The shifting border: legal cartographies of migration and mobility*
Published: Fall 2021 | By: Ayelet Shachar | Volume 69, No. 32
We typically think of the border as a line on the map. In 1989, with the fall of the Berlin Wall, many predicted that sealed gates would soon become relics of a bygone era. Today, we find a different reality. Instead of disappearing, borders are metamorphosing. The current crisis reveals that governments are relying less on brick and mortar to restrict mobility. One of the most remarkable developments of recent years is that the border itself has become a moving barrier, an unmoored legal construct. The border has broken free of the map; it may extend well beyond the edge of a territory or well into its interior. The unmooring of state power from any fixed geographical marker has created a new paradigm: the shifting border.
The shifting border is not fixed in time and place; it consists of legal portals rather than physical barriers. From the United States conducting “preclearance” immigration regulation beyond the edge of its territory, to Australia “excising” its terrain to avert asylum seekers’ invocation of protection claims, the location of the border has been shifting for decades. Regulation of mobility is severed from arrival at the actual border, it begins “elsewhere” and may continue to apply long after arrival.
These developments bear dramatic implications for the scope of rights and protections that migrants and non-citizens may enjoy. Far from the dream of a borderless world that emerged after the Berlin Wall, today we see not only more borders but also the proliferation of “portable” legal barriers that may appear anywhere but are applied selectively and unevenly.
* This text is reprinted with permission from Ayelet Shachar, The Shifting Border: Legal Cartography of Migration and Mobility (Critical Powers Series, Manchester University Press, 2020). The book in its original format can be found here: https://manchesteruniversitypress.co.uk/9781526145314/the-shifting-border-legal-cartographies-of-migration-and-mobility/
Earlier versions of this work were delivered as endowed lectures or keynote presentations at conferences held in Berlin, Boston, Frankfurt, Hamburg, Cambridge, and New York. I owe a debt of gratitude to the audiences attending these inspiring events and to the organizers who generously invited me to participate in them: Danielle Allen, Seyla Benhabib, Rainer Forst, Ute Frevert, Klaus Günther, Mattias Kumm, Peter Niesen, Vlad Perju, and Joseph Weiler. I would also like to extend my thanks to Arthur Applbaum, Alex Aleinikoff, Chris Armstrong, Irene Bloemraad, Benjamin Boudou, Hauke Brunkhorst, Cathryn Costello, Derek Denman, Richard Fallon, Matthew Gibney, Tom Ginsburg, Alisha Holland, Dan Kanstroom, Cristina Lafont, Katerina Linos, Philip Liste, Hiroshi Motomura, Christoph Möllers, David Owen, Jaya Ramji-Nogales, Sarah Song, Tracy Strong, Leti Volpp, Katie Young, and especially Ran Hirschl, for their insightful comments and suggestions. Abigail Herrington, Thoby King, Karlson Leung, Matthew Milne, Teraleigh Stevenson, Gabe Thompson, and Chantelle van Wilenberg provided outstanding research assistance. All errors are mine.
About the Author
Ayelet Shachar (FRSC) is the R.F. Harney Chair and Director of Ethnic, Immigration and Pluralism Studies at the University of Toronto, where she is Professor of Law, Political Science and Global Affairs. Previously, she was a scientific member of the Max Planck Society—one of the foremost research organizations in the world—and Director at the Max Planck Institute for the Study of Religious and Ethnic Diversity. Shachar has published extensively on citizenship theory, immigration law, cultural diversity and women’s rights, new border regimes and global inequality, as well as the marketization of citizenship. Her research is motivated by the urgent need to develop new legal principles to address some of the most pressing issues of our time: how to live together in diverse societies; how to grant rights to those who lack formal access to membership; and how to tame the ever-expanding reach of borders and migration control in a world of persistent inequality. She is an award-winning author and the recipient of national and international excellence awards in four different countries, most recently, the Gottfried Wilhelm Leibniz Prize—Germany’s most distinguished research award.