to enforce such protections
de-facto. But an identifiable state entity would at least bear the duty corresponding to the
rights of every person (whether realized or not).29 IHRL assumes that when in violation, such
a state entity can be held accountable -- somehow -- before the international community.
This de-jure protection is precisely what I believe is missing for the paradigmatic migrant. A
“migrant,” according to the definition proposed above, is not situated in a position of having
rights that correspond state duties (whether enforced or not). The migrant has no rights,
because no state has the duty to enforce their most basic protections as a human.
Of course, IHRL goes an additional step beyond this tradition of protections for citizens
under the social contract. States that have acceded to and ratified IHRL treaties are also
required to protect non-citizens, when the latter are within their jurisdiction.30 First, this
means that when non-citizens are within a state’s territory they too enjoy the protections of
human rights. The territorial state then bears the corresponding duty. Furthermore, there is
a wide international agreement that human rights jurisdiction is not simply territorial. Aside
from territorial jurisdiction, the state is held responsible for anyone within its control.31
Once again, the upshot is clear: the status of the migrant, now so often derided as an
unwanted presence in European capitals, cannot be reduced below that of the human.
One of the most important and far-reaching interpretations of this ex-territorial duty is the
case of Hirsi Jamaa and others v. Italy (which I return to below).32 In this case, the European
Court of Human Rights asserted a duty of non-refoulement towards migrants that Italian
29
The requirement for such correspondence has been developed in the classical work of Wesley Newcomb
Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,’ 23 Yale Law Journal
(1913): 16–59.
30
See e.g. Article 2(1) of the ICCPR: “Each State Party to the present Covenant undertakes to respect and
to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the
present Covenant...”
31
See e.g., M. Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and
Policy (Oxford: OUP, 2011). For a discussion of this proposition in the context of the debate about a “legal
black hole,” see: Wilde (2004).
32
Hirsi Jamaa and Others v Italy [GC], Application No. 27765/09
9
agents intercepted at sea. This particularly expansive interpretation of extraterritorial
human rights jurisdiction is only binding upon members of the Council of Europe. Yet,
without getting into the weeds of what constitutes such control, it seems fair to say at the
very least the following: according to the widely-accepted view, extraterritorial human
rights duties accrue to whoever is within a state’s control, within its territory or outside of
it.33 Once again, the puzzle connecting each person’s rights to some state’s duties is
complete. It promises universal coverage, including for migrants. The conclusion: none of
the world’s travelers are, in fact, rightless.
4 Maritime Legal Black Holes
Yet, things may not be that simple. The recent events of the so-called “migration crisis”
suggest that some migrants are not protected by IHRL. These are migrants who are beyond
every state’s jurisdiction; migrants who are moving in a space in which their de-jure rights
do not correspond to any state’s de-jure duty. Consider migrants travelling on the high seas.
To illustrate, a small fragment of the Mediterranean Sea’s recent and dreadful history may
be helpful. Rather than a comprehensive account of the carnage at sea, what follows is an
example.34
33
Few countries, notably the United States, are not part of this consensus. The United States’ position
during George W. Bush’s administration is still upheld. See: Bureau of Public Affairs Department Of State.
The Office of Electronic Information, “Opening Statement by Matthew Waxman on the Report Concerning
the International Covenant on Civil and Political Rights (ICCPR),” accessed December 11, 2016,
https://2001-2009.state.gov/g/drl/rls/70392.htm.
34
Earlier examples are effectively analyzed in a short post: Efthymios Papastavridis, “‘Rescuing “Boat
People” in the Mediterranean Sea: The Responsibility of States under the Law of the Sea’.,” EJIL: Talk!,
May 31, 2011, http://www.ejiltalk.org/rescuing-boat-people-in-the-mediterranean-sea-the-responsibility-ofstates-under-the-law-of-the-sea/.
10
When Libya collapsed back in 2011, after a western coalition intervened, its Search and
Rescue (SAR) zone became ungoverned.35 No other state took on Libya’s responsibilities in
its SAR zone. Moreover, the private duties of individual seafarers failed to provide safety for
the many migrants that Libya’s fall triggered. The result was an uptick in the rate of
drownings in the Mediterranean space between Italy and Libya. We now know that this was
merely a harbinger of the macabre spectacle that was yet to come. The particular way in
which the European and international response unfolded is nevertheless instructive.36
Responding to this condition, starting from October 2013, the Italian government launched
Mare Nostrum. This unprecedented rescue operation beyond Italy’s SAR zone was
mandated to save migrant lives beyond Italy’s territorial waters. But Mare Nostrum
provided no easy solution. Whether “pushed” to sea by the increasingly violent conditions
in Libya, or “pulled” by the hope of being saved, the operation saw a continued swell in
migrant departures -- and continued deaths at sea. A narrative emerged among some
European policymakers that the rescue operation reflected a danger for the migrants. By
creating incentives for embarkation, it encouraged people to travel to their own deaths.
This reasoning solidified into a change in policy when Mare Nostrum was terminated, and
on 1 November, 2014 the more limited Operation Triton replaced it. Unlike Mare Nostrum,
which was steered by the Italians, Triton was facilitated by the European Union’s border
enforcement agency, Frontex. Now Italy was defined as a “host state” for the operation,
which means that Italy retains legal responsibility for an operation in which border guards
from multiple European Member States participate. Unlike Mare Nostrum, Triton did not
ordinarily patrol waters beyond Italy’s SAR zone. Any rescue operation beyond Italy’s SAR
35
The Search and Rescue Convention (1979), provides the most comprehensive legal framework for this.
According to its paragraph 2.1.1.: 2.1.1 Parties shall, as they are able to do so individually or in cooperation
with other States and, as appropriate, with the Organization, participate in the development of search and
rescue services to ensure that assistance is rendered to any person in distress at sea.”
36
For an account of governance at the Mediterranean in this period centerd on the role of NATO, see Anne
Orford, Queen Mary University of London School of Law, CLSGC Annual Lecture 2016 - “Mare Nostrum:
International Law, Spatial Order, and the Mediterranean,” 2016,
https://www.youtube.com/watch?v=rzgjWNQmlpU.
11
zone would have to be individually approved. Thus, the mandate of Triton was “to control
irregular migration flows towards the territory of the European Union and to tackle border
crime.”37 This mandate did not include saving lives at sea as an operational goal.
The most chilling aspect of the decision-making process that led to this reduced mandate is
pertinent: high-ranking Frontex officials knew well in advance that numerous deaths were
imminent without the safety blanket of Mare Nostrum. They informed actors within the
European Commission of this likely result, yet the warning wasn’t heeded. Indeed, the
realization of the likely consequences quickly became public. A day before Triton began The
Guardian noted “expert” warnings that the end of Mare Nostrum “put thousands at risk.”38
In an impressive report titled Death by Rescue, Charles Heller and Lorenzo Pezzani
documented the events that followed.39 As one graph in this report shows, the rate of
migrant deaths increased immediately when Mare Nostrum ended. But the most dramatic
part of the report addresses the so-called “black week” in April 2015: more than 1,200
adults and children drowned in the maritime space between Libya and Sicily. With no
systematic high-seas rescue mission in place, and indeed no such activity in Libya’s SAR
zone, the Italian authorities relied upon private seafarers. These were untrained and ill
equipped. As the report describes, private vessels initiated rescue operations on the high
seas, but ended up contributing to the loss of life. The Heller and Pezzani report leaves no
doubt that the carnage had to be an utterly foreseeable result for several key figures, chiefly
EU Commissioner Cecilia Malmström.
The important question for my own purpose here is: what law, if any, were these people
protected by? What law, if any, was violated when the decision was made to ignore their
37
Letter by Klaus Rösler, Frontex Director of Operations Division, 25 November 2014 (on file with the
author).
38
Lizzy Davies and Arthur Neslen, “Italy: End of Ongoing Sea Rescue Mission ‘puts Thousands at Risk’
The Guardian,” accessed November 20, 2016, https://www.theguardian.com/world/2014/oct/31/italy-seamission-thousands-risk.
39
Charles Heller and Lorenzo Pezzani, “Death by Rescue,” (2016) accessed October 30, 2016,
https://deathbyrescue.org/report/narrative/.
12
imminent deaths? Continuing Mare Nostrum or initiating a similar high-seas operation with
a mandate to initiate rescue would almost certainly prevent at least some of these deaths.
Yet even with the knowledge that Triton’s limited mandate will spell the death of numerous
innocent people, neither Italy nor the European Union had a positive legal duty to continue
Mare Nostrum.
At the outset, launching Mare Nostrum was not the fulfillment of a legal duty. It was a
discretionary response to the increasing perils that developed in the relevant maritime
space. When Triton began, the dynamic at sea changed. As Death by Rescue explains, at this
stage Italy voluntarily tried to help private actors fulfill their roles as saviors, and indeed
used them as the privatized arms of its own aborted rescue initiative. But the disaster that
unfolded does not point to a human rights violation by any of the European actors involved.
Libya, the state where these people embarked from, had no de-jure duty towards them
once they were on the high seas. (It is hard to tell whether at this post-intervention stage
there was really any de-facto state to speak of).
In other words, international law does not recognize these casualties as bearers of rights.
Surely, one might insist that they will always remain bearers of rights as members of
humanity -- a familiar argument from the history of natural law. But they have no rights
inasmuch as every right is defined by having a corresponding duty.40 Under Article 2 to of
the EU Charter of Fundamental Rights “Everyone has a right to life.” But the urgency of the
Death by Rescue report stems precisely from how it shows that this right can be bifurcated
from a corresponding duty. People are, consequently, knowingly left to die en masse. In
other words, the events that unfolded can be described as a form of killing by omission. 41
40
Hohfeld (1913). See also Arthur L. Corbin, “Rights and Duties,” 33 Yale Law Journal (1923), at 501
(opening his article by saying that the assertion that “all men are created equal and are endowed by their
Creator with certain inalienable rights” may be a good rallying cry, but legally inaccurate.
41
Itamar Mann, “Killing by Omission,” EJIL: Talk!, April 20, 2016, http://www.ejiltalk.org/killing-byomission/.
13
As explained above, human rights duties are broadly understood to include extraterritorial
obligations. More specifically, back in February 2012, the European Court of Human Rights
extended human rights duties to migrants intercepted on the high seas. In Hirsi, the Court
found that by pushing back a migrant vessel that left Libya, Italy had violated its obligations
under the European Convention on Human Rights (ECHR).
The case includes an important discussion of jurisdiction. Only because the migrant boat
had come under the control of Italian agents were duties under the Convention triggered.
This control, the court explains, can be established either de-facto (for example by the
presence of Italian coastguard officials) or de jure (for example by reference to an Italian
flag on the intercepting boat). In any case, for exterritorial jurisdiction to kick in, a point of
contact between a state or its representatives and the individual making a human rights
claim is minimally necessary. Under the law of the sea, if a boat is deemed to be in distress,
contact can trigger a duty of rescue even without previously establishing the control
required for IHRL jurisdiction.42 Saving in turn puts migrants in the control of the saving
state, and thus within its human rights jurisdiction.
Theorizing this point of contact is absolutely crucial to understanding the foundations of
international law more generally. Alongside the social contract as basis for sovereignty, this
human rights encounter is one component in the dual foundation of international law.43 But
one cannot stop there. Scholars simultaneously committed to expounding international law
and to its critique must also think of all the spaces in which no such contact is made. We
must consider the legal and technological apparatuses that make and break opportunities to
initiate such contact and structure the opportunities migrants have to make human rights
42
Under Article 98 of the United Nations Convention of the Law of the Sea (1982), states shall require
masters of ship to render assistance when they are “informed” of a need of such assistance.
43
Mann, Humanity at Sea (2016): 211-226.
14
claims.44 And we must account for how all of these come to be experienced, or are shut
away from experience.
When Hirsi came out, human rights advocates celebrated the judgment as an historic one,
presumably not only because law was applied, but also because of a perceived moral and
political triumph. For the Court to step so boldly beyond territorial jurisdiction was thought
of as a step of advancement towards universal justice. But, crucially, when a court defines
the limits of human rights jurisdiction – even expansive ones such as those articulated in
Hirsi – it may invite states to ignore violence beyond their jurisdiction.45 This, I believe, is
precisely the violence that appeared during the “black week” and numerous other instances
of what should be described as legally sanctioned killing on a massive scale.
5 What is Global Migration Law?
If it is true that the Death by Rescue report reveals no illegal conduct on the part of
European agents who knowingly allowed thousands to drown, then one thing becomes
clear: some people on the face of this planet are “migrants,” in the very specific sense of
being protected by no law whatsoever.46
44
Charles Heller and Lorenzo Pezzani, ‘Traces liquides : enquête sur la mort de migrants dans la zonefrontière maritime de l’Union européenne ,” 30(3) Revue européenne des migrations internationales (2014):
71–107.
45
Itamar Mann, ‘Dialectic of Transnationalism: Unauthorized Migration and Human Rights, 1993-2013,’
54 Harvard International Law Journal (2013): 315–92.
46
For a different view, see: Guy S. Goodwin-Gill, ‘The Mediterranean Papers: Athens, Naples, and
Istanbul,’ 28(2) International Journal of Refugee Law (2016): 276–309; Thomas Spijkerboer, ‘The Human
Cost of Border Control,’ 9 European Journal of Migration and Law (2007): 127-139. Spijkerboer believes
that deaths at sea are directly caused by border control activities, and therefore trigger a legal duty to take
preventive measures. See also : Thomas Spijkerboer, “Are European States Accountable for Border
Deaths?” in S. S. Juss, The Ashgate Research Companion to Migration Law, Theory and Policy
(Routledge, 2016): 61-76.
15
Following the work of international legal theorist Fleur Johns, this lack of protection can be
labeled a position of extra-legality.47 As Johns explains, extra-legality is itself legally
constructed rather than being a “legal black hole” in the sense of being devoid of law. As
now becomes visible, spaces in which humans are located but have no human rights are a
byproduct of the very structure of international law. Part 5 below expands on the latter
point. But before that, I would like to propose a research agenda for the discipline centered
on notions of extra-legality and rightlessness.
One might consider the above a rather special set of circumstances; too particular to
provide an illuminating answer to the more general question what is global migration law.
But the circumstances surrounding Heller and Pezanni’s “black week” are but a small-scale
version of a much larger cataclysmic dynamic at play as I write these words. Suffice it to cite
the New York Times report comparing the rate of migrant deaths in the Mediterranean in
2015 to those in 2016.48 While already in October a similar number of deaths was recorded
(3,740), 2016 saw only half the number of attempts to cross the Mediterranean, compared
to the previous year. In other words, the rate of the deaths has doubled. This suggests the
same underlying concern as the one highlighted following the Death by Rescue report:
thousands could have and can still be saved. Thousands enjoyed no protections that would
legally require them to be saved – a condition that reflects extant law, even under the most
capacious understanding of extra-territorial human rights obligations.
It is now perhaps easier to see this essay’s proposed answer to the question what is global
migration law. Global migration law is a body of law that generates rightless world-travelers.
This law enables and constructs the status of people who are not protected by the
seemingly most universal of legal commitments -- those of IHRL. The study of global
migration law can be (among other agendas), the study of just how extra-legality is
47
Compare: Johns (2013), 69.
48
Nick Cumming-Bruce, “‘The Worst We Have Ever Seen’: Fewer Migrants, More Death,” The New York
Times accessed October 30, 2016, http://www.nytimes.com/2016/10/26/world/europe/migrantsmediterranean-deaths-united-nations.html?smprod=nytcore-ipad&smid=nytcore-ipad-share&_r=0.
16
reproduced and generated, now seemingly enveloping growing populations around the
world.
Global migration law is an important contributor to the ongoing macabre spectacle that is
still unfolding in the Mediterranean Sea. But it is not only operative in this particular
maritime space. It is equally pertinent to any similar space, maritime or terrestrial, in which
jurisdictional and other limitations on IHRL enable systematized unaccountable degradation
to continue. Such instances are characterized by destruction or other extreme
consequences for the lives of individuals. At the same time, they are unique due to the fact
that no binding legal duty can seriously be invoked as a possible avenue for remedy. As a
strategic matter, it is often important to stretch the limits of “seriously,” including by
proposing “off the wall” legal arguments.49 Given the well-known indeterminacy of
international law, why should we not simply reinterpret extant law, so as to furnish new or
“emerging” obligations towards migrants at sea? My own sense is that charting the
structural limitations of ordinary understandings of international law is equally (if not more)
important. It is a preliminary exercise necessary for any serious normative scholarship; at its
best, it helps identifying where lie the more promising opportunities for reform, the legal
levers of global politics.50
So, what is global migration law? Like the “integrative” approach mentioned above – the
one attempting to bring together or “harmonize” all legal instruments concerning crossborder human movement – my proposed approach too engages multiple legal disciplines. It
requires scholars and practitioners to devote attention not only to IHRL, refugee law, and
other subfields of international law. Equally important are other bodies of law, including e.g.
family law and tax law.51 How do they contribute to the construction of migrants who are
49
See reference to “off the wall” interpretation in S. E. Fish, Is There a Text in This Class?: The Authority
of Interpretive Communities (Harvard University Press, 1980), 356. See also: Sanford Levinson, ‘Law as
Literature,’ 60 Texas Law Review (1981), at 384.
50
The reference to “levers” is borrowed from David Kennedy. David Kennedy, A World of Struggle: How
Power, Law, and Expertise Shape Global Political Economy (Princeton University Press, 2016), 5.
51
“Family unification,” “marriages of convenience,” and welfare benefits received by migrants who do not
normally reside in Europe have both become central concerns of European politicians. They have been
advanced by right-wing and conservative actors, and now preoccupy Main Street. See Sasha Polakow-
17
not immigrants, tourists, workers, or refugees? Much work is to be done. By studying the
intricate web that connects between such bodies of law, the global migration law scholar
can locate the holes through which persons fall out of all of them. In 2015-2016, thousands
have fallen through such holes. Their bodies and ships are disintegrating at the bottom of
the Mediterranean Sea. They rest on the seabed alongside the remains left by many other
equally desperate persons who experienced similar deaths long before the so-called “global
migration crisis” began.
The “maritime legal black hole” described above is not the result of a suspension of the law
or its withdrawal at the face of political power. It is, rather, the direct result of a particular
division of labor between IHRL duties and other legal duties stemming from the law of the
sea.52 European Union law, under which Frontex can deploy border guards from multiple
member states while leaving responsibility with the so-called host state, also plays its role.
To use Lauren Benton’s term, it provides opportunities for “jurisdictional jockeying”
separating between enforcement and protection responsibilities.53 An important task global
migration law scholars may pursue is charting the ways in which such jockeying is done in
order to deconstruct regimes of accountability.
In a remarkable development, starting from 9 October, 2015, jus ad bellum joined the
Mediterranean web of legal authorities and jurisdictions. Under UN Security Council
Resolution 2240, European Member States were authorized to use force under Chapter 7 of
the Charter “for a period of one year to inspect vessels on the high seas off the coast of
Suransky, “The Ruthlessly Effective Rebranding of Europe’s New Far Right,” The Guardian, November 1,
2016, sec. World news, https://www.theguardian.com/world/2016/nov/01/the-ruthlessly-effectiverebranding-of-europes-new-far-right. Left-leaning, progressive, and human rights oriented scholars must
also squarely engage with these concerns. For examples of such engagement, see: Mats Tjernberg, ‘The
Economy of Undocumented Migration: Taxation and Access to Welfare,’ 12(2) European Journal of
Migration and Law (2010): 149–71; Costello (2015): 103-168.
52
Compare: Eugene Kontorovich, ‘A Guantanamo on the Sea: The Difficulty of Prosecuting Pirates and
Terrorists Essay,’ 98 California Law Review (2010): 243–76.
53
L. Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400-1900 (Cambridge
University Press, 2002), at 33.
18
Libya that they had reasonable grounds to suspect were being used for migrant smuggling
or human trafficking from that country.”54
The Resolution allowed the Member States to “overcome” an uncomfortable but central
feature of the customary international law of the sea. This is the doctrine of the freedom of
the high seas.55 Save for few exceptions, the law of the sea does not allow a state to inspect
boats not carrying its own flag. But casting the irregular movement of people as a matter
requiring the use of force trumped the general maritime rule. In this context, the task of the
global migration law scholars may be to examine the network of authorities over migrant
bodies. They can then identify how and why international law generates rightless persons.
Understanding the relationship between the law of the use of force, the law of the sea, and
IHRL is merely one example of a potentially larger enterprise. I dare say, this enterprise will
likely only become more important in years to come as more and more refugees and
migrants are driven up against walls and other barriers. In contemporary political
circumstances, such barriers are quickly proliferating.56
6 Maritime and Terrestrial Political Authority
The task of global migration law should not only be interdisciplinary in the sense of crossing
across the disciplines of international law. It must also engage other disciplines, such as
anthropology, sociology, economics, and political science. My own interest, in particular, is
in political theory. Viewed from the perspective of political theory, one might observe that
54
UN Security Council Resolution 2240 S/Res/2240 (2015), available at
http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2240(2015)
55
United Nations Conventions on the Law of the Sea (1982), Article 86. The classical articulation of this
doctrine of is H. Grotius, Mare Liberum (Oxford University Press, American Branch, 1916 [1609]).
56
Moria Paz, ‘Between the Kingdom and the Desert Sun: Human Rights, Immigration, and Border Walls,’
SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, November 17, 2014),
https://papers.ssrn.com/abstract=2526521; Moria Paz, ‘The Law of Walls,’ SSRN Scholarly Paper
(Rochester, NY: Social Science Research Network, February 12, 2016),
https://papers.ssrn.com/abstract=2734315.
19
these maritime legal black holes emanate from international law’s distribution of public and
private duties among its different actors. Any analysis of how a mass of people has become
rightless while travelling at sea would have to engage such legal divisions of labor and
allocations of political authority.57 That too can be the task for global migration law within
the research agenda this essay aims to advance. Let me provide a brief outline of how that
might look.
In common law countries, one of the first things law students learn is that law imposes no
duties of rescue upon individuals qua individuals. The classical jurisprudence on this
includes comically macabre examples. A characteristic hypothetical describes a bystander
witnessing a drowning baby. Law professors often use the initially astonishing absence of a
duty of rescue to illustrate a basic tenet of legal positivism: the distinction between legal
and moral prescription (or “the separation thesis”).58 Of course, there are important
exceptions to the general absence of a duty of rescue. The basic point nevertheless stands:
law does not impose a duty of rescue. Law does not always follow moral prescription.
The absence of a duty of rescue is, famously, not uniform across the comparative law
terrain. In civil law traditions, typically we find criminal provisions penalizing certain failures
to rescue. Upon scratching the surface, however, one quickly discovers that duties of rescue
in civil law countries too are not very robust. Indeed, they are but wrinkles overlaying the
fundamental presumption: individuals are not directly responsible for each other’s security.
As legal theorist Arthur Ripstein has argued, the absence of a duty of rescue is intimately
related to the very basis of sovereignty in western political thought, i.e., to the social
contract tradition.59 By granting the responsibility for security to a public entity, law
somehow “relieves” individuals from direct mutual responsibility, opening a space for
57
See e.g., Tanja E. Aalberts and Thomas Gammeltoft-Hansen, ‘Sovereignty at Sea: the Law and Politics
of Saving Lives in the Mare Liberum,’ 17 Journal of International Relations and Development (2014):
439-468.
58
See e.g. H.L.A. Hart, The Concept of Law (Oxford University Press, 2012), 268.
59
Arthur Ripstein, ‘The Division of Responsibility and the Law of Tort,’ 72 Fordham Law Review (2004
2003): 1811–44.
20
private life. The dominant understanding of IHRL redoubles this structure. It relies on states
as both the enforcers of law and the sources of law. As explained above, states bear the
duties that correspond to the rights of people within their respective jurisdictions.
More rarely acknowledged is the fact that travelers on the earth’s oceans and seas have a
legal responsibility to carry out a duty of rescue. The captain of a ship flying its flag is
required to “render assistance to any person found at sea in danger of being lost” and “to
proceed with all possible speed to the rescue of persons in distress, if informed of their
need of assistance.” 60 This is not exclusively the case in a state’s territorial waters. Here
states too are still required to provide assistance to vessels in distress. It is also not
exclusively true in a state’s SAR zone (which may or may not be different from its territorial
waters). However, the fundamental tenet of law according to which the responsibility for
security is ultimately allocated to public authority doesn’t hold on the high seas. On the high
seas, private vessels are required to respond to each other’s signals of distress.
Stepping out of sovereignty and into the high-seas commons, the construction of relations
between private and public authority transforms.61 Law defines quite differently the ways in
which persons are implicated by each other’s claim upon life. A ship’s flag carries significant
legal consequences, seemingly anchoring the ship back to a terrestrial, state-centered, legal
order: “floating territory.”62 Yet by imposing mutual duties of security upon individuals, law
is radically privatized at sea. While it is illegal for a vessel to travel the seas without a flag,
engaging in such illegality cannot relieve a ship from the obligation to carry out a duty of
rescue.
60
UNCLOS, Art. 98(1) and 1974 International Convention on the Safety of Life af Sea (SOLAS), Chapter
V, Regulations 10(a) and 33. This entails a positive obligation of flag states to adopt domestic legislation
that imposes penalties on shipmasters who ignore or fail to provide assistance (even if at times this
obligation is not implemented).
61
Aalberts and Gammeltoft-Hansen (2014). Heller and Pezzani, traces liquides (2014).
62
See e.g. S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7): “These vessels and their crews
are answerable only to the law of the flag, a situation which is often described by saying, with more or less
accuracy, that these vessels constitute a detached and floating portion of the national territory.”
21
Against the backdrop of this conceptual architecture, the events described in the Death by
Rescue report provide an invaluable case study. They reflect how this modern legal division
of labor is put under pressure in the context of the contemporary crisis. For example, what
happens to the legal ordering of the sea when one sovereign disintegrates? This is of course
precisely what happened to Libya after the Western intervention. With Libya until then a
close partner of Italy’s in border enforcement, the result was that the maritime border was
opened. That desperate populations spilled into the Mediterranean was an entirely
predictable outcome.
If one understands this dynamic, one is also better prepared to make normative proposals
as to how international law must be reformed. Famously, the Libya intervention was the
first time the United Nations Security Council invoked the Responsibility to Protect in a
Resolution authorizing the use of force. One might ask if in such instances there should not
be an auxiliary duty to protect the migrants and refugees that will likely flee after the
intervention. There is a long history of normative proposals along these lines, yet I believe
the study of rightlessness in the Mediterranean helps highlighting their urgency.63 One way
to develop such a duty would is as part of the emerging literature on legal obligations
following war (jus post bellum).64
More importantly for us here, a global migration law analysis engaging with the structure of
IHRL as well as the structure of the law of the sea reveals the political and moral premises
underlying how international law distributes duties of basic protection. It then illustrates
how and why those premises are inappropriate in addressing urgent questions about
human wellbeing and basic security. Concretely, in the context of the case study above, it
may show how surveillance technologies have allowed developed countries like Italy to
transform parts of the high seas into bits of functionally sovereign territory. But because
jurisdiction is still based either on territoriality or on control (such as is the case in Hirsi),
63
E. Tendayi Achiume, ‘Syria, Cost-Sharing, and the Responsibility to Protect Refugees,’ 100 Minnesota
Law Review (2015): 687–762.
64
Gary J. Bass, ‘Jus Post Bellum,’ 32(4) Philosophy & Public Affairs (2004): 384–412.
22
such functional sovereignty may be bifurcated from the legal duties that would otherwise
come with it.
To be sure, none of the above is intended to dismiss the important actions of both state and
private actors currently conducting voluntary rescue activities in the Mediterranean. Search
for them on social media – one relevant example is the Migrant Offshore Aid Statoin
(MOAS) - and you will find an endless outpour of images of people being saved; a much
greater number than those who have drowned.65 It is important however to remember that
these are, essentially, charity activities. They go beyond what is required by law. They do not
embody a duty corresponding to a right. What is it about contemporary conditions in the
world that makes some of the world’s inhabitants believe that the charity they may enjoy at
sea is preferable to de-jure rights they enjoyed where they came from?66 As will be further
discussed below, a right that corresponds to the duty of a government that is unwilling or
unable to perform, may indeed be inferior when compared to the good-will of strangervolunteers.
7 Charting Extra-legality
The metaphor of the maritime legal black hole, invoked above, has a particular legal and
intellectual trajectory which is worth acknowledging here. Examining this history will better
shed light on how international law generates lawless spaces.
The metaphor of a legal black hole had been casually used in the common law, at least since
the 1980s, in reference to instances in which law provided a right without a remedy.67
65
In 2015, the Italian Coastguard’s Maritime Rescue Coordination Centre saved around 150,000 people,
while 3,771 deaths were registered. “How 150,000 People Were Saved in the Mediterranean,” IRIN,
January 7, 2016, http://www.irinnews.org/analysis/2016/01/06/how-150000-people-were-savedmediterranean.
66
Mann (2016), see especially Chapter 6.
67
See e.g. J. Dykes Ltd. v. Littlewoods Mail Order Stores Ltd. 1982 S.C. (H.L.) 157, 166
23
Though the idea has been invoked, at least once, in reference to an immigration law
problem, the phrase otherwise had no particular connection with cross-border movement.68
Only after 9/11 did the metaphor obtain its contemporary salience. Tracing the trajectory of
the metaphor since that moment is tracing the ways in which legal theorists have attempted
to understand extra-legal spaces. The two theoretical positions analyzed below have tried,
each in its own way, to grasp just how law is implicated in the lives of rightless people.
The idea of the legal black hole came to be associated most centrally with exterritorial
detention at Guantánamo Bay. Though these facilities have become an icon of the United
States’ so-called war on terror, the United States has used Guantánamo for interment
purposes long before that. The coup that overthrew Haiti’s first democratically elected
government also triggered an outpour of refugees who attempted to travel by sea to Florida
shores. Pursuant to an Executive Order, the United States began to intercept their boat at
sea and had initially brought them to the facility at Guantánamo. The later employment of
Guantánamo for counter-terrorism purposes therefore has a particular importance for the
law and history of migration.69
An early relevant characterization of Guantánamo Bay as a legal black hole appears in the
language of British court of appeal in the case of Abbasi.70 In late 2002, the court considered
the case of a British citizen detained without a hearing at Guantánamo Bay, and dismissed
it. The judgement included a resounding determination that the United States had violated
Mr. Abbasi’s fundamental rights. But it also found that this violation had no remedy: “For
these reasons we do not find it possible to approach this claim for judicial review other than
on the basis that, in apparent contravention of fundamental principles recognised by both
68
“Cuban Family Can`t Return From Canada U.s. Blocks Re-Entry Of Hialeah Residents,” TribunedigitalSunsentinel, accessed November 15, 2016, http://articles.sun-sentinel.com/1989-0112/news/8901020816_1_immigration-officials-bermaida-fajardo-carlos-fajardo.
69
For a comprehensive study, see Kahn, Jeffrey Sterling. Islands of sovereignty: Haitian migration and the
borders of empire. University of Chicago, Division of the Social Sciences, Department of Anthropology,
2013.
70
‘United Kingdom Supreme Court of Judicature — Court of Appeal: Abbasi V. Secretary of State for
Foreign and Commonwealth Affairs,” 42 (2) International Legal Materials (2003): 358–83 (hereinafter:
Abassi).
24
jurisdictions and by international law, Mr. Abbasi is at present arbitrarily detained in a ‘legal
black hole.’”71 With its reference to a legal black hole, the court is throwing up its hands. It
is ostensibly unable to take action. Extra-legality is imagined here as quite literally outside of
the scope of legal possibilities of intervention.
While the court could not offer defense for Abbasi’s individual rights, Lord Johan Steyn
adopted the court’s nomenclature in a lecture held in November 2003 and hosted by the
British Institute of International and Comparative Law.72 The lecture was simply entitled
Guantánamo: The Legal Black Hole. Like Guantánamo, the lecture too later obtained
something of an iconic status.73 In this lecture, Lord Steyn traced a thread running between
the U.S. Naval base and several other precedents in which the procedural rights of political
detainees had been annulled. It amounted to an abbreviated history of the denial of Habeas
Corpus rights in the Common Law of the 20th century. (And it was completely silent about
Guantánamo’s pre-9/11 history as an internment center for migrants).
The British judge described the black hole as resulting from emergency measures. By their
very nature, such measures pose a threat to the rule of law: “it is a recurring theme in
history that even in times of war, armed conflict, or perceived national danger, even liberal
democracies adopt measures infringing human rights in ways that are wholly
disproportionate to the crisis.”74 The history Steyn recounted included episodes from the
history of the United States (especially World War II) and from the history of the UK
(especially its conflict with the IRA).
71
Abbasi, 374
72
Johan Steyn, ‘Guantanamo Bay: The Legal Black Hole,’ 53(1) The International and Comparative Law
Quarterly (2004): 1–15.
73
See e.g. how Owen Fiss uses it in O. Fiss, A War Like No Other: The Constitution in a Time of Terror,
ed. Trevor Sutton (New York, NY: The New Press, 2015): 14-15.
74
Steyn (2004), 1.
25
In this lecture the trope of the legal black hole plays the role that the “state of exception”
plays in the work of Nazi jurist Carl Schmitt.75 Though Steyn does not invoke Schmitt by
name, the underlying theory is unmistakable. The Schmittian “state of exception” is
declared by the sovereign at the face of a perceived emergency. In such conditions the rule
of law can be suspended and replaced by executive fiat. Politics, as Schmitt famously
explained, is thus revealed as based on an existential distinction between friend and enemy.
And Steyn is far from being alone in returning (albeit implicitly) to Schmitt in the post 9/11
period. Indeed, the study of Schmitt became a preoccupation of sorts in liberal centers of
American academic life, where scholars tried to make sense of what their President, George
W. Bush, was up to.76
Steyn’s lecture advanced a defense of liberal democracy, which must limit and cabin the use
of the exception within constitutional and human rights principles. Multiple other
commentators in legal academe advanced their own versions of a basically similar view.77
For numerous observers in the following years “the legal black hole” became synonymous
with a particular understanding of extra-legality: one embodying the always-lurking danger
of an exception that becomes normalized; the danger that liberal democracy may fail to
limit and reign-in exceptional conditions that violate their own most basic legal principles.
Such a failure, it was thought, led to the human rights violations of the Bush era.
Compared to the use the legal black hole in Abassi, one might observe here a certain
transformation in what this trope meant. For this group of commentators, the legal black
hole was not only about pointing out a right without a remedy (and throwing one’s hands
up). It was also about making a normative and political case for changing the U.S.’s policies
at Guantánamo Bay and ensuring the detainees their procedural rights. In other words,
75
C. Schmitt, The Concept of the Political: Expanded Edition, trans. George Schwab, Enlarged edition
(Chicago: The University of Chicago Press, 2007). Fleur Johns explains this while referring to the closelyrelated positions of Bruce Ackerman in Johns (2013), at 84.
76
See e.g., Paul W. Kahn, Political Theology: Four New Chapters on the Concept of Sovereignty
(Columbia University Press, 2012).
77
See e.g. Bruce Ackerman, ‘The Emergency Constitution,’ 113(5) The Yale Law Journal (2004): 1029–
91.
26
precisely because the possibility of an exceptional encroachment upon rights always existed,
it was the responsibility of the people to strictly draw its limits by exercise of constitutional
democracy. In some iterations of this view, the judicial branch in particular was expected to
play a key role.
In an important 2005 Article, and more recently in a book, Fleur Johns responded to this
body of commentary with an alternative suggestion.78 Rather than an instance of sovereign
political decision beyond law, Johns explained, Guantánamo’s legal black hole was
constructed by law and saturated with law. Far from the Schmittian account of a state of
exception, Guantánamo became possible only due to “the annihilation of the exception.”
Calling attention to the meticulous legal ordering of the detention center, Johns
demonstrated that this environment in fact left no room for political decision. It was not a
space for the boundless freedom associated with the Schmittian sovereign. A more accurate
account of the experience of U.S. personnel at Guantánamo Bay was one of rule-following.
The materials she uses in order provide evidence of this claims is indicative. This is how she
interprets one of its components, a press briefing by U.S. Secretary of the Navy Gordon
England, from 23 June 2004:79
“the experience of decision-making reported by figures such as Secretary England
seems, to a significant degree, to be one of disavowing prerogative power. In
England’s account, it is as though his job were more a matter of implementation
than decision […] it is suggestive of efforts to construct a series of normatively
airtight spaces in which the prospect of agonising over an impossible decision may
delimited and, wherever possible, avoided. As such, the jurisdiction created at
Guantánamo Bay is constituted, in Schmittian terms, in the liberal register of the
norm (indeed, an overdetermined version thereof).” [Emphasis added]
78
Fleur Johns, ‘Guantánamo Bay and the Annihilation of the Exception,’ 16(4) European Journal of
International Law (2005): 613–35.
79
Johns (2013), at 94.
27
These observations lead Johns to the conclusion that “the plight of the Guantánamo Bay
detainees is less an outcome of law’s suspension or evisceration than of elaborate
regulatory efforts by a range of legal authorities.” The detention camps, she says, “are
spaces where law and liberal proceduralism speak and operate in excess.”80 Remember that
for Schmitt the state of exception is a moment of heightened political discretion (which
therefore cannot be realized simply by following legal rules); and remember that the latter
imagination of emergency is also operative in the words of liberals such as Steyn and others.
In the bottom line, the annihilation of political discretion, rather than its totalization with a
sovereign decision, is for Johns what made the defilement of detainees at Guantánamo Bay
possible. This occurs only through a legal re-construction of the personality of agents at
Guantánamo Bay; working in this detention center triggers a transformation of their
personalities which ends up subsuming any sense of subjectivity or autonomy under the
need to implement law and regulation: “the legal regime of Guantánamo Bay is dedicated to
producing experiences of having no option, no doubt and no responsibility.”81 Extra-legality,
for Johns, is the result of a legal environment that relieves individual actors of political
responsibility by legally over-determining personal choice. Against the backdrop of these
two positions on the nature of the “legal black hole,” an interesting question comes up: do
maritime legal black holes fall into either category? Note that like Steyn, Johns too ignores
the pre 9/11 history of Guantánamo as a location for migrant internment.82
80
Johns (2013), at 92.
81
Johns (2013), at 74.
82
This might be due to the fact that globally, migration detention has become a banal fact, and is perceived
as an “increasingly routine, often automatic” result of border control (see Cathryn Costello, ‘Human Rights
and the Elusive Universal Subject: Immigration Detention Under International Human Rights and EU
Law,’ 19(1) Indiana Journal of Global Legal Studies (2012), at 258). That Johns partakes in this general
blindness to migrant internment is particularly remarkable since one interesting entailment of her position
is that rather than understanding Guantánamo as existing outside of normal legality, we must think of it as
entirely continuous with detention writ large. This, she says, demands us to think of Guantánamo in the
context of harsh conditions in high-security prisons within the U.S. and elsewhere. Think of dramatic
revelations about concrete connections between abusive practices implemented in both places. Spencer
Ackerman, “Guantánamo Torturer Led Brutal Chicago Regime of Shackling and Confession,” The
Guardian, February 18, 2015, sec. US news, https://www.theguardian.com/usnews/2015/feb/18/guantanamo-torture-chicago-police-brutality.
28
It is an open question whether the two accounts -- of the sovereign exception (Steyn et al)
and of the annihilation of the exception (Johns) -- are ultimately contradictory. A
coexistence of both is not an option Johns expressly precludes, though she does emphasize
that her contribution is meant is a rebuttal of the account of exception. Clearly, in her mind,
international lawyers have spent far too much time making broad legal arguments
according to which Guantánamo is simply beyond the pale of law. Correspondingly, she
believes they have made far too little attempts to seriously understand the legal minutiae in
the Guantánamo Bay and engage with it as part of a larger vocabulary of incarceration: one
that exists not only at the extra-territorial Cuban territory, but also in the general prison
system.
Yet, the law that Johns focuses on most closely is law generated by the executive branch.
She gives particular attention to the legal construction of Guantánamo Bay prior to the U.S.
Supreme Court rulings of June 2004. These much commented upon rulings triggered a series
of adjustments to detention at Guantánamo, imposing on them certain constitutional law
requirements.83 Thus, it may be possible for a President to realize the vision of a Schmittian
exception, while still imposing tight bureaucratic requirements on individual agents of the
executive branch.84 More specifically, the 2001 Military Order issued by the Department of
Defense, which initiated wartime detention at Guantánamo Bay, corresponds to Steyn’s
concerns. This does not mean that Johns is necessarily wrong in her argument that
personnel at Guantánamo Bay experienced the executive’s law as leaving no room for
individual responsibility. In my own view, the two conceptions of extra-legality may indeed
be flipsides of the same coin.85
83
Johns (2013), at 71.
84
I take it this is a good description of Arendt’s account of Adolf Eichmann’s relationship with the law. See
H. Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, 1 edition (New York, N.Y: Penguin
Classics, 2006).
85
Giorgio Agamben, who Johns argues with in her article, arguably makes a similar point when her argues
that norm and exception have in fact been entirely conflated. See G. Agamben, Homo Sacer: Sovereign
Power and Bare Life, trans. Daniel Heller-Roazen (Stanford, Calif: Stanford University Press, 1998).
29
Note that both accounts of extra-legality rely, either explicitly (Steyn) or implicitly (Johns),
on some notion of sovereign intentionality. For Steyn and the genre of attempts to cabin the
state of exception within the rule of law, the sovereign is imagined -- following Schmitt -- as
a potentially omnipotent subject. Its position of dominance allows it to identify and
manipulate the emergency condition in order to devour the rule of law and crush it under
the force of political decision. The sovereign can potentially control political power and
intentionally determines how to wield it, basically unfettered by the strictures of law. It is
because of these potentially violent “dragon-filled” characteristics of sovereignty that the
rule of law must be so adamant about delimiting the exception.86
Johns’s intervention suggests a rather different kind of intentionality. This is the
intentionality of the multiple operatives that work to support a legal system from behind
the scenes. Imagine that government lawyers in the Executive Branch are doing their work
precisely in order to create opportunities for their clients. Rather than identifying an
existential threat, what this requires is nimble legal design. The detention facility at
Guantánamo Bay is precisely an example of such legal design. It was created, according to
this view, not by “the sovereign” but by a multitude of effective executive branch
bureaucrats. These lawyers are not entirely different from colleagues in the private sector
searching for a safe tax haven. The legal skill of those responsible for the regime in
Guantánamo was deep enough not only to identify the benefit of offshore detention; Johns
tells us they knew how to design the place so as to get rid of any unwanted discretion and
avoid the experience of personal responsibility among personnel. The important point,
however, is the following: whether a legal black hole results from sovereign decision or from
juristic craftsmanship, it is still imagined as the result of an intentional plan.
The maritime legal black holes in which thousands now find their deaths are different in
their nature. Rather than exposing a subject with identifiable intentionality, they are
unintended structural characteristics of an international legal architecture founded upon
sovereignty and human rights. These are foundational principles that we, as actors in the
86
Johns (2013), at 77.
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international legal environment, have not chosen or intentionally willed. They are inherited
to us and based on centuries-long traditions. For example, the duty of rescue at sea, and its
limitation to vessels at the vicinity of a vessel in distress, was likely solidified back in the 17 th
century. As such, the principles constructing the maritime legal black holes I’m interested in
here normally go without saying in the ordinary workings of politics: we do not ordinarily
think about the basic fact that legal arrangements at sea are fundamentally different than
those that exist on land. European Member States and their coastguards debate
energetically what rescue operations in the Mediterranean are appropriate. At the same
time, policies that would go directly against these background principles of international
law seem to be “off the wall” solutions which are therefore also off the table. Imagine for
example a policy proposal offering to expand the territorial waters of states so as to
eliminate any high seas commons.87 Such a proposal simply does not come up. The “safe
passage” proposal coming from a number of migrant rights advocates has also not so-far
been taken seriously, although it can probably reduce deaths at sea to zero. 88 They go
against principles that are held obvious.
Unlike previous conceptions of the so-called legal black hole, a study of the maritime legal
black hole is not a study of nefarious plans. It is a study of the destruction of human life that
happens as a byproduct of the international legal system. In such a legal black hole, killing
does not happen intentionally, but in a state of distraction. Worse yet, it seems to happen
while all actors express their horror but can avoid extending their help.
8 Conclusion
The analysis provided above is but one condensed example of the kind of interdisciplinary
inquiry required for the study of global migration law: the law of the rightless world-traveler
87
Heller and Pezanni, traces liquides (2014).
88
Heller and Pezanni, 2016; see also “EU: Your Fences Kill. Provide Safe and Legal Passage.,” Médecins
Sans Frontières (MSF) International, accessed December 11, 2016, http://www.msf.org/en/article/eu-yourfences-kill-provide-safe-and-legal-passage.
31
who has fallen into a kind of legal black hole. Many legal disciplines I have not been able to
engage with here contribute to the legal construction of the migrant. These include
immigration law, refugee law, trade law, labor law, environmental law (all of which need to
be considered in both domestic and international forms). Chantal Thomas’s work, for
example, suggests that international trade law has a central role in generating travelers with
precarious legal status.89 Even if the latter are not strictly speaking “in a legal black hole”
(they may enjoy the protections of e.g. IHRL), the analysis belongs to the same general
register.
Maritime legal black holes, of course, are not extra-legal if by that we mean that they are
outside the law. As shown above, they are legally-generated spaces, in which a significant
body of law (e.g., maritime law) applies. And they are legal black holes not as part of a plan
to render people rightless, but as result of the structure of international law (which remains
tethered to Westphalian sovereignty).
Maritime legal black holes are extra-legal in the particular sense that migrants who travel in
these waters may find themselves trading a legal right for a request for charity. They
relinquish rights attached to corresponding duties of states that are unwilling or unable to
fulfil those duties in a way perceived as minimally satisfactory by their beneficiaries. What
they get in return is the opportunity to call stronger and richer states for help (while taking
an enormous risk). Of course, on the high seas there is a right to be rescued. But with the
growing sophistication of maritime border enforcement, states can often choose when they
want to bear the burden of duties of rescue, and when not.
Hannah Arendt, in her magnum opus, Origins of Totalitarianism, made an interesting
observation that touches directly upon the notion of extra-legality I aimed to develop
here:90
89
Chantal Thomas, forthcoming.
90
H. Arendt, The Origins of Totalitarianism, 286.
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“The best criterion by which to decide whether someone has been forced outside
the pale of the law is to ask if he would benefit by committing a crime. If a small
burglary is likely to improve his legal position, at least temporarily, one may be sure
he has been deprived of human rights […] The same man who was in jail yesterday
because of his mere presence in the world, who has no rights whatsoever and lived
under the threat of deportation, or who was dispatched without sentence and
without trial to some kind of internment because he had tried to work and make a
living, may become almost a full-fledged citizens because of a little theft.”
Paraphrasing Arendt’s words written about the 20th century interwar period, one might say
that today taking to the sea is the “best criterion by which to decide whether someone has
been forced outside the pale of the law.” While law allows migrants at sea to be de-jure
rightless, the fact that migrants are now populating this space also has something to do with
migrants’ decisions. We live in a universe in which being de-jure rightless is sometimes
preferable to having de-jure rights that have no de-facto enforcement.
In the bottom line, migrants’ decisions are the true measure of extra-legality. They allow us
– far more than Arendt could do in her time – to observe the extent to which populations
have fallen out of the pale of the law on a global scale. By adopting the orientation
suggested above to global migration law, migration can take a central role in the critique of
international law more generally. Obviously, the different legal regime and political
authority that exists at sea would not generate rightless populations, if de-jure rights would
somehow be de-facto enforceable.
Rather than meeting any positive legal standard, the latter question of de-facto
enforcement involves lived realities and distributional consequences. It, quite simply, rests
on a demand that people perceive their de-jure rights as worth having. Global migration has
become a kind of litmus test for the wholesale failure of modern international law.
Addressing maritime legal black holes is addressing human rights violations from the
perspective of those who seek to alleviate the violation of their own human rights, even at
the price of a very possible death.
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